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Jimenez v. Sambrano

July 30, 2009

ALBERTO VERA JIMENEZ, PLAINTIFF,
v.
R. SAMBRANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ON MOTIONS IN LIMINE

The parties' motions in limine came on for a hearing on July 29, 2009 on the 10:00 a.m. calendar. Roger A. Denning, Esq., Olga May, Esq. and Kimberly I. Kennedy, Esq. appeared on behalf of Plaintiff. Terrence F. Sheehy, Esq. appeared on behalf of Defendants.

For the reasons stated on the record and as supplemented herein, IT IS HEREBY ORDERED:

1. Plaintiff filed a motion to admit transcripts of prior trial testimony of unavailable witnesses Edward Valenciano and Isidro Roman (doc. no. 283). Defendants filed a motion to exclude the same testimony (doc. no. 292). Plaintiff's motion is GRANTED and Defendants' motion is DENIED with respect to Mr. Valenciano's transcript. With respect to Mr. Roman's transcript, Plaintiff's motion is DENIED WITHOUT PREJUDICE to renewing the motion if necessary. Plaintiff is hereby granted leave to request an order for a writ of habeas corpus ad testificandum and subpoena Mr. Roman to testify at trial. Defendants' motion is GRANTED as to Mr. Roman's transcript subject to revisiting the issue if necessary.

2. Plaintiff's motion to exclude Defendants' use-of-force review reports (doc. no. 284) is GRANTED.

3. Defendants' motion to exclude evidence regarding cell extraction procedures (doc. no. 294) is DENIED.

4. Plaintiff's motion to exclude evidence of Plaintiff's intoxication, cell door malfunction and the 2005 report of Medical Technical Assistant Odom (doc. no. 281) is DENIED. The denial is WITHOUT PREJUDICE to renewing the objections at trial.

5. Defendants' motion to exclude evidence of Plaintiff's corneal graft rejection (doc. no. 287) is DENIED.

6. Defendants' motion to exclude evidence of other instances of Defendants' use of force against inmates (doc. no. 290) is DENIED WITHOUT PREJUDICE to renewing the objection at trial.

7. Plaintiff's motion to allow inmate witnesses to appear in civilian clothing, exclude Plaintiff's and Fred Montoya's robbery convictions and to preclude Defendants' counsel from referring to Plaintiff and his inmate witnesses as "convicted felons" (doc. no. 286) is GRANTED IN PART AND DENIED IN PART as follows:

(A) Plaintiff's motion to exclude Mr. Montoya's robbery conviction is DENIED.

(B) Plaintiff's motion to exclude Plaintiff's robbery conviction is DENIED. Plaintiff's other convictions have been excluded pursuant to the August 22, 2008 order on motions in limine.

(C) Plaintiff's motion to preclude Defendants' counsel from referring to Plaintiff and inmate witnesses as "convicted felons" is GRANTED IN PART AND DENIED IN PART. Defendants' counsel shall not refer to Plaintiff and inmate witnesses as "convicted felons" so as to arouse bias in the jury. Defense counsel may use this term only when this is unavoidably called for by the context; otherwise he shall refer to Plaintiff and the inmate witnesses by their names.

(D) Plaintiff's motion to allow Plaintiff and inmate witnesses to appear in civilian clothing is GRANTED IN PART AND DENIED IN PART. The motion is granted as to Plaintiff and Mr. Montoya. The motion is DENIED WITHOUT PREJUDICE as to Javier Tinajero. Plaintiff may renew his motion shortly ...


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