Cohea v. Pliler, et al

Filing 280

SECOND SUPPLEMENT TO PRETRIAL ORDER signed by Judge Garland E. Burrell, Jr on 6/8/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

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2:00-cv-02799-GEB-EFB

Plaintiff,

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No.

v.
J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
and A GOLD,

SECOND SUPPLEMENT TO PRETRIAL
ORDER

Defendants.

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Defendants’ Supplemental Pretrial Statements filed June

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5,

2015,

(ECF

Nos.

277,

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supplement to the February 20, 2015 Pretrial Order (“PO”) should

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issue.

indicate

the

following

second

AFFIRMATIVE DEFENSES

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The following affirmative defenses are preserved for

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279),

trial:
1)

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Statute

McCargar,

concerning
Baughman,

Plaintiff’s

claims

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concerning the September 27, 1997 Rules Violation Report (“RVR”),

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and
2)

Defendants

limitations

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against

of

and

Micheels

Qualified immunity alleged by each Defendant.
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As

the

Ninth

Circuit

states

in

Act

Up!/Portland

v.

Bagley, 988 F.2d 868, 873 (9th Cir. 1993):

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[T]he determination of what conduct underlies
the alleged violation-what the officer and
claimant
did
or
failed
to
do-is
a
determination of fact [to be decided by a
jury;] however, . . . the determination
whether those facts support an objective
belief that [the officer reasonably believed
he was not violating Plaintiff’s right to be
free from excessive force] is ordinarily a
question for the court.

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Since the jury will not decide the question of law

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involved

in

determining

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qualified

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include instruction on this affirmative defense. The jury will

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resolve the discrete issues of fact, if any, and all assertions

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made by the parties regarding the defense of qualified immunity

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shall be confined to those issues of fact.

immunity,

whether

the

any

proposed

Defendant

jury

is

entitled

instructions

need

to
not

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Accordingly, a special verdict or interrogatories shall

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be filed by each party for all factual disputes to be resolved by

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the jury concerning the qualified immunity affirmative defense no

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later than July 21, 2015. Further, no later than July 21, 2015,

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each party shall file proposed prevailing party findings of fact

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and conclusions of law concerning this affirmative defense.

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Defendants

also

assert

their

position

that

“[t]he

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Federal Civil Rights Act provides liability only against those

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who, through their personal involvement or failure to perform

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legally

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constitutionally

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“personally

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Baughman, Colvin, Gold, McCargar, Micheels, and Yamamoto’s Supp.

required

cause

duties,

caused

protected
Plaintiff

the

deprivation

rights[,]”

and

any

(Defs.

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harm.”

of

they

another’s
did

Adams,

not

Akins,

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Pretrial Stmt. 2:2-4, 2:12, ECF No. 277; Def. Scarsella’s Supp.

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Pretrial Stmt. 1:26-28, 2:8-9, ECF No. 279.) However, argument

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that “merely negates . . . element[s]” of a claim is not an

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affirmative defense. Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that

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plaintiff has not met its burden of proof is not an affirmative

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defense.”).

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Dated:

June 8, 2015

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