United States District Court, E.D. California
ORDER REGARDING PARTIES’ MOTIONS IN LIMINE [ECF
NOS. 78, 79]
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.
action is proceeding against Defendant Monica Duran for
excessive force in violation of the Eighth Amendment.
matter is set for jury trial before the undersigned on
October 1, 2019, at 8:30 a.m.
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.)
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.
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).
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).
Plaintiff’s Motions in Limine
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.
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.
Prior Convictions and Parole Violation
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.
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.
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).
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.
Evidence of Rules Violations During Incarceration
seeks to exclude evidence of his prison disciplinary history.
submits that she will not introduce evidence of
Plaintiff’s prison disciplinary history unless
Plaintiff misrepresents his conduct in prison.
Plaintiff’s motion to exclude evidence of his prior
disciplinary history is granted.
That Defendant Duran Was Or. Was Not Disciplined
seeks to exclude any discipline, or lack thereof, of
Defendant Duran as prejudicial under Federal Rule of Evidence
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
Plaintiff’s motion is granted, without prejudice.
Opinions By Defendant Expert Lieutenant Prentice
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 ...