Johnson v. City of Olympia et al

Filing 97

PARTIES' JOINT PRETRIAL ORDER signed by Judge Marsha J. Pechman. (PM)

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Honorable Marsha J. Pechman

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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TYRONE JOHNSON,

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PLAINTIFF,

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CASE NO: 3:17-CV-05403-MJP

VS.

PARTIES’JOINT PRETRIAL ORDER

CITY OF OLYMPIA, ET AL.,

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DEFENDANTS.

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I.

JURISDICTION

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1.1

Jurisdiction is vested in this court by virtue of 28 U.S.C. §1331, this being a

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civil rights case pursuant to 42 U.S.C. §1983.
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II.

CLAIMS AND DEFENSES

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2.1

The Plaintiff will pursue at trial the following claims: unreasonable search and seizure

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under the Fourth Amendment, pursuant to 42 U.S.C. §1983.
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2.2

The Defendants will pursue the following affirmative defenses and /or claims: Failure

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to Mitigate Damages.
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III.

ADMITTED FACTS

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The following facts are admitted by the parties:
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PARTIES’ JOINT PRETRIAL ORDER

Page 1 of 18

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3.1

Plaintiff, Tyrone Johnson, was an employee of CenturyLink, LLC at the time of the

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incident up until the present day.

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3.2

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the City of Olympia Police Department. He is still employed as a police officer by the City of

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Olympia Police Department.

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3.3

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the City of Olympia Police Department. He is still employed as a police officer by the City of

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Olympia Police Department.

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3.4

At the time of the incident, Defendant, Ryan Donald, was a police officer employed by

At the time of the incident, Defendant, George Clark, was a police officer employed by

At the time of the incident, Defendant, Jonathan Hazen, was a police officer employed

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by the City of Olympia Police Department. He is still employed as a police officer by the City

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of Olympia Police Department.

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3.5

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by the City of Olympia Police Department. He is still employed as a police officer by the City

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of Olympia Police Department.

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3.6

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employed by the City of Olympia Police Department. He is still employed as a police

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Sergeant by the City of Olympia Police Department.

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3.7

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the CenturyLink building at 2817 Martin Way E., Olympia, Washington, and drove out to the

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location to complete a job.

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3.8

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Washington, unlocked the garage bay door and drove the vehicle inside.

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3.9

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premises on May 28, 2014 at 2:21:03am..

At the time of the incident, Defendant, Eric Henrichsen, was a police officer employed

At the time of the incident, Defendant, Matthew Renschler, was a police Sergeant

On May 27, 2014., Mr. Johnson received a dispatch call, drove his personal vehicle to

Mr. Johnson drove back to the CenturyLink building at 2817 Martin Way E., Olympia,

Exhibit 7 indicate that Defendant Donald initiated a dispatch call for an unsecured

PARTIES’ JOINT PRETRIAL ORDER

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3.10 Exhibit 7 indicates that Defendant Hazen reported that he arrived on scene at 2:22:36

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a.m..

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3.11 Exhibit 7 indicates that Defendant Henrichsen reported that he arrived on scene at

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2:22:41 a.m.

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3.12 Exhibit 7 indicates that Defendant Clark reported that he arrived on scene at 2:29:59.

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3.13 Some or all of the defendants had flashlights.

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3.14 Mr. Johnson heard the defendants and was given orders to walk towards the Officers

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and keep his hands in the air. He was compliant.

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3.15 One of the officers told Mr. Johnson to turn around and start walking backwards.

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3.16 One of the officers told Mr. Johnson to kneel.

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3.17

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3.18 Mr. Johnson was led out of the building and released out of handcuffs and was not

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arrested.

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3.19 Defendants determined that Mr. Johnson was a CenturyLink employee.

One of the officers placed Mr. Johnson in handcuffs.

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IV.

ISSUES OF LAW

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The following are Plaintiff’s issues of law to be determined by the court:

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1. Whether Defendants may use as a defense for their actions the fact that Plaintiff did not

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close the garage door to the CenturyLink building?

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2. Whether punitive damages shall be listed on the verdict form and in a jury instruction?

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3. Whether failure to mitigation emotional damages shall be listed on the verdict form and

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in a jury instruction? The question is whether mitigation is a proper jury instruction for

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emotional damages in a §1983 case.

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PARTIES’ JOINT PRETRIAL ORDER

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4. Whether photographs taken by Defense counsel on June 22, 2018 at 2:00am may be

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presented to prove the truth of the matter – that the photographs represent what the

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officers saw on May 28, 2014 or what the lighting was like on May 28, 2014?

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5. Whether Plaintiff will be able to introduce evidence of his L&I claim, including

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medical records and reports to help prove that 1. He had a documented history of

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reporting the May 28, 2014 incident to medical professionals, he sought treatment for

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his damages, he was damaged by the incident and/or he stopped going to therapy

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because the insurance would not pay for it.

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The following are Defendants’ issues of law to be determined by the court:

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1. Should the Jury be instructed on Unreasonable Search and should that claim appear on

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the verdict form?
2. Should the jury be instructed on punitive damages and should that question appear on
the verdict form?

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If the parties cannot agree on the issues of law, separate statements may be given in the

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pretrial order.

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V.

EXPERT WITNESSES

(a) Each party shall be limited to one (1) expert witness on the issue of damages and one (1)
expert witness on the issue of causation.
(b) The name(s) and addresses of the expert witness(es) to be used by each party at the trial
and the issue upon which each will testify is:
(1) On behalf of Plaintiff:
a. Laura Brown, Ph.D., ABPP
PARTIES’ JOINT PRETRIAL ORDER

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3429 Fremont Pl. N. #319
Seattle, WA 98103

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Laura Brown will testify concerning her review of Plaintiff’s medical records, Plaintiff’s
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mental and psychological diagnoses, evaluation of Plaintiff, review of the documents
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discovered in this case to date, a review of Dr. Vandenbelt’s report, and whether or not Plaintiff
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suffered damages as a result of the Defendants’ alleged conduct.
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b. Gregory Gilbertson
4722 Snow Grass Place NE
Olympia, WA 98516-6258

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Gregory Gilbertson will testify about police misconduct, tactics used by the City of
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Olympia Police Officers, the use of force, the use of force reporting, a review of Mr. Selig’s
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report, a review of the depositions of the police officers and police chief,
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(2) On behalf of Defendants:
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a.
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Jeff Selleg
200 SE Phillips RD
Shelton, WA 98584

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Mr. Selleg will testify concerning police practices consistent with his report.
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b.
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Dr. Russell Vandenbelt
11201 SE 8th St., Suite 105
Bellevue, WA 98004

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Dr. Vandenbelt will testify concerning plaintiff’s claimed emotional damages from this
incident and failure to mitigate consistent with his report.

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VI.

OTHER WITNESSES

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The names and addresses of witnesses, other than experts, to be used by each party at the

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time of trial and the general nature of the testimony of each are:

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(a) On behalf of Plaintiff:
1.

Donald Anderson
[Address will be provided when obtained]
[phone]

PARTIES’ JOINT PRETRIAL ORDER

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Donald Anderson is a rebuttal witness who can testify about CenturyLink policies and

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his knowledge of the incident on May 28, 2014. Plaintiff’s counsel makes this rebuttal witness

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disclosure to provide Defense counsel with an opportunity to speak with Mr. Anderson over the

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phone, which is the way that Plaintiff’s counsel has first interviewed the witness on October 3,
2018. Defendants will object to the calling of Mr. Anderson unless his testimony is limited to

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proper rebuttal.

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2.

Thomas Danner, Ph.D.

Dr. Danner will testify regarding his treatment of Mr. Johnson and Mr. Johnson’s
damages from the incident. Defendants will object to testimony that goes beyond treatment of

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Mr. Johnson. Dr. Danner was never disclosed in accordance with FRCP 26(a)(2) to offer

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testimony beyond treatment evidence.

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3.

Michael Friedman, M.D.

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Dr. Friedman will testify regarding Defendants’ claim that Mr. Johnson failed to

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mitigate his damages, his observations of Mr. Johnson, that Mr. Johnson’s damages are

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causally related to the incident described in the Complaint, and the Independent Medical

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Examination Reports he drafted about Mr. Johnson’s damages dated 9/29/16 and 9/20/18 that

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were related to his L&I claim for worker’s compensation damages, which stemmed from the

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May 28, 2014 incident.Defendants object to Dr. Friedman testifying as an expert on causation

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when plaintiff has also designated Dr. Brown as an expert on causation . Dr. Friedman was

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never disclosed in accordance with FRCP 26(a)(2).

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4.

Tyrone Johnson

Mr. Johnson has knowledge of the facts related to incident that is at issue in this
lawsuit, his claimed damages and that his damages were attributable to the incident.
5.

Dwight Randolf

PARTIES’ JOINT PRETRIAL ORDER

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Dr. Randolf will testify regarding his treatment of Mr. Johnson and Mr. Johnson’s

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damages from the incident. Defendants will object to testimony that goes beyond treatment of

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Mr. Johnson. Dr. Randolph was never disclosed in accordance with FRCP 26(a)(2) to offer

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testimony beyond treatment evidence.

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6.

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1307 Axford Street
Raymond, Washington 98577
[phone]

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Levi Schlueter

Levi Schlueter is a rebuttal witness who can testify about CenturyLink company policy
about closing the garage door when working inside the building, and his knowledge of the
incident on May 28, 2014. Plaintiff’s counsel first communicated with Mr. Schlueter on October

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1, 2018. Plaintiff’s counsel makes this rebuttal witness disclosure to provide Defense counsel

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with an opportunity to speak with Mr. Schlueter over the phone, which is the way that Plaintiff’s

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counsel has interviewed the witness on October 1, 2018. Defendants will object to the calling of

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Mr. Schlueter unless his testimony is limited to proper rebuttal.
(b) On behalf of Defendant:
1.

Officer Ryan Donald

This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.
2.
Officer Jonathan Hazen
This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.

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3.

Officer George Clark

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This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.

PARTIES’ JOINT PRETRIAL ORDER

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4.

Officer Randy Wilson

This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.

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5.

Officer Eric Henrichsen

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This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.
6.

Sgt. Matt Renschler

This witness has knowledge of the facts related to incident involving Mr. Johnson that is
at issue in this lawsuit, as well as damages claimed. He will also testify concerning his actions
on May 28, 2014. He is expected to testify that his actions were reasonable under the
circumstances and consistent with accepted law enforcement standards.

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7.

Jonnica Elkins

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Ms. Elkins has knowledge of the meaning of the entries on the CAD report related to
this incident. She also has knowledge regarding the lack of any traffic stops by OPD in the
period preceding the call regarding an unsecured location at the Century Link address.

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8.

Carl Forsman

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Mr. Forsman has knowledge of Mr. Johnson’s work history and other complaints of
discrimination based on his race. He also has knowledge of work records from the night of the
incident. Finally, he has knowledge of physical features of the Olympia Century Link building
and its lighting. He also has knowledge of Century Link policy and procedure regarding the
leaving of garage doors open at night and that Mr. Johnson’s actions in that regard violated
company policy.

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Plaintiffs and Defendants reserve the right to call rebuttal witnesses, witnesses listed in
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initial disclosures, supplemental initial disclosures, and any witnesses on plaintiff’s and
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defendants’ witness list.
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PARTIES’ JOINT PRETRIAL ORDER

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VII.

EXHIBITS

Identify each exhibit with a number, which becomes the number for the exhibit at the
trial and appears on the exhibit tag.

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Plaintiff’s Exhibits:
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Ex.
No.

Document Description

001.

Drawing of Century Link
building by Tyrone Johnson
in his deposition Ex 1
In Service Training for Ryan
Donald
Ryan Donald Photograph
I Have a Dreamsicle twitter
photo
Detailed History for Police
Event #141480051 CAD
Overhead Google Maps 2817
Martin Way E
CenturyLink Sign on Right
side of building
Calls for Service Report
5/28/2014 2:21am
Olympia Police Department
Personnel Corrective Action
Form November 29, 2012
Ryan Donald arrested wrong
person
Olympia Police Department
Operations Memorandum
from Sgt Allen 4/13/13 Ryan
Donald did not wait for
backup
General Order 1.4 USE OF
FORCE Last Revised 02-012017
Emails with Connie Cobb,
Mathew Renschler and Ryan
Donald re Request for
Comments attaching

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003.
005.
006.

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007.
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008.
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010.
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011.
012.

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013.

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014.

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015.
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PARTIES’ JOINT PRETRIAL ORDER

Bates
No/
Depo
Ex
No
1 pg

Admiss
Stip.
Not
Disputed

Auth.
Stip.
Admiss
Disp.

Auth
Admitted
&
Admiss
Disp

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69
pgs
1 pg
1 pg

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2 pgs

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1 pg

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1 pg

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1 pg

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1 pg

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2 pgs

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12
pgs

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15
pgs

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Page 9 of 18

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030.
031.

Sedgwick Lien Notice
Tyrone Johnson’s Qwest
Communications Vendor ID
for Department of Defense
and ID Badge for
CenturyLink
Tyrone Johnson’s Tort Claim
dated June 3, 2015 and City’s
Response
Photo of back of CenturyLink
Van
Photo of angled front left and
side of CenturyLink van
Probationary Officer Progress
Report April-May 2013
Charges by Ryan Donald of
Black individuals Public
Records Results
Olympia Police Department
Field Training Program
Review of officer Donald
4/30/13
Olympia Police Training
Officer Program 9/1/129/5/12
Fax from Carl Forsman dated
6/9/2014 with Tyrone
Johnson’s Dolog/Timesheet
for 5/27/14 with his dispatch
time of 10:33pm and log out
time of 2:22am
Photograph of Matthew
Renschler
Photograph of Jonathan
Hazen
Photograph of George Clark
Photograph of Eric
Henrichsen
Photograph of Randy Wilson
Matthew Renschler Training

033.
034.

Oath of Office
Randy Wilson Training

016.
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3
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017.

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018.

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019.

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020.

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021.

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022.
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023.

025.

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026.
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027.
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028.
029.

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PARTIES’ JOINT PRETRIAL ORDER

1 pg

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pgs

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126
pgs
1 pg
114
pgs

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Page 10 of 18

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035.

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037.

038.
039.

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040.
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041.
042.

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043.
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044.
046.

047.

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048.

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049.

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051.
052.

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053.

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054.

Olympia Police Department
Internal Investigation Report
Allegation of Excessive Use
of Force against Randy
Wilson
Use of Force Reporting Issue
Date: 11/1/08 (duplicative
with Exhibit 045)
Olympia Police Department
Tactical Guideline 2/7/2009
Allegation of Serious
Employee Misconduct
RCW 9A.16.020 Use of Force
– When Lawful
May 2014 Gold Team
Jonathan Hazen Performance
Review and other personnel
documents
Basic Handcuffing Concepts –
OPD Defensive Tactics
Jonathan Hazen Training
Reports
Olympia Police Department
General Order: Temporary
Detentions
Jonathan Hazen’s Final
Evaluation done by Randy
Wilson on 3/13/14
Olympia Police Department
Field Training Program Board
of Evaluators Review of
Jonathan Hazen on 3/27/14
Olympia Police Department
Police Training Program for
Jonathan Hazen 6/2/14 –
6/30/14
Photograph of Tyrone
Johnson in front of office door
Photograph of Tyrone
Johnson in CenturyLink
building
Deposition Transcript of
George Clark
Deposition Transcript of Ryan

PARTIES’ JOINT PRETRIAL ORDER

30
pgs

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pgs
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Page 11 of 18

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055.
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056.
057.
058.

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059.

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060.

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061.

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062.

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063.

064.

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065.

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066.
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067.
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068.

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069.

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070.

071.

Donald
Deposition Transcript of
Jonathan Hazen
Deposition Transcript of Eric
Henrichsen
Deposition Transcript of
Aaron Jelcick
Deposition Transcript of
Matthew Renscler
Deposition Transcript of
Randy Wilson
Deposition Transcript of
Laura Brown
Laura Brown Deposition Ex 1
Report
Laura Brown Deposition Ex 2
Sound Family Medicine
9/26/2013
Laura Brown Deposition Ex 3
Sound Family Medicine
10/30/2013
Laura Brown Deposition Ex 4
Sound Family Medicine
12/4/2013
Laura Brown Deposition Ex 5
Sound Family Medicine
01/02/2014
Laura Brown Deposition Ex 6
Sound Family Medicine
Laura Brown Deposition Ex 7
Sound Family Medicine
02/13/14
Laura Brown Deposition Ex 8
Dwight Randolph Personal
Progress Notes 10/24/2013 –
2015 Dates are incorrect
Laura Brown Deposition Ex 9
Thomas Danner PhD Intake
Summary
Laura Brown Deposition Ex
10 Amee J. Epler, PhD
Progress Notes 9/30/2014
Carl Forsman Deposition
Transcript

PARTIES’ JOINT PRETRIAL ORDER

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Page 12 of 18

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072.

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073.
075.
076.

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077.

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078.

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079.

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080.
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081.

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082.

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083.

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084.

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085.

086.

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087.

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088.

Carl Forsman Deposition
Exhibit 2 Hand-drawn map of
CenturyLink Building
Tyrone Johnson Deposition
Transcript
Deposition of Gregory
Gilbertson taken on 5/18/18
Gilbertson’s Report dated
January 25, 2018
Medical Records for Claim
Redacted
Johnson Statement to
Sedgwick on 6/6/14
IME Tyrone Johnson
9/29/2016 by Michael
Friedman, D.O.
IME Tyrone Johnson
9/20/2018 by Michael
Friedman, D.O.
Photograph of Shop Area
Where Johnson’s Van Was
Parked at CenturyLink
Building 2817 Martin Way E
Photograph of Where Mr.
Johnson Put His Hands Up at
CenturyLink Building 2817
Martin Way E
Photograph of Access Door to
Shop Area at CenturyLink
Building 2817 Martin Way E
Photograph of Where Johnson
was Standing When Police
Confronted Him at
CenturyLink Building 2817
Martin Way E
Photograph Across the Street
from CenturyLink Building
2817 Martin Way E
Photograph of How Johnson
Knelt Down at CenturyLink
Building 2817 Martin Way E
6/5/15 Email from Steve
Nelson regarding Tort Claim.
9/6/18 Letter from Sedgwick

PARTIES’ JOINT PRETRIAL ORDER

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10 pg

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Page 13 of 18

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2

090.

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4

091.
092.

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093.

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094.

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095.
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096.

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097.

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098.

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099.

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100.

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101.
102.
103.
104.

for L&I claim – Notice of
Cancellation
Police Guild Agreement City
Olympia & Olympia Police
Guild
Control Holds Takedown
Screen Shot from OPD
General Order May 2014 Last
Revised 11_19_2012
Use of Force Revised
11_19_2012 City of Olympia
General Order 1.3 Version
May 2014
Thurston County 911
Communications Confidential
Report
Thurston County 911 Radio
Communications Manual October 2013
Donald whereabouts
5_27_2014 to 5_28_2014
Personnel Corrective Action
Form for Ryan Donald, Policy
Violation General Order
26.1.1III.J, - Courtesy
News Release Thurston
County Sheriff 5_26_2015 re
Ryan Donald Shooting
9_30_2015 Olympia Police
Department Memorandum
from Aaron Jelcick re
Shooting Review Board
Review-Board-Inquiry into
shooting Summary trauma of
the event
Defendants’ Responses to
Plaintiff’s 1st set of Discovery
Defendants’ Responses to
Plaintiff’s 2nd set of Discovery
Plaintiff’s medical records Dr.
Danner
12/11/14 Sedgwick Labor and
Industries Hudak IME
Approved by Dr. Danner

PARTIES’ JOINT PRETRIAL ORDER

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106.

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113.

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114.
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122

10/1/2014 Letter to Tyrone
1 pg
Johnson re Absence
Beginning 6/9/14
Medical Records Submitted to
L&I
6/3/14 Mental Health
Evaluation by Randolph
6/11/14 Mental Health
Evaluation by Randolf
6/13/14 New Provider Letter
Randolph
2/13/14 Mental Health
Evaluation
Emails with Ryan Donald,
Matthew Renschler and
Connie Cobb re statements
Ryan Donald Facebook Posts
Ryan Donald Application
Materials
CV of Laura Brown
CV of Gregory Gilbertson

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Defendants’ Exhibits:
16
17

Ex.
No.

Document Description

18

Bates
No/
Depo
Ex
No

Admiss
Stip.
Not
disputed

Auth.
Stip.
Admi
ss.
disp.

Auth
&
admi
ss.
disp

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20
21

200
201

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202

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24

203

CAD Report for Incident
141480051
Photo – Exterior Century Link
Building
Photo – Exterior Century Link
Building
Photo – Interior Century Link
Building

PARTIES’ JOINT PRETRIAL ORDER

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Admitted

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Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Interior Century Link
Building
Photo – Radar Gun showing
interior width of buidling
Photo – Radar Gun showing
interior width of buidling
Google Image Exterior of
Century Link Building
Google Image Exterior of
Century Link Building
Google Image Exterior of
Century Link Building
Dwight Randolph Progress
Notes 2/6/2014
Dwight Randolph Progress
Notes 1/30/2014
Dwight Randolph Progress
Notes 1/9/2014
Dwight Randolph Progress
Notes 12/19/2013
Dwight Randolph Progress
Notes 12/5/2013
Dwight Randolph Progress
Notes 11/21/2013
Dwight Randolph Progress
Notes 10/31/2013
Dwight Randolph Progress
Notes 10/24/2013
VA Progress Notes

PARTIES’ JOINT PRETRIAL ORDER

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(No party is required to list any exhibit which is listed by another party, or any exhibit to be
used for impeachment only. See LCR 16 for further explanation of numbering of exhibits.
VIII. ACTION BY THE COURT

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(a) Trial briefs shall be submitted to the court on or before October 3, 2018.

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(b) Jury instructions requested by either party shall be submitted to the court on or before

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October 3, 2018. Suggested questions of either party to be asked of the jury by the court

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on voir dire shall be submitted to the court on or before October 3, 2018.

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(c) The pretrial conference shall be held on October 5, 2018 at 9:00 a.m..

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(d) (Insert any other ruling made by the court at or before pretrial conference.)

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(e) This case is scheduled for trial before a jury on October 15, 2018 at 9:00am.

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This order has been approved by the parties as evidenced by the signatures of their

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counsel. This order shall control the subsequent course of the action unless modified by a

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subsequent order. This order shall not be amended except by order of the court pursuant to

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agreement of the parties or to prevent manifest injustice.

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DATED: October 9, 2018

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Marsha J. Pechman
United States District Judge

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PARTIES’ JOINT PRETRIAL ORDER

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DATED this 3rd day of October 2018.

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BEVERLY GRANT LAW FIRM, P.S.

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By:
/s/ Elizabeth Lunde
Beverly Grant, WSBA No. 8034
Elizabeth G. Lunde, WSBA No. 51565
Attorneys for Plaintiff

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LAW, LYMAN, DANIEL, KAMERRER
& BOGDANOVICH, P.S.
By:
/s/ John Justice
John E. Justice, WSBA No. 23042
Attorneys for Defendants

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PARTIES’ JOINT PRETRIAL ORDER

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