Hymes v. Bliss et al

Filing 165

ORDER following pretrial conference no. 1 by Judge Jacqueline Scott Corley (Corley, Jacqueline) (Filed on 11/21/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SCANVINSKI JEROME HYMES,
Plaintiff,

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ORDER FOLLOWING PRETRIAL
CONFERENCE NO. 1

v.

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Case No.16-cv-04288-JSC

MILTON BLISS, et al.,
Defendants.

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Plaintiff Scanvinski Jerome Hymes sues five current or former San Francisco Deputy

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United States District Court
Northern District of California

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Sheriffs (collectively, “Defendants”) for use of excessive force during a cell extraction on July 24,

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2014, while he was incarcerated at the San Francisco County Jail. At the pretrial conference held

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on November 20, 2018, the Court ruled on several matters. This Order supplements the Court’s

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rulings made on the record.

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I.

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MOTIONS IN LIMINE
A.

Plaintiff’s Motions in Limine (Dkt. No. 132)
1.

Plaintiff’s motion to exclude evidence of prior bad acts is continued to a

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further pretrial conference to be held on Thursday, November 29, 2018 at 2:30 p.m. On or before

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5:00 p.m. on Tuesday, November 27, 2018, Defendants shall file a submission that identifies

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evidence of Plaintiff’s conduct they intend to offer as “other acts” pursuant to Federal Rule of

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Evidence 404(b) and any evidence of Plaintiff’s conduct that they intend to offer as context for the

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reasonableness of their conduct. In particular, the submission shall identify the piece of evidence

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by exhibit and/or witness, the purpose for which Defendants intend to use the evidence, and the

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basis for its admission. If Defendants intend to offer any videos pursuant to Rule 404(b) and/or

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for context of what Defendants knew, then they shall identify with particularity the parts of the

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video they intend to offer. For example, as discussed at the pretrial conference, much of the

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television video of Mr. Hymes may not be admissible, such as the narration. Defendants must be

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prepared to defend each part of the video they intend to offer into evidence and to be able to play

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the video for the Court at the November 29 further pretrial conference. Defendants may not seek

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to admit any “other act” evidence unless and until the Court rules that it is admissible.

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2. Legal Conclusions

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Plaintiff moves for “an order in limine that Defendants cannot offer or elicit evidence of

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legal conclusions,” in particular, from the report of Don Cameron. By the morning of November

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29, 2018, at the latest, the parties shall meet and confer in person regarding Mr. Cameron’s

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proposed testimony as set forth in his report. If a dispute remains, the Court will address it at the

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further pretrial conference on November 29, 2018 at 2:30 p.m. The parties shall provide the Court

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with a copy of Mr. Cameron’s report.

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3. Arguments or Suggestions Appealing to Jurors’ Self-Interest as
Taxpayers

United States District Court
Northern District of California

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GRANTED.

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4.

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GRANTED.

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5.

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Plaintiff’s motion for an order “that Defendants and witnesses can be required to display to

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the jury their tattoos” is DENIED. (Id. at 31.) Plaintiff has not identified any admissible evidence

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from his exhibit or witness list that would explain the meaning of the guessed-about tattoos, let

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alone make them relevant to a claim or defense in this action. Plaintiff’s identification of an SF

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Weekly article is insufficient as the article is inadmissible hearsay. Further, the tattoo evidence is

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not admissible pursuant to Federal Rule of Evidence 404(b) because Plaintiff has not identified

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any evidence that would permit a jury to find that Mr. Neu planned or intended to beat Mr.

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Hymes. See Duran v. City of Maywood, 221 F.3d 1127, 1132–33 (9th Cir. 2000). However, as

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discussed at the pretrial conference, Plaintiff may make a written offer of proof based on evidence

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Plaintiff knows he can produce (because he has documents and/or has spoken to witnesses who

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will testify at trial) as to this issue which the Court will address at the November 29 further pretrial

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conference. The written offer of proof must be filed by 5:00 p.m. on November 27, 2018. Unless

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and until the Court rules otherwise, Plaintiff may not attempt to elicit any testimony or submit any

Evidence of Defendants’ Commendations

To Require Display of Tattoos

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evidence regarding tattoos and deputy gangs.
B.

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Defendants’ Motions in Limine
1. No. 1 -- Evidence Regarding Internal Affairs Investigation (Dkt. No. 122)

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Plaintiff may admit Defendants’ statements found in the internal affairs investigation

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records. Such statements are not hearsay. See Fed. R. Evid. 801(d)(2). At the pretrial conference

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Plaintiff explained that as the internal affairs investigation records are not on his exhibit list, he is

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not seeking to admit any such records.

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2. No. 2 -- Evidence Regarding Other Claims, Complaints, Allegations,
Investigations, Discipline, or Prior Lawsuits Related to the Defendants for
Excessive Force or Other Misconduct (Dkt. No. 123)

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Defendants seek to preclude Plaintiff from offering evidence regarding other claims,

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United States District Court
Northern District of California

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complaints, allegations, investigations, discipline, or prior lawsuits related to Defendants for

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excessive force or other misconduct. (Dkt. No. 123.)

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We have held that “other act” evidence is admissible under Rule
404(b) if the following test is satisfied: (1) there must be sufficient
proof for the jury to find that the defendant committed the other act;
(2) the other act must not be too remote in time; (3) the other act
must be introduced to prove a material issue in the case; and (4) the
other act must, in some cases, be similar to the offense charged.

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Duran v. City of Maywood, 221 F.3d 1127, 1132–33 (9th Cir. 2000). Plaintiff’s response does not

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identify the specific “other acts” he intends to admit, or the evidence to support that the act

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occurred. Accordingly, Plaintiff’s November 27, 2018 submission shall also identify each “other

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act,” he intends to admit, the exhibit and/or witness that will provide the evidence to support that

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the act occurred (provided he has spoken to that witness and therefore has a good faith belief he

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will so testify), the purpose for which the evidence is being offered, and the basis for its

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admission. Unless and until the Court rules that an “other act” of a defendant is admissible, it may

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not be offered by Plaintiff through questioning or otherwise.

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3. No. 3 -- Evidence and Argument Regarding Scott Neu’s Termination from
SFSD (Dkt. No. 124)

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GRANTED.

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4. No. 4 -- Criminal Charges in Proceedings Against Defendants Neu and
Jones (Dkt. No. 125)
GRANTED.
5. No. 5 -- Adverse Inference Based on Invocation of Fifth Amendment (Dkt.
No. 126)
Defendants ask the Court to: “(1) decline to give an adverse inference jury instruction

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regarding Neu’s and Jones’ invocation of the Fifth Amendment; (2) preclude examination of Neu

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and Jones in front of the jury, regarding questions in which they will merely invoke the Fifth

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Amendment; and (3) exclude argument and evidence that Neu and Jones invoked the privilege.”

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(Dkt. No. 126 at 9.)

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Deputy Jones invoked his Fifth Amendment rights as to Plaintiff’s cell extraction, as well

United States District Court
Northern District of California

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as: (1) “prior complaints or allegations of misconduct and discipline”; and (2) “SFSD policies and

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practices.” (Id. at 2.) Mr. Neu did not invoke his Fifth Amendment rights regarding the incident

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at issue and instead answered questions related to the cell extraction. However, Mr. Neu did

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invoke the Fifth Amendment as to questions regarding: “(1) prior complaints or allegations of

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misconduct and discipline; (2) his employment history with the SFSD; and (3) boxing and martial

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arts training.” (Id.)

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In civil cases, District courts may issue an adverse inference jury instruction based upon an

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invocation of Fifth Amendment rights, Baxter v. Palmigriano, 425 U.S. 308, 316-18 (1976);

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however, “the competing interests of the party asserting the privilege, and the party against whom

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the privilege is invoked must be carefully balanced,” Doe ex rel. Rudy-Glanzer v. Glanzer, 232

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F.3d 1258, 1265 (9th Cir. 2000). Thus, “no negative inference can be drawn against a civil

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litigant’s assertion of his privilege against self-incrimination unless there is a substantial need for

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the information and there is not another less burdensome way of obtaining that information.” Id.

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Further, “an adverse inference can be drawn [only] when silence is countered by independent

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evidence of the fact being questioned.” Id. at 1264. The court must further apply the Rule 403

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balancing test and “determine whether the value of presenting the evidence is substantially

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outweighed by the danger of unfair prejudice to the party asserting the privilege.” Nationwide Life

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Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (internal quotation marks and citations
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omitted). “Because the privilege is constitutionally based, the detriment to the party asserting it

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should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side.”

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Glanzer, 232 F.3d at 1265.

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Plaintiff’s opposition to Defendants’ motion in limine identifies two lines of questioning

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on which he seeks an adverse inference: (1) Deputy Jones’ refusal to answer as to force used

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during the cell extraction, and (2) Mr. Neu’s involvement in the alleged deputy gang.

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As to Mr. Neu, Plaintiff does not show a “substantial need for information” related to the

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alleged deputy gang because it does not appear admissible. As discussed above with respect to

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tattoos, Plaintiff has not identified any admissible evidence regarding Mr. Neu’s alleged gang
participation; thus, there is no “independent evidence of the fact being questioned.” Further, as

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United States District Court
Northern District of California

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discussed at the pretrial conference, Plaintiff has not identified any potential evidence that would

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make the alleged gang activity anything other than improper propensity evidence; thus, there is

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also no substantial need for the information. See Glazer, 232 F.3d at 1267 (noting that under the

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first prong of the test, “the need for the information contained in the question has to be

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substantial,” and “[b]ecause of the legally irrelevant, and consequently inadmissible, nature of the

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information” sought, plaintiff “cannot show any need, let alone a substantial one, for that

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information.”)

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Plaintiff responds that even if he is not entitled to an adverse inference instruction, he

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should still be allowed to question Mr. Neu about areas in which he pled the Fifth Amendment

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privilege. The Court disagrees. If Plaintiff knows that Mr. Neu is going to plead the Fifth

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regarding questions about his alleged gang activity, and Plaintiff does not have a substantial need

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for the information or sufficient independent evidence of the question’s subject, there is no point

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to the questioning other than to improperly cause the jury to speculate as to what the answer to the

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question might be or why Mr. Neu is pleading the Fifth. In other words, if no inference from the

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invocation of the Fifth Amendment is sought to be drawn, the question and answer are irrelevant.

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Further, to the extent there is any relevance, the Court finds the prejudice from such questioning

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outweighs its probative value and therefore excludes any questioning about Mr. Neu’s alleged

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gang activity under Federal Rule of Civil Procedure 403 unless and until the Court rules
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otherwise.
The analysis as to Deputy Jones is different. Unlike Mr. Neu, Deputy Jones refused to

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answer questions about the central issue in this lawsuit: the force he used and observed during the

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cell extraction. Plaintiff has independent evidence of these facts—his own testimony—and he has

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a substantial need given that only Deputy Jones can testify as to what he did and observed.

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Plaintiff may therefore question Deputy Jones as set forth in the deposition testimony attached to

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Plaintiff’s opposition to the motion in limine. To hold otherwise would unfairly prejudice

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Plaintiff.

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As the Court stated at the pretrial conference, given that these are the only two areas of
questioning raised by Plaintiff in opposition to Defendants’ motion in limine, Plaintiff is precluded

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United States District Court
Northern District of California

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from asking other questions that he knows Deputy Jones and Mr. Neu will refuse to answer on

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Fifth Amendment grounds. In response, Plaintiff claimed he did not understand that even if he

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was not asking for a jury instruction on an adverse inference, he would be precluded from merely

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eliciting the refusal to answer on Fifth Amendment grounds. Defendants’ motion, however,

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sought to “preclude plaintiff from asking Neu and Jones questions to which they will assert the

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Fifth Amendment in front of the jury.” (Dkt. No. 126 at 8.) Thus, Plaintiff was on notice to

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identify all the areas on which he wants to question Mr. Neu and Deputy Jones and on which they

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pled the Fifth; Plaintiff identified only the two areas of inquiry discussed above. Nonetheless, if

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Plaintiff believes that there are other areas that would be appropriate on which to question these

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defendants in order to elicit their refusal to answer on Fifth Amendment grounds, and Plaintiff

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believes such questions would be relevant and not run afoul of Rule 403 as explained by the Court

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above, then on or before November 27, 2018 at 5:00 p.m. he shall file a written submission that

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identifies the specific line of questioning.

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No. 7 -- “Paramilitary” or Similar, Inflammatory Language (Dkt. No. 128)

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DENIED.

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No. 8 -- Evidence and Argument that Plaintiff was Subjected to Racial

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Bias (Dkt. No. 129)

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GRANTED for the same reasons as the Court denied Plaintiff’s motion in limine regarding
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tattoos.

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II.

EXHIBIT AND WITNESS LISTS
In light of the Court’s rulings and the discussions at the pretrial conference, the parties

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shall revise their witness and exhibit lists. The revised lists shall be filed by November 27, 2018

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at 5:00 p.m.

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III.

MEET AND CONFER
Lead trial counsel for the parties shall meet and confer in person on November 28, 2018 or

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the morning of November 29, 2018 at the latest, to discuss the November 27, 2018 submissions

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and attempt to resolve any objections to admission of the identified evidence.

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IV.

As discussed at the pretrial conference, Plaintiff no longer seeks medical records and the

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United States District Court
Northern District of California

DISCOVERY DISPUTE (Dkt. No. 154)

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Court denies his request for CLETS records. Defendants represented that nearly all of the

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remaining documents had been produced, but there was no agreement on what had or had not been

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produced; accordingly, Defendants shall specifically identify for Plaintiff what is currently

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withheld. Defendants shall produce anything in the withheld records that are statements of

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defendants. Defendants’ Fifth Amendment privilege objection is overruled. The Court is not

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ordering Deputy Jones or Mr. Neu to produce anything in their custody, control or possession;

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instead, these statements are in the custody, control or possession of the City and County of San

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Francisco. See Fisher v. United States, 425 U.S. 391, 397 (1976).
CONCLUSION

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The Court will hold a further pretrial conference at 2:30 p.m. on Thursday, November 29,

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2018.

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This Order disposes of Docket Nos. 122, 123, 124, 125, 126, 128, 129, 132 and 154.

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IT IS SO ORDERED.

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Dated: November 21, 2018

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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