(PC) Washington v. Hicks

• Court: District Court, E.D. California
• Decided: February 21, 2023
• Docket: 1:19-cv-00156
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 TRACYE BENARD WASHINGTON, 1:19-cv-00156-JLT-GSA-PC

12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO EXCLUDE EVIDENCE AND MOTION 13 vs. FOR APPOINTMENT OF COUNSEL

14 HICKS, et al., (ECF No. 116.)

15 Defendants. 16 17 18 19 20 21 I. BACKGROUND 22 Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this 23 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s original 24 Complaint filed on February 5, 2019, against defendant Sergeant David Hicks for use of 25 excessive force in violation of the Eighth Amendment. (ECF No. 1.)1 26 1 On June 22, 2020, the court issued an order dismissing all other claims and defendants 27 from this action, except against Defendants Rocha and Hicks for use of excessive force, based on 28 Plaintiff’s failure to state a claim. (ECF No. 19.) On August 11, 2022, Defendant Rocha’s motion for terminating sanctions was granted and Defendant Rocha was dismissed from this case. (ECF No. 127.) 1 On September 8, 2020, the Court issued a Discovery and Scheduling Order establishing 2 deadlines for the parties, including a discovery deadline of May 8, 2021 and a dispositive motions 3 filing deadline of June 8, 2021. (ECF No. 28.) The deadlines were extended but have now 4 expired. (ECF Nos. 100, 114.) 5 On June 8, 2022, Plaintiff filed a motion to exclude evidence. (ECF No. 116.) On June 6 29, 2022, Defendant Hicks filed an opposition.2 (ECF No. 118.) On July 19, 2022, Plaintiff filed 7 a reply. (ECF No. 123.) 8 II. MOTION TO EXCLUDE EVIDENCE 9 In general, “[t]he court must decide any preliminary question about whether . . . evidence 10 is admissible.” United States v. Castro, No. 219CR00295GMNNJK, 2022 WL 4138678, at *1 11 (D. Nev. Sept. 9, 2022) (quoting Fed. R. Evid. 104(a)). In order to satisfy the burden of proof 12 for Federal Rules of Evidence (“FRE”) 104(a), a party must show that the requirements for 13 admissibility are met by a preponderance of the evidence. Id. (citing see Bourjaily v. United 14 States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (“We have traditionally 15 required that these matters [regarding admissibility determinations that hinge on preliminary 16 factual questions] be established by a preponderance of proof.”)). 17 “Although the [FRE] do not explicitly authorize in limine rulings, the practice has 18 developed pursuant to the district court’s inherent authority to manage the course of trials.” Id. 19 (quoting Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (citing 20 FRE 103(c))). In limine rulings “are not binding on the trial judge, and the judge may always 21 change [her] mind during the course of a trial.” Id. (quoting Ohler v. United States, 529 U.S. 753, 22 758 n.3, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000); see also Luce, 469 U.S. at 41, 105 S.Ct. 460)). 23 Judges have broad discretion when ruling on motions in limine. Id. (citing see Jenkins v. Chrysler 24 Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002)). However, a motion in limine should not be 25 used to resolve factual disputes or weigh evidence. Id. (citing C&E Servs., Inc., v. Ashland, Inc., 26

27 2 Defendant Rocha also filed an opposition, on June 16, 2022. (ECF No. 117.) However, 28 because Defendant Rocha is now dismissed from this action the Court shall not consider his opposition to Plaintiff’s motion. 1 539 F. Supp. 2d 316, 323 (D.D.C. 2008)). To exclude evidence on a motion in limine, the 2 evidence must be inadmissible “on all potential grounds.” Id. (quoting see, e.g., Ind. Ins. Co. v. 3 Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004)). “Unless evidence meets this high 4 standard, evidentiary rulings should be deferred until trial so that questions of foundation, 5 relevancy and potential prejudice may be resolved in proper context.” Id. (citing Hawthorne 6 Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)). 7 Importantly, motions in limine seeking the exclusion of broad categories of evidence are 8 disfavored. Mort v. DeJoy, No. 1:19-CV-0652-JLT-SKO, 2022 WL 3229298, at *2 (E.D. Cal. 9 Aug. 10, 2022), amended on reconsideration, No. 1:19-CV-0652-JLT-SKO, 2022 WL 4095857 10 (E.D. Cal. Sept. 7, 2022) (citing see Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 11 712 (6th Cir. 1975). The Court “is almost always better situated during the actual trial to assess 12 the value and utility of evidence.” Id. (quoting Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 13 1218 (D. Kan. 2007). The Sixth Circuit explained, “a better practice is to deal with questions of 14 admissibility of evidence as they arise [in trial]” as opposed to ruling on a motion in limine. Id. 15 (quoting Sperberg, 519 F.2d at 712). Nevertheless, motions in limine are “an important tool 16 available to the trial judge to ensure the expeditious and evenhanded management of the trial 17 proceedings.” Id. (quoting Jonasson v. Lutheran Child & Family Services, 115 F.3d 436, 440 18 (7th Cir. 1997)). A court will grant a motion in limine and exclude evidence only if the evidence 19 is “inadmissible on all potential grounds.” BNSF Ry. v. Quad City Testing Lab., Inc., 2010 WL 20 4337827, at *1 (D. Mont. 2010). 21 A. Plaintiff’s Motion 22 Plaintiff seeks a blanket exclusion of all evidence and testimony from Plaintiff’s 23 deposition taken on May 5, 2021, from use by Defendant Hicks in any dispositive motion, trial, 24 or trial motion in this case on the grounds that David Goodwin, attorney for Defendant Rocha, 25 engaged in discriminatory behavior during the deposition and acted unprofessionally, 26 unethically, and ignored his duty and obligation as an officer of the court to be fair and impartial 27 in his pursuit of the truth. Plaintiff argues that attorney Goodwin’s actions violated California 28 law, Assembly Bill 2842, and Assembly Bill 256 , whereby the law permits challenge to litigation 1 when law enforcement, a prosecutor, an attorney, and/or the court discriminates against a party 2 in the case. 3 Plaintiff asserts that when attorney Goodwin was questioning him at the deposition, 4 Plaintiff properly objected to questions and attorney Goodwin improperly argued with him and 5 illegally attempted to force Plaintiff to answer questions he posed. Plaintiff argues that attorney 6 Goodwin should not have harassed him when he could have simply noted the objections and filed 7 a motion to compel a response if he truly desired one. 8 Plaintiff states that he is a Black male who suffers from long-term mental illness, is 9 incarcerated, and has no law degree, allowing him to claim discrimination under the Americans 10 with Disabilities Act (ADA) and Armstrong v. Newsom. 11 Plaintiff also requests a hearing on this motion and asks the court to appoint counsel for 12 him if Defendant seeks to challenge the motion. 13 B. Defendant Hicks’s Opposition 14 Defendant Hicks argues that Plaintiff’s motion should be denied because (1) Plaintiff fails 15 to point to specific parts of the deposition he considers unfairly prejudicial, and he did not provide 16 any portions of the May 5, 2021 deposition to support his arguments for the Court to evaluate; 17 (2) Plaintiff’s objection to a question alone in a deposition does not excuse the obligation to 18 testify; (3) the deposition transcript does not support Plaintiff’s arguments; and (4) the questions 19 posed to Plaintiff were within the scope of permissible discovery under Rule 26(b). 20 Defendant finds it unclear whether Plaintiff is arguing that he is prejudiced by the entirety 21 of the deposition testimony, or whether the Court should prohibit any further reference to the 22 deposition testimony as a punishment for attorney Goodwin’s abusive deposition tactics. 23 Defendant argues that Plaintiff has not complied with Local Rules 230(b) or 250.1 in his failure 24 to submit documentary evidence -- portions of the deposition testimony – at issue. For this failure 25 to carry the burden of proof of his motion, Defendant argues that Plaintiff’s motion should be 26 denied. 27 Defendant also argues that Plaintiff has not set forth a sufficient factual or legal basis for 28 excluding his deposition. Defendant thus assumes that Plaintiff is claiming that the probative 1 value of the entire deposition is substantially outweighed by the danger of unfair prejudice 2 pursuant to Federal Rule of Evidence 403. Defendant argues that Plaintiff has not shown that he 3 will be unfairly prejudiced by any specific part of the deposition if used by Defendant at trial. 4 Defendant also argues that the relief requested by Plaintiff would be inappropriate 5 because the deposition testimony is the majority of the limited evidence that can be used by 6 Defendant Hicks to demonstrate he properly acted during the incident at issue in the Complaint. 7 Defendant challenges Plaintiff’s belief that he was not required to respond to deposition questions 8 if he objected to them. Defendant points to Rule 30, which states that deposition “testimony is 9 taken subject to an objection,” meaning that an objection generally does not excuse the deponent 10 from answering the question posed. Fed. R. Civ. P. 30 (emphasis added). 11 Defendant has submitted portions of the deposition testimony at issue to show that 12 Plaintiff objected to questions regarding his criminal history, his assigned CDCR numbers and 13 questions regarding the instances where Plaintiff broke his cell windows, and after objecting, 14 refused to answer. Defendant argues that the testimony shows that Plaintiff’s depiction of the 15 deposition, that counsel for Defendant Rocha attempted to “harass” answers out of Plaintiff, is 16 not accurate, for example: 17 A. Why are you asking me about my criminal past? You are not going to be able 18 to use that in trial. What is relevance? I object. I refuse to answer questions relative 19 to my criminal convictions. 20 Q. So I understand Mr. Washington, are you refusing to answer my question about 21 what criminal conviction you have had in the past? 22 A. Yes. 23 Q. Do you understand that your refusal to answer questions could result in 24 sanctions? 25 A. Yes. 26 Q. And even with that understanding, you are still refusing to answer? 27 A. Yes. 28 1 (Plaintiff’s Deposition, 18:7-23, Exhibit B to Declaration of Cecelia Martin, ECF No. 118-1 at 2 14:7-23.) 3 Defendant argues that under Rule 609 of the Federal Rules of Evidence, questions about 4 Plaintiff’s criminal history are appropriate to discover potential impeachment evidence. Thus 5 Defendant argues that the questions posed to Plaintiff were within the scope of permissible 6 discovery; his refusal to answer was not legally justified; and the transcripts demonstrate that 7 Plaintiff was not bullied, harassed, or forced to answer following his refusal. 8 C. Discussion 9 Plaintiff argues that the portions of the deposition transcript submitted by Defendant 10 cannot provide the Court with the information needed to address Plaintiff’s motion, and 11 Defendant should be required to submit a copy of the video-taped version of the deposition 12 hearing in ful, so that the Court can observe the body language, behaviors, and reactions of all of 13 the attorneys. Plaintiff asserts that he sought a copy of the deposition transcript but Defendant 14 objected and the Court denied Plaintiff’s request, which is why Plaintiff could not submit the 15 transcripts as exhibits in support his arguments. 16 First, there is no doubt that Plaintiff’s motion is overly broad and lacks support. Plaintiff 17 seeks to exclude all of the deposition testimony without offering any examples to support his 18 alleged accusations of discrimination, violations of the ADA, and unethical behavior by attorney 19 Goodwin. If Plaintiff could not submit documentary evidence, Plaintiff should have offered facts 20 from his memory to support his arguments that Attorney Goodwin improperly argued with him, 21 illegally attempted to force him to answer questions, harassed him, and behaved 22 unprofessionally, but Plaintiff did not offer such evidence. 23 The Court has reviewed all of the deposition testimony submitted by Defendant Hicks, 24 which include Plaintiff’s testimony refusing to answer questions about his criminal convictions. 25 Pursuant to the review, the Court finds no evidence of discrimination against Plaintiff based on 26 his race, his pro per status, or his mental state. 27 Plaintiff’s belief that it is appropriate to object to a deposition question and then refuse to 28 answer the question is not supported by the Federal Rules. Rule 30(c)(1) provides that “[a]n 1 objection at the time of the examination--whether to evidence, to a party’s conduct, to the 2 officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the 3 deposition--must be noted on the record, but the examination still proceeds; the testimony is taken 4 subject to any objection. An objection must be stated concisely in a nonargumentative and 5 nonsuggestive manner.” Fed. R. Civ. P. 30(c)(1). Plaintiff did not answer attorney Goodwin’s 6 deposition questions subject to objections. Instead, as shown by the transcript, Plaintiff objected 7 to questions about his criminal background in a manner that resulted in incomplete answers or 8 no answer at all. This was improper and impeded the fair examination of Plaintiff. 9 Nor does the Court find evidence that Plaintiff’s rights under the ADA or Armstrong v. 10 Newsom3 were violated. Title II of the Americans with Disabilities Act (ADA) prohibits a public 11 entity from discriminating against a qualified individual with a disability on the basis of 12 disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 13 976, 978 (9th Cir.), cert. denied, 522 U.S. 971 (1997). “Generally, public entities must ‘make 14 reasonable modification in policies, practices, or procedures when the modifications are 15 necessary to avoid discrimination on the basis of disability, unless the public entity can 16 demonstrate that making the modifications would fundamentally alter the nature of the service, 17 program, or activity.’” Pierce v. County of Orange, 526 F.3d 1190, 1215 (9th Cir. 2008) (quoting 18 28 C.F.R. § 35.130(b)(7)). To state a claim under Title II, the plaintiff must allege four elements: 19 (1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to 20 participate in or receive the benefit of some public entity’s services, programs, or activities; (3) 21 the plaintiff was either excluded from participation in or denied the benefits by the public entity; 22 and (4) such exclusion, denial of benefits or discrimination was by reason of the plaintiff’s 23 disability. Simmons v. Navajo County, Ariz, 609 F.3d 1011, 1021 (9th Cir. 2010); McGary v. 24 City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (policy burdened plaintiff in a manner 25 different from and greater than it burdened non-disabled residents, solely as a result of his 26

27 3 The court in Armstrong v. Newsom, 2021 WL 933106, (N.D.Cal. March 11, 2021) granted in 28 part a motion by a class of state prison inmates with disabilities requiring officials to implement new policies and procedures at prison to prevent further violations of inmates’ rights under the ADA. 1 disabling condition); Weinrich, 114 F.3d at 978. The ADA does not provide a basis to sue 2 government officials in their individual capacities. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th 3 Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official 4 in her individual capacity to vindicate rights created by Title II of the ADA. . . .”). Furthermore, 5 “[t]o recover monetary damages under Title II of the ADA, a plaintiff must prove intentional 6 discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138 7 (9th Cir. 2001). Here, Plaintiff has not shown that he was entitled to a reasonable accommodation 8 or that he was discriminated against because of his disability. Therefore, Plaintiff fails to show 9 that his rights under the ADA or Armstrong v. Newsom were violated. 10 In addition, Plaintiff’s request for appointment of counsel shall be denied. Plaintiff does 11 not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 12 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant 13 to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of 14 Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 15 circumstances the court may request the voluntary assistance of counsel pursuant to section 16 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating 17 counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In 18 determining whether “exceptional circumstances exist, the district court must evaluate both the 19 likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro 20 se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and 21 citations omitted). 22 In the present case, the court does not find the required exceptional circumstances. Plaintiff, a 23 prisoner proceeding pro se , asserting that he suffers from mental health issues, seeks 24 appointment of counsel to assist him with his motion to deny evidence. These are not an 25 exceptional circumstance under the law. While the court has found that Plaintiff states a 26 cognizable claim in the Complaint against Defendant Hicks for use of excessive force against 27 Plaintiff, this finding is not a determination that Plaintiff is likely to succeed on the merits. 28 Plaintiff’s excessive force claims are not complex, and based on a review of the record in this 1 case Plaintiff can adequately articulate his claims and respond to court orders. Thus, the court 2 does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied 3 without prejudice to renewal of the motion at a later stage of the proceedings. 4 IV. CONCLUSION 5 The Court finds that Plaintiff’s motion to exclude evidence is overly broad and lacks 6 evidentiary support. Nor has Plaintiff sufficiently cited the California law, Assembly Bill 2842, 7 or Assembly Bill 256 that he claims were violated. 8 In contrast, Defendant has submitted credible evidence that attorney Goodwin did not 9 behave unprofessionally or act in a discriminatory manner against Plaintiff at the deposition. The 10 Court finds no credible evidence that Plaintiff was harassed, that his rights under the ADA or 11 Armstrong v. Newsom were violated, or that the value of the deposition testimony is outweighed 12 by a tendency to cause unfair prejudice. 13 For these reasons, the undersigned finds that Plaintiff’s motion to exclude evidence 14 should be denied. 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s motion for appointment of counsel is DENIED without prejudice; and 17 2. Plaintiff’s motion to exclude evidence, filed on June 8, 2022, is DENIED. 18 IT IS SO ORDERED. 19

20 Dated: February 18, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21

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