The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER ON MOTIONS IN LIMINE
Nine motions in limine are addressed below.
I. Plaintiff's Motions in Limine
A. Plaintiff's Motion in Limine No. 1
Plaintiff seeks in his first motion to exclude evidence concerning whether he "agreed to participate in [a] NA or AA-based program as a term or condition of his parole." (Docket # 104.) Plaintiff contends this evidence is irrelevant under Federal Rule of Evidence 402, because "it would be a defense to liability" which "has already been adjudicated." Defendants counter the evidence is relevant on the following propositions: the state of mind each defendant had "when . . . actions were taken -- i.e., that . . . [defendant was] not motivated by evil motive or intent, elements in plaintiff's claim for punitive damages;" on "consideration of value associated with . . . [plaintiff's] loss of liberty claim," since plaintiff would not have been released "had he not agreed to the conditions of parole;" and on plaintiff's credibility under Federal Rule of Evidence 608 since "[b]y plaintiff's own admission during discovery, he knowingly lied to obtain what he wanted, for whatever reason."
Plaintiff responds in his reply brief with the new argument that this evidence should be excluded under Federal Rule of Evidence 403. However, Plaintiff's Rule 403 argument is waived since it was not stated as a basis for exclusion of the evidence in Plaintiff's opening brief. See United States v. Anderson,472 F.3d 662, 668 (9th Cir. 2006)("Issues raised for the first time in an appellant's reply brief are generally deemed waived."); Alcan Elec. & Eng'g, Inc., 197 F.3d 1014, 1020 (9th Cir. 1999) (stating that argument raised on appeal for the first time in a reply brief is waived and need not be considered).
Since it is unclear what Defendants mean in the portion of their argument in which they contend the evidence is relevant as to the "value associated" with Plaintiff's "loss of liberty claim," that argument has not been shown to be a basis for admission of the evidence. However, the document is probative on each Defendant's state of mind when the decisions were made to place Plaintiff into the program, keep him in the program, subsequently revoke his parole, and incarcerate him, and is therefore admissible on Plaintiff's damage claims. Further, since Plaintiff seeks punitive damages, a determination must be made whether or not each Defendant's conduct was driven by evil motive or intent, or involved a reckless disregard of Plaintiff's rights under the Establishment Clause. Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993). Each Defendant's involvement with Plaintiff's placement into the program and to what Defendant would be subject therein is relevant to these damage issues. Since Plaintiff has not shown that the referenced evidence is irrelevant to his damage claims, the motion is denied.
B. Plaintiff's Motion in Limine No. 2
Plaintiff seeks in his second motion to exclude two certificates of achievement that purport to confirm Plaintiff's completion of twelve weeks of NA and AA substance abuse programs during his incarceration at Norco State Prison from May 2006 through February 2007. (Docket # 105.) Plaintiff argues the certificates are irrelevant inadmissible hearsay. The portion of Plaintiff's motion challenging the AA certificate is denied as moot since Defendants state in their response that they "agree to withdraw" the AA certificate as an exhibit.
Defendants argue that the NA certificate is admissible "to refute [Plaintiff's] emotional distress claims for attending a program that was the equivalent of the program he attended in prison before being paroled." Since this evidence has not been shown inadmissible on this proposition, this motion is denied.
C. Plaintiff's Motion in Limine No. 3
Plaintiff seeks in his third motion to exclude Mel Huffman from testifying about Hazle's "participation in NA and AA meetings while in Norco State prison before the events at issue in this litigation." (Docket # 106.) Plaintiff argues this witness should be excluded because Defendants did not identify Huffman in their response to Plaintiff's interrogatory, which states:
If you contend that Barry Hazle participated in one or more 12-STEP MEETINGS while incarcerated in California Rehabilitation Center in Norco, California, state all facts that support such contention, including the IDENTITY of persons with knowledge of such facts.
(Heller Decl. Ex. E., Special Interrogatory No. 1.) Defendants did not identify Mel Huffman in their response. Defendants argue Plaintiff "was fully aware of [Huffman's] identit[y]" because Huffman's identity was "disclosed by Plaintiff himself when he produced documents to Defendants that had been provided to Plaintiff by Mental Health Systems." However, Defendants have not offered support for their conclusory argument that Plaintiff's referenced production of documents is sufficient ...