Elseth v. Speirs, et al

Filing 167

ORDER FINALIZING "FINAL PRETRIAL ORDER" AND ADDRESSING IN LIMINE MOTIONS signed by Judge Garland E. Burrell, Jr. on 08/24/11 ORDERING that 135 , 145 , 147 , 162 Motions in Limine are GRANTED in part and DENIED in part as detailed in the order. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN ELSETH, by his guardians
ad litem, Roger Elseth and
Patricia Ann Elseth,
Plaintiff,

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v.

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Deputy Probation Officer Jeff
Elorduy, individually,

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Defendant.
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2:08-cv-02890-GEB-CMK
DECISION FINALIZING “FINAL
PRETRIAL ORDER” AND
ADDRESSING IN LIMINE MOTIONS

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Each party moves in limine concerning certain evidence, and

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Plaintiff also argues in an in limine motion that two of Defendant’s

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jury instructions are not applicable in this case. (Pl.’s Mot. in Limine

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1:24-2:2, ECF No. 145.) Defendant counters that “in limine motions are

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not the appropriate vehicle for challenging proposed jury instructions.”

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(Def.’s Opp’n 2:3-4, ECF No. 156.) Defendant further argues: “Because

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the motion in limine filed by Plaintiff deal[s] with jury instructions

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rather than evidence, Defendant respectfully requests that the Court

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deny Plaintiff’s motion in limine.” Id. 2:16-17.

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tentative jury instructions in a separate filing, and therefore a

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tentative decision on the content of jury instructions is not issued in

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this decision. However, I will amend lines 1-9 of page 2 of the Final

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Pretrial Order (“FPO”) by replacing that portion of the FPO with the
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I contemplate issuing

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discussion in the paragraph below commencing with the sentence beginning

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on line 10 and ending on line 22. Defendant’s objections to the FPO are

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overruled, and as Plaintiff states in his response to Defendant’s

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objections the fourteenth amendment standard applies to Plaintiff’s

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excessive force claim.

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Plaintiff’s response could be construed as an objection to the FPO, it

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is unclear and therefore overruled.

To the extent that the other portion of

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The above referenced portion of the FPO is replaced by the

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following amendment which ends concluding that the fourteenth amendment

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standard applies to Plaintiff’s excessive force claim. “The status of

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the

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conditions of confinement. The eighth amendment applies to ‘convicted

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prisoners.’

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standard applies to conditions of confinement when detainees, whether or

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not juveniles, have not been convicted.” Gary H. v. Hegstrom, 831 F.2d

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1430, 1432 (9th Cir. 1987).

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reveals that California’s juvenile justice system is noncriminal; this

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statute

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juvenile court shall not be deemed a conviction of a crime for any

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purpose, nor shall a proceeding in the juvenile court be deemed a

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criminal proceeding.”

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applies to Plaintiff’s excessive claim. Because of these rulings on the

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objections to the FPO, the FPO is now a final order.

detainees

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By

determines

contrast,

the

the

appropriate

more

standard

protective

for

fourteenth

evaluating

amendment

California Welfare & Institution Code § 203

prescribes: “An order adjudging a minor to be a ward of the

Therefore, the fourteenth amendment standard

Each in limine motion is addressed below.
A.

Plaintiff Allen Elseth’s Motion in Limine

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Plaintiff Allen Elseth seeks exclusion of “[a]ny reference to

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Plaintiff being a convicted adult on the grounds he was a juvenile

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offender, in juvenile detention, not a convicted adult.” (Pl.’s Mot. in
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Limine 1:20-21.) Plaintiff does not offer any legal support for this

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request.

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basis for indicating that Plaintiff was a convicted adult at the time of

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the alleged excessive force, it is unclear why Plaintiff is concerned

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about this issue, and why an in limine ruling is necessary.

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the motion is DENIED.

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B.

However, since nothing filed suggests that Defendant has any

Therefore,

Defendant’s Motions in Limine

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1)

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Defendant “moves to preclude Dr. Angela Rosas from testifying

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at trial and to exclude her Report and all references thereto.” (Def.’s

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Mot. in Limine (“Mot.”) 2:3-4, ECF No. 147.)

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not provide a sufficient factual context to justify an in limine ruling

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and is therefore DENIED.

Motion in Limine No. 1

However, the motion does

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2)

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Defendant also moves to exclude “[t]estimony from Plaintiff

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and/or his witnesses regarding whether the force used was excessive or

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unreasonable.” (Mot. 9:6-7.) The scope of this motion is unclear,

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therefore, it is DENIED.

Motion in Limine No. 2

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3)

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Defendant

Motion in Limine No. 3
moves

to

“[e]xclude

any

and

all

reference

to

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Plaintiff incurring lost wages and/or loss of future earning capacity as

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a result of the alleged actions of ELORDUY.” (Mot. 10:25-26.) Plaintiff

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responds that he “has no objection, but does assert the right to

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presumed damages, pain and suffering in an amount to be determined, and

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punitive damages.” (Pl.’s Opp’n 10, ECF No. 151.) Therefore, this

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portion of Defendant’s is GRANTED.

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Defendant also replies with the unsupported argument that the

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Court should “reject Plaintiff’s argument that compensatory damages are
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recoverable absent a showing of actual damages.” (Def.’s Reply 6:7-8,

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ECF No. 164.)

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this response should be characterized as a motion, it is DENIED.

This response is therefore disregarded, and to the extent

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4)

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Defendant

Motion in Limine No. 4
seeks

to

“[e]xclude

any

and

all

opinion

and

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testimony regarding diagnosis or treatment of Plaintiff’s mental state

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subsequent

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“Plaintiff has not disclosed an expert qualified to testify regarding

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the diagnosis and treatment of his mental state subsequent to December

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5, 2006.” Id. 12:19-20. Defendant also argues “Plaintiff is not an

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expert

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condition.” Id. 13:1-2. Plaintiff counters that the referenced evidence

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is “potentially relevant to damages for pain and suffering.” (Pl.’s

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Opp’n 12.)

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to

and

December

thus

cannot

5,

2006.”

offer

a

(Mot.

12:3-4.)

conclusion

about

Defendant

his

own

argues

medical

Since it is unclear what evidence this motion concerns, it is
DENIED.

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5)

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Defendant seeks exclusion of “evidence regarding what, if any,

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disabilities Plaintiff may have and any rehabilitative services he

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believes he should have received from the Sacramento County Probation

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Department.” (Mot. 13:8-10.) Plaintiff does not offer any argument

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regarding this motion in his opposition brief. (Pl.’s Opp’n 13-14.)

Motion in Limine No. 5

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Defendant argues that “[w]hether the Probation Department

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provided sufficient rehabilitative services to Plaintiff while he was

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housed at Juvenile Hall does not tend [to] make the existence of a fact

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pertaining to whether ELORDUY used excessive force on December 5, 2006

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more or less probable.” (Mot. 13:24-28.) Since Plaintiff has failed to

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explain why this referenced evidence is relevant to his excessive force

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claim, this portion of Defendant’s motion in limine number 5 is GRANTED.

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However, Defendant does not explain why evidence “regarding

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what, if any, disabilities Plaintiff may have” should be excluded and

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fails to offer authority supporting this request. Therefore, this

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portion of Defendant’s motion in limine number 5 is DENIED.

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6)

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Defendant seeks to “[e]xclude any and all references to

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reports prepared by the Sacramento County Grand Jury.” (Mot. 14:15.)

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Defendant argues these reports are not relevant and are therefore

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inadmissible, since “[n]one of these documents have anything to do with

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Defendant JEFF ELORDUY or the allegation that ELORDUY used excessive

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force on Plaintiff on December 5, 2006[.]” Id. 14:28-15:2. Defendant

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also argues “introducing them would confuse the jury and result in an

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undue waste of time.” Id. 15:11-12. Plaintiff fails to address this

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motion in his opposition brief. (Pl.’s Opp’n 14.)

Motion in Limine No. 6

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Since Plaintiff has not explained how the referenced reports

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are relevant to Plaintiff’s excessive force claim, Defendant’s motion in

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limine number 6 is GRANTED in regards to the specific reports referenced

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in the motion.

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7)

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Defendant seeks to “[e]xclude evidence and argument regarding

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whether Plaintiff was subjected to excessive or unauthorized uses of

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force at times other than December 5, 2006.” (Mot. 15:15-16.) Defendant

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argues “[a]lleged incidents of excessive force occurring on other dates

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that involve employees of the Probation Department who are not parties

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to this litigation are entirely irrelevant to whether ELORDUY’s alleged

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use

of

force

Motion in Limine No. 7

.

.

.

on

December
5

5,

2006

violated

Plaintiff’s

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constitutional

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information should be precluded under Federal Rules of Evidence 401-403

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since it is irrelevant, unduly prejudicial, is likely to confuse the

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jury, and would result in an undue consumption of time. Id. 16:4-12.

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Plaintiff fails to address this motion in his opposition brief. (Pl.’s

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Opp’n 15.)

rights.”

Id.

15:28-16:3.

Defendant

argues

such

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Since Plaintiff has not explained how the referenced alleged

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incidents of excessive force are relevant to his excessive force claim,

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Defendant’s motion in limine number 7 is GRANTED.

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8)

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Defendant seeks to “[e]xclude any and all evidence, argument

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and reference to whether Plaintiff received adequate or necessary

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medical and/or mental health treatment while in the custody of the

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Sacramento County Probation Department.” (Mot. 16:20-22.) Defendant

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argues, inter alia, that this evidence is irrelevant to Plaintiff’s

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excessive force claim. Id. 17:4-15. Plaintiff fails to address this

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motion in his opposition brief. (Pl.’s Opp’n 15-16.)

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Since

Motion in Limine No. 8

Plaintiff

has

not

explained

how

this

evidence

is

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relevant to his excessive force claim, Defendant’s motion in limine

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number 8 is GRANTED.

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9)

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Defendant seeks to “[e]xclude all evidence, argument and

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reference to whether employees of the Sacramento County Probation

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Department, including Defendant, complied with child abuse reporting

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requirements.”

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Plaintiff’s pretrial filings, it appears that he intends to try to

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assert . . . that [Elorduy] is liable for failing to report suspected

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child abuse.” Id. 18:28-19:1. Defendant argues “[n]o discovery was

Motion in Limine No. 9

(Mot.

18:12-15.)

Defendant

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argues

that

“[b]ased

on

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conducted into the issue of reporting suspected child abuse nor did

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ELORDUY have an opportunity to file a dispositive motion on such a claim

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because such a claim was not alleged in the [operative complaint].” Id.

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19:14-17. Plaintiff fails to address this motion in his opposition

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brief. (Pl.’s Opp’n 16-17.)

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This

claim

is

not

alleged

in

the

operative

complaint.

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Plaintiff raised this argument for the first time in his opposition

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brief to Defendants’ motion for summary adjudication. (Opp’n 6:10-17,

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ECF No. 129; Order 11:1-16, ECF No. 132.)

Plaintiff’s request to allege

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a new claim was denied in the Order granting Defendants’ motion for

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summary adjudication. (Order 8:19-9:3, ECF No. 132.) Since Plaintiff has

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failed to explain how evidence of whether employees of the Sacramento

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County Probation Department, including Defendant, complied with child

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abuse reporting requirements is relevant to Plaintiff’s sole remaining

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excessive force claim, Defendant’s motion in limine number 9 is GRANTED.

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10)

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Defendant seeks to “[e]xclude any and all evidence, argument

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and reference to treatment of, or injuries allegedly received by,

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persons other than Plaintiff, including any information regarding other

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cases or matters filed regarding those issues or consent decrees adopted

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in other cases.” (Mot. 19:24-26.) Defendant argues this evidence “is not

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relevant to whether ELORDUY used excessive force on December 5, 2006.”

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Id. 20:13-14. Defendant also argues this evidence is unduly prejudicial,

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will confuse the jury, and will result in an undue consumption of time

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at trial. Id. 20:18-24. Plaintiff fails to address this motion in his

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opposition brief. (Pl.’s Opp’n 17-18.)

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demonstrated that this evidence is relevant to his excessive force

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claim, Defendant’s motion in limine number 10 is GRANTED.

Motion in Limine No. 10

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Since Plaintiff has not

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11)

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Defendant seeks to “[e]xclude reference to whether Plaintiff

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was subjected to verbal or emotional abuse by employees of Sacramento

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County, including Defendant.” (Mot. 21:8-9.) Defendant argues that

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“whether individuals who are not parties to this litigation subjected

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anyone

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Plaintiff’s excessive force claim against ELORDUY[.]” Id. 21:14-16.

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Defendant also argues “Plaintiff did not allege in his [FAC] that he was

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subjected to verbal and/or emotional abuse by ELORDUY” and therefore,

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“he should not be allowed to now offer evidence at trial in support of

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such a claim.” Id. 21:17-21. Plaintiff fails to address this motion in

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his opposition brief. (Pl.’s Opp’n 18.)

to

Motion in Limine No. 11

verbal

or

emotional

abuse

is

entirely

irrelevant

to

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This motion is granted except to the extent that it concerns

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anything ELORDUY allegedly said during the time he allegedly subjected

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Plaintiff to the excessive force about which Plaintiff complains in this

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action.

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12)

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Defendant seeks to “[e]xclude all evidence, argument, and

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reference to whether Plaintiff was denied ‘basic needs,’ or proper

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education, programming and/or services for juveniles.” (Mot. 22:3-4.)

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Defendant argues Plaintiff included allegations regarding the juvenile

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justice system in his operative complaint; however, “Plaintiff did not

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tie that information to any allegations against any of the Defendants

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named in this matter, let alone the only remaining Defendant[.]” Id.

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22:10-13. Plaintiff fails to address this motion in his opposition

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brief. (Pl.’s Opp’n 18-19.)

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shown relevant to Plaintiff’s sole remaining claim, Defendant’s motion

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in limine number 12 is GRANTED.

Motion in Limine No. 12

Since

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these allegations have not been

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13)

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Defendant seeks to “[e]xclude any . . . reference to the

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action or inaction of former Defendants Verne Speirs, Dr. Richard

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Saxton, and David Gordon.” (Mot. 23:14-15.) Defendant argues “[e]vidence

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regarding what Chief Probation Officer Verne Speirs did or did not do in

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overseeing the general conditions of juvenile hall has no bearing on the

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excessive

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Defendant also argues “the actions or inactions of Dr. Saxton in

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treating Plaintiff and/or other juveniles and the actions or inactions

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of David Gordon in overseeing the education of Plaintiff and/or other

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juveniles has no bearing on the excessive force claim asserted against

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ELORDUY.” Id. 24:2-6. Plaintiff fails to address this motion in his

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opposition brief. (Pl.’s Opp’n 19-20.)

Motion in Limine No. 13

force

claim

asserted

against

ELORDUY.”

Id.

23:28-24:2.

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Plaintiff’s claims against Saxton and Gordon were dismissed

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with prejudice in an Order filed April 15, 2010. (Order 13:2-5, ECF No.

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95.) Further, Speirs was granted summary adjudication of Plaintiff’s

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claim against him in an Order filed February 24, 2011. (Order 11:17-22,

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ECF

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evidence is relevant to his excessive force claim against Defendant.

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Therefore, Defendant’s motion in limine number 13 is GRANTED.

No.

132.)

Plaintiff

has

not

demonstrated

that

the

referenced

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14)

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Defendant seeks to “[e]xclude testimony from residents of

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Juvenile Hall and their parents who were not witnesses to the events

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that allegedly took place on December 5, 2006.” (Mot. 24: 16-17.)

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Defendant argues “[t]estimony from witnesses who did no[t] observe the

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events of December 5, 2006, but are instead called to testify about the

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alleged use of force on other wards at other times by other employees of

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the Probation Department should not be allowed as it is entirely

Motion in Limine No. 14

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irrelevant.” Id. 25:2-6. Defendant also argues that “[e]ven if the

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witnesses were going to testify about the use of force by ELORDUY on

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them to try to prove his conduct on this occasion, such evidence should

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not be allowed as it would be unduly prejudicial to Defendant, would

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mislead the jury, and would necessitate the undue consumption of time.”

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Id. 25:7-10. Additionally, Defendant argues that under Federal Rule of

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Evidence 404 (a) and (b), “extrinsic evidence of specific instances of

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conduct is inadmissible to prove action in conformity therewith.” Id.

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25:13-15.

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Plaintiff fails to address this motion in his opposition

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brief. (Pl.’s Opp’n 20-21.)

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how the referenced evidence is relevant, Defendant’s motion in limine

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number 14 is GRANTED.

Since Plaintiff has failed to demonstrate

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15)

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Defendant seeks to “[e]xclude the Declarations of Dr. Angela

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Rosas and Kevin Adamson.” (Mot. 25:23.) Defendant argues, inter alia,

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that these declarations are inadmissible hearsay under Federal Rules of

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Evidence 801 and 802 and if Plaintiff wishes to bring forth relevant,

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non-hearsay, evidence from these individuals, he is perfectly able to

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call them to the stand during trial.” Id. 26:6-8, 12-20. Defendant

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further argues Adamson’s “Declaration also contains hearsay within

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hearsay under F.R.E., Rule 805 because it contains Mr. Adamson’s account

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of statements allegedly made by Plaintiff’s parent’s.” Id. 26:13-15.

Motion in Limine No. 15

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Plaintiff does not address these arguments in his opposition

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brief. (Pl.’s Opp’n 21.) Plaintiff argues he “has in fact delivered the

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statements, a couple of days, at most, late, by mistake, inadvertence,

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or excusable neglect.” Id. This argument appears directed at another

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motion Defendant filed, in which Defendant argues Plaintiff failed to
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timely exchange his exhibits with Defendant as required by the Final

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Pretrial Order. (Def.’s Objections to Pl.’s Trial Exs. 2:4-3:3, ECF No.

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148.) The factual record is insufficient to justify a ruling, therefore

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Defendant’s motion in limine number 15 is DENIED.

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16)

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Defendant seeks to “[e]xclude the ‘Grades and Evaluations’,

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‘Miscellaneous letters’, ‘Sacramento County Child Protective Services’

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and Sacramento Superior Court Order for conditions Pertaining to Allen

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Elseth’ documents referenced in Plaintiff’s Exhibit List, including all

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references thereto.” (Mot. 27:4-7.) Plaintiff fails to address this

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motion in his opposition brief. (Pl.’s Opp’n 21.)

Motion in Limine No. 16

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Defendant argues “the document identified as ‘Grades and

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Evaluations’ in the Joint Pretrial Report was not identified as a

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document he intended to rely upon at trial nor was it ever produced

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during discovery[,]” in violation of Rule 26(a)(1)(A)(ii), and the

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“failure to produce those items was not justified, nor was it harmless

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because it prevented Defendant from exploring their relevance.” Id.

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27:17-23. Although it is unclear whether the referenced evidence is

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relevant, and/or whether Defendant can support their non production,

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this portion of Defendant’s motion in limine number 16 has not been

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shown to be supported by a sufficient factual context to justify a an in

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limine decision.

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Dated:

Therefore, the motion is DENIED.

August 24, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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