The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TRIAL DATE AND PRETRIAL ORDER (ECF No. 147) ORDER REGARDING PLAINTIFF'S MOTION IN LIMINE (ECF No. 135) ORDER REGARDING DEFENDANTS' MOTION IN LIMINE (ECF No. 132)
Plaintiff Keith Zavala is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Chris Chrones, D. Smith, S. Kays, S. Chandler, J. Soto and C. Martin for failure to protect in violation of the Eighth Amendment. The parties have consented to Magistrate Judge jurisdiction. A jury trial is set for February 12, 2013.
On February 5, 2013, Plaintiff's motion for extension of the trial date and pretrial order, along with Plaintiff's motion in limine and Defendants' motion in limine were heard before the Honorable Barbara A McAuliffe, United States Magistrate Judge. Plaintiff appeared telephonically on his own behalf. Counsel Michael G. Lee and Preeti K. Bajwa appeared telephonically on behalf of Defendants Chris Chrones, D. Smith, S. Kays, S. Chandler, J. Soto and C. Martin.
A. Plaintiff's Motion for Extension of Trial Date and Pretrial Order
On January 28, 2013, Plaintiff filed a motion for extension of the trial date and the dates set forth in the pretrial order. (ECF No. 147.) Plaintiff requested a continuation of the trial because he anticipates legal representation by James M. Hodges, an attorney. Defendants opposed the motion on January 30, 2013, claiming that continuation of the trial would be highly prejudicial to the Defendants and to the Court. Defendants also noted that Mr. Hodges has not entered a Notice of Appearance as attorney of record in this matter pursuant to the Local Rules.
As discussed more fully at the hearing, the Court finds that continuation of the trial will be highly prejudicial to Defendants, who are prepared to proceed to trial on the scheduled date. Moreover, there is no assurance that Mr. Hodges will agree to represent Plaintiff and make an appearance in this matter. Accordingly, Plaintiff's motion for an extension of the trial date and the pretrial order is DENIED.
A party may use a motion in limine to exclude inadmissible or prejudicial evidence before it is actually introduced at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). "[A] motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings." Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine allows the parties to resolve evidentiary disputes before trial and avoids potentially prejudicial evidence being presented in front of the jury. Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003).
Motions in limine that exclude broad categories of evidence are disfavored, and such issues are better dealt with during trial as the admissibility of evidence arises. Sperberg v. Goodyear Tire & Rubber, Co., 519 F.2d 708, 712 (6th Cir. 1975). Additionally, some evidentiary issues are not accurately and efficiently evaluated by the trial judge in a motion in limine and it is necessary to defer ruling until trial when the judge can better estimate the impact of the evidence on the jury. Jonasson, 115 F.3d at 440.
1. Plaintiff's Motion in Limine (ECF No. 135)
By this motion, Plaintiff moves to exclude certain exhibits and witnesses.
a. CDC 128-B/Informational Chrono by IGI Correctional Lieutenant J.R. Garza dated 6/19/07 - Defendants' Exhibit ("DX") 206
According to this chrono, Institutional Gang Investigators ("IGI") received information on June 15, 2007 that Plaintiff was considered to be in "bad standing" with the Sureno gang faction, but that information did not indicate what action might be taken against him. Plaintiff was interviewed on June 19, 2007, and informed of the information. Plaintiff denied having any safety concern issues and requested that he be allowed to release to the general population. Plaintiff signed the chrono.
Plaintiff objects to the introduction of the chrono because it "does not directly exhonerate [sic] the defendants." Plaintiff believes that this report would force him to pursue a line of evidence and testimony as to the effects of psychotropic medications that influenced his ability to understand issues that the IGI overlooked. Plaintiff also believes (1) the chrono contradicts itself because it does not identify the exact nature of the threat; (2) the chrono does not identify what options were proffered to Plaintiff or if Lt. Garza could override the ICC's order; and (3) there is no indication that defendants were aware of the interview or the chrono.
In opposition, Defendants contend that the chrono is relevant and has high probative value. Defendants believe that what Plaintiff admitted to Captain J. Garza (formerly an IGI Correctional Lieutenant) as documented in the chrono is important for the jury to hear to determine whether defendants were deliberately indifferent. Defendants are claiming that they did not fail to protect Plaintiff by releasing him to the general population yard on June 19, 2007, because Plaintiff himself sought release to the general population and asserted that he was in no danger of being assaulted.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. In this case, the chrono is relevant to the primary issue of whether Defendants were deliberately indifferent to a serious risk of harm to Plaintiff in light of Plaintiff's own statements. Additionally, Plaintiff signed the document, making it a party admission under Fed. R. Evid. 801(2). Accordingly, Plaintiff's motion in limine to exclude DX 206 is DENIED.
b. Crime Incident Report/CDC 837-A1 - Log # KVSP-FBY-07-09-0463 (DX 205)
Plaintiff opposes introduction of that portion of the report identifying him as "mexican/hispanic/southern/gang member or associate." Page 5 of DX 205 identifies Plaintiff's ethnicity as "OTH" and indicates he is "ASSOCIATED" with the "SOUTHERN MEXICAN" prison gang/disruptive group.
In seeking exclusion of this information, Plaintiff claims that he has never been validated as a member or an associate of any gang or disruptive group and such evidence would mislead the jury and unfairly prejudice him. Fed. R. Evid. 403. Plaintiff requests that the Court review a CDC 812 (attached to his motion) and take judicial notice that as late as 2011 he was not identified as a gang member or associate or a participant of a disruptive group. He also attaches a CDC 128G Classification Chrono dated March 24, 2006, indicating that he had no gang or disruptive group affiliation.
Defendants counter that documentation of Plaintiff's gang membership and activity is relevant for the jury's decision-making process. Defendants explain that investigations both before and after the assault on Plaintiff conclude that he was associating and identifying with the Mexican Mafia prison gang and the Southern Mexican gang. Defendants maintain that Plaintiff was assaulted because of his dealings in the gang and not by any failure to protect.
Plaintiff's motion in limine is DENIED. The gang affiliation portion of DX 205 is relevant as to why Plaintiff may have been assaulted. Fed. R. Evid. 401. Contrary to Plaintiff's assertions, the probative value is not substantially outweighed by the danger of unfair prejudice or of misleading the jury because Plaintiff will have an opportunity to present evidence that he is a non gang-affiliated inmate.
To the extent Plaintiff requests judicial notice of CDC 812, his request is DENIED. As discussed at the hearing, the Court may judicially notice a fact that is "not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The "fact" of Plaintiff's lack of gang affiliation in CDC 812 is subject to reasonable dispute and will not be judicially noticed.
Plaintiff seeks to exclude Sgt. Crum from testifying at trial because he has no association to this matter and he has not generated any documentation regarding this matter. Defendants explain that Sgt. R. Crum is expected to testify as an expert pursuant to Federal Rule of Evidence 702and present an opinion as to why Plaintiff was assaulted. Based on Defendants' representation that Sgt. Crum will testify as an expert, Plaintiff's motion to exclude Sgt. Crum is DENIED WITHOUT PREJUDICE. As appropriate, Plaintiff may renew his motion at trial.
d. Witness Sgt. J. Juarez
Plaintiff seeks to exclude Sgt. J. Juarez from testifying because he does not have first hand knowledge of any relevant material facts. At the hearing, Defendants represented that Sgt. Juarez has first hand knowledge and also may testify as an expert. Given these representations, the Court cannot exclude Sgt. Juarez at this time and Plaintiff's motion in limine to exclude him is DENIED.
e. Witnesses Lt. J. Castro and Lt. J. Ostrander
Plaintiff contends that the testimony of these witnesses should be limited to their interviews with inmate M. Perez, Sgt. Crum and Defendant Martin, which is in the body of DX 207, the February 17, 2009 Appeal Inquiry. Defendants counter that Lts. J. Castro and J. Ostrander are expected to testify as expert witnesses pursuant to Rule 702. As these witnesses are anticipated experts, the Court will not exclude them at this time. Plaintiff's motion in limine is DENIED WITHOUT PREJUDICE.
f. Appeal Inquiry dated February 17, 2009 (DX 207)
Plaintiff seeks to limit the use of DX 207 to the statements of witnesses that were interviewed. Plaintiff opposes any conclusions formed by Lt. Castro and Lt. Ostrander. Defendants contend that this document falls within the business records exception to the rule against hearsay. Fed. R. Evid. 803(6).
Following extensive discussion at the hearing, Plaintiff's motion is DENIED IN PART AND GRANTED IN PART. Defendants are precluded from introducing the conclusions formed by Lt. Castro and Lt. Ostrander, beginning on page 9 and continuing through page 12 of DX 207. Subject to the ...