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Sim v. Duran

United States District Court, E.D. California

September 20, 2019

HWA SUNG SIM, Plaintiff,
v.
MONICA DURAN, Defendant.

          ORDER REGARDING PARTIES’ MOTIONS IN LIMINE [ECF NOS. 78, 79]

         Plaintiff Hwa Sung Sim is appearing in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is represented by Kevin Conlogue and Gabriel Avina.

         This action is proceeding against Defendant Monica Duran for excessive force in violation of the Eighth Amendment.

         The matter is set for jury trial before the undersigned on October 1, 2019, at 8:30 a.m.

         On August 28, Plaintiff and Defendant filed motions in limine. (ECF Nos. 78, 79.) Both Plaintiff and Defendant filed oppositions on September 11, 2019. (ECF Nos. 83, 84.)

         On September 19, 2019, the Court held a motions in limine hearing, and counsel Kevin Conlogue and Gabriel Avina appeared by telephone on behalf of Plaintiff and David Goodwin appeared in person on behalf of Defendant.

         I.

         LEGAL STANDARD

         “A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). 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, thereby relieving the trial judge from the formidable task of neutralizing the taint of prejudicial evidence. 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 during trial when the trial judge can better estimate the impact of the evidence on the jury. Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997).

         II.

         MOTIONS IN LIMINE

         A. Plaintiff’s Motions in Limine

         Plaintiff seeks to exclude: (1) his prior convictions and parole violation; (2) evidence of any rule violations during his incarceration; (3) evidence that Defendant Duran was or was not disciplined from the incident; and (4) Defendant’s expert Lieutenant Prentice from offering opinions.

         Plaintiff also seeks to introduce the video interview of himself by the CDCR, and request that he not be shackled or wear prisoner clothing at trial.

         1. Prior Convictions and Parole Violation

         Plaintiff moves to exclude any evidence related to his November 25, 2009 DUI conviction, his August 23, 2010 possession of a deadly weapon conviction, his June 22, 2011 armed robbery conviction, and his December 2018 parole violation. Plaintiff contends that this evidence is improper because the convictions are not relevant to his excessive force claim under the Eighth Amendment, and are too remove in time, are not relevant for truthfulness, and are highly prejudicial.

         Defendant submits that she does not intend to offer evidence regarding the DUI conviction, possession of a deadly weapon conviction, or the parole violation, unless Plaintiff first raises that criminal history and then mispresents that criminal history. Defendant argues that if Plaintiff misrepresents his criminal history, then Plaintiff should be able to inquire about it on cross-examination because it will be probative of Plaintiff’s truthfulness. Fed.R.Civ.P. 608(b(1). However, Defendant argues that Plaintiff’s felony conviction for armed robbery is admissible impeachment evidence because the conviction is less than ten years old and is relevant to Plaintiff’s credibility.

         Federal Rule of Evidence 609(a)(1)(A) provides that evidence of a conviction for a crime punishable for more than one year is admissible, subject to Rule 403, in a civil case to attack a witness’s character for truthfulness. Fed.R.Evid. 609(a)(1)(A). Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or release from confinement from it, whichever is later. Fed.R.Evid. 609(b).

         Ruling: Plaintiff’s motion is granted in part and denied in part. Plaintiff’s motion to exclude the DUI conviction, possession of a deadly weapon conviction, and parole violation is granted as conceded by Defendant. However, Plaintiff’s motion to exclude evidence of his 2011 armed robbery conviction is denied as it is relevant Plaintiff’s credibility. Fed.R.Evid. 609(a)(1)(A). However, Defendant is limited to referencing that Plaintiff has been convicted of a felony and served a prison sentence. Defendant may not inquire as to the details of the conviction. In addition, any reference to all prior convictions is limited to impeachment if Plaintiff testifies to the contrary. Pursuant to Rule 609(a)(1)(A), Plaintiff’s felony conviction for armed robbery is admissible to impeach his credibility.

         2 Evidence of Rules Violations During Incarceration

         Plaintiff seeks to exclude evidence of his prison disciplinary history.

         Defendant submits that she will not introduce evidence of Plaintiff’s prison disciplinary history unless Plaintiff misrepresents his conduct in prison.

         Ruling: Plaintiff’s motion to exclude evidence of his prior disciplinary history is granted.

         Evidence That Defendant Duran Was Or. Was Not Disciplined

         Plaintiff seeks to exclude any discipline, or lack thereof, of Defendant Duran as prejudicial under Federal Rule of Evidence 403.

         Defendant submits that he does not currently intend to introduce this subject into evidence, unless evidence is submitted by Plaintiff regarding any post-incident investigative documents and reports.

         Ruling: Plaintiff’s motion is granted, without prejudice.

         2. Opinions By Defendant Expert Lieutenant Prentice

         Plaintiff seeks to exclude Defendant Duran’s use-of-force expert, Correctional Lieutenant Jeremy Prentice, from testifying at trial because he was disclosed as a non-retained expert. Plaintiff argues that Prentice is an employee of the CDCR and has never testified as an expert before. Further, Prentice has no independent knowledge of the facts surrounding the subject incidence and he has never ...


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