Starkgraf v. White

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KRISTOPHER S. STARKGRAF, CASE NO. 3:23-cv-05593-DGE 11 Plaintiff, ORDER ON MOTIONS IN LIMINE 12 v. (DKT. NOS. 99, 100) 13 WHITE et al., 14 Defendant. 15

16 I INTRODUCTION 17 The Court ruled on the Motions In Limine (“MILs”) (Dkt. Nos. 99, 100) in this matter at 18 the final pretrial conference held on May 16, 2025. (See Dkt. No. 113.) The Court now issues 19 this written order to memorialize its rulings. 20 II UNOPPOSED MOTIONS 21 1. Defendant’s No. 4: Exclude testimony or argument that Defendants have not called 22 persons to testify who are available to both parties. 23 a. The motion is GRANTED, and the ruling applies mutually to both parties. 24 1 2 2. Defendant’s No. 5: Parties should provide at least 24-hours’ notice to the opposing 3 party before a witness is permitted to testify. 4 a. The motion is GRANTED. The Court understands that for such a short trial,

5 24 hours’ notice may in some instances be impractical, but the Court expects 6 the Parties to extend professional courtesy to one another by giving notice to 7 the extent feasible. 8 9 3. Defendant’s No. 6: Exclude testimony or argument implying the relative legal 10 resources of the parties in their resolution of this case. 11 a. GRANTED. 12 13 4. Defendant’s No. 7: Exclude argument, testimony, or comments which invite the 14 finder of fact to conceptually put themselves in the place of the Plaintiff in

15 considering any of the issues. [e.g. “Golden Rule” testimony] 16 a. GRANTED. 17 18 5. Defendant’s No. 9: Display of any exhibit or demonstrative evidence, including but 19 not limited to any photographs, records or chronology charts, should be prohibited 20 until the exhibit has been admitted into evidence or permission by the Court has been 21 obtained to use such exhibits. 22 a. GRANTED. 23

24 1 6. Plaintiff’s No. 7: Exclude Witnesses Lacking Contact Information 2 a. Defendant withdrew his designation of Deondre/Deonte Swansey as a witness. 3 (Dkt No. 101 at 8.) The motion is therefore DENIED as moot. 4

5 III DEFENDANT’S CONTESTED MOTIONS 6 7 1. Defendant’s No. 1: The Court should exclude testimony or evidence regarding 8 Plaintiff’s claims dismissed on summary judgment. 9 a. The motion is GRANTED. The Court agrees that dismissed claims are not 10 relevant to the remaining claim and would be more prejudicial than probative. 11 Fed. R. Ev. 401; 403. As stated on the record, the Court will grant in part the 12 redaction of Exhibit 6. The language “under the 8th and 14th amendment. and 13 retaliated to right to speach [sic] under the 1st amenent. [sic]” and the clause 14 “(my 1st amendment right)” will both be redacted from the Exhibit. (See Dkt.

15 No. 100-1 at 2.) 16 17 2. Defendant’s No. 2: Testimony or other evidence should be allowed regarding 18 Plaintiff’s other lawsuits/claims against former defendants Correctional Sgt. Jessica 19 Place, Correctional Deputy Patty Anton, and Correctional Deputy Shanlynn Avega. 20 a. The motion is DENIED. As stated on the record, the Court finds that to the 21 extent reference to these dismissed claims or parties in Defendant’s case in 22 chief would be probative of a pattern or habit, that probative value is 23 outweighed by prejudice to the Plaintiff. Fed. R. Ev. 403. This ruling does

24 1 not prevent Defendant from using these past lawsuits or claims for 2 impeachment purposes if Plaintiff opens the door to that in his testimony. 3 4 3. Defendant’s No. 3: Exclude testimony from Plaintiff regarding causation and/or

5 other opinion testimony. 6 a. The motion is DENIED. Plaintiff may give lay testimony as to his injuries 7 and symptoms. As discussed on the record, neither the Court nor the Parties 8 expect Plaintiff to give expert testimony on medical issues, and such 9 testimony would not be permissible. 10 11 4. Defendant’s No. 8: Exclude argument, testimony, or comment concerning the 12 Plaintiff’s and Defendants’ settlement attempt(s) or offers in this case. 13 a. The motion is GRANTED in part, to the extent it enforces Federal Rule of 14 Evidence 408(a). As discussed on the record, the Court cannot yet know

15 whether any testimony would call for impeachment with reference to 16 settlement discussions under Rule 408(b), and while that may not apply at all, 17 the Court RESERVES as to that issue. 18 19 IV PLAINTIFF’S CONTESTED MOTIONS 20 21 1. Plaintiff’s No. 1: Exclude Defendant’s Undisclosed, Non-Retained Expert 22 Testimony. 23

24 1 a. The motion is GRANTED. Defendant’s witnesses will be admitted for lay 2 testimony and not expert testimony. The Court does not reach the issue of 3 whether Defendant’s witnesses can offer rebuttal expert testimony if Plaintiff 4 offers expert testimony, which seems highly unlikely. Because Dr.

5 Balderrama was not Plaintiff’s treating physician, he is not permitted to offer 6 either lay or expert testimony in Defendant’s case in chief. 7 8 2. Plaintiff’s No. 2: Exclude Testimony on Ultimate Issue of Law 9 a. The motion is GRANTED. While Federal Rule of Evidence 704 permits 10 ultimate issue testimony, it only does so as to issues of fact, not law. See 11 Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 12 2008) (“an expert witness cannot give an opinion as to her legal conclusion, 13 i.e., an opinion on an ultimate issue of law.”) Therefore, Defendant’s 14 witnesses may not testify as to a legal conclusion of whether the use of force

15 was excessive. This is consistent with the Court’s prior rulings on this 16 subject. See Van Loo v. United States, No. 3:23-CV-05618-DGE, 2025 WL 17 691648, at *7 (W.D. Wash. Mar. 4, 2025) (citing Dold v. Snohomish Cnty., 18 No. 2:20-CV-00383-JHC, 2023 WL 123335, at *2 (W.D. Wash. Jan. 5, 2023) 19 and Fontana v. City of Auburn, No. C13-0245-JCC, 2014 WL 4162528, at *6 20 (W.D. Wash. Aug. 21, 2014)). Nothing in this ruling prevents Defendant’s 21 witnesses from offering testimony as to the facts and context of the use of 22 force. 23

24 1 3. Plaintiff’s No. 3: Exclude Reasons for Plaintiff’s Incarceration/Prior Bad Acts 2 a. As stated on the record, the motion is GRANTED as to Plaintiff’s prior bad 3 acts. The ruling does not prevent questioning regarding the alleged December 4 6, 2024 court-date incident. During the hearing, Defendant withdrew his

5 motion to admit Exhibit 5 and then attempted to un-withdraw; the Court will 6 not admit the Exhibit in Defendant’s case in chief, but it may be used for 7 impeachment if relevant. 8 9 4. Plaintiff’s No. 4: Exclude disciplinary history, other than that directly related to the 10 June 18, 2023 incident. 11 a. The motion is GRANTED. Defendant only opposes to the extent that he 12 wants to be able to reference the sanction he issued as a result of the June 18, 13 2023 incident. (See Dkt. No. 101 at 7.) Since that is part of the incident at 14 issue, it is not excluded.

15 16 5. Plaintiff’s No. 5: Exclude Reference to Dismissed Claims or Parties 17 a. Consistent with the Court’s grant of Defendant’s MIL No. 1 and denial of 18 Defendant’s MIL No. 2, this motion is GRANTED. 19 20 6. Plaintiff’s No. 6: Exclude Reference to Pierce County’s Payment of Plaintiff’s 21 Medical Expenses 22 a. The motion is GRANTED. Defendant opposes only “[t]o the extent Plaintiff 23 may imply and/or argue that he incurred monetary damages for medical

24 1 expenses.” (Dkt. No. 101 at 8.) That does not appear to be within the scope 2 of the motion. 3 4 7. Plaintiff’s No. 8: Exclude Hearsay Testimony

5 This motion concerns Defendant’s Exhibit 4, which contains two prison reports. (Dkt. 6 No. 99 at 10–11.) Both were written by Defendant White. Though offered in the same exhibit, 7 the Court will analyze each separately. The Court concludes that the second report 8 (chronologically), describing White’s use of force on Plaintiff, is inadmissible in its entirety, and 9 the first report concerning an altercation between Plaintiff and another inmate is admissible with 10 redactions. Therefore, the motion is GRANTED in part. 11 A. The “Observation Report” is Admissible but Swansey’s Statements Are Not. 12 The first report is titled “Pierce County Detention and Corrections Center Observation 13 Report” and relates to an altercation between Plaintiff Starkgraf and another inmate, Deonte 14 Swansey. (Dkt. No. 99 at 11.) Within the report is a statement, in which Swansey relays to 15 White a statement he claims Starkgraf made. (See id.) The report was written at 1:55 on June 16 18, 2023, concerning an incident at 1:50, but not submitted until 3:06. (See id.) White discusses 17 responding to the altercation between inmates; White asked Swansey why they were fighting and 18 Swansey was initially not forthcoming, but then White “asked Swansey what was really going 19 on” and Swansey stated “[w]e got into it because he keeps saying racial shit, and I cant be 20 around him.” (Id.) The report documents that Swansey and White were moved to different units 21 and Starkgraf was evaluated by a nurse. (Id.) Further, the report notes “Starkgraf told the same 22 story [about the incident] and later changed his story and told Sgt. Place that he was jumped in 23 the lower tier bathroom by 5 black guys.” (Id.) 24 1 Defendant argues that the report is a business record, and the statement within it is a 2 present-sense impression. (Dkt. No. 101 at 8–9.)1 Plaintiff argues the entire report is 3 inadmissible hearsay. (Dkt. No. 99 at 7–8.) 4 The report is itself hearsay, as it is an out of court statement and offered for the truth of

5 what it asserts, and Swansey’s statements are hearsay within hearsay. At the first step, the Court 6 will find that the report is a business record. Fed. R. Ev. 803(6). The Court’s concerns about 7 treating a record of use of force as a business record, see infra, do not apply to this report. 8 Though a close question, the Court finds that the “Observation Report” is not so akin to a police 9 report that would be inadmissible in a criminal matter, and is more like a “routine, 10 nonadversarial” report “‘reflecting ministerial, objective observations’ of law enforcement 11 personnel.” United States v. Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (analyzing the public 12 records rule, Fed. R. Ev. 803(8)). Therefore, the report itself can be admitted. 13 But Swansey’s statements within the report are inadmissible hearsay and are not a present 14 sense impression. A present-sense impression “must be nearly contemporaneous with the

15 incident described and made with little chance for reflection.” Bemis v. Edwards, 45 F.3d 1369, 16 1372 (9th Cir. 1995). It must be made “while the declarant was perceiving the event or 17 condition.” Id. at 1373 (quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's 18 Evidence ¶ 803(1)[01], at 803–93 (1994)). It must also be made on personal knowledge. Id. 19 Courts have explained that “the declarant should be describing an event that is ongoing and 20 startling or just occurred. Little time or no time must exist between the occurrence and the 21

22 1 Defendant did not raise the issue of whether the records are admissible under the public records exception, Rule 803(8), though Rules 803(6) and 803(8) are sometimes analyzed together. See 23 e.g., Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995); Fleming v. Hinds Cnty., No. 3:16CV554TSL-RHW, 2017 WL 1730971, at *2 (S.D. Miss. May 1, 2017). 24 1 statement, which operates to negate the likelihood of a deliberate or conscious misrepresentation. 2 The crucial provision of this exception is immediacy.” United States v. Lentz, 282 F. Supp. 2d 3 399, 410 (E.D. Va. 2002), aff’d, 58 F. App'x 961 (4th Cir. 2003) (internal citations omitted). 4 However, “[f]or statements to qualify as present sense impressions, precise contemporaneity is

5 not required.” United States v. Ibanez, 328 F. App'x 673, 675 (2d Cir. 2009). 6 There is a dispute here about exactly how much time elapsed between Swansey’s 7 statement and memorialization of it in the report. The report indicates that Swansey made the 8 statement around 1:50 and it was written at 1:55, but not submitted until 3:06—a gap of 9 approximately 1 hour 15 minutes. (See Dkt. No. 99 at 11.) The gap is concerning because 10 presumably during that time White had access to the report and could have edited it. And a gap 11 of that length in time would be too long for the statement to qualify as a present sense 12 impression. See e.g., United States v. Green, 556 F.3d 151, 157 (3d Cir. 2009) (suggesting that a 13 gap of 50 minutes was too long). 14 But even assuming the temporal requirement is satisfied, the Court holds that Swansey’s

15 statement is not a “present sense impression” because it was made on prompting from White. As 16 discussed in the report, Swansey initially claimed “we were working it out” when asked about 17 the incident, but then after White asked “what was really going on,” Swansey volunteered that he 18 was irritated because Starkgraf “keeps saying racial shit.” (See Dkt. No. 99 at 11.) Other courts 19 have held that prompting such as this makes the present sense impression inapplicable. Green, 20 556 F.3d at 157 (“This undisputed sequence of events affirmatively indicates that Brown made 21 his statement after he was expressly asked to reflect upon the events in question, and thereby 22 fatally disqualifies the declaration for admission as a present-sense impression”); United States v. 23 Boyce, 742 F.3d 792, 797 (7th Cir. 2014) (“A statement must also be made without calculated

24 1 narration to qualify under the present sense impression exception”); United States v. Lovato, 950 2 F.3d 1337, 1348 (10th Cir. 2020) (Bacharach, J., concurring) (“[t]he exception for present-sense 3 impressions applies to individual statements, not conversations”). 4 For those reasons, the Court will admit the Observation Report but require redaction of

5 Swansey’s statements. The precise redactions were discussed on the record. 6 B. The Report of White’s Use of Force Is Inadmissible 7 The second report chronologically (though first on the docket) is titled “Pierce County 8 Detention and Corrections Center Incident Report” and discusses the incident that is the subject 9 of this litigation. (Dkt. No. 99 at 10.) It is written by White and describes an incident in which 10 Plaintiff asked him to move his books out of his former cell (after being moved, post-Swansey 11 incident). (See id.) White did not answer to Plaintiff’s satisfaction and Plaintiff called him a 12 “piece of shit,” White then applied handcuffs to Plaintiff, allegedly in a painful and excessive 13 manner. (See id.) Defendant argues this is a business report, citing Mitchell v. Morgan, 844 F. 14 Supp. 398, 401 (M.D. Tenn.), aff'd sub nom. Thandiwe v. Morgan, 41 F.3d 1508 (6th Cir. 1994). 15 Morgan has very limited reasoning, and the Court finds a different case to be more persuasive. 16 In Lewis v. Velez, a prisoner civil rights case, the court held that “Incident Reports such 17 as the ones at issue here do not properly constitute ‘business records.’” 149 F.R.D. 474, 486 18 (S.D.N.Y. 1993). The court relied on Palmer v. Hoffman, 318 U.S. 109, 113 (1943), which holds 19 that a railroad accident report from a railroad official was not a business record because 20 accidents are not a regular business activity. Were it otherwise, the business records exemption 21 “would result in the admission of self-serving records of any incident for which an organization 22 could foresee liability, as long as the records were made pursuant to some sort of regular 23 recording system.” Lewis 149 F.R.D. at 486. Lewis reasoned that corrections officers have self- 24 1 interest in reports concerning beatings of inmates that could expose them to liability under prison 2 policies or criminal charges, and so their incident records would be inadmissible under 803(6), 3 because the rule requires a showing of trustworthiness. Id.; see also Fleming, 2017 WL 4 1730971, at *2 (citing Lewis and reaching same conclusion); Bracey v. Herringa, 466 F.2d 702,

5 705 (7th Cir. 1972) (reversing grant of summary judgment against § 1983 claim concerning 6 prisoner beating, because court erred in considering prison report, which was inadmissible 7 hearsay). 8 As to the incident report in which White describes his use of force on Starkgraf, the 9 Lewis reasoning applies. Without ascribing any ill-intent to White, he does have self-interest in 10 the narration of his use of force. Therefore, the Court will grant Plaintiff’s motion and exclude 11 the report in its entirety. The Court notes that Defendant loses little or nothing from this ruling, 12 since White will testify at trial. 13 14 V CONCLUSION

15 The motions in limine are granted in part and denied in part consistent with this opinion. 16 17 Dated this 19th day of May, 2025. 18 a 19 David G. Estudillo 20 United States District Judge

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