Steshenko v. McKay et al

Filing 906

ORDER RE REMAINING PRE-TRIAL MOTIONS. Signed by Judge Richard Seeborg on 12/1/14. (cl, COURT STAFF) (Filed on 12/1/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GREGORY NICHOLAS STESHENKO,

Case No. 09-cv-05543-RS

Plaintiff,
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United States District Court
Northern District of California

v.

ORDER RE REMAINING PRE-TRIAL
MOTIONS

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THOMAS MCKAY, et al.,
Defendants.

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Docket No. 889

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Defendants previously moved in limine for an order “excluding from the courtroom any

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evidence, whether offered in the form of testimony, documents or comment of Plaintiff or his

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witnesses, that nursing students constitute employees who are entitled to receive wages under

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Federal or State law because they are assigned to clinical rotations in local area hospitals as part of

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the Cabrillo Nursing Program.” Plaintiff responded that the motion was “moot” because “the

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related causes of action were dismissed.” The motion was granted, as the matter appeared not to

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be in controversy. Plaintiff now seeks leave to file a motion for reconsideration, contending some

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aspect of the issue was not previously dismissed. Plaintiff apparently wishes to introduce

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evidence that he made complaints to the effect that nursing students should be paid in light of the

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tasks they were asked to perform. In clarification, the in limine ruling does not preclude plaintiff

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from introducing any otherwise admissible evidence regarding complaints he made. If, however,

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plaintiff elects to introduce evidence that he complained that the clinical program was conducted

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in violation of labor laws, defendants will be entitled to a limiting instruction that such evidence is

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not being admitted for the truth of the claims but rather for the purpose of demonstrating a

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potential reason for defendants’ subsequent conduct.

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Docket No. 890

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Plaintiff’s motion to “correct” the name of a witness is granted.

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Docket No. 891

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Plaintiff’s motion to add the so-called “Johnson Study” to his exhibit list is granted.

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United States District Court
Northern District of California

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Docket No. 839

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Defendants’ request for a ruling in advance of trial as to what alleged complaints made by

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plaintiff would qualify for First Amendment protection, and which would not, is denied.

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Defendants acknowledge that at least some of plaintiff’s complaints, such as those relating to

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purported patient safety concerns, do not fall within the category of “curricular speech” held in

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Brown v. Li, 308 F.3d 939 (9th Cir. 2002) to be outside the ambit of the First Amendment.

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Additionally, even to the extent some of plaintiff’s complaints might be characterized as criticisms
of the curriculum, it is not clear that such statements would be unprotected. While students may
ultimately have no right under the First Amendment to change the curriculum or academic
requirements, it does not automatically follow that they lack the right to criticize those things, or
cannot advance claims for any retaliation resulting from the voicing of such criticism.
Where there is a legitimate pedagogical purpose, Brown plainly permits teachers to require

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student speech to conform to certain requirements in the context of completing assignments. 308
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F.3d at 953 (“[A] teacher may require a student to write a paper from a particular viewpoint, even
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if it is a view-point with which the student disagrees, so long as the requirement serves a
legitimate pedagogical purpose. For example, a college history teacher may demand a paper
defending Prohibition, and a law-school professor may assign students to write “opinions”
showing how Justices Ginsburg and Scalia would analyze a particular Fourth Amendment

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CASE NO.

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09-cv-05543-RS

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question.”). Thus, if a student refuses to write the paper defending Prohibition, he or she may be

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given a failing grade. If the student merely complains vociferously that the assignment is poorly

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conceived and does not further the educational aims of the course, but nevertheless completes the

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assignment to an acceptable standard, nothing in Brown plainly suggests that the criticism would

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fall outside the protection of the First Amendment.

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Thus, at this juncture it is not feasible to determine which, if any, of plaintiff’s alleged

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speech might not be protected. Not later than the close of the third day of trial, the parties may, if

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they wish, submit proposed jury instructions setting out the standards for what speech may support

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a First Amendment claim. Defendants’ request for a finding that the individual defendants are

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entitled to qualified immunity is also denied, without prejudice.

United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: December 1, 2014
______________________________________
RICHARD SEEBORG
United States District Judge

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CASE NO.

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09-cv-05543-RS