Sienze v. Madera County Sheriff's Office, et al.

Filing 108

ORDER RE: MOTIONS FOR RECONSIDERATION AND TO ADD WITNESSES (Docs. 68, 74, 75, and 85) signed by District Judge Anthony W. Ishii on 03/18/2019. Sienze's motion for reconsideration is DENIED. Sienze's request to modify the pretrial order to add witnesses and exhibits is GRANTED in part and DENIED in part. (Gonzales, V)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTOR M. SIENZE,

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Plaintiff
v.
SHERIFF’S DEPUTY MATTHEW J.
KUTZ and SHERIFF’S SERGEANT
DANIEL N. KERBER,

CASE NO. 1:17-CV-0736 AWI SAB
ORDER RE: MOTIONS FOR
RECONSIDERATION AND TO ADD
WITNESSES

(Docs. 68, 74, 75, and 85)

Defendants

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I. Background

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Plaintiff Victor Sienze lives in Madera, CA. On May 24, 2016, Sienze called for an

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ambulance to have his grandson, Victor Sienze III, transported to a hospital. Emergency Medical

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Technicians Anthony Prieto and Sabrina Munoz arrived. Having difficulty with the transport, the

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EMTs called the Madera County Sheriff’s Office for assistance. Defendant Officer Matthew Kutz

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was among the several police officers to arrive at the scene. Sienze objected to the manner in

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which Officer Kutz was handling his Grandson and pushed Officer Kutz. The police officers

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tackled and handcuffed Sienze. Defendant Officer Dan Kerber arrived on the scene. Sienze was

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arrested for obstructing a police officer in the course of their duty. Sienze was uncooperative.

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The police officers physically subdued him, picked him up, and put him in the back of a patrol car.

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In the process, Officers Kutz and Kerber forced Sienze face first onto the ground and Officer Kutz

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struck Sienze’s head with the car door.

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Sienze filed suit against the Madera County Sheriff’s Office, Officers Kutz, Kerber, Ian
Roth, Jason Clark, and Michael Thomas for violating his civil rights under 42. U.S.C. § 1983.

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Doc. 1. The operative complaint is the First Amended Complaint, which dropped the claims

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against the Madera County Sheriff’s Office. Doc. 5. Sienze is pro se and in forma pauperis. In

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reviewing the First Amended Complaint, Magistrate Judge Stanley Boone recommended

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dismissing Officers Roth, Clark, and Thomas from the case as well as limiting claims against

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Officers Kutz and Kerber to excessive force. Doc. 6. The Findings and Recommendations were

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adopted in full. Doc. 7.

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Defendants filed a motion for summary judgment. Doc. 27. The form of Sienze’s

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opposition was not proper so he was was granted leave to make additional filings in opposition to

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the summary judgment motion. Doc. 44. Sienze complied with the request and also filed a motion

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for leave to file a Second Amended Complaint. Doc. 53. Defendants’ summary judgment motion

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was granted in part and denied in part while Sienze’s motion for leave to file a new complaint was

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denied. Doc. 66. This case is limited to claims against Officers Kerber and Kutz regarding claims

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of excessive force in tackling him on a patio and placing him in a patrol car. The pretrial

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conference was held on January 23, 2019.

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Sienze has filed two requests for reconsideration. Docs. 68 and 74. Additionally, he has

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filed a request to amend the pretrial order to add witnesses and exhibits. Doc. 75. Defendants

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oppose these motions. Docs. 72 and 84.

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II. Reconsideration

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Sienze seeks reconsideration of Doc. 66, the order granting Defendants’ motion for

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summary adjudication in part and denying Sienze’s motion for leave to amend his complaint.

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Docs. 68 and 74.

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), citations and quotations omitted. Local

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Rule 230(j) also requires Plaintiff seeking reconsideration of an order to show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown upon
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such prior motion, or what other grounds exist for the motion and...why the facts or circumstances

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were not shown at the time of the prior motion.” Eastern District of California Local Rule 230(j).

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Reconsideration is an “extraordinary remedy,” to be used “sparingly as an equitable remedy to

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prevent manifest injustice.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014), quoting Kona

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Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “A party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and recapitulation

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of the cases and arguments considered by the court before rendering its original decision fails to

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carry the moving party’s burden.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111,

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1131 (E.D. Cal. 2001), citations and quotations omitted.

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Much of Sienze’s motion is a recapitulation of his version of the facts. It is evident that he

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disagrees with the ruling but that by itself is insufficient for grant of reconsideration. The court

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has already ruled that Defendants are entitled to partial summary adjudication based on the facts as

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established by the evidence presented, taking all reasonable inferences in Plaintiff’s favor.

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Nothing in Sienze’s multiple filings changes basic conclusion.

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Sienze does make a few specific arguments. Regarding the partial grant of the summary

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judgment motion, Sienze argues that the use of Benita Waltz’s and Stephen Waltz’s declarations

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in deciding the earlier motion for summary judgment was improper. He states that “this hearsay

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declaration was presented to this court as true facts and evidence to find summary judgment

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against plaintiff. This action triggers the ‘confrontation clause of the sixth amendment’ plaintiff

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was not allowed the opportunity of cross-examination of this witness. Doc. 74, 5:16-18 and 6:9-

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14. First, the hearsay requirements of the Federal Rules of Evidence do not fully apply to

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summary judgment motions. “[A]t summary judgment a district court may consider hearsay

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evidence submitted in an inadmissible form, so long as the underlying evidence could be provided

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in an admissible form at trial, such as by live testimony.” JL Bev. Co., LLC v. Jim Beam Brands

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Co., 828 F.3d 1098, 1110 (9th Cir. 2016). “To survive summary judgment, a party does not

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necessarily have to produce evidence in a form that would be admissible at trial, as long as the

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party satisfies the requirements of Federal Rules of Civil Procedure 56.” Block v. City of L.A.,

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253 F.3d 410, 418-19 (9th Cir. 2001). Part of that rule states that “An affidavit or declaration used
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to support or oppose a motion must be made on personal knowledge, set out facts that would be

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admissible in evidence, and show that the affiant or declarant is competent to testify on the matters

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stated.” Fed. R. Evid. 56(c)(4). The declarations provided satisfied these conditions. Second, this

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is a civil case. “The Confrontation Clause, which originates from the Sixth Amendment, applies

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only to criminal matters.” Kesey, Ltd. Liab. Co. v. Francis, 2009 U.S. Dist. LEXIS 28078, *42 (D.

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Or. Apr. 3, 2009), citing Austin v. United States, 509 U.S. 602, 608 n.4 (1993), United States v.

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Alisal Water Corp., 431 F.3d 643, 658 (9th Cir. 2005), and U.S. Steel, LLC v. Tieco, Inc., 261

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F.3d 1275, 1287 n.13 (11th Cir. 2001). Defendants have informed Sienze that Benita and Stephen

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Waltz will not be called at trial. This appears to be because the events they personally witnessed

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only pertain to claims which were adjudicated in the summary judgment; that is, they were able to

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see the events on the lawn but not the patio. As that part of the case is resolved, their testimony

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would likely not be relevant.

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Regarding the denial of leave to amend, Sienze asserts that “Judge Stanley Boone had no

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prior knowledge as to all the facts now having been brought before this court. Judge Stanley

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Boone was missing the facts that [Officers] Kerber [,] Kutz[,] Clark[,] Roth[, and] Thomas were

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all present at plaintiff’s home and were with full knowledge that [plaintiff] was/is an elderly

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disabled person and a disabled veteran and with such knowledge did willfully and maliciously

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attack and assault said plaintiff.” Doc. 68, 5:18-23. Additionally, he states that in the audio

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recording, the conversation between Officers Roth and Kerber shows a conspiracy to deprive

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Sienze of his constitutional rights: “there was a conspiracy clearly shown to give ‘special

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treatment’ to a grand par that was something of a site searcher.” Doc. 68, 7:8-9. Sienze asserts

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that “I had to search in earnest greatly to try to get a legal transcript of the conversation between

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two officers that I submitted to the court. I did my best to be diligent in getting the information I

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needed transcribed...It took me approximately two months and one week to get the CDs

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transcribed once that was done I had to have background noise cleaned up on CDs by a

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professional so that one could more clearly hear and understand what was being said.” Doc. 68,

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8:9-15. However, Sienze stated in his deposition on March 9, 2018 that he listened to the audio

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recording when it was first sent to him and in fact complained that there were parts missing. Doc.
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37, 119:13-17. There is no allegation that the relevant portion of the recording Sienze refers to

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was withheld by Defendants. See Tesoro Ref. & Mktg. Co. LLC v. Pac. Gas & Elec. Co., 2015

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U.S. Dist. LEXIS 130480, *45 (N.D. Cal. Sep. 28, 2015) (“Manifest injustice might exist if a party

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withholds relevant information in bad faith during litigation”). While Sienze does detail the time

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needed to clean up the recording, he does not state that he could not understand it in its original

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form. Indeed, he was able to understand it well enough to note what parts were missing. The

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earlier ruling on Sienze’s motion concluded that he was not diligent in bringing his motion. He

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was aware of the need to amend his complaint by March 9, 2018 but did not request to do so until

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September (or arguably July). Sienze has not presented new fact or law sufficient to warrant

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reconsideration.

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III Amending the Pretrial Order
Sienze seeks to add three people to the list of witnesses who may be called to testify at

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trial: 1) his wife Kay Sienze to authenticate photographs, 2) Mike Badella to testify on Plaintiff’s

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character, and 3) an unnamed expert witness to testify on Sienze’s medical records. Doc. 75.

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Defendants oppose all three requests. Doc. 84. The pretrial order stated that people could be

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added to the witness list upon a showing of “manifest injustice.” Doc. 72, 14:13-16. This mirrors

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the requirements of Rule 16 which state “The court may modify the order issued after a final

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pretrial conference only to prevent manifest injustice.” Fed. R. Civ. Proc. 16(e). The party seeking

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to add witnesses has the burden of persuasion. See Galdamez v. Potter, 415 F.3d 1015, 1020 (9th

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Cir. 2005). “Under the ‘manifest injustice’ test of Rule 16, the Ninth Circuit has listed four factors

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for courts to consider: prejudice to the opposing party, that party’s ability to cure the prejudice, the

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impact on the orderly and efficient conduct of the trial and any willfulness or bad faith on the part

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of the party seeking the modification. The court also considers the moving party’s delay in seeking

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amendment.” Copart, Inc. v. Sparta Consulting, Inc., 2018 U.S. Dist. LEXIS 49698, *4-5 (E.D.

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Cal. Mar. 26, 2018), citations omitted.

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A. Kay Sienze
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Kay Sienze is being asked “to authenticate photographs taken by her and other testimony

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that may seem appropriate.” Doc. 75, 1:16-18. Defendants point out that Plaintiff’s exhibits listed

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in the Pretrial Order only lists “1. Copies of photographs taken by Sheriff Deputy Thomas of

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Plaintiff Victor M. Sienze at Madera County Jail and given to Plaintiff by defense counsel Mark

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Kitabayashi.” Doc. 72, 16:1-14. However, the court notes that photographs taken by Kay Sienze

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were submitted as part of the opposition to summary judgment. Doc. 51. The court interprets this

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as a request to add Kay Sienze to the witness list and to add photographs she has taken to the

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exhibit list.

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First, with regards to authentication, the photographs have been disclosed to Defendants in

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the past. The extent of Sienze’s injuries is a central question in this case. Defendants themselves

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had taken photographs of these injuries on the day of the incident. While the trial will start soon,

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there does not appear to be any surprise and Defendants have time to examine the photographs

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more carefully. Inclusion of these photographs would not impact the conduct of the trial. Sienze

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is pro se. While he has been diligent in learning about and trying to follow legal rules, it is evident

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from his comments at the last hearing that Sienze did not fully understand the need for

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authenticating photographs. There does not appear to be any bad faith on his part for not seeking

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to include Kay Sienze as a witness for this purpose before. Given this set of circumstances,

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permitting modification is warranted. See Fresno Rock Taco, LLC v. Nat'l Sur. Corp., 2013 U.S.

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Dist. LEXIS 101428, at *7 (E.D. Cal. July 18, 2013) (in a July 18, 2013 order concerning a July

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31, 2013 trial, “As there remains time for Plaintiffs to review the documents that Ms. Richards

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will authenticate, Plaintiffs have adequate time to cure any prejudice that will arise from

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modifying the pretrial order to include Ms. Richards as a witness and include the public records

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from the City of Fresno as potential trial exhibits”).

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Second, Sienze seeks to allow Kay Sienze to provide “other testimony that may seem

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appropriate.” Doc 75, 1:16-18. This request is broad and does not give Defendants any idea about

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what the nature of that testimony might be. There is no indication that Kay Sienze was a

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percipient witness to the events of May 26, 2016. Sienze has not demonstrated manifest injustice

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for this purpose.
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B. Mike Badella
Sienze wishes to have Mike Badella “testify as to personal knowledge of plaintiff’s

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character[. He has] been a friend of plaintiff for more than 59 years.” Doc 75, 1:19-21.

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Defendants say that “Mike Badella does not appear to have been involved in the events of May 26,

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2016 to any degree, and his name was never revealed in discovery or referenced in any court

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document.” Doc. 84, 5:9-11. Under the federal rules of evidence that apply in this case, “Evidence

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of a person’s character or character trait is not admissible to prove that on a particular occasion the

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person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1). Mike Badella is

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not a witness to the incident in question. His testimony about Sienze’s overall character would not

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be relevant in this trial.

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C. Medical Expert
Sienze also seeks “Addition of expert testimony as it seems court has informed plaintiff

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this will or may be necessary as to plaintiff’s medical records for damages.” Doc. 75, 1:26-27.

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Defendants point out that Sienze “completely failed to identify any expert witness(es) to testify in

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these proceedings, let alone the proper and timely disclosures required under the Federal Rules of

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Civil Procedure.” Doc. 84, 6:13-14. The scheduling order stated that “parties are directed to

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disclose all expert witnesses, in writing, on or before August 17, 2018 and to disclose all

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supplemental experts on or before September 17, 2018.” Doc. 19, 3:5-6. The pretrial order noted

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that “No expert witnesses have been named in this case.” Doc. 72, 19:6. It is simply too late to

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inquire about adding a medical expert.

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IV. Order

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Sienze’s motion for reconsideration is DENIED.

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Sienze’s request to modify the pretrial order to add witnesses and exhibits is GRANTED in

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part and DENIED in part.

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IT IS SO ORDERED.
Dated: March 18, 2019
SENIOR DISTRICT JUDGE

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