Morgal v. Jacobs et al

Filing 185

ORDER denying 184 Motion for Reconsideration.(CKJ, ej)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Allan K. Morgal,
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Plaintiff,
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vs.
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Edward Williams,
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Defendant.
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No. CV 12-280-TUC-CKJ
ORDER

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Pending before the Court is Plaintiff’s Motion for Reconsideration of Court’s

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Order Granting Defendant’s Motion in Limine # 1 to Preclude Plaintiff’s Expert Eldon

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Vail’s Opinions and Report (Doc. 184). A response has not been filed. See LRCiv 7.2(g)

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(no response is to be filed unless ordered by the court).

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The Court has discretion to reconsider and vacate an order. Barber v. Hawaii, 42

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F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396

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(9th Cir. 1992). “The purpose of a motion for reconsideration is to correct manifest errors

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of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779

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F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S. 1171 (1986). However, motions for

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reconsideration are disfavored. See generally Northwest Acceptance Corp. v. Lynnwood

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Equipment, Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

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reconsideration is not to be used to ask a court “to rethink what the court had already

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thought through – rightly or wrongly.” Above the Belt, Inc. v. Mel Bohanan Roofing, Inc.,

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99 F.R.D. 99, 101 (E.D.Va. 1983) (limiting motions for reconsideration to cases where

Indeed, a motion for

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the court has patently misunderstood a party, where the court has made a decision outside

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the adversarial issues presented to the court, where the court has made an error not of

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reasoning but of apprehension, or where there has been a controlling or significant change

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in the law or facts since the submission of the issue to the court); see also United States

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v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998).

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Plaintiff asserts the Court incorrectly equated the two experts’ proposed testimony

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in finding that both should be excluded, does not give due credit to contrary Ninth Circuit

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law, and leaves to chance whether jurors’ “common sense” will be “informed by an

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accurate understanding of the procedures and policies for handcuffing and use of force.”

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Motion (Doc. 184), p. 1. Plaintiff’s expert, Eldon Vail, is offered to provide testimony

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as to the evaluation of the factors to consider where force is excessive, “the relationship

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between the need for force and the amount of force used, the extent of injuries, the threat

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reasonably perceived by responsible officers, attempts to mitigate the amount of force

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used, and whether force was used in a good faith effort to maintain or restore discipline.”

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Response to Motion in Limine (Doc. 162), p. 2. Although Plaintiff asserts such testimony

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does not weigh the credibility (rather, Plaintiff asserts Mr. Vail accepts the facts as

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alleged by Plaintiff for purposes of this opinion) and does not offer an opinion on the

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ultimate issue, it appears that Mr. Vail’s opinions either weigh the credibility of

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Plaintiff’s allegations or, if those allegations are accepted, gives an opinion as to how the

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jury should view those facts. The Court finds that, in this case which does not present

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complex facts, this testimony would improperly invade the role of the jury and would not

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properly assist the jury in assessing the facts.

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Morever, Plaintiff asserts Mr. Vail would also offer opinions about the prisoner

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grievance process. The Court has previously determined that the expert’s opinion for

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offering opinions regarding the Arizona Department of Corrections’ (“ADC”) failure to

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fully investigate the incident should be precluded. Similarly, Mr. Vail’s opinions as to

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the prisoner grievance process is not relevant to a determination of whether Defendant

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in this case applied force in a good-faith effort to maintain or restore discipline or

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whether Defendant maliciously and sadistically applied force for the purpose of causing

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harm.

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The Court finds Plaintiff has not established reconsideration of this issue is

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appropriate. Rather, Plaintiff is requesting this Court to rethink what this Court has

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already thought through.

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Accordingly, IT IS ORDERED Plaintiff’s Motion for Reconsideration of Court’s

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Order Granting Defendant’s Motion in Limine # 1 to Preclude Plaintiff’s Expert Eldon

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Vail’s Opinions and Report (Doc. 184) is DENIED.

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DATED this 5th day of April, 2016.

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