Hayes v. Valdez et al

Filing 180

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION IN LIMINE granting 157 Motion to Amend/Correct Caption; granting in part and denying in part 162 Motion for Subpoenas Duces Tecum; granting in part and denying in part 163 Motion in Li mine; deeming as moot in part and denying in pert 173 Motion for a 4-Day Time Enlargement; granting Plaintiff's oral motion to add Daniel Dixon to his witness list. Plaintiff shall inform the Court of the order in which he intends to call his trial witnesses so that the Court can coordinate transporting prisoners and serving subpoenas by 2/28/2013. Not later than 2/28/2013, Defendants shall inform the Court whether the ICC employees on Plaintiffs witness list will appear voluntarily or wi ll require a subpoena for their appearance. Regarding witnesses Larry Sittner and Marlin Riggs, Hayes will need to supply the Court with an address for serving these individuals. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

Michael T. Hayes
Case No. 1:09-cv-00122-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER RE DEFENDANTS’
MOTION IN LIMINE

v.

Corrections Corporation of America
(CCA), et al.,
Defendant.

INTRODUCTION
Pending before the Court are various motions filed by the parties. (Dkts. 151, 157,
162, 163, 173). The Court heard argument on two of these motions – the ICC
Defendants’ Motions in Limine (Dkt. 163) and Motion to Amend the Caption (Dkt. 157)
– on February 22, 2013. Additionally, during this hearing, plaintiff Hayes orally moved
to amend his trial witness list to include Daniel Dixon. The Court ruled on some issues
during the hearing, and will now rule on the remaining issues. For the sake of
completeness and clarity, the Court will include its oral rulings within this decision.

ORDER RE PRETRIAL CONFERENCE - 1

BACKGROUND
Hayes was incarcerated at the Idaho Correctional Center, a private prison, from
approximately 2004 through 2012. On April 14, 2007, Hayes was beaten and robbed by
two other inmates. In March 2009, Hayes sued under 42 U.S.C. § 1983, alleging that the
prison and various prison employees violated his Eighth Amendment rights. After this
Court’s summary judgment decisions, the only remaining claims are Hayes’ failure-toprotect claims against prison employees Brian Doser and Justin Acosta. Trial is set for
March 11, 2013.
ANALYSIS
Preliminarily, the parties should be aware that in limine rulings are provisional,
meaning the Court may change its mind during trial. So even though the Court will
overrule many of defendants’ objections to particular categories of evidence within this
Order, defendants may re-assert those objections at trial. Likewise, even though the
Court is determining that certain of plaintiff’s intended evidence should be excluded,
during the trial plaintiff may again ask for permission to offer such evidence. The parties
shall raise any of these issues in advance, however, outside the presence of the jury.
1.

Alleged Discovery Violations
Defendants ask the Court to exclude nine of plaintiff’s proposed trial witnesses

because plaintiff allegedly did not disclose them during discovery. These witnesses are:
James Parmer, Sara Fink, Mark Worthington, Melissa Carr, Brent Reinke, Randy Blades,
Dr. Kenneth Khatain, Stephen L. Pevar, and Richard Alan Eppink.
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During the hearing, the parties informed the Court they had resolved this issue
with the following stipulation: (1) defendants will withdraw their objection to plaintiff’s
calling Dr. Khatain as a witness; (2) defendants will supplement their exhibit list to
include some of Dr. Khatain’s medical records; and (3) plaintiff will not attempt to offer
any of the other nine witnesses listed above. Based on this stipulation, the Court will
exclude the nine listed witnesses except for Dr. Khatain.
Additionally, in accordance with its ruling during oral argument, the Court will
exclude Brent Reinke and Randy Blades regardless of whether plaintiff intended to
include them in his stipulation. 1 The Court is not convinced that these witnesses’
testimony is relevant to the issues in this lawsuit. These witnesses are not affiliated with
the private prison at issue here; rather, they are affiliated with the Idaho Department of
Corrections. Moreover, regardless of whether their testimony is relevant, plaintiff did not
timely disclose these witnesses and his failure to do so was not substantially justified or
harmless. Thus, in accordance with Federal Rule of Civil Procedure 37(c), and after
considering the factors set out in Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.
1997), 2 the Court finds that exclusion is an appropriate sanction. See also Yeti by Molly,
Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
1

During the hearing, plaintiff initially indicated that he would not attempt to withdraw any of the
nine disputed witnesses except Dr. Khatain. Later in the hearing, however, plaintiff indicated did not
realize Reinke and Blades were included in the list of witnesses he agreed not to offer.
2

These factors are: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s
need to manage its docket, (3) the risk of prejudice to the other parties, (4) the public policy favoring
disposition of cases on their merits, and (5) the availability of less drastic sanctions.
ORDER RE PRETRIAL CONFERENCE - 3

2.

Inmate Testimony Regarding Assaults
Defendants next seek to exclude testimony from sex offender inmates who would

testify they were attacked after April 14, 2007. These witnesses include Brandon Jordan;
Todd Butters; Phillip Fenwick; Albert Pete Veenstra; Marlin Riggs; Mathew Knapp; and
Larry Sittner. Relatedly, Hayes’ discovery responses indicate that prison employee
Daniel Chaney has first-hand knowledge of the attack on inmate Todd Butters.
Defendants say such testimony is irrelevant to deciding whether the defendants
Doser and Acosta violated plaintiff’s Eighth Amendment rights.
The Eighth Amendment protects prisoners from inhumane methods of punishment
and from inhumane conditions of confinement. Although prison conditions may be
restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter,
sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33
(1994). Prison officials also have a duty to take reasonable steps to protect inmates from
physical abuse. Id
To establish a violation of this duty, the prisoner must establish that prison
officials were “deliberately indifferent to a serious threat to the inmates’ safety.” Id. at
834. The question under the Eighth Amendment is whether prison officials, acting with
deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious
damage to his future health . . . .’” Id. at 843 (citation omitted).
Deliberate indifference is a high legal standard, which involves both an objective
and a subjective prong. First, the alleged deprivation must be, in objective terms,
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“sufficiently serious.” Id. at 834. Second, subjectively, the prison official must “know of
and disregard an excessive risk to inmate health or safety.” Id. at 837. To prove
knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact,
the very obviousness of the risk may be sufficient to establish knowledge. Id. at 842.
Ultimately, the defendant prison official must not only “be aware of the facts from which
the inference could be drawn that a substantial risk of serious harm exists,” but that
person “must also draw the inference.” Id. at 837. “If a prison official should have been
aware of the risk, but was not, then the official has not violated the Eighth Amendment,
no matter how severe the risk.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th
Cir. 2002).
Under this standard, the ultimate question is whether Doser and Acosta knew
Hayes was exposed to a substantial risk of serious harm on K-pod when Hayes was
housed on that pod. If an inmate was assaulted on one of the gladiator pods very shortly
after plaintiff was attacked, that assault may have some arguable bearing on defendants’
state of mind in April 2007, when Hayes was assaulted. The Court therefore declines to
issue a blanket exclusionary order preventing plaintiff from putting on evidence of
inmate-on-inmate attacks after April 14, 2007. Instead, during the course of the trial, the
Court will make its decision about any alleged post-April 14, 2007 attacks on a case-bycase basis. Hayes will need to make an offer of proof as to any given attack – outside the
presence of the jury – and the Court will then decide whether that evidence will be
admitted.
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As for any attacks before April 14, 2007, these are plainly relevant. Further, the
Court is not persuaded that plaintiff should be limited to presenting evidence of attacks
only on K-Pod. Hayes has claimed there was a longstanding, pervasive problem with six
pods in the prison (J-K-L and A-B-C) – the so-called “gladiator pods” – because sex
offender inmates such as Hayes were routinely beaten and robbed in these pods.
Evidence of attacks on these other pods might help Hayes prove, circumstantially, that
Doser and Acosta knew of a risk of harm on K-Pod.
In sum, at trial, the inmate witnesses listed above can testify about attacks on pods
A,B,C or J,K,L on or before April 14, 2007. As for any attack after that date, the Court
will make those determinations during trial.
Also, a point of clarification regarding inmate Marlin Riggs, whom plaintiff
intends to call as a witness. If Riggs testifies, he will not be allowed to testify regarding
the allegedly inadequate medical treatment he received following the attack, however.
This is not relevant to the issues in this case, and would be unduly prejudicial under
Federal Rule of Evidence 403.
Finally, during the hearing, Hayes asked to add inmate Daniel Dixon to his
witness list. Hayes disclosed Dixon as a witness during discovery but did not put Dixon
on his trial witness list. Hayes indicates that Dixon was a sex offender inmate who was
attacked on J pod during 2006. Hayes says Dixon asked Doser and Acosta several times
to be moved to a different unit. This testimony is relevant to Hayes’ claim and the Court
cannot see how defendants would be prejudiced by allowing Hayes to amend his trial
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witness list. 3 The Court will therefore allow Dixon to testify.
3.

ICC Prison Employees
Defendants next seek to prevent three ICC prison employees from testifying, ICC

Warden Phillip Valdez, Assistant Warden Dan Prado, and Unit Manager Norma
Rodriguez. Generally, Hayes wishes to offer these witnesses to establish that there has
been a longstanding, pervasive problem at the prison, specifically involving the prison
officials placing sex offenders on the gladiator pods despite knowing these types of
offenders would be targeted for physical assaults by other inmates.
Defendants argue that such evidence is irrelevant to what Doser and Acosta
personally knew as of April 14, 2007. But the legal standard described above is broader
than that. Although the ultimate question is what Doser and Acosta knew when they
refused to remove Hayes from K-Pod, Hayes is entitled to put on evidence that the
problems at ICC were so longstanding and pervasive that Doser and Acosta must have
known that placing a sex offender on A-B-C or J-K-L pods would expose them to a
substantial risk of serious harm. The Court will therefore allow Valdez, Prado, and
Rodriguez to testify at trial. Further, although the Court may change its mind in the
context of a trial, at this point, the Court will allow Hayes to question these witnesses
about events dating back to 2005. During discovery, Hayes indicated that these witnesses
3

Indeed, defendants recently reversed course on one of their own proposed witnesses. After
moving to exclude Brandon Delaney as a witness, defendants withdrew that motion and added Delaney to
their Second Amended Witness List. See Feb. 8, 2013, Second Amended Witness List, Dkt. 165;
Addendum to Motion in Limine, Dkt. 166.

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(Rodriguez, Valdez, and Prado) knew sex offenders were being placed in harm’s way
dating back to “2005” or “before 2006.”
In this regard, and more generally speaking, the Court is not persuaded by
defendants’ argument that plaintiff should be restricted to using evidence from the oneyear-period – April 14, 2006 through April 14, 2007 – to prove his case. Hayes wishes to
show that there was a longstanding, pervasive problem at the prison – specifically that
sex offenders were not properly protected on the so-called gladiator pods (A,B,C and
J,K,L pods). To establish this point, Hayes will be allowed to reach back farther than one
year to demonstrate that the problem was indeed “longstanding.” Defendants insist that
the Court established a one-year “temporal limitation” on admissible evidence during
discovery. But this is not so. Rather, in an earlier discovery order, the Court overruled
defendants’ objections and ordered them to produce documents related to inmate-oninmate assaults at the prison. That production was limited to the one-year period before
Hayes’ attack, but that limitation was based on a number of concerns, including, among
other things, the burden on defendants to produce such documents and the security risks
of allowing inmates to have information related to other inmates. That order did not
purport to establish a rigid temporal limitation on evidence that would be admissible at
trial.
4.

Defendants’ View of “Relevant” Evidence
Finally, defendants broadly ask the Court to exclude everything that falls outside

their narrow view of what is relevant. Specifically, defendants wish to limit plaintiff’s
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evidence of inmate-on-inmate assaults with sex offender victims to the one-year period
discussed above (April 14, 2006 to April 14, 2007). Defendants also wish to exclude any
evidence of assaults on pods other than K-Pod. Finally, defendants say Doser’s and
Acosta’s knowledge of any “substantial risk of serious harm to Plaintiff” is relevant only
“from January 21, 2007 to April 14, 2007, while Plaintiff was housed on K-Pod.” Mot.
Mem., Dkt. 163-1 at 16.
For the reasons already discussed, the Court rejects defendants’ cramped view of
relevance. The Court will not so limit the plaintiff’s ability to present evidence related to
his case.
ORDER
1.

The ICC Defendant’s Motions in Limine (Dkt. 163) are GRANTED in part

and DENIED in part as explained above.
2.

The ICC Defendants’ Motion to Amend the Caption (Dkt. 157) is

GRANTED to the extent defendants ask to exclude the dismissed defendants on the
special verdict form and other pleadings shown to the jury. Otherwise, the Court will not
change the caption. The parties may continue to file pleadings with the Court showing
the complete caption.
3.

Plaintiff’s oral motion to add Daniel Dixon to his witness list is GRANTED.

4.

Plaintiff shall inform the Court of the order in which he intends to call his

trial witnesses so that the Court can coordinate transporting prisoners and serving
subpoenas. This document must be faxed or e-mailed to the Court (with a copy to
ORDER RE PRETRIAL CONFERENCE - 9

defense counsel) by no later than Wednesday, February 28, 2013. In compiling this
list, Hayes should include all sex offender witnesses listed on his Jury Trial Witness List
except James Parmer. See Dkt. 161 (witness nos. 1-4, 6-7). As indicated above, the Court
may determine during trial that these witnesses will not be allowed to testify about postApril 14, 2007 assaults, but these witnesses will need to be available – even if they do not
take the stand at trial – so that the Court may entertain Hayes’ offers of proof regarding
each of these witnesses. Further, these witnesses may have relevant testimony regarding
pre-April 14, 2007 attacks.
5.

Plaintiff’s motion requesting various forms of relief (Dkt. 173) is DEEMED

MOOT, in part, and DENIED, in part. The requests for extensions of time to file
various pretrial documents are moot; the Court already granted plaintiff extensions, as set
forth in the February 19, 2013 Order re Pretrial Conference. See Dkt. 174. Plaintiff’s
request for an order directing IDOC to allow him to correspond with victim witnesses is
DENIED, as plaintiff has not cited any authority for such an order. Regardless, however,
plaintiff is advised that Court staff will work with IDOC in an effort to allow him to
communicate with his trial witnesses before they testify.
Plaintiff’s Motion for Subpoenas
6.

Regarding Plaintiff’s Motion for Subpoenas (Dkt. 151, with a duplicate filing

at Dkt. 162), the Court will GRANT in part and DENY in part this motion. More
specifically, the Court has determined that the following witnesses on that list may
testify: Margaret Gabbitas; Brent Archibald; Norma Rodriguez, Wayne Peterson; Albert
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Pete Veenstra; Todd Butters; Phillip Fenwick; Marlin Riggs; Mathew Knapp; and Dr.
Kenneth Khatain.
7.

Not later than February 28, 2013, Defendants shall inform the Court

whether the following ICC employees on Plaintiff’s witness list will appear voluntarily or
will require a subpoena for their appearance: Norma Rodriguez, Brent Archibald,
Margaret Gabbitas, Brandon Delaney, Phillip Valdez, Dan Prado, Wayne Peterson, and
Dr. Kenneth Khatain. Defendants will also inform the Court as to whether these
witnesses will require witness fees and whether defense counsel will accept service of
subpoenas for these individuals (assuming these witnesses will require a subpoena to
appear).
8.

Regarding witnesses Larry Sittner and Marlin Riggs, Hayes will need to

supply the Court with an address for serving these individuals. The Court has been
unable to locate these individuals by checking sex offender registries. Hayes will also
need to supply addresses for Brent Archibald (who is listed as a retired ICC employee)
and Tim Huf (who is listed as an IDOC dentist).

DATED: February 26, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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