Provencio v. Stark et al

Filing 222

ORDER. The Court hereby ORDERS that Defendants' Motion in Limine (ECF No. 181 ) is DENIED WITHOUT PREJUDICE. By Judge William J. Martinez on 01/16/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-02329-WJM-KLM
ERIC CHRISTOPHER PROVENCIO,
Plaintiff,
v.
C. STARK, and
D. RODENBECK,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION IN LIMINE

This matter is before the Court on Defendant C. Stark and Defendant D.
Rodenbeck’s (“Defendants”) Motion in Limine (“Motion”). (ECF No. 181.) Plaintiff Eric
Provencio (“Plaintiff”) has filed a Response in opposition (ECF No. 185.) The parties
have also filed supplemental filings. (ECF No. 216; ECF No. 217.) On January 10,
2013, the Court ordered that Defendants Show Cause as to why their Motion (ECF No.
181) should not be denied as an untimely dispositive motion. (ECF 212.) In that Order,
the Court observed that (pre-trial) dispositive motion deadline was almost 14 months
ago - November 18, 2011.
Having reviewed the relevant materials, the Court denies Defendants’ Motion,
without prejudice as to the merits. Because of the untimely manner in which this pretrial dispositive Motion was filed, the Court finds that Defendants have not shown good
cause to warrant determination of the Motion (based on the Heck doctrine) at this time.
Heck v. Humphrey, 512 U.S. 477 (1994).

In addition to the Court’s holding above, the Court notes the following to assist
the parties in preparation for trial commencing on January 28, 2013. First, the parties
acknowledge that application of the Heck doctrine to the specific facts in this case has
yet been determined by the United States Court of Appeals for the Tenth Circuit. At this
time, the Court finds no reason why Plaintiff Provencio cannot testify to all evidence
relevant to the excessive force claim.1
Second, Defendants’ acknowledge that “the Court will be in a position to
evaluate, on a fuller record and in the context of a Rule 50” whether the Heck doctrine
applies in this case. (ECF No. 181 at 2.) The Court observes that any Rule 50 Motion
filed by Defendant will similarly be considered a dispositive motion, but one that is
obviously not precluded by the Court’s (pretrial) dispositive motion deadline of
November 18, 2011.2
II. Conclusion
Based on the foregoing, the Court hereby ORDERS that Defendants’ Motion in
Limine (ECF No. 181) is DENIED WITHOUT PREJUDICE.

1

The Court observes what has been said and relied upon by Defendants in Moore v.
Mahone, 652 F.3d 722, 723-25 (7th Cir. 2011) (holding that a plaintiff has the option to “remain
‘agnostic’ in his civil rights case about the findings in the criminal (or disciplinary) proceeding” by
not creating an evidentiary narrative that is in tension with the Bureau’s findings). (ECF No. 181
at 8.) But even that case holds that remaining agnostic is just an option. The Court also
observes what was said in Simpson v. Thomas, 528 F.3d 685, 695 (9th Cir. 2008) (stating that
Heck determines “whether a claim itself is viable, not whether evidence is admissible.”)
Reconciling these authorities, among other things, would seem essential to any future Rule 50
Motion in this case.
2

Given that Defendants are apparently planning to make a Rule 50 Motion at trial on
these grounds, Defendants should in good faith apprise the Plaintiff (and the Court) between
now and trial whether it seeks to withdraw from this purported position.

2

Dated this 16th day of January, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

3