Halbert v. County of San Diego et al

Filing 121

ORDER rejecting Amended Proposed Pretrial Order and Continuing Final Pretrial Conference. On November 15, 2010 this civil rights action came on for a pretrial conference. The amended proposed pretrial order dated November 5, 2010 is hereby Rejected. No later than November 29, 2010, Plaintiff shall deliver to chambers three copies of a fully executed revised proposed pretrial order. (Final Pretrial Conference continued to 12/6/2010 11:00 AM in Courtroom 14 before Judge M. James Lorenz.) Signed by Judge M. James Lorenz on 11/16/10.(lao)

-WVG Halbert v. County of San Diego et al

Doc. 121

1 2 3 4 5 6 7 8 9 10 11 ANTHONY C. HALBERT, 12 13 v. 14 COUNTY OF SAN DIEGO, et al., 15 16 17 Defendants. Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Civil No. 07cv1607-L(WVG) ORDER REJECTING AMENDED PROPOSED PRETRIAL ORDER AND CONTINUING FINAL PRETRIAL CONFERENCE

On November 15, 2010 this civil rights action came on for a pretrial conference. Alvin

18 M. Gomez, Esq. appeared on behalf of Plaintiff, Michael R. McGuinness, Esq. appeared on 19 behalf of Defendant Roger Rodriguez, Diane M. Schweiner, Esq. appeared on behalf of 20 Defendant Glenn Graczyk, and Tarquin Preziosi, Esq. appeared on behalf of Defendant Sam 21 Samoa. Pursuant to the order of this court issued on October 22, 2010, the parties had lodged an 22 amended proposed pretrial order. For the reasons stated at the hearing and as amplified below, 23 the amended proposed pretrial order is REJECTED and the final pretrial conference is 24 CONTINUED. 25 The amended proposed pretrial order inadequately defines the factual and legal issues for

26 trial consistent with the March 30, 2010 order on cross-motions for summary judgment 27 ("Order"). Specifically, in the October 22, 2010 order rejecting the initial version of the 28 proposed pretrial order, the parties were directed to revise the factual issues based on the
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1 elements of the excessive force claims remaining after cross-motions for summary judgment and 2 the findings regarding disputed issues of fact. The parties have not done so. For the reasons 3 more fully discussed at the hearing, the issue of fact listed as item 1 in the amended proposed 4 pretrial order needs to be broken down to the issues of fact corresponding to the three theories of 5 excessive force which remain in the case and the elements of the claim, to the extent they remain 6 disputed. As discussed at the hearing, the issue listed as item 13, must be revised consistently 7 with the excessive force factors. See, e.g., Tekle v. United States, 511 F.3d 839, 844-45 (9th Cir. 8 2007); Ninth Cir. Model Civ. Jury Instr. no. 9.22 (same factors). 9 Given that only the excessive force cause of action remains, the section of the amended

10 proposed pretrial order listing the issues of law to be litigated needs to be revised. The first 11 issue, "Whether each Defendant acted under color of law," has been resolved for purposes of 12 trial. All Defendants admit that they acted in their respective capacities as law enforcement 13 officers, and therefore under color of law, at the relevant time. At the hearing, the counsel 14 explained that an issue remains only with respect to attorney's fees and only with respect to 15 Defendant Graczyk. Should Plaintiff prevail at trial, Defendant Graczyk, while admitting that he 16 acted in his capacity as a federal law enforcement officer, does not admit that he acted under the 17 color of state law for purposes of attorney's fees. Because the parties reserved attorney's fees 18 for a post-trial motion, the issue is not to be decided at trial. The amended proposed pretrial 19 order shall therefore be revised accordingly. 20 The third listed issue, "Whether any Defendant violated Plaintiff Halbert's Fourth

21 Amendment right to be free from unreasonable searches and seizures," needs to be revised to 22 reflect that there is no claim for unreasonable search remaining in this case. The second issue, 23 "Whether any Defendant violated 42 U.S.C. § 1983 and the civil rights of Plaintiff by engaging 24 in the use of excessive force," is subsumed in the third issue, considering that there is no dispute 25 whether Defendants acted under color of law. See Ninth Cir. Model Jury Instr. 9.2. 26 The fourth issue, "Whether Defendants are entitled to qualified immunity,"should be

27 revised because Defendants' qualified immunity argument was rejected on summary judgment. 28 / / / / /
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1 (See Order at 21-22 & 26.) As indicated in the October 22, 2010 order, the court is not inclined 2 to revisit issues which were decided on summary judgment. 3 The fifth legal issue, raised on behalf of Defendant Graczyk, is "Whether any Defendant

4 can be liable to Plaintiff under the `integral participation' theory of the alleged acts of other 5 Defendants." As stated in the October 22, 2010 order, this issue will be decided by a motion 6 rather than at trial because it raises solely the legal issue about the continued viability of the 7 integral participant doctrine after Ashcroft v. Iqbal, 129 S. Ct. 1937 (2008). 8 The seventh listed issue, "Whether Plaintiff may seek damages for alleged physical and

9 psychological injuries when such injuries were caused in whole or in part by acts or omissions 10 found by the Court to be constitutional," should be omitted. It is beyond dispute that if 11 Defendants did not violate Plaintiff's constitutional rights, there cannot be a verdict for Plaintiff. 12 See Ninth Cir. Civ. Jury Instr. 9.2 ("If you find the plaintiff has proved each of [the section 13 1983] elements, and if you find that the plaintiff has proved all the elements he is required to 14 prove under Instruction [regarding excessive force [no. 9.22]], your verdict should be for the 15 plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these 16 elements, your verdict should be for the defendant.").) To the extent the issue is whether, under 17 circumstances where only some of Defendants' conduct during the incident is found 18 unconstitutional, Plaintiff should recover damages which were caused by the incident in general, 19 the issue is a factual one of causation, and is addressed in the amended proposed pretrial order 20 by the issues of fact listed as items 2 through 4. Finally, to the extent the issue is whether 21 Plaintiff can prove causation without expert testimony, the issue is an evidentiary one for 22 motions in limine and evidentiary objections rather than an issue of law to be tried. 23 The last issue of law on the list, "Whether Plaintiff may recover any future medical

24 expense or lost wages damages in the absence of an expert testifying regarding the present value 25 of any future damages," is an evidentiary issue for motions in limine and objections rather than 26 an issue of law to be tried. It should therefore be excluded. 27 The parties propose an eight-day trial with 29 witnesses and 104 exhibits. As discussed at

28 the hearing, this appears excessive in light of the claims which remain in the case. The parties
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1 are encouraged to again review the summary judgment order and frame the evidence they intend 2 to introduce only around the issues which remain disputed. 3 4 5 Based on the foregoing, it is hereby ORDERED as follows: 1. The amended proposed pretrial order dated November 5, 2010 is hereby REJECTED. 2. The parties shall meet and confer in person to prepare a revised proposed pretrial order

6 in compliance with this order and the guidance provided at the hearing. 7 3. No later than November 29, 2010, Plaintiff shall deliver to chambers three copies of a

8 fully executed revised proposed pretrial order. 9 10 11 12 DATED: November 16, 2010 13 14 15 COPY TO: M. James Lorenz United States District Court Judge 4. The final pretrial conference is CONTINUED to December 6, 2010 at 11:00 a.m. IT IS SO ORDERED.

HON. WILLIAM V. GALLO 16 UNITED STATES MAGISTRATE JUDGE 17 ALL PARTIES/COUNSEL 18 19 20 21 22 23 24 25 26 27 28
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