Morris et al v. City of Fresno et al

Filing 306

ORDER DENYING 305 Motion for Reconsideration, Signed by Chief Judge Anthony W. Ishii on 10/30/2012. (Arellano, S.)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT MORRIS,

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Plaintiff,
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v.
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OFFICER CHRISTOPHER LONG,
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Defendant.
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____________________________________)

1:08-cv-01422-AWI-MJS
ORDER DENYING MOTION
FOR RECONSIDERATION
(Doc. 305)

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I. INTRODUCTION
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Plaintiff Robert Morris has filed a motion for reconsideration of the Court’s October 19, 2012 order
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denying his October 3, 2012 motion for production of trial transcripts at government expense. For
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reasons discussed below, the motion for reconsideration shall be denied.
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II. FACTS AND PROCEDURAL BACKGROUND
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The Court refers the parties to previous orders for a complete chronology of the proceedings. On
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January 11, 2012, plaintiff Robert Morris (“Plaintiff”) filed his ninth amended complaint, asserting
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one cause of action against defendant Officer Christopher Long (“Defendant”) for federal civil rights
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violations – in particular, excessive force in violation of the Fourth Amendment right to be free of

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unreasonable searches and seizures – pursuant to 42 U.S.C. § 1983. A jury trial commenced on

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August 21, 2012. On September 5, 2012, the jury returned a verdict of not liable, finding Defendant

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had not used excessive force against Plaintiff in violation of the Fourth Amendment.

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On September 19, 2012, Plaintiff filed an application to proceed in forma pauperis for the

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purpose of appealing the judgment to the U.S. Court of Appeals for the Ninth Circuit. In conjunction

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with that motion, Plaintiff requested he be provided trial transcripts at government expense. Plaintiff

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renewed his request for trial transcripts in a formal motion filed October 3, 2012. On October 19,

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2012, the Court denied Plaintiff’s motion for production of trial transcripts. On October 25, 2012,

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Plaintiff filed his motion for reconsideration of the Court’s October 19, 2012 order.

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III. LEGAL STANDARD

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“Whenever any motion has been granted or denied in whole or in part, and a subsequent motion for

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reconsideration is made upon the same or any alleged different set of facts, counsel shall present to

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the Judge or Magistrate Judge to whom such subsequent motion is made an affidavit or brief, as

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appropriate, setting forth the material facts and circumstances surrounding each motion for which

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reconsideration is sought, including [¶] (1) when and to what Judge or Magistrate Judge the prior

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motion was made; [¶] (2) what ruling, decision, or order was made thereon; [¶] (3) what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion; and [¶] (4) why the facts or circumstances

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were not shown at the time of the prior motion.” Local Rule 230(j). Reconsideration of motions

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may also be granted under the standards applicable to reconsideration of a final judgment under

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Federal Rule of Civil Procedure 59(e). Under Rule 59(e), “[r]econsideration is appropriate if the

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district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial

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decision was manifestly unjust, or (3) if there is an intervening change in controlling law. There may

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also be other, highly unusual, circumstances warranting reconsideration.” School Dist. No. 1J,

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Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted).

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IV. DISCUSSION

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Having reviewed the pleadings of record and all competent and admissible evidence submitted, the

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Court finds Plaintiff has failed to meet the foregoing standard for reconsideration. As the sole basis

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for the motion, Plaintiff contends the Court’s October 19, 2012 order denying his October 3, 2012

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motion for trial transcripts “requires reconsideration because it erroneously concluded that plaintiff

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did not identify the issues he intended to raise on appeal in connection with his request, in order to

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demonstrate that the issues were non-frivolous and substantial. However, . . . , [Plaintiff] identified

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several non-frivolous appeals issues . . . .” These assertions are wrong in two respects.

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The Court did not deny Plaintiff’s motion for trial transcripts because “it . . . concluded that

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plaintiff did not identify the issues he intended to raise on appeal,” as Plaintiff contends. This

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statement is disingenuous and misreads the Court’s October 19, 2012 order. The order stated:

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“[Plaintiff] must identify the issues he intends to raise on appeal and explain why those issues are

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meritorious in order to meet the . . . standard [for production of trial transcripts at government

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expense]. That was not done here.” Morris v. Long, slip copy, 2012 WL 5208503 (E.D.Cal. 2012),

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at *1 (emphasis added). The Court was well aware Plaintiff had identified the issues he intended to

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raise on appeal in his September 19, 2012 application to proceed in forma pauperis. However,

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Plaintiff provided no argument or evidence to explain how those issues could conceivably have any

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merit and were thereby non-frivolous and substantial. See Morris, supra, at *1 (“[F]ees for

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transcripts furnished outside of criminal proceedings or habeas petitions to persons appealing in

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forma pauperis, as here, ‘shall be paid by the United States if the trial judge . . . certifies that the

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appeal is not frivolous (but presents a substantial question)’ ”) (internal citations omitted). In light

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of these omissions, Plaintiff’s contention he “identified several non-frivolous appeals issues”

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presupposes, incorrectly, that simply identifying the issues a litigant intends to raise on appeal

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necessarily means those issues are not frivolous and present a substantial question. Plaintiff has

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provided no authority – and the Court’s research reveals no authority – to support this proposition.

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In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff alleged as his first

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issue on appeal: “1. The trial judge prejudicially erred in refusing to instruct the jury that I had a

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constitutional right to criticize or complain to the police, and that such activity could not justify the

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force used against me. This was my theory of the case and therefore had to be instructed.”

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Problematically for Plaintiff, no argument or evidence was provided in his September 19, 2012

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motion or October 3, 2012 motion for trial transcripts to suggest this contention could conceivably

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be meritorious in any sense. The Court acknowledges that “[e]ach party is . . . ‘ “entitled to an

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instruction about his or her theory of the case if it is supported by law and has foundation in the

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evidence,” ’ and “[a] district court . . . commits error when it rejects proposed jury instructions that

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are properly supported by the law and the evidence.” Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.

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2009) (internal citations omitted). But Plaintiff never expressly represented to the Court this was

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the only instruction presenting his theory of the case. To the extent Plaintiff intended to suggest the

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Court was nevertheless required to give the proffered instruction because it was supported by the law

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and consistent with the evidence presented at trial, Plaintiff was required to explain how that was

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so. He did not. “ ‘It is not reversible error to reject a [party’s] proposed instruction on his theory

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of the case if other instructions, in their entirety, adequately cover that [ ] theory.’ ” Duckett v.

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Godinez, 67 F.3d 734, 739 (9th Cir. 1995). Even assuming the proffered instruction perfectly

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encapsulated Plaintiff’s theory of the case, Plaintiff provided no argument or evidence to explain

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how the theory was not adequately covered by the other instructions ultimately given by the Court.

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See Fischer v. Red Lion Inns Operating L.P., 972 F.2d 906, 910 (8th Cir. 1992) (“Jury instructions

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must be read together, and if taken as a whole they correctly state the law, fairly submit the case, and

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do not mislead the jury, then there is no prejudicial error”). There is simply no indication the Court’s

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failure to give the instruction prejudiced the outcome of the proceedings or was erroneous.

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In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff further alleged as

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his second issue on appeal: “2. The trial judge prejudicially erred in excluding evidence that the

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defendant officer had committed an act of dishonesty in an unrelated internal affairs matter, since

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said evidence was admissible under [Federal Rule of Evidence] 608(b).” This issue presumably

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arises out of an August 26, 2012 brief filed by Plaintiff regarding certain evidentiary issues that had

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been raised at trial. Among other things, Plaintiff requested the Court admit portions of Defendant’s

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deposition testimony wherein Defendant stated he told a witness to a police department investigation

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of an incident in which Defendant had injured an animal that if he were in the witness’s position, he

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would not “turn over” to the department photographs of the animal possessed by the witness.

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Arguing such evidence established Defendant violated California Penal Code § 136.1(a)(2) and

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therefore qualified as impeachment evidence under Rule 608(b), Plaintiff contended the Court was

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required to admit the evidence. In an opposition filed August 27, 2012, Defendant contended the

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evidence fell outside the scope of Rule 608(b) and was further precluded by Rule 403. The Court,

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having considered the issue, agreed with Defendant and denied Plaintiff’s request at a hearing on the

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record. The Court did not issue a written order, but will now explain the reasoning it followed here.

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Rule 608(b) provides in pertinent part: “Except for a criminal conviction under Rule 609,

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extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to

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attack or support the witness’s character for truthfulness. But the court may, on cross-examination,

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allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness

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of: [¶] (1) the witness.” Fed. R. Evid. 608(b)(1). “Rule 608(b) addresses situations in which a

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witness’s prior activity, whether exemplified by conduct or by a statement, in and of itself casts

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significant doubt upon his veracity.” U.S. v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (citing

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Kasuri v. St. Elizabeth Hosp. Medical Center, 897 F.2d 845, 854 (6th Cir. 1990)). “Thus, Rule

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608(b) applies to, and bars the introduction of, extrinsic evidence of specific instances of a witness’s

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misconduct if offered to impugn his credibility. [Citation.] So viewed, Rule 608(b) applies to a

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statement, as long as the statement in and of itself stands as an independent means of impeachment

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without any need to compare it to contradictory trial testimony. [Citations.]” Winchenbach, supra,

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at p. 558 (emphasis original). In light of the foregoing principles, the evidence at issue was clearly

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not admissible for the purpose stated by Plaintiff: the testimony Defendant suggested a witness not

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“turn over” photographs is extrinsic evidence of a specific act of conduct of Defendant’s that in and

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of itself called Defendant’s credibility into question, and was therefore not permissible for attacking

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Defendant’s credibility under the plain language of Rule 608(b). At the time of his request, Plaintiff

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did not identify any issue for which this evidence might have been probative other than Defendant’s

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general propensity for truthfulness or untruthfulness. Even now, faced with the Court’s denial of his

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motion for production of transcripts at government expense, Plaintiff fails to identify any such issues.

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The foregoing analysis assumes, of course, that Defendant’s statement was misconduct to

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begin with. Such an assumption was not, in fact, warranted. While the statement could arguably

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have supported finding misconduct of a certain nature, it was insufficient to demonstrate a violation

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of the statute invoked by Plaintiff. Section 136.1 provides in pertinent part: “[A]ny person who does

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any of the following is guilty of a public offense and shall be punished by imprisonment in a county

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jail for not more than one year of in the state prison: [¶] . . . [¶] (2) Knowingly and maliciously

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attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial,

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proceeding, or inquiry authorized by law.” Cal. Pen. Code, § 136.1, subd. (a)(2). “The language of

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section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any

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particular action taken to produce that end . . . . The gravamen of the offense is the cumulative

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outcome of [a] number of acts[.]” People v. Salvato, 234 Cal.App.3d 872, 884, 285 Cal.Rptr. 837

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(1991) (emphasis added). Plaintiff provided no authority – and the Court’s research revealed no

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authority – to support the proposition that Defendant’s suggestion the witness not “turn over”

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photographs to the police constituted an attempt to dissuade the witness from testifying in the

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investigation in violation of section 136.1. Plaintiff provides no such authority even now.

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Even assuming the evidence at issue were somehow admissible under Rule 608(b), the Court

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nonetheless retained discretion to exclude it as being more prejudicial than probative under Rule 403.

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See U.S. v. Price, 566 F.3d 900, 912 (9th Cir. 2009); U.S. v. Walls, 577 F.2d 690, 696 (9th Cir.

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1978). The Court found the exercise of such discretion was warranted because the risk of undue

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prejudice to Defendant was significant. The risk of confusing the issues and misleading the jury was

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likewise significant. The parties would have been required to explain Defendant’s interaction with

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the animal to the jury because without such context, Defendant’s statement would have made no

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sense and the jury would have been left with a conceptual void. Given the Court had already ruled

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in a prior order that evidence of Defendant’s interactions with animals was inadmissible for the

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purposes previously identified by Plaintiff and saw no reason to revisit that ruling, the Court found

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it prudent to exclude the evidence. Thus, the Court denied Plaintiff’s request to admit the stated

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portions of Defendant’s deposition testimony. Plaintiff has since provided no argument or evidence

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to explain how it was erroneous and prejudicial for the Court to exclude the testimony under Rule

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403. Without doing so, Plaintiff cannot establish the issue is non-frivolous and substantial.

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In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff further alleged as

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his third issue on appeal: “3. The trial judge prejudicially erred in excluding evidence of the

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defendant officer’s habit of responding to verbal criticism with physical force, as said evidence was

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relevant and admissible under [Federal Rule of Evidence] 406.” The evidence here presumably

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refers to (1) the testimony of Matthew Hare, Lori Hare and Edward Hare regarding two incidents

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between Matthew Hare and Defendant; (2) the testimony of Heather Ziegenbein and Bryon Stuckey

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regarding two unrelated on-duty use-of-force incidents involving Defendant and Ziegenbein and

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Defendant and Stuckey; and (3) evidence of Defendant's interactions with animals. This evidence

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was addressed in detail by the Court in a previous order issued at the motion in limine stage. Morris

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v. Long, slip copy, 2012 WL 3276938 (E.D.Cal. 2012), at *10-*13. Plaintiff has provided no

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argument or evidence to explain how the Court’s ruling was erroneous or prejudicial. As with the

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previous issue, Plaintiff cannot establish this issue is non-frivolous and substantial without doing so.

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In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff further alleged as

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his fourth and final issue on appeal: “4. The trial judge prejudicially erred in excluding evidence of

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the absence of a business record under [Federal Rule of Evidence] 803(7); this evidence was directly

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relevant to the defendant officer’s credibility.” The evidence alleged here presumably refers to

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American Ambulance service records from the day of Plaintiff’s arrest, which Plaintiff sought to

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introduce in a motion filed August 28, 2012. Contending the records were admissible under Rule

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803(7)1, Plaintiff argued that because the records showed Plaintiff’s wife, Michelle, had been treated

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for injuries by ambulance personnel but made no mention of Plaintiff, they necessarily established

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that Plaintiff had not been treated. The Court denied Plaintiff’s motion at a hearing on the record.

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In particular, the Court was concerned that Plaintiff was attempting to equate the absence of actual

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evidence (i.e., the lack of records showing Plaintiff was treated) with negative evidence (i.e., as proof

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of the fact Plaintiff was not treated) without first establishing this was a situation where silence in

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the records tended to prove or disprove the existence of a fact. The Court found Plaintiff could not

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show this was such a situation simply by authenticating the records with a declaration from the

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custodian of records, as Plaintiff did, without also providing testimony from the ambulance

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personnel who would ordinarily have prepared the records. See Fed. R. Evid. 803(7). Plaintiff has

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provided no argument or evidence in his September 19, 2012 motion to proceed in forma pauperis,

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his October 3, 2012 motion for production of trial transcripts or his October 25, 2012 motion for

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reconsideration of the Court’s October 19, 2012 order denying his October 3, 2012 motion to explain

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how the foregoing ruling might have been prejudicial or erroneous, as he has contended on appeal.

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Therefore, his conclusory statement the “trial judge prejudicially erred in excluding” the American

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Ambulance records cannot be deemed to have raised a sufficiently non-frivolous and substantial

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question on appeal entitling him to production of trial transcripts at government expense.

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Rule 803 provides in pertinent part: “The following are not excluded by the rule against
hearsay, regardless of whether the declarant is available as a witness: [¶] . . . [¶] (7) Evidence that
a matter is not included in a record . . . if: [¶] (A) the evidence is admitted to prove that the matter
did not occur or exist; [¶] (b) a record was regularly kept for a matter of that kind; and [¶] (c) neither
the possible source of the information nor other circumstances indicate a lack of trustworthiness.”
Fed. R. Evid. 803.

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V. DISPOSITION

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Based on the foregoing, Plaintiff’s motion for reconsideration of the Court’s October 19, 2012 order

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denying his October 3, 2012 motion for trial transcripts at government expense is DENIED.

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IT IS SO ORDERED.

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Dated:
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October 30, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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