Guille v. Sweeney et al

Filing 178

ORDER denying without prejudice 159 Motion in Limine; denying 169 Motion for Reconsideration ; denying 170 Motion for Recusal, denying as moot 171 Motion for Writ of Habeas Corpus ad testificandum; denying 176 Motion Writ of Habeas Corpus ad testificandum. Signed by Judge Dana L. Christensen on 11/7/2018. Copy mailed to Guille. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CV 14-00051-H-DLC

ADRIAN GUILLE,
Plaintiff,
vs.

ORDER

JOSH SWEENEY, SAMUEL SHORT,
JASON TRUDEAU, GARRETT KENT,
and DANIEL SEGOVIA,
Defendants.
Pending are Plaintiff Adrian Guille's Motion in Limine (Doc. 159), Motion
for Reconsideration (Doc. 169), a document entitled "Plaintiffs Objections to the
Use of Chief Judge Presiding over Trial, Pre-trial Proceedings Due to Conflict of
Interest, Bias Against Plaintiff' (Doc. 170) which has been construed as a motion
to recuse, and two Motions for Writs of Habeas Corpus ad Testificandum (Docs.
171, 176). Defendants filed a response to Mr. Guille's motions for writs of habeas
corpus ad testificandum but did not respond to the motion for reconsideration or
the motion for recusal. Nevertheless, Mr. Guille's motions will be denied.

I. Motion in Limine (Doc. 159)
In his motion in limine, Mr. Guille seeks to exclude his prior institutional
and criminal records from trial. (Doc. 159.) He argues this evidence would be
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irrelevant ifthe named Defendants were not aware of his prior record, that the
probative value of this evidence is substantially outweighed by the danger of unfair
prejudice, and that prior convictions are generally used only to impeach the
credibility of a party or witness. (Docs. 159, 160.)
"Although the Federal Rules of Evidence do not explicitly authorize in
limine rulings, the practice has developed pursuant to the district court's inherent
authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 40 n.
2 (1984). But the Court "is almost always better situated during the actual trial to
assess the value and utility of evidence." Wilkins v. Kmart Corp., 487 F. Supp. 2d
1216, 1218 (D. Kan. 2007). The Sixth Circuit has explained that, "a better practice
is to deal with questions of admissibility of evidence as they arise [in trial]" as
opposed to ruling on a motion in limine. Sperberg v. Goodyear Tire & Rubber
Co., 519 F.2d 708, 712 (6th Cir. 1975).
The Court will not make a general ruling regarding the admissibility Mr.
Guille's institutional history and/or criminal history because there has been no
indication what if any of this evidence Defendants intend to seek to introduce at
trial. Any information Defendants were aware of on the date of the incident
regarding Mr. Guille's criminal and institutional history may be relevant to
Defendants' defenses in this case but the Court cannot make that determination in
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the abstract.
The motion in limine will be denied without prejudice and subject to
renewal at the Court's Final Pretrial Conference and at trial.
II. Motion for Reconsideration (Doc. 169)

Mr. Guille moves for reconsideration of the Court's June 18, 2018 Order
granting the supervisory Defendants' Motion for Summary Judgment. (Doc. 169.)
Local Rule 7.3 provides as follows:
(b) Form and Content of Motion for Leave. A motion for leave to file
a motion for reconsideration may seek reconsideration only of an
interlocutory order, must be limited to 2,275 words or, for prose
litigants, seven pages, and must specify why it meets at least one of
the following:
(1) (A) the facts or applicable law are materially different
from the facts or applicable law that the parties
presented to the court before entry of the order for
which reconsideration is sought, and
(B) despite the exercise of reasonable diligence, the
party applying for reconsideration did not know
such fact or law before entry of the order; or
(2)
new material facts arose or a change of law occurred
after entry of the order.
(c) Prohibition Against Repetition of Argument. No motion for leave
to file a motion for reconsideration of an interlocutory order may
repeat any oral or written argument made by the applying party before
entry of the order. Violation of this restriction subjects the offending
party to appropriate sanctions.
Mr. Guille raises twelve arguments in support of his motion for

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reconsideration but does not establish that the facts or applicable law are materially
different from the facts or law presented in his previous filings prior to entry of the
Order granting summary judgment. For the most part, Mr. Guille raises arguments
and contentions that were already presented to the Court before it granted the
supervisory Defendants' motion for summary judgment. There are however, two
issues the Court must address: (I) Mr. Guille's contention that he was not
provided a copy of the Court's Local Rules and (2) his contention that he did not
receive notice of the summary judgment rules as required by Rand v. Rowland, 154
F .3d 952, 960-61 (9th Cir. 1998).
A. Local Rules
Mr. Guille contends he requested but was not provided with a copy of the
Court's Local Rules. (Motion for Reconsideration, Doc. 169 at 1.) He argues that
the Local Rules require a statement of undisputed facts but the Federal Rules of
Civil Procedure do not have such a requirement. He contends he was not provided
a copy of the Local Rules and therefore could not have known of this requirement
in order to move to strike Defendants' Motion for Summary Judgment for failing
to file a statement of undisputed facts. (Doc. 169 at 2; see also Point # 1, Doc. 169
at 2; Argument #5, Doc. 169-2 at 2; Doc. 170 at 1-2.) But Defendants filed both a
Statement of Undisputed Facts (Doc. 59) and a Supplemental Statement of
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Undisputed Facts (Doc. 135). As such, this is not a sufficient grounds to
reconsider the decision to grant the Supervisory Defendants' Motion for Summary
Judgment. 1

B. Rand Notice
In his "Objections to Judge's Granting of Partial Summary Judgment for the
Defendants," Mr. Guille contends he was not given a notice required by Rand v.

Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (Doc. 169-3 at 1.) In Rand, the
Ninth Circuit Court of Appeals held that a pro se prisoner is entitled to fair notice
of the requirements of the summary judgment rule. Rand, 154 F.3d 952.
According to the record, Defendants served a Notice and Warning to Plaintiff on
Mr. Guille on October 6, 2017 contemporaneously with the supervisory
Defendants' renewed motion for summary judgment. (Doc. 136.) In addition,
Defendants indicated in their renewed motion for summary judgment that they had
filed a Rand Notice and Warning to Plaintiff as required under L.R. 56.2. (Doc.
133, at 2.) Mr. Guille obviously received Defendants' motion because he filed

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The record reflects that Mr. Guille was provided a copy of the applicable Local Rules
with the Court's March 23, 2015 Scheduling Order including Local Rule 56 which sets forth the
requirement to file a statement of undisputed facts with a motion for summary judgment and a
statement of disputed facts with a response to a motion to summary judgment. (Doc. 18-2 at 3536.) Mr. Guille frequently cited to the Court's Local Rules (Docs. 28 at 5, 71 at 5, 101-1 at 1,
101-3, 141-1at2, 145 at 5, 151-1 at 1) and any alleged failure to provide the Court's Local Rules
to Mr. Guille was not the basis for granting Defendants' motion for summary judgment.

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two responses to the motion. (Docs. 137, 141.) Prior to his motion for
reconsideration, Mr. Guille never raised the issue of not having received a Rand
notice. The Court finds that the record establishes that he did in fact receive a

Rand notice.
Generally, a failure to give adequate notice is reversible error and the Court
need not engage in a harmless error analysis. Rand, 154 F .3d at 961. The Ninth
Circuit, however, recognizes "that there may be the unusual case where the
harmlessness of the failure to give the required notice may be established on the
record or by judicial notice." Id. Examples of such cases may be where the Court
could take judicial notice that the plaintiff had recently been served with a Rand
notice or that the pro se prisoner has a complete understanding of Rule 56's
requirements. Id.
Even if Mr. Guille did not receive the October 6, 2017 Notice and Warning,
the Court finds that this is the unusual case where the harmlessness of any failure
to receive the required notice is established on the record. Mr. Guille was served
with two Notices and Warning to a Pro Se Prisoner as required by Rand on
January 7, 2016 (Docs. 56 and 60). These documents were remailed to Mr. Guille
by the Clerk of Court as directed by Judge Johnston June 17, 2016 Order (Doc.
68).
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Moreover, Mr. Guille has demonstrated a complete understanding of Rule
56's requirements as evidenced by his numerous responses the Defendants'
multiple motions for summary judgment. His responses included detailed
statements of facts and disputed facts, citations to and quotations from legal
authorities including Rule 56, and Mr. Guille makes repeated references to Rule
56 in all his responses to Defendants' motions for summary judgment. (July 11,
2016 Response, Doc. 73-1 at 6; November 8, 2017 Response, Doc. 137 at 1;
December 11, 2017 Second Response, Doc. 141 at 1.) Mr. Guille's responses
clearly demonstrated that he understood the nature of summary judgment and
complied with the requirements of Rule 56. See Labatad v. Corrections

Corporation ofAmerica, 714 F.3d 1155, 1159-1160 (9th Cir. 2013).
The Court will not reconsider its Order granting the supervisory
Defendants' motion for summary on this basis.

III. Motion for Recusal (Doc. 170)
Mr. Guille has filed an objection to the undersigned presiding over trial and
pre-trial proceedings due to what he contends is a conflict of interest and alleged
bias against Mr. Guille. (Doc. 170.) The motion will be construed as a motion to
recuse. The Court will consider the merits of Mr. Guille's motion under the
provisions of 28 U.S.C. § 455. "Section 455 imposes an affirmative duty upon
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judges to recuse themselves." Yagman v. Republic Ins., 987 F.2d 622, 626 (9th
Cir. 1983). The statute provides, as follows:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
( 1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced
law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in
such capacity participated as counsel, adviser or material
witness concerning the proceeding or expressed an opinion
concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could
be substantially affected by the outcome of the
proceeding;
(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding.
28 U.S.C. § 455(a) and (b).
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Section 455(a) requires disqualification for the appearance of partiality.
What matters under section 455(a) "is not the reality of bias or prejudice but its
appearance[,]" and the test for disqualification is an objective one. Liteky v.

United States, 510 U.S. 540, 548 (1994). Disqualification is warranted if"a
reasonable person with knowledge of all the facts would conclude that the judge's
impartiality might reasonably be questioned." Blixseth v. Yellowstone Mountain

Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 2014) (quotation and citation omitted).
The "reasonable person" is not "hypersensitive or unduly suspicious," and "is not
a 'partly informed man-in-the-street[.]"' Blixseth, 742 F.3d at 1219, and United

States v. Holland, 519 F.3d 909, 913-14 (9th Cir. 2008). Rather, the reasonable
person is a "well-informed, thoughtful observer[,]" and is "someone who
'understand[s] all the relevant facts' and has examined the record and the law."

Holland, 519 F.3d at 913-14 (citation omitted).
The analysis under section 455(a) is also subject to the "extrajudicial
source" doctrine. Liteky, 510 U.S. at 554. The doctrine requires that the basis for
disqualification generally must be "something other than rulings, opinions
formed[,] or statements made by the judge during the course of trial." Holland,
519 F.3d at 913-14.
In his motion to recuse, Mr. Guille first argues that he was not provided
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copies of this Court's Local Rules. (Doc. 170 at 1.) As set forth above, Mr. Guille
was provided a copy of the Court's applicable local rules and he complied with
these rules in responding to Defendants' motion for summary judgment. A motion
to strike Defendants' motion for summary judgment for failure to file a statement
of undisputed facts would have been denied because Defendants' filed both a
Statement of Undisputed Facts (Doc. 59) and a Supplemental Statement of
Undisputed Facts (Doc. 135). Further, any failure to abide by one of the Court's
local rules was not the basis of the Court's decision to grant the supervisory
defendants' motion for summary judgment.
Next, Mr. Guille argues he filed a formal complaint against "his judge" to
the Chief Judge of the Ninth Circuit. He alleges that a short time after he filed this
complaint, the Court ruled against him on "every possible outstanding discovery
dispute." (Doc. 170 at 2.) He argues that the Court agreed with the production of
the use of force packets but then "changed course" after Mr. Guille filed a formal
complaint against the undersigned. (Doc. 170 at 3.)
There are several problems with this argument. First, the Court is not aware
that a judicial complaint was filed against him by Mr. Guille. Mr. Guille attached
to his motion to recuse a document entitled "formal complaint" (Doc. 172 at 10)
which the Court assumes is the "formal complaint" to which Mr. Guille refers.
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The document is dated May 7, 2018 but there is no indication to whom the
complaint was addressed or if any action was taken on the complaint. The Court
has no knowledge of a complaint being filed against him.
Secondly, the Court made an advised decision to not require the production
of the use of force packets because Defendants conducted the search for
documents directed by Judge Johnston and that search led to the discovery of a
single grievance against the named IPS Team Defendants. That grievance related
to a June 27, 2013 use of force incident but it was not filed with prison officials
until August 9, 2013, after the July 5, 2013 Guille incident. As such, the Court
found there were no responsive use of force packets. (Doc. 163 at 9.) The Court
found that Mr. Guille provided no evidence to establish that the named
supervisory defendants were on notice of any alleged prior incidents of excessive
force. Id. at 9-10. Mr. Guille argues that the only reason there is no evidence to
support his claims against the supervisory defendants is because the Court allowed
Defendants to withhold evidence. The Court did not allow Defendants to withhold
evidence-there was no responsive evidence to Mr. Guille's discovery requests.
In short, Mr. Guille is seeking to have the undersigned recuse himself based
upon the Court's prior rulings. This is an insufficient basis because the
"extrajudicial source" doctrine requires that the basis for disqualification generally
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must be "something other than rulings, opinions formed[,] or statements made by
the judge during the course of trial." Holland, 519 F.3d at 913-14.
The motion to recuse will be denied.

IV. First Motion for Writ of Habeas Corpus ad Testificandum (Doc. 171)
Mr. Guille seeks a writ of habeas corpus ad testificandum requiring the
Warden of Montana State Prison to make arrangements to bring Mr. Guille to
court for the scheduled trial. (Doc. 171.) This motion will be denied as moot
because in its June 18, 2018 Trial Scheduling Order, the Court required
Defendants to obtain Mr. Guille's presence at trial and ensure that his legal
materials were available to him at trial. (Doc. 164 at 2.) The Court does not read
Mr. Guille's motion as a request for appointment of counsel.
V. Second Motion for Writ of Habeas Corpus ad Testificandum (Doc. 176)

Mr. Guille also seeks writs of habeas corpus ad testificandum for "all
inmates housed on B-block on 7-5-13" to testify on Mr. Guille's behalf at trial.
He contends these inmates are on his will-call witness list previously submitted to
the Court. (Doc. 176.) The Court, however, has not received a list of witnesses
which Mr. Guille intends to call at trial.
In its June 18, 2018 Order, the Court provided specific instructions to Mr.
Guille on how to subpoena witnesses for trial. (Doc. 164.) On or before October
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15, 2018, Mr. Guille was to comply with the following for any witness he wanted
to subpoena to testify at trial:
(b) Plaintiffs Subpoena Requests; Time to File.
(1) As Plaintiff has been granted leave to proceed in forma
pauperis, 28 U.S.C. § 1915(d) requires officers of the Court to issue
and serve witness subpoenas for trial. Therefore, the Court will have
the United States Marshals Service serve proper subpoenas requested
by Plaintiff. Plaintiff must submit his subpoena requests to the
Court on or before the date set forth above in paragraph 1. Those
subpoena requests must comply with the requirements set forth herein
or the subpoenas will not be served.
(2) Plaintiffs subpoena request must identify the witness by
name, current address, a brief description of their expected testimony,
an indication whether they are prisoners or not and whether Plaintiff
anticipates that they will be prisoners at the time of trial.
(c) Plaintiffs Witnesses for Whom a Subpoena is Required.
( 1) If Plaintiff wishes to call a prisoner as a witness, Plaintiff
must request a subpoena for the prisoner. Prisoner witnesses will
most likely appear by video.
(Trial Scheduling Order, Doc. 164 at 1, 9-10.) Mr. Guille has completely failed to
comply with these instructions. Even if the Court liberally construes Mr. Guille's
"Petition for Writ of Habeas Corpus ad Testificandum" as a request for subpoenas,
it is untimely because it was dated October 18, 2018. (Doc. 176.) Even ifthe
Court were to overlook the fact that the request was untimely, Mr. Guille has
failed to identify his witnesses by name and their current address. Mr. Guille
refers to his "will-call witness list previous [sic] submitted to this court." (Doc.
176 at 1.) But the Court cannot locate any such list of will call witnesses in the
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record. Without the names and addresses for these witnesses, the Court cannot
issue subpoenas for these individuals even if Mr. Guille had complied with the
Court's trial scheduling order. The petition for writ of habeas corpus ad
testificandum will be denied.
Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. Guille's Motion in Limine (Doc. 159) is DENIED WITHOUT
PREJUDICE AND SUBJECT TO RENEWAL.
2. Mr. Guille's Motion for Reconsideration (Doc. 169) is DENIED.
3. Mr. Guille's "Objections to the Use of Chief Judge Presiding over Trial,
Pre-trial Proceedings Due to Conflict of Interest, Bias Against Plaintiff' (Doc.
170) as construed as a motion to recuse the undersigned is DENIED.
4. Mr. Guille's Motion for Writ of Habeas Corpus ad Testificandum (Doc.
171) is DENIED AS MOOT.
5. Mr. Guille's Petition for Writ of Habeas Corpus ad Testificandum (Doc.
176) is DENIED.
DATED this :J-tliday of No

Dana L. Christensen, Chief Judge
United States District Court
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