Adams et al v. Morrissey et al

Filing 343

District Judge Leo T. Sorokin: ORDER entered. ORDER ON PRETRIAL MOTIONS (Belmont, Kellyann)

Case 1:17-cv-11059-LTS Document 343 Filed 01/17/23 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JORDAN M. RICE,
Plaintiff,
v.
RYAN W. RESENDES, et al.,
Defendants.

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Civil No. 17-11059-LTS

ORDER ON PRETRIAL MOTIONS
January 17, 2023
SOROKIN, J.
Pending before the Court are various pretrial filings from pro se Plaintiff Jordan Rice.
The Court issues the following rulings as to those motions and certain other matters pertaining to
the trial.
1. Trial commences with jury selection on Monday January 30, 2023.Trial will proceed
that day and each day thereafter from 9:00 a.m.— 4:00 p.m. with a break at
approximately 11 a.m. for fifteen minutes, and a lunch break from 1:00p.m.—2:00
p.m. This is a change in the schedule. Mr. Rice and counsel shall adjust accordingly.
The Court will meet with Mr. Rice and counsel for the Defendants each trial day
(except Monday January 30th) at 8:30 a.m. to discuss any issues requiring the Court’s
attention.
2. The Court hereby ORDERS the Department of Corrections to produce Rice at the
John Moakley United States Courthouse, 1 Courthouse Way, Boston, Massachusetts,
by 8:00 a.m. on Monday, January 30, 2023, and day to day each day thereafter until
this trial concludes and the Court vacates this Order. The Court also ORDERS the
Department of Corrections to produce inmate Andrew Pasquale for trial
testimony in this case on Tuesday, January 31, 2023, at 9:00 a.m. To facilitate security
arrangements for the Court, Pasquale will testify at that time even if that is not the
preferred timing of his testimony. DOC Counsel for the Defendants shall notify the
Clerk no later than Friday, January 30, 2023, if the DOC requires the

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issuance of a writ or any other process or orders to ensure Rice’s or Pasquale’s
presence at the trial.
3. The Court ALLOWS Rice’s Motion, Doc. No. 325, to wear Nike sneakers,
sweatpants, and a sweatshirt at the trial in lieu of the traditional Court clothes DOC
permits of a suit and tie. However, this ruling is subject to de novo review upon
request by Defendants or DOC based upon a security or safety concern.
4. Counsel for the Defendants has agreed to accept service of subpoenas for all three
Defendants and the current DOC employees. Doc. No. 316. The Defendants are
required to appear for the trial, so no further subpoena is required for the Defendants.
For other current DOC employees, Rice must follow the procedures set out in the
Order from Judge Levenson, Doc. No. 315, except service shall be on defense
counsel. For all other witnesses, Rice must follow the procedures set out in that
Order. Service by the United States Marshals may occur only upon persons the Court
authorizes to testify as witnesses as discussed below.
As explained in Judge Levenson’s Order, Doc. No. 315, “[w]itness fees and mileage
costs may not be waived by this court.” See Matthews v. Cordeiro, 256 F. App'x 373,
375 (1st Cir. 2007). Rice must “tender[] the fees for 1 day’s attendance and the
mileage allowed by law” should he wish the United States Marshals to serve trial
subpoenas upon his witnesses. Fed. R. Civ. P. 45(b)(1).
5. Rice’s Motion to Compel DOC to Produce a Diagram of the BMU Unit and the Yard
at MCI Cedar Junction, Doc. No. 319, is DENIED. Fact discovery closed long ago, as
did the time for filing motions to compel.
6. Rice’s Motion to Compel Department of Correction to Submit to the Court Last
Known Home Addresses of Current & Former DOC Employees, Doc. No. 318, is
DENIED AS MOOT as the issue has been narrowed as described above in paragraph
4, and in any event, was resolved by Judge Levenson’s Order so requiring.
7. Rice’s Motion for the Clerk and Marshals to serve subpoenas on his trial witnesses,
Doc. No. 320, is DENIED AS MOOT in light of the ruling by Judge Levenson, Doc.
No. 315, explaining how this will occur and describing Rice’s obligations. See also ¶
4. The scope of persons served is narrowed as described below.
8. Rice has filed a list of witnesses with some explanatory detail. Doc. No. 332.
Defendants objected to some of those witnesses. Doc. No. 338. Before turning to the
particular witnesses, the Court outlines certain governing principles. The Court has
substantially narrowed the scope of the claims for trial, first in a ruling on motions to
dismiss, Doc. No. 124, and later in a ruling on a motion for summary judgment. Doc.
No. 220. None of the claims Rice has advanced survived these rulings except his
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claim for violation of rights under the Eighth Amendment to the United States
Constitution. Doc. No. 220 at 14. There is no conspiracy claim of any kind remaining.
Id. Rice’s Eighth Amendment claim arises out of two incidents: one on July 22, 2014,
and the other on December 1, 2014. Doc. No. 48 ¶¶ 114-47. In each incident, Rice
alleges that he was attacked by another inmate (Pasquale in the first and Lang in the
second). Id. As to each incident, Rice alleges that one or more of the Defendants
stood by, did not intervene, and cheered on the attacker. Id. In light of the foregoing,
the focus of the trial is on what happened at these two incidents. Of course, Rice may
call witnesses with personal knowledge of either incident, as well as some present or
former DOC employees with knowledge of policies then in force in 2014 to testify
about policies relevant to the alleged conduct of the Defendants in these two
incidents.
With these principles in mind, the Court permits Rice to call the following witnesses
from Rice’s Witness List, Doc. No. 332: each of the three Defendants (witnesses 7-9),
Pasquale (witness 12), Saba (witness 16), Black (witness 17), Rice’s mother Brenda
Rice (witness 21), and Brianna Rice (witness 22). In so ruling, the Court does not
endorse as relevant or admissible the topics described by Rice for each witness. In
addition, the Court cautions Rice to follow the general principles described above, as
these principles will guide the Court’s further rulings on matters including whether to
sustain objections, strike testimony, or entirely exclude a witness the Court has here
permitted Rice to call.
The Court STRIKES all of the other witnesses proposed by Rice in Doc. No. 332 as
not relevant to the claims at issue with two exceptions. First, the Court permits Rice
to call one or more present or former DOC employees to testify about relevant
policies. The Court will address with the parties what policies might be relevant and
who might testify as to those policies at the Final Pretrial Conference. Rice shall
identify the policies he deems relevant at or before this Conference. Second, Rice
wants to call inmate Fisher. Doc. No. 332. Rice claims inmate Fisher “[p]ersonally
witnessed both failure to protect claims.” Doc. No. 332 ¶ 11. Defendants object,
contending “there is no evidence [Fisher] witnessed either the July or December 2014
incidents.” Doc. No. 338 at 2. Rice may make a proffer of the basis for his assertion
that Fisher has witnessed either incident or otherwise has relevant testimony. The
other testimony Rice described in his proffer is not now relevant to the trial.
9. The Court notes but takes no action at this time on the following filings by Rice:
Plaintiff’s Concise Summary of Evidence (Doc. No. 336), Letter to the Court (Doc.
No. 317), Rice’s Proposed Jury Instructions (Doc. No. 322), his Proposed Special
Verdict Form (Doc. No. 323), Rice’s Probable Length of Trial filing (Doc. No. 331),
Rice’s Statement of Facts (Doc. No. 330), Rice’s Proposed Voir Dire (Doc. No. 341),
Rice’s Issues of Law (Doc. No. 334), and Rice’s List of Objections (Doc. No. 342).
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10. Rice’s Motion for Prisoner Witnesses to Be Separated, Doc. No. 321, is DENIED
WITHOUT PREJUDICE except that defense counsel shall notify the Department of
Corrections that Pasquale has previously attacked Rice. Accordingly, they shall take
appropriate security precautions. Rice’s Motion for Order to Transport Prisoner
Witnesses, Doc. No. 324, and his Petition for Writ of Habeas Corpus Ad
Testificandum, Doc. No. 326, are DENIED AS MOOT in light of other provisions of
this Order.
11. Rice’s Motion to Compel Prison Video Release, Doc. No. 327, and his Motion to
Seek an Order to Compel Prison Treasurer, Doc. No. 328, are DENIED.
12. Rice’s Motion for Requested Amendments to the Pleadings, Doc. No. 335, is
DENIED. The time for revising the scope of the claims in the operative complaint is
long past, and the revisions Rice seeks would prejudice Defendants on the eve of trial,
seek to inject irrelevant material, or without basis, revise matters resolved by the
Court in prior orders.
13. Rice’s Motion for Enlargement of Time, Doc. No. 329, is DENIED AS MOOT as the
Court is not now aware of late filings by Rice and he has not identified the amount of
time he seeks.
14. Rice’s Motion to Bar Reference to Good Character, Doc. No. 340, remains under
advisement pending a response from Defendants.
15. Rice has filed a list of 116 proposed exhibits, Doc. No. 333, and attached those
exhibits at Doc. No. 337. Defendants filed a response. Doc. No. 339. Many of the
exhibits appear to address matters outside the scope of the trial. Doc. No. 337. The
Court will rule on specific exhibits either at the Pretrial Conference or when offered
at trial. However, the Court expects defense counsel to have electronic copies of the
DOC video of the two incidents for display to the jury if offered by Rice at trial, and
if approved by the Court in response to any objections.
16. The Court notes that Rice’s papers refer to four motions not, so far, received by the
Court: a Witness List To Testify Via Deposition, a Motion in Limine to Exclude Bad
Act Evidence, a Motion for the Jury to take a View, and a Motion to Recuse Defense
Counsel.
17. Regarding a view, the Court adopts the statements and rulings expressed by Judge
Levenson in his Order. Doc. No. 315.
18. The Clerk shall mail this Order to Rice. Defense Counsel shall arrange for staff at
DOC to deliver a copy of it to Rice no later than the next business day after
receipt by defense counsel.
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19. The Final Pretrial Conference is set for Thursday, January 26, 2023, at 3:00 p.m. Rice
shall appear at the Final Pretrial Conference in person. The Clerk shall issue a writ to
secure Rice’s appearance at the Final Pretrial Conference.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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