Henderson v. California Department of Correction and Rehabilitation et al

Filing 269

ORDER by Judge Armstrong Denying 180 Defendants' Motion to Revoke Plaintiff's IFP and to Dismiss; Granting 183 Defendants' Motion to Bifurcate; Denying 193 Defendants' Motion for Relief from Non-Dispositive Pretrial Order of Magistrate Judge; Granting in Part and Denying in Part 222 Defendants' Motions in Limine Nos. 1 Through 10; Granting in Part and Denying in Part 226 Plaintiff's Motions in Limine (sbalc2, COURT STAFF) (Filed on 7/15/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 CURTIS LEE HENDERSON, SR., Case No: C 07-2838 SBA (PR) 7 Plaintiff, 8 vs. ORDER ON MOTIONS IN LIMINE AND DEFENDANTS’ PRETRIAL MOTIONS 9 J. PETERSON, C. SPEAKER, J.T. PATCH, Dkt. 180, 183, 193, 222, 226 10 M.D. BULLOCK, S.L. THOMPSON, J. MCBRIDE, DA CHRIST, G. KELLY, J. 11 GETZ, J. BROWN, S. LUCKETT, R. TUPY, M. COOK, K. CRUSE, J. AKIN, J. 12 MOULTON, D. MANDEL, S. WRIGHT, ET. AL, 13 Defendants. 14 15 16 Plaintiff Curtis Lee Henderson, a state prisoner currently incarcerated at California 17 State Prison, Corcoran, alleges that he was subjected to excessive force while housed at 18 Pelican Bay State Prison (“Pelican Bay”) in 2006. The Defendants remaining in this action 19 are Correctional Officers James Petersen (“Petersen”), Clay Speaker (“Speaker”), Michael 20 Bullock (“Bullock”), and David Christ (“Christ”), all of whom were employed by the 21 California Department of Corrections and Rehabilitation (“CDCR”) at Pelican Bay at the 22 time of the incident. A five-day jury trial is scheduled to commence on July 18, 2011. 23 The parties are now before the Court on the parties’ respective motions in limine and 24 various other pending motions. Dkt. 180, 183, 193, 222, 226. The parties appeared for a 25 pretrial conference on July 12, 2011, at which time the Court heard argument on the 26 motions. Having considered the papers received and the arguments, of counsel, the Court 27 enters the following rulings. 28 1 I. BACKGROUND 2 A. 3 The parties are familiar with the facts of this case, which are summarized herein FACTUAL SUMMARY 4 only to the extent they are relevant to the instant motions. According to Plaintiff, on 5 August 16, 2006, Defendants Petersen and Speaker attempted to place him in a double cell 6 with another inmate. When Plaintiff refused, they handcuffed him and placed him in a 7 cage. Plaintiff began experiencing chest pains and informed Speaker that he needed to see 8 a medical technical assistant (“MTA”). In response to Plaintiff’s complaints, Petersen 9 escorted Plaintiff to the unit rotunda where Speaker then searched him. Speaker found an 10 address book on Plaintiff’s person which Petersen then kicked across the floor. As Plaintiff 11 bent over to pick up the address book, Petersen struck Plaintiff in his back and thighs with 12 his baton. Speaker joined in the fray, using his baton to strike Plaintiff about the skull, neck 13 and shoulder blades. Plaintiff attempted to escape the beating, at which point Petersen 14 sprayed Plaintiff with pepper spray for seven to nine seconds. Peterson then jumped on 15 Plaintiff’s back, while Speaker jumped on Plaintiff’s legs. 16 Speaker and Petersen subsequently handcuffed Plaintiff tightly, causing him to lose 17 circulation in his left arm and to suffer lacerations. Speaker ordered Defendant Bullock to 18 hold Plaintiff down. Although Plaintiff pleaded with Defendant Christ and Correctional 19 Officer Glenn Kelly for assistance, they walked away as the assault continued. Bullock 20 then began beating Plaintiff, who at that point was handcuffed and shackled, and then 21 subsequently pulled Plaintiff off the floor by his handcuffs. Bullock then took Plaintiff to 22 the yard and forced him under a shower with freezing cold water. Plaintiff complained that 23 he could not feel his arms and requested to see a MTA. Defendants allegedly refused to 24 provide medical treatment for Plaintiff until other inmates complained on his behalf. 25 Defendants offer a markedly different version of events. They claim that on the 26 evening of the incident, Petersen and Speaker removed Plaintiff from his cell in response to 27 his complaints of chest pain. As the correctional officers waited for medical personnel to 28 arrive in the rotunda, Speaker searched Plaintiff. During the search, he discovered paper -2- 1 towels and an address book in Plaintiff’s clothing. Believing that Plaintiff would be taken 2 out of the unit for medical care, they confiscated his address book and told him that it 3 would be returned later. Plaintiff allegedly became irate, argumentative and aggressive 4 with the officers. The dispute escalated to a physical altercation, during which Petersen and 5 Speaker hit Plaintiff with their batons and applied pepper spray to subdue him. Defendants 6 deny that their attack was unprovoked or that they engaged in an unreasonable application 7 of force under the circumstances. 8 B. 9 The operative pleading in this action is Plaintiff’s Second Amended Complaint filed 10 on February 28, 2008, which alleges claims under 42 U.S.C. § 1983 for excessive force and 11 deliberate indifference to serious medical needs. Dkt. 14. On September 30, 2010, the 12 Court granted Defendants’ motion for summary judgment as to Plaintiff’s claim for 13 deliberate indifference, but denied the motion as to his claim for excessive force. See 14 9/30/10 Order, Dkt. 117. After locating pro bono counsel willing to represent Plaintiff, the 15 Court issued an order on December 9, 2010, appointing Rachael E. Meny, Benedict Y. Hur, 16 R. Adam Lauridsen and Sharif E. Jacob of Keker & Van Nest LLP as counsel for Plaintiff. 17 On June 27, 2011, the parties stipulated to the dismissal of Glenn Kelley and Jeffrey 18 McBride as party-defendants. Dkt. 231. In addition, Plaintiff dismissed with prejudice his 19 claims for injunctive relief and for damages based on mental or emotional distress. Id. PROCEDURAL HISTORY 20 Plaintiffs and Defendants, respectively, have filed motions in limine in anticipation 21 of trial. Dkt. 222, 226. In addition, Defendants have filed several other motions which are 22 ripe for adjudication: (1) Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis 23 Status, Dkt. 180; (2) Defendants’ Motion for Relief from Non-Dispositive Pretrial Order of 24 Magistrate Judge, Dkt. 193; and (3) Defendants’ Motion to Bifurcate Trial, Dkt. 183. 25 // 26 // 27 // 28 -3- 1 II. PLAINTIFFS’ MOTIONS IN LIMINE 2 A. 3 Plaintiff moves to exclude evidence of his juvenile adjudications and misdemeanor 4 and felony convictions he suffered as an adult on the grounds that they are not relevant to 5 any issue at trial, and that their admission at trial would be unduly prejudicial. Pl.’s Mots. 6 in Limine (“Pl.’s Mot.”) at 1-4, Dkt. 226. His adult criminal convictions are summarized as 7 follows: MOTION NO. 1: PRIOR CONVICTIONS 8 • 1989: Cal. Pen. Code § 459 (misdemeanor burglary); 9 • 1989: Cal. Pen. Code § 496 (misdemeanor receiving stolen property) 10 • 1989: Cal. Pen. Code § 459 (misdemeanor attempted burglary) 11 • 1990: Cal. Veh. Code § 23153(b) (felony causing bodily injury while driving under the influence); 12 13 14 15 16 • 1992: Cal. Pen. Code § 187 and § 12022.5(a) (felony first degree murder with personal use of a firearm); and • 1992: Cal. Pen. Code § 211 and §§ 122022.5(a), 12022.7 (felony robbery with personal use of a firearm, inflicting great bodily injury on a person other than an accomplice). 17 Id. at 1. At the pretrial conference, Defendants confirmed that they are not seeking to admit 18 Plaintiff’s juvenile adjudications or his misdemeanor convictions. Therefore, the only 19 dispute remaining before the Court concerns whether Plaintiff’s adult felony convictions 20 from 1990 and 1992 are admissible for purposes of impeachment. Defs.’ Opp’n to Pl.’s 21 Mots. in Limine (“Def.’s Opp’n”) at 1, Dkt. 237. 22 Because Plaintiff’s felony convictions from 1990 and 1992 occurred well over ten 23 years ago, they are presumptively inadmissible under Federal Rule of Evidence 609(b), 24 absent a finding that their probative value substantially outweighs the prejudicial effect of 25 presenting evidence of the convictions to the trier of fact. Rule 609(b) provides that: 26 27 Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction ... unless the court determines, in the interests of justice, that the probative value of the conviction supported by 28 -4- specific facts and circumstances substantially outweighs its prejudicial effect. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fed. R. Evid. 609(b) (emphasis added); see United States v. Bay, 762 F.2d 1314, 1317 (9th Cir.1984) (“Evidence of a conviction more than ten years old is presumptively inadmissible as too remote.”). The advisory committee notes to Rule 609(b) “clearly state ‘that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.’” United States v. Bensimon, 172 F.3d 1121, 1126-1127 (9th Cir. 1999) (quoting in part Fed. R. Evid. 609(b) advisory committee’s notes). In their opposition, Defendants completely fail to acknowledge the presumption under Rule 609(b) against admitting convictions over ten years old, and instead, summarily assert that Plaintiff’s prior felony convictions are “highly relevant” to his claim that he was the victim of an unprovoked attack. Defs.’ Opp’n to Pl.’s Mot. in Limine (“Pl.’s Opp’n”) at 2, Dkt. 237. The flaw in Defendants’ argument is that it never explains how the convictions are relevant. Moreover, Defendants fail to demonstrate the probative value of the convictions through a discussion the “specific facts and circumstances” pertaining thereto, as required by Rule 609(b). The paucity of such an explanation underscores that the actual purpose of the convictions is to imply that Plaintiff has a propensity to engage in violent conduct, and therefore, is likely to have instigated the altercation. But, any attempt to utilize Plaintiff’s convictions for such purpose contravenes Federal Rule of Evidence 404(b), which provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b) (emphasis added).1 Accordingly, the Court GRANTS Plaintiff’s motion in limine no. 1 to exclude evidence of or reference to his felony convictions and DENIES the motion as moot with respect to Plaintiff’s juvenile adjudications and misdemeanor convictions. 26 1 Defendants ignore Rule 404(b), but assert that evidence of Plaintiff’s alleged violent disposition is admissible under Rule 404(a)(2). Pl.’s Opp’n at 3. Defendants overlook that Rule 404(a)(2) applies “[i]n a criminal case.” Fed. R. Evid. 404(a)(2) 28 (emphasis added). 27 -5- 1 B. 2 Plaintiff’s motion in limine no. 2 and Defendants’ motion in limine no. 6 address MOTION NO. 2: RESTRAINTS/COURT ATTIRE 3 whether Plaintiff should be compelled to appear in court in prison garb and shackled. At 4 the pretrial conference, the parties reached an agreement that Plaintiff could appear in 5 civilian attire and without restraints, provided that security personnel are present in the 6 courtroom. In view of the parties’ agreement, the Court DENIES Plaintiff’s Motion in 7 Limine No. 2 and Defendants’ motion in limine no. 6 as moot. 8 C. 9 Next, Plaintiff moves to exclude his prison disciplinary records on the ground that 10 such evidence is inadmissible and unduly prejudicial character evidence. Pl.’s Mot. at 6. 11 Defendants respond that since Plaintiff “is a violent and disruptive inmate,” such records 12 are admissible to impeach Plaintiff in the event he testifies. Defs.’ Opp’n at 4. The Court 13 agrees with Plaintiff that the records are inadmissible. 14 MOTION NO. 3: PLAINTIFF’S PRISON DISCIPLINARY HISTORY The salient question presented is whether Defendants’ application of force was 15 reasonable under the circumstances presented. See Graham v. Connor, 490 U.S. 386, 394- 16 96 (1989) (setting forth legal standard in excessive force cases). Defendants have made no 17 particular showing that evidence relating to his disciplinary history is probative of this 18 issue, and simply make the ipse dixit assertion that the evidence is relevant. Given the lack 19 of such a showing, the admission of Plaintiff’s disciplinary records is improper. See Hynes 20 v. Coughlin, 79 F.3d 285, 290-91 (2d Cir. 1996) (“where there is no tenable basis for 21 contending that there was an issue such as intent or knowledge, it is error to admit an 22 inmate’s disciplinary record to support the inference that he had a ‘penchant for violent 23 conduct.’”); Seals v. Mitchell, No. C 04-3764 NJV, 2011 WL 1399245, at *6 (N.D. Cal. 24 April 13, 2011) (granting prisoner’s motion in limine to exclude his prison disciplinary 25 record because it is “not relevant, is prejudicial, constitutes inadmissible character evidence 26 of other wrongs or acts, and is inadmissible hearsay.”) (citing Fed. R. Evid. 402, 403, 27 404(b), & 802) (Vadas, J.). The Court therefore GRANTS Plaintiff’s motion in limine no. 28 3 to exclude evidence of or reference to Plaintiff’s prison disciplinary record. -6- 1 D. 2 Pursuant to Rule 403, Plaintiff moves to exclude any evidence of or reference to 3 Plaintiff’s current prison sentence or incarceration based on his 1992 conviction on the 4 basis that its prejudicial effect would substantially outweigh its probative value. 5 Defendants do not oppose this motion in limine. Therefore, the Court GRANTS Plaintiff’s 6 motion in limine no. 4. MOTION NO. 4: PLAINTIFF’S PRISON SENTENCE 7 E. 8 Plaintiff moves to exclude evidence that the CDCR paid for his medical treatment MOTION NO. 5: PAYMENT OF MEDICAL EXPENSES 9 for injuries incurred as a result of the August 6, 2006 incident. “Under the collateral source 10 rule, benefits received by the plaintiff from a source collateral to the defendant may not be 11 used to reduce that defendant’s liability for damages.” McLean v. Runyon, 222 F.3d 1150, 12 1155-1156 (9th Cir. 2000) (internal quotations marks and citations omitted); Gill v. 13 Maciejewski, 546 F.3d 557, 564-65 (8th Cir. 2008) (applying collateral source rule in 14 § 1983 action). The rationale for the collateral source rule is to prevent the defendant from 15 receiving a windfall by avoiding liability for damages suffered by the plaintiff as a result of 16 the defendant’s conduct. See Siverson v. United States, 710 F.2d 557, 560 (9th Cir. 1983) 17 (finding that the purpose of collateral source doctrine is to prevent the defendant from 18 receiving a windfall, irrespective of whether application of the doctrine results in a double 19 recovery for the plaintiff); Chavez v. Poleate, No. No. 2:04-CV-1104 CW, 2010 WL 20 678940, at 2 n.2 (D. Utah Feb. 23, 2010) (applying collateral source rule in a prisoner’s 21 § 1983 action against prison guard where state paid for plaintiff’s medical expenses). 22 Defendants contend that the collateral source doctrine applies only where the injured 23 party paid for the insurance, program or policy that paid the benefit, and that because 24 Plaintiff is a prisoner, he could not have contributed to the state fund used to pay for his 25 medical care. Defs.’ Opp’n at 5-6. The cases cited by Defendants do not support their 26 proposition. In Green v. Denver & Rio Grande Western R. Co., 59 F.3d 1029 (10th Cir. 27 1995), the court merely observed that cases from the Tenth Circuit have “treated payments 28 from the public treasury, at least when funded by a tax scheme to which the injured party -7- 1 contributed, as from a collateral source.” Id. at 1032. The court did not hold or suggest, as 2 Defendants intimate, that application of the collateral source rule is dependent on whether 3 the plaintiff actually paid any taxes. Likewise, the Ninth Circuit in McLean did not hold 4 that the plaintiff must pay into the fund used to compensate him for his injuries in order for 5 the collateral source doctrine to apply. Rather, the court held that the payment of workers’ 6 compensation benefits to an injured federal employee did not qualify as a collateral source 7 because the defendant “pays both the damages award and the workers’ compensation 8 benefits.” McLean, 222 F.3d at 1156. 9 Alternatively, Defendants contend that the collateral source rule is inapplicable 10 ostensibly because the CDCR’s payment of Plaintiff’s medical expenses is not a collateral 11 source. Defs.’ Opp’n at 6 (citing McClean, 222 F.3d at 1156). Defendants assert that since 12 the individual Defendants are being sued in their personal and official capacities, the CDCR 13 necessarily will pay any damage award rendered in this case. Id. Defendants fail to 14 provide any factual support for this assertion.2 In addition, they ignore that the state is not 15 automatically obligated to indemnify its employees in civil suits in all instances. See Cal. 16 Gov’t Code § 825(a). Defendants’ position also is at odds with the parties’ stipulation, as 17 set forth in their joint proposed jury instruction no. 22, which states that “[t]his is not an 18 action against the State of California or against the California Department of Corrections 19 and Rehabilitation…. Whether the State of California would or would not reimburse the 20 defendants for any damages is irrelevant and should not be considered.” Dkt. 212 at 46. 21 Thus, for the reasons set forth above, the Court GRANTS Plaintiff’s motion in limine no. 6 22 to exclude evidence of collateral source payments. 23 F. 24 Plaintiff moves, pursuant to Rule 403, to preclude Defendants from presenting 25 evidence concerning other complaints and lawsuits initiated by him that are unrelated to the MOTION NO. 6: OTHER LAWSUITS 26 2 During the hearing on July 12, 2011, counsel for Plaintiff acknowledged that Plaintiff’s pro se complaint alleged that Defendants were liable in both their personal and official capacities. However, he clarified that Plaintiff’s claims are based on Defendants’ 28 personal capacities only. 27 -8- 1 incident forming the basis of this action. As a general matter, unless the prior lawsuits have 2 been shown to be fraudulent, the probative value of evidence pertaining to a plaintiff’s 3 litigation history is substantially outweighed by the danger of jury bias. See Seals, 2011 4 WL 1399245, at *5 (granting motion in limine to exclude references to plaintiff’s other 5 lawsuits or grievances under Rule 403 and 404(b)) (citations omitted). “In addition, 6 evidence of Plaintiff’s litigiousness is inadmissible character evidence.” Id. 7 Here, Defendants make no showing that Plaintiff’s prior lawsuits were fraudulent or 8 are related to this case, and merely assert that “[his] extensive litigation history is 9 admissible because it goes to [his] ability to be truthful and whether he has a tendency to 10 file unmeritorious litigation.” Defs.’ Opp’n at 7. Defendants fail to provide any factual or 11 legal support for these bare assertions. In addition, Defendants’ theory of admissibility 12 reveals that they are seeking to admit such evidence for the improper purpose of attacking 13 Plaintiff’s character, in violation of Rule 404(b). Thus, the Court GRANTS Plaintiff’s 14 motion in limine no. 6 to exclude evidence of or reference to Plaintiff’s other complaints 15 and lawsuits. 16 G. 17 Daniel Vasquez is Plaintiff’s expert on use-of-force. He is the former Warden of MOTION NO. 7: EXTRINSIC EVIDENCE RELATING TO DANIEL VASQUEZ 18 San Quentin State Prison and Soledad State Prison, both of which are operated by the 19 CDCR. Mr. Vasquez allegedly left the CDCR in or about 1994 following concerns 20 regarding his job performance, which included allegations of preferential treatment of 21 Latino employees and bias against African-American employees, delays in processing new 22 prisoners and his improper personal use of CDCR telephones. See Jacob Decl. Ex. D at 23 1064:12-1067:11, Dkt. 227. When cross-examined about these matters at an unrelated trial 24 before Judge Susan Illston against the CDCR in 2009 in the matter of Lira v. Cate, C 00- 25 0905 SI, Mr. Vasquez denied having been accused of any improprieties or that he left the 26 CDCR under threat of being demoted. Id. 27 In motion in limine no. 7, Plaintiff moves to exclude extrinsic evidence that 28 Defendants intend to offer at trial to impeach Mr. Vasquez. Specifically, Plaintiff seeks to -9- 1 preclude Defendants from calling David Tristan, Mr. Vasquez’s former superior at the 2 CDCR, to testify regarding the reasons for Mr. Vasquez’s departure from the CDCR. See 3 Defs.’ Witness List ¶ B.1, Dkt. 199. Plaintiff also seeks to exclude unspecified 4 documentary evidence offered for the same purpose.3 As support for his in limine motion, 5 Plaintiff relies on Federal Rule of Evidence 608(b), which states: (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 6 7 8 9 10 11 12 Fed. R. Evid. 608(b) (emphasis added); United States v. Abel, 469 U.S. 45, 55 (1984) 13 (noting that although Rule 608(b) “prohibits the cross-examiner from introducing extrinsic 14 evidence of the witness’ past conduct,” it “allows a cross-examiner to impeach a witness by 15 asking him about specific instances of past conduct, other than crimes covered by Rule 609, 16 which are probative of his veracity or ‘character for truthfulness or untruthfulness.’”). 17 The Court agrees that Rule 608(b) forecloses any attempt by Defendants to impeach 18 Mr. Vasquez through the presentation of witness testimony or documentary evidence 19 regarding his job performance and reasons for his departure from the CDCR. Notably, in 20 neither their opposition brief nor during oral argument did Defendants cite any authority 21 holding that the impeachment of Mr. Vasquez through the presentation of extrinsic 22 evidence is proper. Accordingly, the Court GRANTS Plaintiff’s motion in limine no. 7 to 23 exclude extrinsic evidence, including witness testimony and documentary evidence, offered 24 to impeach Mr. Vasquez. 25 3 At the pretrial conference, counsel for Defendants stated their desire to impeach Mr. Vasquez with telephone records generated during his employment with the CDCR. 27 Counsel states that such records contradict Mr. Vasquez’ claim that he did not owe the CDCR any money for personal telephone calls at the time he resigned. Counsel did not 28 have the records available for review, however. 26 - 10 - 1 H. 2 In motion in limine no. 8, Plaintiff seeks, pursuant to Rule 403, to preclude 3 Defendants from cross-examining Mr. Vasquez regarding his alleged favoritism of Latino 4 employees and his failure to reimburse the CDCR for approximately $4,000 worth of 5 personal telephone calls. Pl.’s Mot. at 12. Defendants respond that they should be allowed 6 to present evidence of and cross-examine Mr. Vasquez regarding the aforementioned 7 matters to demonstrate that he is untruthful and is biased against the CDCR. 8 MOTION NO. 8: QUESTION OF DANIEL VASQUEZ As a general matter, Rule 608(b) permits a party to impeach a witness by examining 9 him or her about specific instances of past conduct to the extent that they are probative of 10 his or her character for truthfulness or untruthfulness. Abel, 469 U.S. at 55. Defendants’ 11 opposition fails to articulate how the circumstances of Mr. Vasquez’s departure from the 12 CDCR are “probative of truthfulness or untruthfulness.” See Fed. R. Evid. 608(b).4 Thus, 13 at the pretrial conference, the Court asked Defendants for clarification on this issue. 14 Defendants responded that Mr. Vasquez had testified inconsistently at the Lira trial before 15 Judge Illston and his deposition in this case regarding whether he repaid the CDCR for 16 making personal telephone calls. When questioned further by the Court, however, counsel 17 neither was able to recite the precise trial and deposition testimony that she claimed were 18 inconsistent nor could she indicate where in the record the relevant transcripts could be 19 found. Consequently, the Court finds that Defendants have failed to lay a sufficient 20 foundation to permit them to cross-examine Mr. Vasquez under Rule 608(b) regarding 21 specific instances of conduct leading to his departure from the CDCR. 22 Notwithstanding Rule 608(b), a party may cross-examine a witness to show bias. 23 United States v. Ray, 731 F.2d 1361, 1364 (9th Cir. 1984) (“Rule 608(b) does not bar 24 introduction of evidence to show that the witness is biased. It regulates only the 25 4 In Court, defense counsel argued that Mr. Vasquez testified in the Lira trial that he still owed the CDCR for making personal telephone calls, but that during his deposition in this case, he contradicted himself on this point. When questioned further by the Court, 27 however, counsel could neither recite the precise trial and deposition testimony that she claimed was inconsistent nor could she indicate where in the record the relevant transcripts 28 could be found. 26 - 11 - 1 admissibility of evidence offered to prove the truthful or untruthful character of a 2 witness.”). Information that Mr. Vasquez resigned from the CDCR due to concerns 3 regarding his performance and conduct certainly may bear upon his bias against the CDCR. 4 However, Defendants have failed to proffer the requisite foundation to permit them to 5 engage in such questioning on cross-examination. See United States v. Lo, 231 F.3d 471, 6 483 (9th Cir. 2000) (holding that the trial court “was well within her discretion in limiting” 7 highly speculative cross-examination suggesting that a prosecution witness had committed 8 bankruptcy fraud where “the evidence of bankruptcy fraud on which Lo sought to rely was 9 exceedingly thin”). Given the lack of foundation for Defendants’ proposed cross- 10 examination, coupled with the remoteness in time in which such conduct allegedly 11 occurred, the Court, in its discretion, precludes Defendants from cross-examining Mr. 12 Vasquez regarding any of the specific instances of misconduct allegedly leading to his 13 departure from the CDCR. See Lo, 231 F.3d at 483; Fed. R. Evid. 403. Accordingly, the 14 Court GRANTS Plaintiff’s motion in limine no. 8.5 15 I. 16 Plaintiff moves in limine for an order excluding any expert testimony on the issue of MOTION NO. 9: PLAINTIFF’S NON-RETAINED EXPERT WITNESSES 17 causation from Drs. Pappanaickenpa Ramani Chandrasekaran, Gregory M. Duncan and 18 Larry J. Maukonen, each of whom provided medical care to Plaintiff while he was 19 incarcerated at Pelican Bay. During the pretrial conference, Defendants confirmed and 20 represented to the Court that they will not elicit opinion testimony from these witnesses on 21 matters beyond their examination, diagnosis and treatment of Plaintiff or opinion testimony 22 on the issue of causation. Plaintiff acknowledged that in light of Defendants’ 23 representation, there was no longer a need to depose these individuals. There no longer 24 being any actual dispute between the parties regarding the permissible scope of these 25 doctors’ testimony, the Court DENIES Plaintiff’s motion in limine no. 9 as moot. 26 27 5 28 Of course, Defendants are free to probe Mr. Vasquez’s bias on grounds other than those raised by Plaintiff’s motion in limine. - 12 - 1 2 III. DEFENDANTS’ MOTIONS IN LIMINE 3 MOTION NO. 1: EVIDENCE OF PLAINTIFF’S CUBITAL TUNNEL/ULNAR ENTRAPMENT 4 Defendants move to exclude “all evidence regarding [Plaintiff]’s cubital tunnel A. 5 syndrome/bilateral entrapment” on the ground that “[his] medical expert, Dr. Nicole 6 Schneider, is the only witness who links this injury to the August 16, 2006 use-of-force 7 incident and Dr. Schneider is not qualified to testify regarding cubital tunnel 8 syndrome/bilateral entrapment.” Defs.’ Mot. at 1. The gravamen of Defendants’ motion is 9 that Dr. Schneider is not qualified to render such opinions because she is not a specialist 10 11 and cannot recall having rendered medical treatment for such conditions. Id. at 1-3. “Rule 702 requires that a testifying expert be ‘qualified as an expert by knowledge, 12 skill, experience, training, or education.’” Hangarter v. Provident Life and Acc. Ins. Co., 13 373 F.3d 998, 1016 (9th Cir. 2004) (quoting in part Fed. R. Evid. 702). The rule 14 contemplates “a broad conception of expert qualifications,” and is “intended to embrace 15 more than a narrow definition of qualified expert.” Id. (internal quotation marks and 16 citations omitted). The determination of whether an individual qualifies as an expert is left 17 to the discretion of the district court. Id. 18 Defendants first contend that Dr. Schneider is not qualified to render any opinions 19 regarding Plaintiff’s nerve injuries because she is not a board-certified specialist in that area 20 of medicine. A physician, however, is qualified to express opinions about other medical 21 fields in which she is not a specialist. E.g., Sprague v. Bowen, 812 F.2d 1226, 1232 (9th 22 Cir. 1987) (holding that a physician was qualified to give a medical opinion as to a patient’s 23 mental state even though he was not a psychiatrist). As such, a medical doctor’s expert 24 testimony may not be excluded for lack of specialization. Doe v. Cutter Biological, Inc., 25 971 F.2d 375, 385 (9th Cir. 1992) (“The fact that the experts were not licensed 26 hematologists does not mean that they were testifying beyond their area of expertise. 27 Ordinarily, courts impose no requirement that an expert be a specialist in a given field, 28 - 13 - 1 although there may be a requirement that he or she be of a certain profession, such as a 2 doctor.”). 3 As an ancillary matter, Defendants argue that Dr. Schneider is not qualified to render 4 opinions concerning Plaintiff’s nerve injuries, as she has not treated any patients suffering 5 from cubital tunnel syndrome or ulnar nerve entrapment, and that her knowledge of these 6 conditions is derived from consultation with a colleague. Defs.’ Mot. at 1.6 Defendants fail 7 to cite any authority for the proposition that a medical expert must have provided a 8 particular form of clinical treatment in order to qualify as an expert. Moreover, there is 9 nothing improper with Dr. Schneider’s formulation of an opinion based on her consultation 10 with another physician. See Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 781 (3rd 11 Cir. 1996) (physician could testify regarding findings contained in a pathology report 12 prepared by pathologists). 13 At bottom, the veracity of the assumptions underlying Dr. Schneider’s opinions is 14 perhaps germane to the weight, as opposed to the admissibility, of her opinions. 15 Defendants will have ample opportunity at trial to challenge the bases of her opinions 16 through cross-examination. See Hangarter, 373 F.3d at 1017 n.14 (“The factual basis of an 17 expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to 18 the opposing party to examine the factual basis for the opinion in cross-examination.”) 19 (brackets, internal quotations and citation omitted); Bergen v. F/V St. Patrick, 816 F.2d 20 1345, 1352 n.5 (9th Cir. 1987) (“the weakness in the underpinnings of [expert] opinions 21 may be developed upon cross-examination,” as “such weakness goes to the weight and 22 credibility of the testimony” as opposed to its admissibility) (internal quotations and 23 24 25 26 6 Dr. Schneider formally consulted with Dr. Christian Foglar, an orthopedic surgeon and trauma specialist at O’Connor and El Camino Hospitals. See Jacob Decl. Ex. A, at 17:15-18:16. Dr. Foglar opined that Plaintiff developed symptomatic carpal and cubital 28 tunnel syndromes as a result of the force applied by Defendants. See id. at 18:8-15. 27 - 14 - 1 citation omitted).7 Defendants’ motion in limine no. 1 to exclude the expert testimony of 2 Dr. Schneider regarding Plaintiff’s cubital tunnel syndrome and bilateral ulnar entrapment 3 is DENIED. 4 B. 5 In their second motion in limine, Defendants move to exclude all evidence regarding MOTION NO. 2: CARPAL TUNNEL SYNDROME 6 Plaintiff’s carpal tunnel syndrome “because … Dr. Nicole Schneider [] is the only witness 7 that links this injury to the August 16, 2006, use-of-force incident and Dr. Schneider is not 8 qualified to testify about carpal tunnel syndrome.” Pl.’s Mot. at 3. Plaintiff’s arguments 9 regarding the qualifications of Dr. Schneider are the same as those discussed above in 10 connection with Defendants’ first motion in limine. Thus, for the reasons discussed above, 11 the Court DENIES Defendants’ motion in limine no. 2. 12 C. 13 14 MOTION NO. 3: DR. SCHNEIDER’S TESTIMONY RE CAUSE OF PLAINTIFF’S INJURIES Defendants move to preclude Dr. Schneider from testifying about the types of 15 injuries caused by expandable batons. Dr. Schneider opined that Plaintiff’s injuries were 16 consistent with his being struck by a baton. Mossler Decl. Ex. B ¶¶ 8-10, Dkt. 223. 17 According to Defendants, Dr. Schneider’s admission that she is not specifically familiar 18 with the use of batons in a correctional facility or expandable batons, in particular, renders 19 her unqualified to render expert testimony on the cause of Plaintiff’s injuries. Defs.’ Mot. 20 at 5. The Court disagrees. See Smith v. BMW N. Am., Inc., 308 F.3d 913, 919 (8th Cir. 21 2002) (finding that district court erred in excluding doctor from testifying regarding the 22 cause of plaintiff’s neck injury following the deployment of an airbag on the basis that he 23 was not an expert in physics, biophysics or engineering). To the contrary, courts routinely 24 allow physicians to testify regarding the cause of an injury. See United States v. Frazier, 25 7 Defendants also assert, without citation to any legal authority or presentation of any reasoned analysis, that “Dr. Schneider’s long-standing personal relationship with 27 Plaintiff’s counsel is highly relevant to whether she is qualified to be an expert witness.” Defs.’ Reply at 4. However, Defendants have failed to present facts sufficient to persuade 28 the Court that their relationship renders her unqualified to testify as an expert. 26 - 15 - 1 387 F.3d 1244, 1297 n.15 (11th Cir. 2004) (collecting cases).8 The Court finds no merit to 2 Defendants’ arguments, and thus, DENIES Defendants’ motion in limine no. 3. 3 D. 4 Defendants move to preclude Plaintiff from personally testifying as to the cause of MOTION NO. 4: PLAINTIFF’S TESTIMONY 5 his cubital tunnel syndrome and bilateral ulnar entrapment on the ground that such 6 testimony would constitute improper medical opinion. Defs.’ Mot. at 5-6. In his response, 7 Plaintiff confirms that he does not intend to offer opinion testimony regarding the medical 8 etiology of his injuries. Rather, he plans to testify regarding the facts and circumstances 9 surrounding the August 16, 2006, incident, and the pain he suffered thereafter. Pl.’s Opp’n 10 at 7. At the hearing, however, Plaintiff’s counsel stated that he intends to elicit from 11 Plaintiff hearsay statements from his treating physicians regarding his diagnosis. Notably, 12 counsel indicated that he intended to offer such statements for the truth of the matter 13 asserted; namely, that he, in fact, has cubital tunnel and carpal tunnel syndrome. Thus, to 14 the extent that Plaintiff intends to offer hearsay statements from his physicians for a hearsay 15 purpose, Defendants’ motion in limine no. 4 is GRANTED. 16 E. 17 Defendants move to exclude Plaintiff’s use-of-force expert, Daniel Vasquez, from MOTION NO. 5: EXPERT TESTIMONY RE USE OF FORCE 18 offering opinion testimony in this case. Defendants contend that Mr. Vasquez is not 19 qualified to offer expert opinions on use-of-force because his only experience with this 20 issue allegedly consists of his administrative review of use-of-force reports while working 21 for the CDCR between 1970 and 1994. Defs. Mot. at 7. In addition, Defendants claim that 22 Mr. Vasquez never attended a correctional officer academy, carried or been trained on the 23 use of a baton or used pepper spray when he worked as a correctional officer in the 1960’s, 24 25 8 In their reply, Defendants further argue that since the use of a baton is not disputed, there is no need for Dr. Schneider’s testimony. Defs.’ Reply at 5, Dkt. 244. The Court does not consider new arguments presented for the first time in a reply brief. See Zamani 27 v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). That aside, the issue for the jury is not limited to whether a baton was used, but rather, whether the amount of force used was 28 reasonable. 26 - 16 - 1 worked at Pelican Bay or reviewed any use-of-force reports for incidents occurring at that 2 facility during the relevant time-frame. Id. 3 Defendants’ challenge to Mr. Vasquez’s qualification is unavailing. Mr. Vasquez 4 has over thirty-six years of corrections experience—including more than a decade as the 5 Warden at San Quentin and Soledad State Prisons, eight years on the State Board of 6 Corrections, four years as Director of Corrections for Santa Clara County, two years as 7 Warden at the largest Corrections Corporation of America facility in California, and fifteen 8 years as a corrections expert. See Jacob Decl. Ex. J. Mr. Vasquez’s collective experience 9 “lays at least the minimal foundation of knowledge, skill, and experience required in order 10 to give ‘expert’ testimony” necessary to offer expert opinions on the use-of-force in a 11 prison setting. See Hangarter, 373 F.3d at 1016 (expert who lacked specialized knowledge 12 of insurance bad faith claims nonetheless could testify on claims adjustment standards in 13 the context of an insurance bad faith claim based on his extensive experience in the 14 insurance industry and evaluating insurance claims); United States v. Brooks, 610 F.3d 15 1186, 1196 (9th Cir.2010) (“The fact that [the agent] lacked an advanced degree, 16 supervisory experience, previous experience as an expert witness, or relevant publications 17 did not render [him] unfit to provide expert testimony.”) (citation omitted). 18 It also is noteworthy that other courts have concluded that experts with experience 19 similar to Mr. Vasquez’s qualify as experts in excessive-force cases. See, e.g., Champion 20 v. Outlook Nashville, Inc., 380 F.3d 893, 908 (6th Cir. 2004) (plaintiff’s excessive-force 21 expert was police procedures and practices instructor); Cotton v. City of Eureka, No. C 08- 22 4386 SBA, 2010 WL 5154945, at *13 (N.D. Cal. Dec. 14, 2010) (rejecting defendants’ 23 argument that plaintiff’s expert was “not qualified to opine on the use of force for an 24 incident occurring in 2007 because he has not received any training on the use of force 25 since his retirement in 1993.”) (Armstrong, J.); Knapps v. City of Oakland, 647 F. Supp. 2d 26 1129, 1148 (N.D. Cal. 2009) (former county sheriff who retired sixteen years before 27 testifying as an expert qualified as excessive-force expert) (James, J.). Defendants will 28 have a full opportunity at trial to challenge the credibility of Mr. Vasquez’s opinions - 17 - 1 through appropriate cross-examination. Defendants’ motion in limine no. 5 to preclude Mr. 2 Vasquez’s from testifying as a use-of-force expert is DENIED.9 3 F. 4 Defendants’ motion in limine no. 6 to have Plaintiff remain shackled during trial is 5 MOTION NO. 6: SHACKLING AT TRIAL DENIED as moot. 6 G. 7 Defendants move to bar Plaintiff’s claim for damages to the extent it is based upon MOTION NO. 7: EXHAUSTION REQUIREMENT 8 Defendant Bullock’s allegedly having lifted Plaintiff off the floor by the chain between his 9 handcuffs. They assert that Plaintiff failed to exhaust this claim through the prison’s 10 administrative grievance process, and therefore, the claim cannot be considered by the 11 Court. Defs.’ Mot. at 11.10 The Court disagrees. 12 Under the Prison Litigation Reform Act of 1995 (“PLRA”), prisoners seeking relief 13 under § 1983 must first exhaust all available administrative remedies prior to bringing suit. 14 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 84 (2006). In order to exhaust 15 administrative remedies, the prisoner must submit a complaint which affords prison 16 officials a full and fair opportunity to address the prisoner’s claims. Id. at 90, 93. The 17 exhaustion requirement is not jurisdictional, but rather creates an affirmative defense that a 18 defendant must raise in a unenumerated Rule 12(b) motion. Wyatt v. Terhune, 315 F.3d 19 1108, 1119 (9th Cir. 2003). The defense is waived if not timely raised by the defendant. 20 Lira v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005). 21 22 In the instant case, the Court finds that Defendants have waived their affirmative defense of non-exhaustion with respect to this particular claim. Defendants failed to raise 23 9 Defendants also object to any attempt by Mr. Vasquez to offer legal opinions as well as any opinions regarding the causation and treatment of Plaintiff’s elbow and wrist injuries or the credibility of Defendants and correctional officials. Defs.’ Mot. at 8. In his 25 opposition, Plaintiff confirms that he does not intend to elicit such testimony from Mr. Vasquez. Pl.’s Opp’n at 11-12. Based on Plaintiff’s representation, Defendants’ motion in 26 limine with respect to these particular opinions is DENIED as moot. 24 10 There is no dispute that Plaintiff properly exhausted his claim that Defendants used excessive force on him on August 16, 2006, though the specific fact of Bullock lifting 28 Plaintiff up by his handcuffs was not mentioned in his administrative complaint. 27 - 18 - 1 the issue of exhaustion in an unenumerated Rule 12(b) motion, and the time for filing 2 dispositive motions has passed. Waiver aside, Defendants cannot recast their exhaustion 3 argument under the guise of a motion in limine. See Natural Res. Defense Council v. 4 Rodgers, No. CIV-S-88-1658 LKK, 2005 WL 1388671, 1 (E.D. June 9, 2005) (“[m]otions 5 in limine address evidentiary questions and are inappropriate devices for resolving 6 substantive issues.”); see also C&E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 7 (D. D.C. 2008) (stating that a motion in limine should not be used to argue that “an item of 8 damages may not be recovered because . . . that is a function of a motion for summary 9 judgment”). The Court thus DENIES Plaintiff’s motion in limine no. 7. 10 H. 11 Defendants object to Plaintiff’s having designated his medical records as MOTION NO. 8: MEDICAL RECORDS 12 “confidential.” Defs.’ Mot. at 12. This concern is now moot because Plaintiff has agreed 13 to lift the confidentiality designations on the medical records list on Plaintiff and 14 Defendants’ exhibits lists. Pl.’s Opp’n at 15. Accordingly, the Court DENIES Defendants’ 15 motion in limine no. 8 as moot.11 16 I. 17 Defendants object to Plaintiff’s attempt to admit complaints from other inmates. MOTION NO. 9: OTHER INMATE APPEALS 18 Plaintiff has agreed to remove these complaints for his exhibits list. Therefore, the Court 19 DENIES as moot Defendants’ motion in limine no. 9. 20 J. 21 In their final motion in limine, Defendants object to Plaintiff’s anticipated plan to MOTION NO. 10: TESTIMONY FROM OTHER INMATES 22 call thirty-five inmate witnesses during trial. Defs.’ Mot. at 13. In response, Plaintiff 23 indicates that he does not intend to call any inmate witnesses other than himself. Pl.’s 24 Opp’n at 15; Pl.’s Am. Witness List, Dkt. 232. Therefore, the Court DENIES as moot 25 Defendants’ motion in limine no. 10. 26 11 In their reply, Defendants argue for the first time that the confidentiality designation should be lifted from all of Plaintiff’s medical records relating to his injury. As noted, the Court does not consider new arguments presented in reply brief. See Zamani, 28 491 F.3d at 997. 27 - 19 - 1 IV. OBJECTIONS TO DISCOVERY EXCERPTS 2 On February 2, 2011, the Court issued its Order for Pretrial Preparation, which 3 specifies, inter alia, that designations of discovery excerpts were due to be filed by June 14, 4 2011, in accordance with the following: 5 e. 6 Each party expecting to use discovery excerpts as part of its case in chief shall serve and file with the Court a statement identifying (1) by witness and page and line, all deposition testimony and (2) by lodged excerpt, all interrogatory answers and request for admissions to be used as part of its direct case. Each interrogatory answer intended to be offered as an exhibit shall be copied separately and marked as an exhibit. The original of any deposition to be used at trial must be produced at the time of trial, as well as a copy for the Court. Counsel shall indicate any objections to the use of these materials and advise the Court that counsel has conferred respecting such objections. 7 8 9 10 11 12 Designation of Discovery Excerpts 13 2/2/11 Order ¶ G.2.e, Dkt. 142 (emphasis added). In accordance with that order, Plaintiff 14 and Defendants timely filed their respective designations, among other pretrial filings. Dkt. 15 216 and 218. The Court now considers the parties respective objections to the other’s 16 designation of discovery excerpts.12 17 A. PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ DESIGNATION OF DISCOVERY EXCERPTS 18 19 20 21 22 23 24 On June 21, 2011, Plaintiff filed objections to certain of Defendants’ discovery designations. Dkt. 229. In its objections, Plaintiff expressly identifies each of Defendants’ discovery designations at issue, and indicates whether he objects to the designation, and if so, the legal basis of his objection. In response to some of Defendants’ designations, Plaintiff has made a counter-designation of discovery excerpts, which identifies the proposed additional deposition testimony by page and line. Id. 25 26 12 The Court defers consideration of the parties’ objections to their exhibit lists until trial. In the interim, the parties are directed to meet and confer regarding any remaining objections. Objections to exhibits will not be considered unless the parties first meet and 28 confer. 27 - 20 - 1 Ostensibly in response to Plaintiff’s objections, Defendants filed a brief styled as 2 “Defendants’ Objections and Request to Strike Plaintiff’s Counter-Designations of 3 Deposition Excerpts,” on June 28, 2011. Dkt. 235. The two-sentence long brief states, in 4 its entirety, as follows: “Defendants Bullock, Christ, Petersen, and Speaker object and 5 move to strike Plaintiff’s counter-designations of portions of the transcripts of Curtis 6 Henderson, Daniel Vasquez, and [Dr.] Nicole Schneider. Plaintiff’s counter-designations 7 should be stricken because they are untimely and not permitted by the Court’s pre-trial 8 order.” Id. at 1-2. 9 Turning first to Plaintiff’s objections to Defendants’ designation of discovery 10 excerpts, the Court finds that Defendants have waived any challenge to Plaintiff’s 11 objections by failing to respond to those objections. The Court’s Order for Pretrial 12 Preparation specifies that any responses to objections to evidence were to be submitted by 13 June 28, 2011. The brief submitted by Defendants on June 28, 2011, however, completely 14 fails to respond to any of Plaintiff’s objections. Thus, the Court sustains Plaintiff’s 15 unopposed objections to Defendants’ designation of discovery excerpts. See Burch v. 16 Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1123 (E.D. Cal. 2006) (sustaining 17 defendants’ evidentiary objections where plaintiff failed to respond substantively to the 18 objections); Harbert v. Priebe, 466 F. Supp. 2d 1214, 1217 (N.D. Cal. 2006) (“Plaintiffs’ 19 failure to respond to [the evidentiary objections] would justify sustaining the objections”). 20 With regard to Defendants’ motion to strike Plaintiff’s counter-designations, the 21 Court finds no merit to such request. The fact that counter-designations of discovery 22 excerpts are not expressly referenced in the Order for Pretrial Preparation does not mean 23 that they are improper or untimely. To the contrary, the Federal Rules of Civil Procedure 24 provide that after a party has offered part of a deposition into evidence, the opposing party 25 “may require the offeror to introduce other parts that in fairness should be considered with 26 the part introduced, and any party may itself introduce any other parts.” Fed. R. Civ. P. 27 32(a)(6); accord Fed. R. Evid. 106 (“When a writing or recorded statement or part thereof is 28 introduced by a party, an adverse party may require the introduction at that time of any - 21 - 1 other part or any other writing or recorded statement which ought in fairness to be 2 considered contemporaneously with it.”); see also Bone Care Intern., LLC v. Pentech 3 Pharms., Inc., No. 08-cv-1083, 2010 WL 3894444, at *11 (N.D. Ill. Sept. 30, 2010) (“As 4 Defendants point out, if Plaintiffs introduce part of a deposition transcript, Defendants may 5 then require introduction of other parts pursuant to Rule 106.”). Given the foregoing 6 authority, the Court finds nothing erroneous with respect to Plaintiff’s counter-designations, 7 and therefore, denies Defendants’ motion to strike. 8 9 10 B. DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S DESIGNATION OF DISCOVERY EXCERPTS Defendants have interposed objections to Plaintiff’s designation of discovery 11 excerpts. Dkt. 225. Defendants’ objections do not specifically address any particular 12 designation proffered by Plaintiff. Instead, Defendants simply lodge a blanket objection to 13 all of the designations, citing the allegedly “non-specific nature of Plaintiff’s discovery 14 designations,” and the “multiple layers of hearsay” contained within the designated 15 deposition transcripts. Id. 16 Defendants’ contention that Plaintiff’s discovery designations are “non-specific” is 17 specious. Consistent with the Court’s Order for Pretrial Preparation, Plaintiff’s 18 designations state the name of each witness and identify the page and line of his deposition 19 transcript. Dkt. 218. In addition, excerpts of the relevant written discovery responses are 20 properly attached as an exhibit thereto. Id. As for the hearsay objections, the Court notes 21 that Defendants have failed to cite to any particular deposition transcript to which they take 22 exception. Defendants’ failure to provide individualized objections to Plaintiff’s 23 designations amounts to a waiver of their right to object (other than as to objections 24 permitted under Federal Rule of Evidence 402 and 403). See Fed. R. Civ. P. 26(a)(3)(B) 25 (stating that “[a]n objection not so made” to a pretrial submission “except for one under 26 Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good 27 cause.”). Accordingly, the Court overrules Defendants’ objections to Plaintiff’s 28 designation of discovery excerpts. - 22 - 1 2 3 4 V. OTHER PENDING MOTIONS A. DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS Plaintiff commenced the instant action acting pro se, and was granted in forma 5 pauperis (“IFP”) status by the Court on November 6, 2007. Dkt. 8. On May 6, 2011, well 6 after the March 1, 2010, dispositive motion cut-off, Defendants filed a motion to revoke 7 Plaintiff’s IFP status and to dismiss the action pursuant to 28 U.S.C. § 1915(g). Dkt. 180. 8 Pursuant to the Court’s scheduling order, Plaintiff filed an opposition to the motion on June 9 6, 2011. Dkt. 196. On the same day, Plaintiff paid the $350 filing fee. 10 Under 28 U.S.C. § 1915(g), a court is required to deny IFP status to a prisoner who 11 “has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 12 an action or appeal in a court of the United States that was dismissed on the grounds that it 13 is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the 14 prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 15 As an initial matter, Defendants’ motion to revoke Plaintiff’s IFP status has been 16 mooted by Plaintiff’s payment of the civil filing fee moots Defendants’ motion. See 17 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997) (“Section 1915(g) does not prohibit 18 prisoners from accessing the courts to protect their rights. Inmates are still able to file 19 claims—they are only required to pay for filing those claims.”). Second, Defendants’ 20 motion is untimely. The deadline for the parties to submit dispositive motions passed on 21 March 1, 2010. 2/4/10 Order at 1, Dkt. 84. Defendants have neither sought nor has the 22 Court granted leave to extend that deadline. Moreover, given that the third dismissal on 23 which Defendants’ rely was issued on March 29, 2000, see Defs.’ Request for Judicial 24 Notice, Ex. C, Dkt. 181-3, Defendants have no plausible excuse for their delay. Finally, 25 Plaintiff has not incurred three strikes. The March 29, 2000, dismissal was for failure to 26 timely amend, which does not count as a “strike” under § 1915(g). See Keeton v. Cox, No. 27 06-1094, 2009 WL 650413, at *6 (E.D. Cal. Mar. 12, 2009), adopted by 2009 WL 902094 28 - 23 - 1 (E.D. Cal. Apr. 1, 2009). Accordingly, Defendants’ motion to revoke Plaintiff’s IFP status 2 and to dismiss the action is DENIED. 3 4 B. DEFENDANTS’ MOTION FOR RELIEF FROM NON-DISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE 5 On May 18, 2011, Magistrate Judge Bernard Zimmerman granted Plaintiff’s motion 6 to compel financial information from Defendants. Judge Zimmerman rejected Defendants’ 7 claim that Plaintiff’s discovery request infringed on their privacy rights, finding that the 8 state law authority cited by Defendants does not apply in a federal civil rights action. 9 5/18/11 Order at 2, Dkt. 189. In addition, Judge Zimmerman found that Defendants’ 10 privacy concerns could be accommodated through the use of an “attorneys only” protective 11 order. Id. On June 1, 2011, Defendants filed a Motion for Relief from Non-Dispositive 12 Pretrial Order of Magistrate Judge in which they seek reconsideration of Judge 13 Zimmerman’s ruling. Dkt. 193. 14 On nondispositive matters, a Magistrate Judge’s order is reviewed to ascertain 15 whether it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. 16 Civ.P. 72(a); Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 17 n.4 (9th Cir. 2010). Under this standard, decisions of a Magistrate Judge “are not subject to 18 de novo determination” and the reviewing court “may not simply substitute its judgment for 19 that of the deciding court.” Grimes v. City and Cnty. of San Francisco, 951 F.2d 236, 241 20 (9th Cir. 1991). There is clear error only when the court is “left with the definite and firm 21 conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 22 (2001). The decision as to whether a Magistrate Judge’s decision was clearly erroneous or 23 contrary to law is “well within the discretion of the district court.” Thornton v. McClatchy 24 Newspapers, Inc., 261 F.3d 789, 799 (9th Cir. 2001). 25 Defendants contend that Judge Zimmerman erred in failing to weigh the competing 26 interests of the parties; namely, Plaintiff’s right to discover information relevant to his 27 claims versus Defendants’ privacy interests. Defs.’ Mot. at 4. This contention lacks merit. 28 Judge Zimmerman’s order acknowledges these competing interests, and ultimately - 24 - 1 concludes that they tipped in favor of disclosure, subject to a protective order to address 2 Defendants’ privacy concerns. 5/18/11 Order at 1-2. Judge Zimmerman clearly balanced 3 the parties’ interests and accommodated them in a fair and balanced manner. The Court 4 finds that Judge Zimmerman’s ruling is neither clearly erroneous nor contrary to law, and 5 therefore, DENIES Defendants’ motion for relief from his discovery order. Defendants 6 shall comply with Judge Zimmerman’s discovery order forthwith. 7 C. 8 Defendants move to bifurcate the issues of liability and punitive damages at trial. 9 DEFENDANTS’ MOTION TO BIFURCATE TRIAL Federal Rule of Civil Procedure 42(b) provides that “for convenience, to avoid prejudice, or 10 to expedite and economize, the court may order a separate trial of one or more separate 11 issues.” Fed. R. Civ. P. 42(b). Under Rule 42(b), bifurcation of a trial into liability and 12 damages phases may be appropriate where doing so would be economical and efficient, and 13 where there is little overlap in the evidence that would be presented at each phase. Arthur 14 Young & Co. v. U.S. Dist. Court (Kaufman), 549 F.2d 686, 697 (9th Cir. 1979). 15 The Court is persuaded that bifurcation is appropriate under the circumstances 16 presented. At trial, the Court will permit the parties to present their respective cases to the 17 jury for a determination of liability. Should the jury return a verdict and a compensatory 18 damage award in favor of Plaintiff, the proceedings will resume and the parties may present 19 evidence and/or testimony germane to punitive damages (i.e., evidence of Defendants’ net 20 worth).13 Evidence of the full range of Defendants’ conduct will be presented in the first 21 phase of the trial, though the jury will not be instructed on or receive a verdict form on the 22 matter of punitive damages unless and until the jury finds liability and awards damages. 23 The Court therefore GRANTS Defendants’ motion for bifurcate, in accordance with the 24 foregoing procedure. 25 13 In § 1983 cases, punitive damages are recoverable “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous 27 indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, (1983). Punitive damages also may be awarded to address “malicious, wanton, or 28 oppressive acts or omissions.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005). 26 - 25 - 1 VI. CONCLUSION 2 For the reasons stated above, 3 IT IS HEREBY ORDERED THAT: 4 1. Plaintiffs’ Motion in Limine No. 1 is GRANTED with respect to Plaintiff’s 5 felony convictions and DENIED as moot with respect to Plaintiff’s juvenile adjudications 6 and misdemeanor convictions. 7 8 9 10 11 12 13 14 15 16 17 18 19 2. Plaintiffs’ Motion in Limine No. 2 to permit Plaintiff to appear in court in civilian attire and without restraints is DENIED as moot. 3. Plaintiffs’ Motion in Limine No. 3 to exclude evidence of or reference to Plaintiff’s disciplinary record is GRANTED. 4. Plaintiffs’ Motion in Limine No. 4 to exclude evidence of or reference to Plaintiff’s current prison sentence or incarceration is GRANTED. 5. Plaintiffs’ Motion in Limine No. 5 to exclude evidence or reference to the CDCR having paid for Plaintiff’s medical expenses is GRANTED. 6. Plaintiffs’ Motion in Limine No. 6 to exclude evidence or reference to other, unrelated lawsuits is GRANTED. 7. Plaintiffs’ Motion in Limine No. 7 to exclude extrinsic evidence to impeach Daniel Vasquez is GRANTED. 8. Plaintiffs’ Motion in Limine No. 8 to preclude Defendants from cross- 20 examining Daniel Vasquez regarding any of the specific instances of misconduct allegedly 21 leading to his departure from the CDCR is GRANTED. 22 9. Plaintiffs’ Motion in Limine No. 9 to exclude expert opinion testimony of 23 Drs. Pappanaickenpa Ramani Chandrasekaran, Gregory M. Duncan and Larry J. Maukonen 24 is DENIED as moot. 25 26 27 28 10. Defendants’ Motion in Limine No. 1 to exclude all evidence regarding Plaintiff’s cubital tunnel syndrome/bilateral entrapment is DENIED. 11. Defendants’ Motion in Limine No. 2 to exclude all evidence regarding Plaintiff’s carpal tunnel syndrome is DENIED. - 26 - 1 2 3 4 5 12. Defendants’ Motion in Limine No. 3 to preclude Dr. Nicole Schneider from testifying regarding the cause of Plaintiff’s injuries is DENIED. 13. Defendants’ Motion in Limine No. 4 to preclude Plaintiff from personally testifying as to his medical diagnosis for the truth of the matter asserted is GRANTED. 14. Defendants’ Motion in Limine No. 5 to exclude Plaintiff’s expert Daniel 6 Vasquez from testifying as an expert witness is DENIED. Defendants’ motion to preclude 7 Mr. Vasquez from offering legal opinions as well as any opinions regarding the causation 8 and treatment of Plaintiff’s elbow and wrist injuries or the credibility of Defendants and 9 correctional officials is DENIED as moot. 10 15. 11 DENIED as moot. 12 16. 13 14 15 Defendants’ Motion in Limine No. 6 to have Plaintiff shackled at trial is Defendants’ Motion in Limine No. 7 to bar Plaintiff’s claim for damages against Defendant Bullock is DENIED. 17. Defendants’ Motion in Limine No. 8 regarding Plaintiff’s confidentiality designations is DENIED as moot. 16 18. 17 DENIED as moot. 18 19. 19 20 21 Defendants’ Motion in Limine No. 9 to exclude other inmate appeals is Defendants’ Motion in Limine No. 10 to exclude testimony from other inmates is DENIED as moot. 20. Plaintiff’s objections to Defendants’ designation of discovery excerpts are SUSTAINED. Defendants’ motion to strike Plaintiff’s counter-designations is DENIED. 22 21. 23 OVERRULED. 24 22. 25 DENIED. 26 23. 27 28 Defendants’ objections to Plaintiff’s designation of discovery excerpts are Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis Status is Defendants’ Motion for Relief from Non-Dispositive Pretrial Order of Magistrate Judge is DENIED. 24. Defendants’ Motion to Bifurcate Trial is GRANTED. - 27 - 1 25. 2 IT IS SO ORDERED. 3 This Order terminates Docket 180, 183, 193, 222 and 226. Dated: July 15, 2011 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 -

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