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Richard A. Ochotorena v. K. Curtiss

January 22, 2013

RICHARD A. OCHOTORENA,
PLAINTIFF,
v.
K. CURTISS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER REGARDING MOTIONS IN LIMINE ECF Nos. 144, 147, 155, 156

I. Background

Plaintiff Richard A. Ochotorena ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This case is proceeding against Defendants Duncan, Fambrough, Curtiss, Kalkis, Lane, and Rodriquez for excessive force in violation of the Eighth Amendment. This matter is currently set for jury trial on February 5, 2013 before the undersigned.

Pending before the Court are Plaintiff's motions in limine, filed August 27, 2012 and September 4, 2012, and Defendants' motion in limine, filed August 28, 2012. The matters are submitted pursuant to Local Rule 230(l). In the interest of judicial economy, the Court will adjudicate these motions by this order.

I. Plaintiff's Motions in Limine #1 Motion to Admit Statements by Deceased Witness

Plaintiff moves to admit statements allegedly made by a deceased witness, Sean Hirsch. ECF No. 144. Mr. Hirsch had allegedly made these statements previously to Mr. Richard Martinez, an investigator working on Plaintiff's behalf during a prior criminal proceeding related to the incidents alleged in this action. Plaintiff contends that Mr. Hirsch's statements corroborate Plaintiff's version of events. Mr. Hirsch's alleged statement is that:

They brought an inmate in, I assumed because of an alarm. There were two officers, one was Duncan and the other may have been Kalkis. About four other staff were waiting for escorts. Inmate Ochotorena was in cuffs, he turned to go to the holding cell room, and I heard a 'ruckus' then saw 'fists a flying.' I never saw anyone get turned up before, not to this extent. It was just a cheap shot.

ECF No. 135, Ex. H.

Defendants contend that Mr. Hirsch's alleged statements to Mr. Martinez are inadmissible as hearsay, and do not fall within an exception under Rule 804(b) of the Federal Rules of Evidence. Defendants also contend that the alleged statement is inadmissible under Rule 403 on the grounds that it would confuse and mislead the jury.

Ruling: Mr. Hirsch's alleged statement contains two layers of hearsay, both of which render the statement inadmissible. First, Mr. Martinez's report of Mr. Hirsch's statement is itself hearsay, and Plaintiff has provided no argument as to the admissibility of the report. Second, Plaintiff has not demonstrated his knowledge that Mr. Hirsch is deceased. Even assuming Mr. Hirsch is deceased, his statement is not within any exception under Rule 804(b). Third, the statement is vague as to what Mr. Hirsch allegedly saw, and would confuse and mislead the jury. Accordingly, Plaintiff's motion is denied. #2 Motion to Admit Evidence at Trial Relative to Custodian of Records Declaration

Plaintiff seeks to offer at trial all items that are listed in a declaration by Dana Arline, the custodian of records at California Substance Abuse Treatment Facility in Corcoran, California. ECF No. 155. Plaintiff appears to seek to authenticate certain records and admit them as business records.

Defendants contend that Plaintiff has not provided them with copies of these records, and that Plaintiff's motion should be denied, without prejudice.*fn1

Ruling: Plaintiff's motion is devoid of a list of the documents that pertain to his motion. The Court cannot make a determination that the documents which Plaintiff intends to offer at trial will be authenticated under Rule 902(11) or admissible as an exception to the hearsay rule under Rule 803(6) of the Federal Rules of Evidence. Accordingly, Plaintiff's motion is denied without prejudice. Plaintiff thus may attempt to offer these documents into evidence at trial. #3 Motion to Admit Audio of Video Taped Interview/Defendants' Motion to Exclude

Plaintiff moves to admit the audio portion of a videotaped interview taken on September 8, 2003, after the incident. ECF No. 156. Plaintiff contends that the audio is relevant to show if proper procedure was followed, and to show Plaintiff's emotional, mental, and physical condition near the time of the incident under Rule 803(3) of the Federal Rules of Evidence. Plaintiff contends that Defendant Curtiss failed to follow proper procedure to ...


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