Barker v. Yassine

Filing 174

ORDER signed by Magistrate Judge Allison Claire on 08/12/16 granting in part and denying in part 143 plaintiff's Motion in Limine No. 1 as specified above. Defendant's motion in limine No. 1 152 is granted. Defendant's motion in l imine No. 2 153 is granted in part and denied in part as specified above. Defendant's motion in limine No. 3 154 is granted. No later than August 19, 2016, the parties are directed to meet and confer and jointlyfile a proposed limiting jury instruction with respect to ADA and Title 15 regulations. During trial, the parties are directed to request a side bar before inquiring about ADA and Title 15 regulations or the Armstrong Remedial Plan. (Plummer, M) Modified on 8/15/2016 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BARKER,

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No. 2:11-cv-00246-AC

Plaintiff,
v.

ORDER

R. YASSINE,

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Defendant.

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Plaintiff William Barker, a state prisoner proceeding through counsel, filed this civil rights

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action against defendant R. Yassine seeking relief under 42 U.S.C. § 1983. The parties have

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consented to the jurisdiction of the United States Magistrate Judge as provided by 28 U.S.C.

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§ 636(c), and this case is set for trial on August 22, 2016. See also Fed. R. Civ. P. 73; E.D. Cal.

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L.R. 301.

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Currently pending are the parties’ respective motions in limine. Plaintiff has filed one

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motion in limine, ECF No. 143, and defendant has filed three motions in limine, ECF Nos. 152–

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154. Each motion is opposed. ECF Nos. 156–159. The court held a telephonic status conference

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on August 8, 2016, at which Stephanie Ross appeared for plaintiff and Susan Coleman appeared

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for defendant. At the conference, the motions were submitted for decision. For the reasons

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explained below, the court GRANTS IN PART and DENIES IN PART plaintiff’s Motion in

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Limine No. 1 to Exclude Plaintiff’s Prior Litigation History; GRANTS defendant’s Motion in
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Limine No. 1 to Bifurcate Punitive Damages; GRANTS IN PART and DENIES IN PART

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defendant’s Motion in Limine No. 2 to Exclude Evidence that Defendant Violated ADA and Title

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15 Regulations; and GRANTS defendant’s Motion in Limine No. 3 to Exclude Complaints and

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Grievances Against Defendant by Other Inmates.

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I.

BACKGROUND

This action arises from an incident that occurred at approximately 3:45 p.m. on October

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25, 2009, when plaintiff Barker was returning through the Unit I Grill Gate at California Medical

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Facility (CMF) in Vacaville, a state prison. See Final Pretrial Order (FPTO), ECF No. 139 at 2;

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see also Order, Sept. 30, 2015, ECF No. 124 at 2–3. Plaintiff was in a wheelchair, and defendant

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Yassine was the Correctional Officer (CO) on duty at the Gate. FPTO at 2. The parties dispute

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the specifics of the exchange between plaintiff and defendant, but an argument ensued. Id.

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Defendant conducted a pat down search of plaintiff while he was sitting in his wheelchair. Id.

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Plaintiff alleges defendant used excessive force in conducting the search, in violation of

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the Eighth Amendment, and seeks monetary damages, attorneys’ fees, and costs. Id. at 3.

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Plaintiff initially also brought claims under the Americans with Disabilities Act (ADA), Section

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504 of the Rehabilitation Act of 1973, the California Unruh Civil Rights Act, and the California

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Disabled Person’s Act, but those claims were previously dismissed by the court. See id. at 4;

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ECF Nos. 85, 89.

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II.

DISCUSSION

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A motion in limine is a pretrial procedural device designed to address the admissibility of

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evidence. Each ruling is made without prejudice and is subject to proper renewal, in whole or in

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part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper

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motion or objection, or otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a);

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Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) (“Where a district court

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makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be

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challenged on appeal if the aggrieved party attempts to offer such evidence at trial.”) (alteration,

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citation and quotation omitted).

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The court addresses each motion in limine in turn.
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A.

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Plaintiff moves to exclude evidence of plaintiff’s prior litigation history. ECF No. 143.

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During his incarceration, plaintiff previously sued other defendants for violations of the Eighth

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Amendment, ADA, and related state law violations. Id. at 2. Plaintiff argues that evidence of

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these past lawsuits is irrelevant or, alternatively, would unduly prejudice the jury under Federal

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Rule of Evidence 403. Id.

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Plaintiff’s Motion in Limine No. 1

Irrelevant evidence is not admissible under the Federal Rules of Evidence. Fed. R. Civ. P.

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402. Evidence is “relevant” if it “ha[s] any tendency to make the existence of any fact that is of

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consequence to the determination of the action more or less probable than it would be without the

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evidence.” Fed. R. Evid. 401. Even if evidence is relevant, it may be excluded under Rule 403 if

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its probative value is “substantially outweighed” by a danger of unfair prejudice. The court has

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broad discretion to admit or exclude evidence. See Valdivia v. Schwarzenegger, 599 F.3d 984,

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993 (9th Cir. 2010).

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Defendant opposes the motion, arguing that other lawsuits involving similar injuries are

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relevant to the damages determination in this case, that plaintiff’s other lawsuits are relevant to

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“evaluat[e] Plaintiff’s credibility, to show his bias and motive to sue,” and that plaintiff may be

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impeached with prior inconsistent statements he made under oath under Rule 801(d)(1)(A). ECF

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No. 156. The court considers each of defendant’s proposed uses for the challenged evidence.

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1.

Plaintiff’s Injuries

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Contrary to defendant’s assertion, evidence about plaintiff’s other lawsuits is not

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necessary to determine damages in this case. Defendant could present evidence about the nature

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and extent of plaintiff’s previous injuries without asking him about the litigation arising from

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such injuries. Even if evidence of plaintiff’s other lawsuits might have some slight probative

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value, that value is substantially outweighed by the danger of unfair jury bias against the chronic

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litigant. See Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988). The court GRANTS

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plaintiff’s motion to the extent defendant seeks to admit the evidence to assess damages.

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Plaintiff’s Credibility

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Defendant’s credibility argument implicates Federal Rule of Evidence 404. Rule 404

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prohibits using evidence of a person’s character trait or other acts to show that on a particular

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occasion the person acted in accordance with the character or trait. Fed. R. Evid. 404(a)(1),

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(b)(1). However, this evidence may be admissible for other purposes, such as proving motive,

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intent, or absence of mistake. Fed. R. Evid. 404(b)(2). Even if evidence is used for a permissible

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purpose under Rule 404(b)(2), it may be excluded under Rule 403 if its probative value is

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“substantially outweighed” by a danger of unfair prejudice.

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The character trait of litigiousness and acts of filing other lawsuits fall within Rule 404.

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See Outley, 837 F.2d at 592–93. Defendant here does not elaborate on how evidence of

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plaintiff’s other lawsuits would be used to show plaintiff’s “bias and motive to sue,” but

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defendant appears to suggest that plaintiff’s acts of filing other lawsuits shows his litigious

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inclination. This is a prohibited use under Rule 404. To the extent defendant’s proposed

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admission of the evidence falls within a permissible use under Rule 404(b)(2), the court finds the

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probative value of the evidence is substantially outweighed by the danger of unfair jury bias

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against the chronic litigant under Rule 403. Outley, 837 F.2d at 592–93; cf. D’Lil v. Best W.

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Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008). The court GRANTS plaintiff’s

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motion to exclude the evidence for the purpose of showing plaintiff’s bias and motive to sue.

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Defendant is prohibited from attempting to undermine plaintiff’s credibility by portraying him as

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a chronic litigant.

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3.

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Impeachment of Plaintiff Under Rule 801(d)(1)(A)

Defendant also seeks to admit statements plaintiff made under oath in other litigation to

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impeach any inconsistent testimony plaintiff provides in this action under Rule 801(d)(1)(A).

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Plaintiff responds that Rule 801(d)(1)(A) does not apply here because his 2008 lawsuit involved

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different defendants and facts, and he has not provided any testimony under oath in his 2014

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lawsuit. ECF No. 160 at 3.

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Plaintiff’s arguments do not justify a complete bar on impeachment evidence under Rule
801(d)(1)(A). Although the 2008 lawsuit involved different facts, plaintiff might conceivably
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provide testimony in this case that is inconsistent with his prior sworn testimony. With respect to

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Rules 403 and 404, this type of impeachment is not a prohibited use of character evidence, and an

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inconsistent sworn statement is more probative of plaintiff’s credibility than is the general fact

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that he has filed other lawsuits. The court DENIES plaintiff’s motion to the extent it seeks to

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entirely bar evidence from other lawsuits for purposes of impeachment under Rule 801(d)(1)(A).

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The court will determine the admissibility of specific prior statements as necessary during trial.

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B.

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Defendant moves to bifurcate the trial into two stages: (1) liability and compensatory

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damages, and (2) punitive damages. ECF No. 152. Rule 42(b) of the Federal Rules of Civil

Defendant’s Motion in Limine No. 1

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procedure provides, “For convenience, to avoid prejudice, or to expedite and economize, the court

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may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or

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third-party claims.” See also Arthur Young & Co. v. U.S. District Court, 549 F.2d 686, 697 (9th

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Cir. 1977). The decision to bifurcate is within the sound discretion of the trial court. Davis &

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Cox v. Summa Corp., 751 F.2d 1507, 1517 (9th Cir. 1985). Courts consider several factors in

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determining whether bifurcation is appropriate, such as potential prejudice to the parties, potential

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confusion of the jurors, and the convenience and economy that would result. In re Beverly Hills

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Fire Litig., 695 F.2d 207, 216 (6th Cir. 1982); Rios v. Tilton, No. 07-0790, 2016 WL 29567, at

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*16 (E.D. Cal. Jan. 4, 2016). Plaintiff opposes the motion, contending bifurcation would increase

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the time and expenses expended by the State in transporting him from his cell to the courthouse.

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ECF No. 157.

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The court finds plaintiff would not be prejudiced by bifurcation, because the second stage

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would follow immediately after the first if trial proceeds to the issue of punitive damages. In

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addition, bifurcation would avoid potential confusion of the jurors and prejudice to defendant that

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might result from the presentation of evidence about defendant’s personal finances and net worth

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while the jury is determining defendant’s liability and plaintiff’s non-punitive damages.

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Furthermore, bifurcation would expedite and economize trial by precluding the presentation of

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evidence or argument relating to punitive damages unless and until it is necessary. Accordingly,

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the court GRANTS defendant’s motion to bifurcate the trial into two stages.
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Evidence and argument relating to the award of punitive damages will be excluded from

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the first stage of trial. Upon conclusion of the presentation of evidence and argument relating to

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liability and non-punitive damages, the jury will deliberate and complete a verdict form that asks

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whether defendant violated plaintiff’s rights under the Eighth Amendment; what, if any, are

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plaintiff’s non-punitive damages; and whether defendant’s conduct toward plaintiff was

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malicious, oppressive, or in reckless disregard of plaintiff’s rights. If the jury reaches the third

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question and finds defendant’s conduct was malicious, oppressive, or in reckless disregard of

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plaintiff’s rights, the parties will then present evidence and argument relating to punitive

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damages.

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C.

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Defendant next moves to exclude evidence and argument that defendant violated ADA or

Defendant’s Motion in Limine No. 2

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Title 15 regulations by not putting plaintiff on an ADA-compliant bench before conducting the

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pat down search. ECF No. 153. Defendant argues that a violation of these regulations is not

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relevant to the elements of plaintiff’s Eighth Amendment excessive force claim. Id. at 3–4.

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Alternatively, defendant contends this evidence should be excluded under Rule 403, because it

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might lead to a trial within a trial or lead the jury to generally conclude defendant did something

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wrong and improperly factor that into the liability determination. Id. at 4. Plaintiff opposes the

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motion, contending the regulations are relevant to whether the amount of force was excessive

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because they show defendant “could have, and should have, moved [plaintiff] to an ADA-

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compliant bench to conduct the search.” ECF No. 158 at 3.

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A plaintiff advancing an Eighth Amendment claim for excessive use of force must provide

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facts specifically linking individual defendants to force that was applied “maliciously and

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sadistically to cause harm,” rather than “in a good-faith effort to maintain or restore

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discipline . . . .” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (citing Whitley v. Albers, 475

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U.S. 312 (1986)). The Ninth Circuit has relied on the following factors in determining whether

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an officer’s application of force was undertaken in good faith, or maliciously and sadistically to

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cause harm: (1) the extent of the injury suffered by an inmate; (2) the need for application of

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force; (3) the relationship between that need and the amount of force used; (4) the threat
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reasonably perceived by the responsible official; and (5) any efforts made to temper the severity

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of a forceful response. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003); accord

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Hudson, 503 U.S. at 7.

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Although violation of the regulations does not necessarily constitute an Eighth

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Amendment violation, evidence showing defendant violated established protocols for searching a

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disabled inmate would undermine the argument that his alleged use of force was applied in good

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faith to maintain or restore order. See, e.g., Excerpts from Jan. 3, 2001 Armstrong Remedial

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Plan1, ECF No. 113-3 at 7 (“Inmates who use wheelchairs and who have severe mobility

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impairments and are unable to perform standard unclothed body search maneuvers shall be

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afforded reasonable accommodation to ensure a thorough search, including body cavities.”).

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Such evidence is probative and not unduly prejudicial.

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However, the risk of confusion and prejudice is greater, and the probative value lesser,

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with respect to Title 15’s definitions of terms such as “reasonable force” and “excessive force,”

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which differ from the standards applied under the Eighth Amendment. Compare, e.g., Cal. Code

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Regs. tit. 15 § 3268(a)(3) (defining “Excessive Force” as “[t]he use of more force than is

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objectively reasonable to accomplish a lawful purpose”), with Hudson, 503 U.S. at 6–7 (requiring

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a plaintiff bringing an Eighth Amendment claim for excessive force to show the force was applied

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“maliciously and sadistically to cause harm,” rather than “in a good-faith effort to maintain or

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restore discipline”). Reference to these regulations would create an undue risk of jury confusion,

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and their substance is not directly relevant to the Eighth Amendment inquiry.

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Accordingly, the court GRANTS defendant’s motion to exclude the text of the Title 15

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regulations defining terms related to the use of force or providing general standards for the

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permissible use of force, e.g. Cal. Code Regs. tit. 15 § 3268(a), because the probative value of

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this evidence is substantially outweighed by the considerable danger of confusion or prejudice.

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The court DENIES defendant’s motion to exclude evidence of ADA or Title 15 regulations that

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specify accommodations for disabled inmates or alternatives to the use of force, such as the use of

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The Armstrong Remedial Plan governs application of Title II of the ADA to inmates in the
custody of the California Department of Corrections and Rehabilitation. See ECF No. 113-3 at 5.
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an ADA-compliant bench during a search. This evidence has high probative value and is less

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likely to cause confusion or prejudice.

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No later than August 19, 2016, the parties are directed to meet and confer and jointly file a

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proposed limiting jury instruction to help mitigate any risk of confusion or prejudice caused by

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this evidence. If the parties are unable to agree upon a joint statement, their filing may include

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each of their proposed instructions.

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D.

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Finally, defendant moves to exclude evidence and argument that nine other inmates filed

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grievances and complaints against him. ECF No. 154. Of those grievances, only one resulted in

Defendant’s Motion in Limine No. 3

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a sustained allegation, an allegation by inmate Walker that defendant grabbed his right

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forearm/wrist without provocation on June 13, 2009. Id. at 3–4. Defendant’s use of force was

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not found to be excessive, but he received counseling about considering other use of force options

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as a result of the incident. Id. at 5. Defendant argues that admission of this evidence is prohibited

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under Rule 404(b). Id. Defendant also contends this evidence would lead to juror confusion or

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prejudice and might lead to a trial within a trial under the Rule 403 balancing analysis. Id.

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However, defendant does not oppose the use of this evidence to impeach him if he makes false

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statements, such as “no inmate has ever filed a grievance on me,” during his testimony. Id. at 6.

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Plaintiff opposes the motion, arguing that evidence of inmate grievances about

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defendant’s use of force demonstrates defendant’s intent, knowledge, and absence of mistake,

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which are permissible purposes under Rule 404(b). ECF No. 159. Plaintiff “would seek to admit

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this evidence to show that Defendant knew that touching an inmate was wrong when there were

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other use of force options available to him that didn’t require physical contact with an inmate.”

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Id. at 2. It could also “show that Defendant did not make a mistake when he touched [plaintiff],

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but that he intended to harm him because he had received specific training on this very subject.”

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Id. at 2–3. Plaintiff represents that he would not seek to use the evidence “in an implicit effort to

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show Defendant acted in conformity with the allegations of the instant case.” Id. at 3.

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The court first considers whether the evidence is admissible under Rule 404, and then

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conducts the Rule 403 balancing analysis if necessary. As the parties both agree, Rule 404(b)
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prohibits plaintiff from using evidence of the other grievances to show defendant’s character or

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propensity to use excessive force. The court GRANTS defendant’s motion in this regard.

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Admitting the evidence to show that defendant had knowledge of alternative uses of force

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or that defendant intentionally chose an improper use of force are permissible purposes under

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Rule 404(b). Under the Rule 403 balancing analysis, however, the grievances are not very

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probative of defendant’s knowledge or intent in this case and have a high risk of causing juror

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confusion or prejudice. Moreover, plaintiff could establish defendant’s knowledge of the proper

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use of force and the available alternatives to the use of force by admitting evidence of the

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standard use of force training all COs receive, which does not have the same risk of confusion or

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prejudice. See CDCR DOM 32010.14.2 (annual use of force training required); see also Chap. 5,

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Art. 2 (Use of Force), DOM 51020.1 et seq. (extensive guidelines). The court GRANTS

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defendant’s motion to exclude evidence of the other inmate grievances and complaints against

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him. This order does not preclude plaintiff from admitting evidence of the standard use of force

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training all COs receive to show defendant’s knowledge, intent, or absence of mistake.

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III.

CONCLUSION

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For the foregoing reasons, it is ordered as follows:

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1.

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Plaintiff’s Motion in Limine No. 1 is GRANTED IN PART and DENIED IN PART,
as specified above;

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2. Defendant’s Motion in Limine No. 1 is GRANTED;

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3. Defendant’s Motion in Limine No. 2 is GRANTED IN PART and DENIED IN

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PART, as specified above;

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4. Defendant’s Motions in Limine No. 3 is GRANTED; and

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5. No later than August 19, 2016, the parties are directed to meet and confer and jointly

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file a proposed limiting jury instruction with respect to ADA and Title 15 regulations.

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During trial, the parties are directed to request a side bar before inquiring about ADA

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and Title 15 regulations or the Armstrong Remedial Plan.

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IT IS SO ORDERED.
DATE: August 12, 2016

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