ORDER DENYING MOTION FOR RECONSIDERATION )) (Doc. 305)
Plaintiff Robert Morris has filed a motion for reconsideration of the Court's October 19, 2012 order denying his October 3, 2012 motion for production of trial transcripts at government expense. For reasons discussed below, the motion for reconsideration shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
The Court refers the parties to previous orders for a complete chronology of the proceedings. On January 11, 2012, plaintiff Robert Morris ("Plaintiff") filed his ninth amended complaint, asserting one cause of action against defendant Officer Christopher Long ("Defendant") for federal civil rights violations -- in particular, excessive force in violation of the Fourth Amendment right to be free of unreasonable searches and seizures -- pursuant to 42 U.S.C. § 1983. A jury trial commenced on August 21, 2012. On September 5, 2012, the jury returned a verdict of not liable, finding Defendant had not used excessive force against Plaintiff in violation of the Fourth Amendment.
On September 19, 2012, Plaintiff filed an application to proceed in forma pauperis for the purpose of appealing the judgment to the U.S. Court of Appeals for the Ninth Circuit. In conjunction with that motion, Plaintiff requested he be provided trial transcripts at government expense. Plaintiff renewed his request for trial transcripts in a formal motion filed October 3, 2012. On October 19, 2012, the Court denied Plaintiff's motion for production of trial transcripts. On October 25, 2012, Plaintiff filed his motion for reconsideration of the Court's October 19, 2012 order.
"Whenever any motion has been granted or denied in whole or in part, and a subsequent motion for reconsideration is made upon the same or any alleged different set of facts, counsel shall present to the Judge or Magistrate Judge to whom such subsequent motion is made an affidavit or brief, as appropriate, setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought, including [¶] (1) when and to what Judge or Magistrate Judge the prior motion was made; [¶] (2) what ruling, decision, or order was made thereon; [¶] (3) what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and [¶] (4) why the facts or circumstances were not shown at the time of the prior motion." Local Rule 230(j). Reconsideration of motions may also be granted under the standards applicable to reconsideration of a final judgment under Federal Rule of Civil Procedure 59(e). Under Rule 59(e), "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be other, highly unusual, circumstances warranting reconsideration." School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations omitted).
Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court finds Plaintiff has failed to meet the foregoing standard for reconsideration. As the sole basis for the motion, Plaintiff contends the Court's October 19, 2012 order denying his October 3, 2012 motion for trial transcripts "requires reconsideration because it erroneously concluded that plaintiff did not identify the issues he intended to raise on appeal in connection with his request, in order to demonstrate that the issues were non-frivolous and substantial. However, . . . , [Plaintiff] identified several non-frivolous appeals issues . . . ." These assertions are wrong in two respects.
The Court did not deny Plaintiff's motion for trial transcripts because "it . . . concluded that plaintiff did not identify the issues he intended to raise on appeal," as Plaintiff contends. This statement is disingenuous and misreads the Court's October 19, 2012 order. The order stated: "[Plaintiff] must identify the issues he intends to raise on appeal and explain why those issues are meritorious in order to meet the . . . standard [for production of trial transcripts at government expense]. That was not done here." Morris v. Long, slip copy, 2012 WL 5208503 (E.D.Cal. 2012), at *1 (emphasis added). The Court was well aware Plaintiff had identified the issues he intended to raise on appeal in his September 19, 2012 application to proceed in forma pauperis. However, Plaintiff provided no argument or evidence to explain how those issues could conceivably have any merit and were thereby non-frivolous and substantial. See Morris, supra, at *1 ("[F]ees for transcripts furnished outside of criminal proceedings or habeas petitions to persons appealing in forma pauperis, as here, 'shall be paid by the United States if the trial judge . . . certifies that the appeal is not frivolous (but presents a substantial question)' ") (internal citations omitted). In light of these omissions, Plaintiff's contention he "identified several non-frivolous appeals issues" presupposes, incorrectly, that simply identifying the issues a litigant intends to raise on appeal necessarily means those issues are not frivolous and present a substantial question. Plaintiff has provided no authority -- and the Court's research reveals no authority -- to support this proposition.
In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff alleged as his first issue on appeal: "1. The trial judge prejudicially erred in refusing to instruct the jury that I had a constitutional right to criticize or complain to the police, and that such activity could not justify the force used against me. This was my theory of the case and therefore had to be instructed." Problematically for Plaintiff, no argument or evidence was provided in his September 19, 2012 motion or October 3, 2012 motion for trial transcripts to suggest this contention could conceivably be meritorious in any sense. The Court acknowledges that "[e]ach party is . . . ' "entitled to an instruction about his or her theory of the case if it is supported by law and has foundation in the evidence," ' and "[a] district court . . . commits error when it rejects proposed jury instructions that are properly supported by the law and the evidence." Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009) (internal citations omitted). But Plaintiff never expressly represented to the Court this was the only instruction presenting his theory of the case. To the extent Plaintiff intended to suggest the Court was nevertheless required to give the proffered instruction because it was supported by the law and consistent with the evidence presented at trial, Plaintiff was required to explain how that was so. He did not. " 'It is not reversible error to reject a [party's] proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that [ ] theory.' " Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir. 1995). Even assuming the proffered instruction perfectly encapsulated Plaintiff's theory of the case, Plaintiff provided no argument or evidence to explain how the theory was not adequately covered by the other instructions ultimately given by the Court. See Fischer v. Red Lion Inns Operating L.P., 972 F.2d 906, 910 (8th Cir. 1992) ("Jury instructions must be read together, and if taken as a whole they correctly state the law, fairly submit the case, and do not mislead the jury, then there is no prejudicial error"). There is simply no indication the Court's failure to give the instruction prejudiced the outcome of the proceedings or was erroneous.
In his September 19, 2012 motion to proceed in forma pauperis, Plaintiff further alleged as his second issue on appeal: "2. The trial judge prejudicially erred in excluding evidence that the defendant officer had committed an act of dishonesty in an unrelated internal affairs matter, since said evidence was admissible under [Federal Rule of Evidence] 608(b)." This issue presumably arises out of an August 26, 2012 brief filed by Plaintiff regarding certain evidentiary issues that had been raised at trial. Among other things, Plaintiff requested the Court admit portions of Defendant's deposition testimony wherein Defendant stated he told a witness to a police department investigation of an incident in which Defendant had injured an animal that if he were in the witness's position, he would not "turn over" to the department photographs of the animal possessed by the witness. Arguing such evidence established Defendant violated California Penal Code § 136.1(a)(2) and therefore qualified as impeachment evidence under Rule 608(b), Plaintiff contended the Court was required to admit the evidence. In an opposition filed August 27, 2012, Defendant contended the evidence fell outside the scope of Rule 608(b) and was further precluded by Rule 403. The Court, having considered the issue, agreed with Defendant and denied Plaintiff's request at a hearing on the record. The Court did not issue a written order, but will now explain the reasoning it followed here.
Rule 608(b) provides in pertinent part: "Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: [¶] (1) the witness." Fed. R. Evid. 608(b)(1). "Rule 608(b) addresses situations in which a witness's prior activity, whether exemplified by conduct or by a statement, in and of itself casts significant doubt upon his veracity." U.S. v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (citing Kasuri v. St. Elizabeth Hosp. Medical Center, 897 F.2d 845, 854 (6th Cir. 1990)). "Thus, Rule 608(b) applies to, and bars the introduction of, extrinsic evidence of specific instances of a witness's misconduct if offered to impugn his credibility. [Citation.] So viewed, Rule 608(b) applies to a statement, as long as the statement in and of itself stands as an independent means of impeachment without any need to compare it to contradictory trial testimony. [Citations.]" Winchenbach, supra, at p. 558 (emphasis original). In light of the foregoing principles, the evidence at issue was clearly not admissible for the purpose stated by Plaintiff: the testimony Defendant suggested a witness not "turn over" photographs is extrinsic evidence of a specific act of conduct of Defendant's that in and of itself called Defendant's credibility into question, and was therefore not permissible for attacking Defendant's credibility under the plain language of Rule 608(b). At the time of his request, Plaintiff did not identify any issue for which this evidence might have been probative other than Defendant's general propensity for truthfulness or untruthfulness. Even now, faced with the Court's denial of his motion for production of transcripts at government expense, Plaintiff fails to identify any such issues.
The foregoing analysis assumes, of course, that Defendant's statement was misconduct to begin with. Such an assumption was not, in fact, warranted. While the statement could arguably have supported finding misconduct of a certain nature, it was insufficient to demonstrate a violation of the statute invoked by Plaintiff. Section 136.1 provides in pertinent part: "[A]ny person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year of in the state prison: [¶] . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." Cal. Pen. Code, § 136.1, subd. (a)(2). "The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end . . . . The gravamen of the offense is the cumulative outcome of [a] number of acts[.]" People v. Salvato, 234 Cal.App.3d 872, 884, 285 Cal.Rptr. 837 (1991) (emphasis added). Plaintiff provided no authority -- and the Court's ...