Bell v. Lee

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VINCENT KEITH BELL, Case No. 13-cv-5820 SI

8 Plaintiff, FINAL PRETRIAL ORDER 9 v.

10 KEN LEE, Deputy, et al., Re: Dkt. Nos. 265-267, 285, 292-301, 306, 11 Defendants. 308-311, 313, 322-324, 372

12 13 On April 16, 2024, the Court held a final pretrial conference in the above captioned matter, 14 which is set for jury trial beginning April 30, 2024. All parties were represented by counsel. The 15 following matters were resolved: 16 17 1. Number of jurors and challenges: There will be a jury of 8 members. Each side shall have 18 4 peremptory challenges. Jurors shall wear masks during the proceedings. 19 20 2. Voir dire: The Court will conduct general voir dire, including various of the questions 21 requested by counsel in their proposed additional voir dire filings. Counsel for each side shall have 22 up to 20 minutes total to question the panel. The parties have presented the Court with a neutral, 23 non-argumentative statement of the case to be read to the jury panel at the beginning of the voir dire 24 process; the parties may file an amended statement no later than Friday. April 26, 2024. 25 26 3. Witnesses: The parties shall file amended, winnowed-down witness lists on April 22, 2024. 27 The parties shall work with each other to schedule witnesses, since numerous witnesses appear on 1 call. By April 29, the parties shall inform the Court about whether they intend to call any remote 2 witnesses. 3 4 4. Timing of trial: The trial is estimated to take five days. Based on this estimate, and a 5 review of the other materials in the Joint Pretrial Conference Statement, the Court will set the matter 6 for a five day trial, as follows: each side shall have up to 30 minutes to present opening statements; 7 each side shall have 10 hours total for presentation of evidence, which includes direct and cross- 8 examination and presentation of all exhibits; and each side shall have up to 1 hour for closing 9 argument. The parties have jointly requested bifurcation of punitive damages. Should a punitive 10 damages phase be necessary, the Court encourages the parties to stipulate to assets to obviate the 11 need for live testimony. Each side will have up to 30 minutes for argument in the punitive damages 12 phase. 13 14 5. Trial schedule: Jury selection will occur and the trial will begin on April 30, 2024 at 9:00 15 a.m. The trial day runs from 9:00 a.m. until 4:00 p.m., with a 15 minute break at 10:15 a.m., a 30 16 minute break at noon and a 15 minute break at 2:00 p.m., all times approximate. The Court does 17 not hear trials on Fridays, although juries may continue to deliberate on Fridays. 18 19 6. Motions in limine and other motions: Motions: Plaintiff has filed a motion for 20 spoliation sanctions, and defendants have filed an administrative motion to strike. Plaintiff has filed 21 six motions in limine and a motion to limit the testimony of defendants’ expert. Defendants have 22 filed ten motions in limine, which includes a motion to limit the testimony of plaintiff’s expert. 23 After consideration of the arguments made in the briefs and at the pretrial conference, the Court 24 rules as follows: 25 26 Plaintiff’s Motion for Sanctions and Defendants’ Motion to Strike (Dkt. Nos. 266, 267): DENIED, 27 as to defendants’ administrative motion to strike. DENIED, without prejudice, as to plaintiff’s 1 video, and defendants may likewise put on related evidence. Plaintiff may renew his request for an 2 adverse jury instruction at the charging conference, if supported by the evidence at trial. 3 4 Plaintiff’s Motion to limit Don Cameron’s expert report and testimony (Dkt. No. 306); Defendants’ 5 MIL No. 7 to exclude certain testimony by Robert Ayers (Dkt. No. 298): GRANTED, as to 6 Cameron. GRANTED, as to barring Ayers from testifying as to witness credibility or legal 7 conclusions. DENIED, as to the balance of the motion re: Ayers. 8 Neither expert may opine on witness credibility, disputed facts, the applicable legal standard, 9 or legal conclusions. The experts may testify as to hypothetical fact patterns. For instance, Cameron 10 may testify that if a hypothetical detainee were to take certain assaultive actions, then it would 11 comport with accepted and approved practice to take the detainee to the ground. Cameron may not 12 testify that the deputies here were justified in taking Bell to the ground because Bell took certain 13 assaultive actions. Whether plaintiff or the officers in this case took certain actions during the 14 incident goes to the very heart of what the jury must determine. 15 The experts shall not opine as to whether the deputies’ actions in this case were “reasonable” 16 or whether the force used in this case was “excessive.” Doing so would invade the province of the 17 jury, whose role it is to weigh the evidence and make credibility determinations. 18 Ayers may opine as to whether the incident reports prepared in this case, or the lack of 19 incident reports in this case, violated policy or practice. Unlike the factual assumptions contained 20 in the Cameron report, the facts regarding what incidents reports were subsequently prepared and 21 by whom are not in dispute. 22 23 Plaintiff’s MIL No. 1 to preclude other bad acts (Dkt. No. 322): DENIED, as to plaintiff’s 2012 24 arrest charges for which is he currently detained, as those are relevant to defendants’ knowledge 25 about plaintiff. The parties shall jointly prepare a neutral statement of plaintiff’s 2012 charges, 26 which shall be used by any witness testifying as to the charges. Defendants are not to question 27 witnesses as to the details of the charges, nor shall they refer to the charge as “high-profile.” 1 defendants seek to use these records to rebut plaintiff’s testimony, defendants must first make an 2 offer of proof outside the presence of the jury. 3 GRANTED, as to plaintiff’s 2007 and 2011 convictions, unless used for impeachment 4 purposes. Defendants state they do not intend to introduce this unless plaintiff opens the door. If 5 defendants seek to use these records to rebut plaintiff’s testimony, defendants must first make an 6 offer of proof outside the presence of the jury. 7 8 Plaintiff’s MIL No. 2 to preclude defendants from calling plaintiff’s former criminal counsel and 9 investigator and to exclude related documents (Dkt. No. 308): DENIED. 10 11 Plaintiff’s MIL No. 3 to permit plaintiff to appear without visible restraints (Dkt. No. 309): 12 GRANTED. If Mr. Bell is disruptive at trial or some reason for shackling presents itself, the Court 13 will require Mr. Bell’s non-writing hand to be shackled to his waist, out of the presence of the jury. 14 The Court will allow the San Francisco Sheriff’s Office requests: that SFSO be allowed to 15 post two Deputies in the first row of the gallery behind the defense table to ensure that there is no 16 contact with the public; that the first row gallery be kept vacant to provide a barrier; and that 17 plaintiff’s computer access (including access to the internet) be strictly limited to trial matters. See 18 Dkt. No. 291. 19 20 Plaintiff’s MIL No. 4 to exclude evidence and testimony regarding weapons in wheelchairs (Dkt. 21 No. 323): DENIED without prejudice to renewal at the time of trial. Before introducing evidence 22 regarding weapons in wheelchairs, defendants shall make an offer of proof outside the presence of 23 the jury. 24 25 Plaintiff’s MIL No. 5 to exclude evidence regarding the results of the internal affairs investigation 26 and plaintiff’s other grievances (Dkt. No. 310): DENIED as moot as to the internal affairs 27 investigation, without prejudice to specific objections at the time of trial. Defendants have indicated 1 they may seek to introduce the timeline of the investigation (to counter spoliation allegations) or 2 plaintiff’s statements (for impeachment). If defendants wish to do so, they must first make an offer 3 of proof outside the presence of the jury. 4 Plaintiff also seeks to exclude three prior grievances he filed for unrelated incidents. Dkt. 5 Nos. 310-1, Heckmann Decl., Ex. C, D, E. DENIED, in that the three grievances may come in to 6 show plaintiff’s prior injuries. The parties shall meet and confer regarding redactions to remove 7 references to altercations, fights, etc. 8 9 Plaintiff’s MIL No. 6 to preclude unrelated medical records (Dkt. Nos. 324, 349): DENIED, as to 10 the request to exclude the medical evidence altogether. However, only relevant medical records 11 may be admitted, and defendants shall endeavor to minimize or redact references to altercations, 12 fights, etc. Before showing records to the jury that contain such a reference, defendants shall make 13 an offer of proof outside the presence of the jury. 14 15 Defendants’ MIL No. 1 to exclude evidence or argument on dismissed or unalleged claims (Dkt. 16 No. 292): GRANTED, as to arguing or referencing dismissed or unalleged claims. DENIED, as to 17 the balance of the motion, without prejudice to renewal at the time of trial. If plaintiff seeks to 18 introduce statistics regarding use of the safety cell for impeachment purposes, he will need a witness 19 (other than plaintiff) who can testify as to what the documents are and will need to make an offer of 20 proof outside the presence of the jury. The jury will need some context for the safety cell, and 21 plaintiff may testify on the conditions inside the safety cell. Plaintiff may also introduce evidence 22 about whatever medical care he did or did not receive following the incident. 23 24 Defendants’ MIL No. 2 to exclude or bifurcate punitive damages (Dkt. No. 293): DENIED, as to 25 defendants’ request to bar punitive damages. Pro se pleadings are liberally construed and plaintiff’s 26 request for $250,000 from the individual defendants and $20,000,000 from the City and County of 27 San Francisco put defendants on notice of the potential for punitive damages. See Dkt. No. 216 at 1 damages phase at trial. 2 3 Defendants’ MIL No. 3 to exclude evidence and argument on newsworthy events unrelated to this 4 litigation (Dkt. No. 294): GRANTED as to evidence, except for references to “other uses of force” 5 by jail staff against plaintiff. Before presenting evidence that contain such a reference, plaintiff shall 6 make an offer of proof outside the presence of the jury. If the matter proceeds to a punitive damage 7 phase, the parties shall consult the Court before making such argument. 8 9 Defendants’ MIL No. 4 to exclude evidence and argument of personnel records, disciplinary 10 proceedings, and character evidence (Dkt. No. 295): 11 The Ninth Circuit has “held that ‘other act’ evidence is admissible under Rule 404(b) if the 12 following test is satisfied: (1) there must be sufficient proof for the jury to find that the defendant 13 committed the other act[]; (2) the other act must not be too remote in time; (3) the other act must be 14 introduced to prove a material issue in the case; and (4) the other act must, in some cases, be similar 15 to the offense charged. See Bibo–Rodriguez, 922 F.2d 1398, 1400 (9th Cir.1991); United States v. 16 Miller, 874 F.2d 1255, 1268 (9th Cir.1989). Even if all four conditions are met, the evidence may 17 still be excluded if under Rule 403, the probative value of the evidence is substantially outweighed 18 by the danger of unfair prejudice.” Duran v. City of Maywood, 221 F.3d 1127, 1132-33 (9th Cir. 19 2000). 20 The Court has reviewed in camera Trial Exhibits 30, 31, 35, 41, 42, 43.1 21 • Trial Exhibit 30: DENIED. Plaintiff may cross-examine Lt. Krol about the finding 22 in Case No. 2016-0022 because it is probative of his character for truthfulness or 23 untruthfulness. See Fed. R. Evid. 608(b). 24 • Trial Exhibit 31: GRANTED. The Court will exclude the document under Federal 25 Rule of Evidence 404(b)(1). 26 1 A footnote in plaintiff’s opposition to defendants’ MIL No. 4 states plaintiff seeks to 27 introduce Trial Exhibits 30-43 and 50-51. Dkt. No. 337 at 1 n.1. However, neither the attached 1 • Trial Exhibit 35: DENIED, in that plaintiff may cross-examine De Los Reyes about 2 the finding regarding his truthfulness. See Fed. R. Evid. 608(b). The Court will 3 exclude the excessive force finding under Federal Rule of Evidence 404(b)(1). 4 • Trial Exhibit 41: GRANTED. The allegation was not sustained. 5 • Trial Exhibit 42: GRANTED. The document is not relevant. 6 • Trial Exhibit 43: DENIED. Plaintiff may cross-examine Lt. Krol about the finding 7 in Exhibit 43 because it is probative of his character for truthfulness or 8 untruthfulness. See Fed. R. Evid. 608(b). 9 Pursuant to the discussion on the record at the pretrial conference, the Court ORDERS that 10 plaintiff’s opposition to defendants’ MIL No. 4 (Dkt. No. 337) and the accompanying declaration 11 of Kaiyi A. Xie (Dkt. No. 337-1) shall be SEALED. Defendants do not object to the public filing 12 of the exhibits attached to the Xie declaration. Plaintiff shall re-file the exhibits to Dkt. No. 337- 13 1 on the public docket no later than April 26, 2024. 14 15 Defendants’ MIL No. 5 to exclude evidence and argument on plaintiff’s personal history and 16 character evidence generally (Dkt. No. 296): DENIED, without prejudice to specific objections at 17 the time of trial. 18 19 Defendants’ MIL No. 6 to exclude lay opinion evidence (Dkt. No. 297): GRANTED, as to lay 20 opinion testimony on medical care, diagnoses, or excessive force. However, plaintiff may pose 21 hypothetical questions to the nurses who examined plaintiff, as discussed at the pretrial hearing. 22 (For instance, the Court will permit such questions as: if the nurses had known plaintiff was 23 transported in a certain manner, would that have changed their examination of plaintiff?) DENIED, 24 as to testimony regarding what medical care plaintiff did or did not receive or testimony regarding 25 what plaintiff himself experienced with regard to his injuries. 26 27 Defendants’ MIL No. 8 to exclude argument or evidence about missing, destroyed, and unproduced 1 records. DENIED as moot re: a spoliated fourth videotape. See the Court’s ruling on the sanctions 2 || motion above. 3 4 Defendants’ MIL No. 9 to exclude evidence of issues that were not exhausted (Dkt. No. 300): 5 DENIED. Defendants are particularly focused on the transportation to the safety cell and the 6 || conditions inside the safety cell, arguing those issues were not raised in plaintiff's administrative 7 complaints. Compliance with prison grievance procedures is all that is required by the PLRA to 8 || “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). Where a prison’s grievance 9 || procedures do not specify the requisite level of factual specificity required in the grievance, “‘a 10 || grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.’” 11 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v. David, 297 F.3d 646, 650 12 (7th Cir. 2002)). The grievance need not include legal terminology or legal theories unless they are 13 needed to provide notice of the harm being grieved. Jd. Nor must a grievance include every fact 14 || necessary to prove each element of an eventual legal claim. /d. The purpose of a grievance is to 15 alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. Id. a 16 || The grievance should include sufficient information “to allow prison officials to take appropriate 3 17 || responsive measures.” Jd. (citation and internal quotation omitted). The Court finds plaintiff's 18 grievances adequately put the jail on notice for exhaustion purposes. 19 20 Defendants’ MIL No. 10 to exclude evidence not timely disclosed (Dkt. No. 301): DENIED as 21 moot. Plaintiff says he will not introduce any of the recently obtained medical records. He also 22 agrees that he is not seeking damages for ongoing physical injuries beyond April 28, 2017, the date 23 of his most recent interrogatory responses. He will seek damages for ongoing emotional injuries, 24 and it appears he timely disclosed his intent to do so. See Dkt. No. 329 at 2; Dkt. No. 301-2 at 9. 25 IT IS SO ORDERED. Sun Mle 27 || Dated: April 17, 2024 SUSAN ILLSTON 28 United States District Judge