Hill v. Star et al

Filing 199

ORDER by Judge Thelton E. Henderson denying 138 Motion in Limine; granting in part and denying in part 139 Motion in Limine; granting 140 Motion in Limine; granting in part and denying in part 141 Motion in Limine; granting in part and den ying in part 142 Motion in Limine; granting 143 Motion in Limine; granting 144 Motion in Limine; denying 145 Motion in Limine; granting in part and denying in part 149 Motion in Limine; granting 150 Motion in Limine; granting 151 Motion in Limine; granting 152 Motion in Limine; granting 156 Motion to take testimony out of order; granting in part 172 Letter; denying 184 Letter. (tehlc1, COURT STAFF) (Filed on 6/4/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TION ALONZO HILL,
Plaintiff,

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v.
JOSHUA ARNOLD, et al.,
Defendants.

Case No. 09-cv-05434-TEH
ORDER ON MOTIONS IN LIMINE,
MOTION TO TAKE WITNESS OUT
OF ORDER, AND LETTER
REQUESTS

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The Court has reviewed the parties’ motions in limine (Docket Nos. 138-145; 149-

United States District Court
Northern District of California

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152), as well as Plaintiff’s motion to take the testimony of Dr. Berg out of order (Docket

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No. 156), and letter requests from Defendants to use a map of the jail as a demonstrative at

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trial (Docket No. 172) and to exclude the testimony of Sgt. Quanico (Docket No. 182).

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After carefully considering these submissions, the Court considers oral argument

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unnecessary (except regarding the use of Plaintiff’s burglary conviction as impeachment

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evidence, as discussed below), and hereby rules on these pending matters as follows:

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Defendants’ Motion in Limine No. 1

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Defendants seek to exclude any testimony, evidence, or argument regarding the

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jail’s security video system as unfairly prejudicial and lacking in any probative value under

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Federal Rule of Evidence (“Rule”) 403. Mot. at 3 (Docket No. 138). Further, Defendants

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argue that the loss of the video footage is irrelevant under Rules 401 and 402 because the

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city is not a party and the individual Defendants never possessed, controlled, or had access

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to the videotape. Id. at 4. Plaintiff argues that the fact that there was video footage at one

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point is relevant to Plaintiff’s credibility; that the video was lost under questionable

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circumstances; and that the ubiquity of surveillance technology would lead a reasonable

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juror to wonder why footage was not included at trial. Opp’n at 3-5 (Docket No. 177).

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Rule 401 states that evidence is relevant if it “has any tendency to make a fact more

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or less probable” and “the fact is of consequence in determining the action.” Fed. R. Evid.

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401. Rule 402 creates a general presumption that relevant evidence is admissible unless

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otherwise prohibited. Fed. R. Evid. 402. Rule 403 allows the court to “exclude relevant

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evidence if its probative value is substantially outweighed by a danger of one or more of

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the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

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wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

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The Court finds that evidence regarding the video system is relevant to Plaintiff’s

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credibility and to his theory that Defendants’ covered up the incident. Further, there is

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only minimal risk of unfair prejudice to Defendants in discussing the footage, and
arguments at trial will adequately cure that risk. Defendants’ First Motion in Limine is

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Northern District of California

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DENIED.

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Defendants’ Motion in Limine No. 2

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Defendants seek to preclude witnesses Jennifer Apperson and Willie Billops from

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testifying at trial because Plaintiff did not list either individual in his initial disclosures,

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citing Federal Rule of Civil Procedure 37(c)(1). Mot. at 2 (Docket No. 139). Defendants

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further assert that Plaintiff’s counsel hindered attempts to interview and depose these

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witnesses, which delayed the deposition of Mr. Billops and precluded Defendants from

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conducting follow up discovery, and therefore that they will be prejudiced by his testimony

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under Rule 403. Id. at 4-5. Plaintiff does not object to the exclusion of Jennifer Apperson

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from the trial, because she has been so difficult to contact. Opp’n at 1 (Docket No. 178).

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However, Plaintiff opposes the motion as to Mr. Billops, on the basis that he was in fact

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interviewed and deposed by Defendants. Id. at 2. Plaintiff argues that as Defendants

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sought and were granted an extension of the discovery period, they had sufficient time to

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conduct discovery. Id. Furthermore, Plaintiff denies that counsel in any way obstructed

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Defendants’ attempts to depose Mr. Billops, or that Defendants will suffer any unfair

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prejudice from his testimony, since they waited six weeks after his deposition before

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raising this issue. Id. at 3.
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The Court finds that any prejudice Defendants may have suffered from Plaintiff’s

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failure to initially disclose Mr. Billops was cured by the fact that Defendants took his

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deposition. Additionally, Defendants have not shown what efforts they made to conduct

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any subsequent discovery after deposing Mr. Billops; indeed, the parties submitted a joint

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case management statement just ten days after the deposition, in which Defendants made

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no mention of this issue. Joint Case Management Statement (Docket No. 116). Nor have

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Defendants identified what prejudice they would suffer if his testimony is included.

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Defendants’ Second Motion in Limine is therefore GRANTED as to Ms. Apperson, but

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DENIED as to Mr. Billops.

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United States District Court
Northern District of California

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Defendants’ Motion in Limine No. 3

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Defendants’ Third Motion in Limine seeks to exclude evidence and argument

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regarding complaints, grievances, and other incidents relating to Defendants as

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inadmissible character evidence under Rules 402, 403, and 404(b). Mot. at 3 (Docket No.

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140). Plaintiff argues that this evidence is admissible for other purposes, such as proof of

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motive, opportunity, intent, preparation, plan, knowledge or absence of mistake, and as

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proof for Plaintiff’s punitive damages claim and also for impeachment purposes. Opp’n at

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2 (Docket No. 179).

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Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not admissible

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to prove a person’s character in order to show that on a particular occasion the person

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acted in accordance with the character.” Fed. R. Evid. 404(b)(1). The Rule continues,

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“This evidence may be admissible for another purpose, such as proving motive,

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opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

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accident.” Fed. R. Evid. 404(b)(2).

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The Court finds Plaintiff’s alternative purposes unpersuasive; Plaintiff has not

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shown how evidence of a small number of other complaints against Defendants will go to

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Defendants’ intent in any way other than as improper character evidence suggesting that

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Defendants acted in conformity with a character trait. Defendants’ Third Motion in
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Limine is GRANTED. However, Plaintiff shall be permitted to use such complaints as

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impeachment evidence if either Defendant specifically contradicts the evidence therein.

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See Fed. R. Evid. 608(b) advisory committee’s note.

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Defendants’ Motion in Limine No. 4

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Defendants move to exclude evidence regarding the sufficiency of the San

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Francisco Sheriff’s Department’s Internal Affairs investigation and any purported policy,

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training, or disciplinary shortcomings of the City of San Francisco (“the City”) as

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irrelevant under Rule 402 and as substantially more prejudicial than probative under Rule
403. Mot. at 2-3 (Docket No. 141). Plaintiff concedes that he is not bringing a Monell

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Northern District of California

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claim, but argues that the motion is overbroad, preventing him from arguing the merits of

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individual pieces of evidence. Opp’n at 1 (Docket No. 176).

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Plaintiff’s contention that this motion is overbroad has merit – Defendants broadly

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request the exclusion of “any Monell type evidence and testimony” without referring to

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specific documents or witnesses. Mot. at 3. However, this overbreadth does not

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necessitate a complete denial. The evidence at issue shall be excluded to the extent it is

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used to make arguments for a Monell claim. Because Plaintiff is not making a Monell

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claim, introducing evidence for this purpose would not be probative of a fact of

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consequence to the action. Fed. R. Evid. 401, 402. However, the evidence shall not be

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excluded as it pertains to Plaintiff’s claims against the individual Defendants. The

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evidence is relevant to describing what happened in Plaintiff’s case, including whether

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Defendants took any steps to cover up what happened to Plaintiff. The Court is not

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persuaded that the evidence poses any substantial risks of unfair prejudice or confusing the

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issues under Rule 403. Defendants’ Fourth Motion in Limine is accordingly GRANTED

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as it relates to arguments for the City’s liability under a Monell theory, but is DENIED as it

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relates to claims against Defendants.

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Defendants’ Motion in Limine No. 5

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Defendants move to exclude all testimony regarding other instances of law

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enforcement misconduct not involving Defendants. Mot. at 2-3 (Docket No. 142).

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Plaintiff agrees to exclude evidence of several recent controversies involving law

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enforcement, but argues that the credibility of Defendants’ witness Ms. Orcutt turns on her

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response to past examples of potential misconduct. Opp’n at 1-2 (Docket No. 174).

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Plaintiff specifically identifies portions of Ms. Orcutt’s deposition testimony, in which she

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states that she was told to “stay out of” a prior incident which may have involved

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misconduct, and that the Sheriff’s Department’s ability to prevent her from working at the
jail is “always . . . hanging over [her] head.” Id. (citing Haycock Decl. at 6, 10 (Docket

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Northern District of California

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No. 174-1)).

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The Court agrees with Plaintiff. Ms. Orcutt’s credibility will depend, in some part,

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on what she believed the consequences of reporting misconduct to be. It would be

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impossible to evaluate her state of mind without evidence of how she responded to prior

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incidents of potential misconduct. This evidence is relevant to evaluating Ms. Orcutt’s

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testimony regarding Plaintiff’s injuries in this case, and its probative value outweighs any

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of the Rule 403 concerns. Moreover, Defendants have not shown that, as a treating nurse,

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Ms. Orcutt would lack personal knowledge of the facts to which she would testify, or that

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her opinion would be unhelpful. See Fed. R. Evid. 603, 701.

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Defendants’ Fifth Motion in Limine is therefore GRANTED IN PART and

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DENIED IN PART. The Court will exclude all evidence, testimony and argument

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regarding incidents of law enforcement misconduct not involving Defendants, except that

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Plaintiff may introduce evidence of such incidents for the purpose of establishing Ms.

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Orcutt’s state of mind regarding her treatment of Plaintiff in this case and her subsequent

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actions.

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Defendants’ Motion in Limine No. 6

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Defendants move to exclude the testimony of Plaintiff’s cellmate, Mr. Demarco,

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because he did not appear at his deposition and they have not been able to otherwise

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prepare for his cross-examination. Mot. at 1-2 (Docket No. 143). Plaintiff does not

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oppose excluding his testimony from trial if he is unable to be located by the day before

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trial. Opp’n at 1 (Docket No. 169).

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The Court finds that the testimony of Mr. Demarco would be highly relevant to this

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matter, but that allowing him to testify without a deposition or other preparation would

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constitute unfair prejudice to Defendants, under Rule 403. See Fed. R. Evid. 403.
However, given the potential importance of his testimony, the Court will entertain a

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Northern District of California

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motion to allow Defendants to take his deposition and to permit him to testify, should he

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be located on any day before the close of trial. The Court accordingly GRANTS

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Defendants’ Sixth Motion in Limine without prejudice.

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Defendants’ Motion in Limine No. 7

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Defendants move to exclude testimony regarding the statements of “random

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inmates,” Mr. Demarco, and Deputy Ferrigno regarding other inmates being beaten by

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other deputies, as inadmissible hearsay under Rules 801(c) and 802. Mot. at 1 (Docket No.

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144). Plaintiff agrees to exclude Deputy Ferrigno’s statements, but argues that the

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statements of other inmates are admissible non-hearsay, because Plaintiff intends to

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introduce them for the non-hearsay purpose of Plaintiff’s state of mind and to show

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causation of his PTSD symptoms. Opp’n at 1 (Docket No. 170).

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Rule 801(c) defines hearsay as a statement that “the declarant does not make while

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testifying at the current trial or hearing” which “a party offers in evidence to prove the

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truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is generally

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inadmissible. Fed. R. Evid. 802. However, under the definition in 801(c), out of court

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statements are not hearsay if they are used for a purpose other than proving the truth of

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what was asserted therein. See Fed. R. Evid. 801(c).
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The Court finds that these statements are inadmissible hearsay under Rule 801(c), to

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the extent that they would be used to show the truth of the matters asserted therein.

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Moreover, Plaintiff’s asserted non-hearsay purpose is not persuasive – the Court finds that

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any contribution to Plaintiff’s alleged injuries from these statements would very likely be

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minimal. The minimal probative value that these statements offer is substantially

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outweighed by the risk of unfair prejudice and confusion of the issues, as the jury could

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improperly consider these other inmates’ statements as evidence regarding what happened

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to Plaintiff. Fed. R. Evid. 403. Moreover, a limiting instruction would not be sufficient to

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minimize these risks. Defendants’ Seventh Motion in Limine is therefore GRANTED.

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United States District Court
Northern District of California

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Defendants’ Motion in Limine No. 8

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Defendants finally seek to exclude testimony or argument regarding punitive

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damages. Mot. at 1-2 (Docket No. 145). Defendants argue that in his complaint, Plaintiff

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did not allege any facts to support an award of punitive damages, nor did he specifically

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ask for punitive damages. Id. Defendants further contend that Plaintiff has had sufficient

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time to amend his Complaint with the assistance of competent counsel yet has failed to do

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so. Id. at 2. Plaintiff asserts that his pro se Complaint requesting “monetary

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compensation” includes a request for punitive damages under Hamilton v. United States,

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67 F.3d 761, 764 (9th Cir. 1995) (courts must liberally construe civil rights complaints

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filed pro se). Opp’n at 1 (Docket No. 175). Further, Plaintiff contends that Defendants

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will not suffer unfair prejudice should punitive damages be permitted to proceed to trial as

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Defendants’ proposed jury instruction on excessive force includes an “intent to harm”

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element, and such intent is closely related to the standard for punitive damages in a section

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1983 case. Id. at 1-2 (citing Smith v. Wade, 461 U.S. 30, 56 (1983) (“We hold that a jury

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may be permitted to assess punitive damages in an action under § 1983 when the

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defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves

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reckless or callous indifference to the federally protected rights of others.”)).

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The Court agrees with Plaintiff. This pro se Complaint is sufficient for the
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admission of punitive damages. To the extent the Complaint is deficient in this regard, the

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Court will allow it to be amended to conform to the facts presented at trial. See Fed. R.

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Civ. P. 15(b). Moreover, the “intent to harm” element of the excessive force claim is

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sufficient to fulfill the punitive damages requirement of conduct “shown to be motivated

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by evil motive or intent” under Smith v. Wade. Defendant’s Eighth Motion in Limine is

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DENIED.

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Plaintiff’s Motion in Limine No. 1

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Plaintiff moves to exclude all evidence of his criminal history as unfairly prejudicial
and improper character evidence, under Rules 403 and 404(b). Mot. at 1 (Docket No.

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149). Defendants argue that Plaintiff’s criminal history is highly probative of the cause of

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Plaintiff’s alleged injuries, as his alleged wrist injuries may have been caused by other

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arrests or detentions involving handcuffs, and his alleged Post Traumatic Stress Disorder

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(“PTSD”) symptoms may have been caused by him killing his girlfriend, for which he was

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convicted of murder and attempted arson. Opp’n at 6, 8 (Docket No. 163). Defendants

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also argue that Plaintiff’s convictions may be used as impeachment evidence under Rule

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609. Id. at 9-10.

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It is unclear whether Plaintiff intends to introduce Plaintiff’s conviction for the 2009

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burglary as background, as Plaintiff’s counsel stated he may do at the pretrial conference.

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Transcript of Pretrial Conference at 14 (Docket No. 180).

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After considering the parties’ arguments, the Court ordered the bifurcation of the

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trial into two phases: a first phase for the first two elements of Plaintiff’s Fourteenth

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Amendment claim, regarding whether Defendants used excessive force with the intent to

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harm Plaintiff, and a second phase, if necessary, for the last element of that claim,

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regarding whether Defendants harmed Plaintiff, and a calculation of damages. June 3,

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2015 Order at 1 (Docket No. 196). The Court now finds that evidence of Plaintiff’s

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criminal history is not relevant to the first phase of trial, except, potentially, for the limited

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extent for impeachment evidence discussed below.
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However, the Court finds that Plaintiff’s convictions are relevant to the second

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phase of trial. If it happens at all, the second phase will determine whether Defendants

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caused harm to Plaintiff, and if so, the amount of damages to be awarded in light of those

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injuries. Defendants have demonstrated that Plaintiff’s prior criminal activity, including

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multiple arrests and convictions for murder and attempted arson involving the death of his

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girlfriend, could be an alternate cause of Plaintiff’s alleged injuries.
While the Court continues to be concerned about the prejudice that Plaintiff will

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suffer from introducing this evidence, the Court finds that, given the relevance of this

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evidence, the danger of unfair prejudice does not substantially outweigh the probative

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value of Plaintiff’s convictions for the matters to be determined in the second phase of

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trial, and that the evidence therefore should not be excluded from that phase under Rule

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403.

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Rule 609(a) allows felony criminal convictions to be used to attack a witness’s

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character for truthfulness, subject to the balancing test of Rule 403. Fed. R. Evid. 609(a).

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Here, the Court finds that Plaintiff’s convictions for murder and attempted arson fail under

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the Rule 403 test, and therefore cannot be admitted as impeachment evidence under Rule

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609(a) during the first phase of trial. If the jury is presented with Plaintiff’s convictions

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for murder, or attempted arson, there is a substantial risk that they would be unwilling to

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find for Plaintiff simply because of those convictions, and not because of the weight of the

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evidence. Moreover, neither of these crimes involved dishonesty, so they are not

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necessarily indicative of Plaintiff’s character for truthfulness. E.g., Eng v. Scully, 146

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F.R.D. 74, 78 (S.D.N.Y. 1993).

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However, the Court is not convinced that Plaintiff’s burglary conviction would be

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similarly prejudicial. Moreover, as noted, it is not clear if Plaintiff intends to introduce

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evidence of the burglary conviction himself, as he stated at the pretrial conference. The

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parties shall therefore present oral argument on the first day of trial regarding whether

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evidence of Plaintiff’s burglary conviction may be admitted during the first phase.

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Accordingly, Plaintiff’s First Motion in Limine is GRANTED as to Plaintiff’s

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criminal history, except his burglary conviction, for the first phase of trial, but DENIED as

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to the second phase of trial. The Court reserves judgment on the introduction of the

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burglary conviction during the first phase of trial.

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Plaintiff’s Motion in Limine No. 2

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Plaintiff seeks to exclude any evidence regarding non-party Willie Billops’ criminal

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history. Mot. at 1 (Docket No. 150). Plaintiff contends that Mr. Billops’ criminal history

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is irrelevant under Rule 402 and is more prejudicial than probative under Rule 609(b). Id.
Defendants contend that Mr. Billops’ criminal history is relevant to the instant case as

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Northern District of California

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Defendants are corrections officers and Mr. Billops was convicted of stabbing a

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corrections officer while in prison. Opp’n at 3 (Docket No. 164). Defendants argue that

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Mr. Billops’ stabbing of a corrections officer is demonstrative of his hatred and bias

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toward corrections officers in general. Id. Defendants also assert that Mr. Billops’

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incarceration must be known to the jury so that the jury may be aware of the context of

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some of Mr. Billops’ testimony, such as statements in his deposition in which he

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demonstrates his knowledge of life inside prison. Id. at 4.

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Rule 609(b)(1) allows for the introduction of a criminal conviction over ten years

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old for impeachment purposes if “its probative value, supported by specific facts and

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circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1).

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Such convictions are considered “presumptively inadmissible as too remote.” United

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States. v. Bay, 762 F.2d 1314, 1317 (9th Cir. 1984).

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Here, Mr. Billops’ criminal convictions are all more than a decade old and are, thus,

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presumptively inadmissible. Mr. Billops’ criminal history is not exceptional under these

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circumstances, despite the fact that he once stabbed a corrections officer and both

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defendants in this case are corrections officers.

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Furthermore, Defendants fail to meet Rule 609’s requirement of supporting with
“specific facts and circumstances” why the admission of Mr. Billops’ criminal history is
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substantially more probative than it is prejudicial. The mere fact that Mr. Billops stabbed a

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corrections officer over ten years ago, without more, does not show that he is now inclined

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to lie on Plaintiff’s behalf because of an innate hatred of corrections officers; more facts

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about that incident would be needed to make such a showing under Rule 609(b)(1).

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Finally, the need for the jury to know Mr. Billops’ criminal history in order to
understand the context of his testimony does not substantially outweigh the prejudicial

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effect of admitting his criminal record. The Court simply does not find Defendants’

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examples of this supposedly needed context persuasive – for example, a jury does not need

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to know about Mr. Billops’ convictions in order to make sense of his statement to Plaintiff

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that “[s]ometimes [an incident like Plaintiff’s] happens when people go to jail and run they

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Northern District of California

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[sic] mouth.”

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Accordingly, Plaintiff’s Second Motion in Limine is GRANTED.

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Plaintiff’s Motion in Limine No. 3

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Plaintiff seeks to exclude evidence of his disciplinary history and housing activity

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card at the jail. Mot. at 1 (Docket No. 151). Plaintiff contends that his disciplinary history

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and housing activity card are irrelevant under Rule 402, impermissible character evidence

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under Rule 404(b), and that their probative value is substantially outweighed by their

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prejudicial effect under Rule 403. Id. at 1-3. Defendants assert that Plaintiff’s prior

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incidents in prison should be admitted as they are substantially similar incidents. Opp’n at

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3 (Docket No. 165). Further, Defendants argue that the evidence offers impeachment of

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plaintiff’s deposition testimony that prior to the incident he had “nothing negative” to say

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about law enforcement. Id. at 4. Finally, Defendants contend that, at least, the Court

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should admit the disciplinary evidence stemming from the incident at issue so that the jury

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will be aware that the event was properly reported. Id.

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The Court finds that the probative value of this evidence is substantially outweighed

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by risk of unfair prejudice under Rule 403 and that it is improper character evidence under

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404(b). In the Court’s view, the entries on Plaintiff’s housing card do not show unusual
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behavior for a jail inmate, yet a jury may nonetheless hold Plaintiff’s behavior in jail

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against him, resulting in unfair prejudice to his case. Furthermore, under Rule 404(b),

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evidence of Plaintiff’s character cannot be used to show that on this particular occasion he

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acted in conformity therewith, yet such conformity appears to be Defendants’ only reason

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for offering this evidence. Defendants’ arguments regarding Duran v. City of Maywood,

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221 F.3d 1127 (9th Cir. 2000), miss this fundamental point, as Defendants do not offer a

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reason for submitting this evidence other than conformity with Plaintiff’s allegedly bad

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character traits.
Thus, Plaintiff’s Third Motion in Limine is GRANTED, with the following two

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caveats. First, if Plaintiff disputes whether the incident at issue was properly recorded, the

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Court will instruct the jury that Plaintiff’s housing activity card records a transfer to lock

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up on the relevant date. Second, evidence from Plaintiff’s disciplinary record or housing

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activity card will be admissible as impeachment evidence if Plaintiff specifically

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contradicts anything contained therein. See Fed. R. Evid. 608(b) advisory committee’s

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note.

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Plaintiff’s Motion in Limine No. 4

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Plaintiff moves to be present at trial free of restraints, or with minimal restraints,

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and in non-prison clothing. Mot. at 1-3 (Docket No. 152). Defendants do not oppose this

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motion, but defer to the needs of the United States Marshals in maintaining courtroom

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security. Opp’n at 2 (Docket No. 166).

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Plaintiff’s motion is GRANTED as follows: Plaintiff shall be allowed to wear non-

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prison clothing throughout trial. The Court finds that the following restraints are the

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minimum restraints appropriate to maintain security during the trial. Plaintiff shall wear

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leg restraints, which shall be wrapped in duct tape to reduce noise. Counsels’ tables shall

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have skirts attached, so that Plaintiff’s restraints are obscured and so both tables are made

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to appear similar. Plaintiff’s movement in the courtroom shall occur outside of the

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presence of the jury.
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Plaintiff’s Motion to Take Dr. Berg’s Testimony Out of Order

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Plaintiff also moves to take Dr. Berg’s live testimony out of order, because Dr.

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Berg’s wife is receiving an award in Louisiana, making him unavailable during the first

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week of trial. Mot. at 1-2 (Docket No. 156). Although the parties apparently dispute the

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nature of the award she is receiving and the extent to which Plaintiff’s stated reasons have

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changed, the Court finds it appropriate to allow Dr. Berg to be with his wife as requested.

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Moreover, given the fact that the Court has bifurcated the trial into two phases, it

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expects that Dr. Berg’s testimony will only be needed, if at all, for the second phase of

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trial. The relief requested by Plaintiff’s motion makes even more sense now that the trial

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Northern District of California

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has been bifurcated.
Plaintiff’s motion is GRANTED. In addition, Defendants shall be allowed to take
the live testimony of Dr. Strassberg following Dr. Berg’s testimony.

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Defendants’ Letter Request to Use Map as Demonstrative Exhibit

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Defendants submitted a letter request, after the deadline for motions in limine had

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passed, to use a map for demonstrative purposes during opening statements and trial. May

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26, 2015 Oldfather Letter at 1-2 (Docket No. 172). Plaintiff does not oppose the use of the

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exhibit for purely demonstrative purposes during opening, but objects to its use as

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evidence at trial. Response at 3 (Docket No. 189).

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Defendants’ request to use the map as a demonstrative showing the general layout

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of the jail during opening argument is GRANTED as unopposed. However, Defendants

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did not file their request as a motion in limine, and the merits of introducing the exhibit as

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evidence have not been sufficiently argued by the parties’ letters. Plaintiff’s objection to

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the exhibit is therefore preserved, and he may raise it if Defendants intend to introduce the

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map as evidence, in accordance with the Court’s Order Setting Trial Rules and Procedures

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(Docket No. 186).

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Defendants’ Letter Request to Exclude Testimony of Sgt. Quanico

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Finally, Defendants also submitted a letter request to exclude the trial testimony of
Sgt. Quanico because Plaintiff submitted an explanation of Sgt. Quanico’s expected

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testimony in camera. May 28, 2015 Oldfather Letter at 1 (Docket No. 184). The Court

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finds Defendants’ request extraordinary. It was entirely appropriate for Plaintiff to submit

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his explanation in camera, as the explanation would be expected to contain materials

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prepared by Plaintiff’s counsel in preparation for trial. Fed. R. Civ. P. 26(b)(3). Nothing

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in the Court’s colloquy with Plaintiff’s counsel at the pretrial conference should have

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caused Defendants’ counsel to expect to be able to review Plaintiff’s explanation.

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Moreover, even if Defendants correctly understood the Court to have ordered the

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explanation to be filed in the public record, the complete exclusion of Sgt. Quanico’s

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testimony would be a wholly disproportionate sanction for Plaintiff’s filing the explanation

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in camera. Even so, there was no violation here; as stated above, Plaintiff’s submission

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was entirely appropriate. Defendants’ letter request is DENIED.

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IT IS SO ORDERED.

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Dated: 06/04/15

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THELTON E. HENDERSON
United States District Judge

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