Richards v. Cox et al, No. 2:2016cv01794 - Document 149 (D. Nev. 2022)
Court Description: ORDER Denying 134 Motion in Limine. ORDER Denying 135 Motion in Limine. ORDER Granting 136 Motion in Limine. Signed by Judge James C. Mahan on 10/26/2022. (Copies have been distributed pursuant to the NEF - LOE)
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Richards v. Cox et al Doc. 149 Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 1 of 6 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 STACEY M. RICHARDS, 8 Plaintiff(s), 9 10 Case No. 2:16-CV-1794 JCM (NJK) ORDER v. GREG COX, et al., 11 Defendant(s). 12 13 Presently before the court are defendants’ Renee Baker, Eric Boardman, and James Cox 14 (collectively “defendants”) motions in limine (ECF Nos. 134–136). Plaintiff Stacey Richards 15 (“Richards”) responded (ECF No. 142), and defendants replied (ECF No. 147).1 16 I. Background 17 Richards was an inmate at Ely State Prison on April 21, 2015, when an altercation arose 18 amongst several other inmates. (ECF No. 1). Correctional officer Eric Boardman “skip shot” 19 birdshot in Richards’s direction as a warning for inmates to lie face down. Some of the shot hit 20 Richards in the face. (Id.). This allegedly blinded Richards and he claims he suffers from 21 emotional distress. Richards filed a complaint alleging violations of 42 U.S.C. § 1983, negligent 22 training and supervision, battery, and negligence. (Id.). 23 Defendants filed three motions in limine. (ECF Nos. 134; 135; 136). Defendants’ first 24 two motions seek to exclude testimony about Richards’s treatment for emotional distress and 25 26 27 28 Defendants’ reply (ECF No. 147) was filed without leave of court. Local Rule 16-3 prevents replies in support of a motion in limine without leave of court. Defendants’ reply is therefore STRICKEN and the court will not consider the arguments within. See, e.g., Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (holding that district courts have inherent power to control their own dockets); see also LR IC 7-1 (“The court may strike documents that do not comply with these rules.”). 1 James C. Mahan U.S. District Judge Dockets.Justia.com Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 2 of 6 1 non-retained expert opinion. (ECF Nos. 134; 135). Defendants’ third motion in limine seeks an 2 affirmative order from the court deeming Richards’s 2016 arrest report admissible and not 3 hearsay. (ECF No. 136). 4 II. Legal Standard 5 “The court must decide any preliminary question about whether . . . evidence is 6 admissible.” Fed. R. Evid. 104. Motions in limine are procedural mechanisms by which the 7 court can make evidentiary rulings in advance of trial, often to preclude the use of unfairly 8 prejudicial evidence. United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009); Brodit v. 9 Cambra, 350 F.3d 985, 1004–05 (9th Cir. 2003). 10 “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the 11 practice has developed pursuant to the district court’s inherent authority to manage the course of 12 trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to 13 exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams, 14 939 F.2d 721, 723 (9th Cir. 1991) (affirming district court’s ruling in limine that prosecution 15 could admit impeachment evidence under Federal Rule of Evidence 609). 16 Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler 17 Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 18 (9th Cir. 1999) (“The district court has considerable latitude in performing a Rule 403 balancing 19 test and we will uphold its decision absent clear abuse of discretion.”). “[I]n limine rulings are 20 not binding on the trial judge [who] may always change his mind during the course of a trial.” 21 Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in 22 limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated 23 manner). 24 “Denial of a motion in limine does not necessarily mean that all evidence contemplated 25 by the motion will be admitted [or excluded] at trial. Denial merely means that without the 26 context of trial, the court is unable to determine whether the evidence in question should be 27 excluded.” Conboy v. Wynn Las Vegas, LLC, No. 2:11-cv-1649-JCM-CWH, 2013 WL 1701069, 28 at *1 (D. Nev. Apr. 18, 2013). James C. Mahan U.S. District Judge -2- Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 3 of 6 1 2 III. Discussion A. Defendants’ motion in limine No. 1 3 Defendants seek to exclude evidence of Richards receiving medical treatment for 4 emotional distress. (ECF No. 134). Defendants contend that Richard’s treating physician, Dr. 5 Hanjari, is the only witness who can link Richard’s emotional distress symptoms to the April 21, 6 2015, incident. (Id.). They argue that because Dr. Hanjari will not testify at trial, Richards 7 should be precluded from offering his second-hand recitation of his diagnoses. (Id.). 8 Plaintiff’s counsel concedes that Richards’s medical diagnosis is precluded under the rule 9 against hearsay and claims he will not ask his client to repeat Dr. Hanjari’s diagnoses. (ECF No. 10 142). However, Richards is sufficiently knowledgeable to his own experiences since the 11 incident to testify as to how his condition has affected him. 12 Richards contends that his mental and emotional suffering stemming from his blindness 13 is “garden-variety” emotional distress, which is “simple or usual.” (ECF No. 142); see Roberts 14 v. Clark Cnty. Sch. Dist., 312 F.R.D. 594 (D. Nev. 2016) (distinguishing ordinary or common 15 place emotional distress from complex emotional distress that relies on medical records or expert 16 testimony). 17 distress. Under that definition, Richards is competent to testify to such garden-variety 18 There is no need to categorically prevent Richards from testifying as to his own mental 19 distress and the associated symptoms of which he has first-hand knowledge. Any specific 20 evidentiary objections concerning Richards’s testimony as to his own experiences can be 21 addressed at trial. Therefore, the first motion in limine is denied, although defendants retain the 22 ability to specifically object to testimony offered at trial. 23 B. Defendants’ motion in limine No. 2 24 Defendants next seek to exclude Richards’s ophthalmologist, Dr. Gregory, from 25 testifying as a non-retained expert. (ECF No. 134). Defendants contend Richards did not 26 accurately disclose a statement of facts for Dr. Gregory’s testimony consistent with Fed. R. Civ. 27 P. 26(a)(2)(C). (Id.). They further argue that any supplemental disclosure now would run afoul 28 of the timeliness standard in Fed. R. Civ. P. 26(e). (Id.). James C. Mahan U.S. District Judge -3- Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 4 of 6 1 The procedural posture of this motion is highly relevant. Defendants filed the instant 2 motions in limine on August 26, 2022. (ECF No. 134). However, this case has been pending 3 since 2016 and the prior discovery deadline was September 10, 2018. Because of the significant 4 lapse in time from the close of discovery to now, Richards filed a motion to reopen discovery on 5 August 4, 2022, for the limited purpose of updating his medical treatment history. (ECF No. 6 124). Judge Weksler granted Richards’s motion to reopen discovery on September 8, 2022. 7 (ECF No. 141). 8 The timing of the instant motion and Judge Weksler’s order render this issue resolved. 9 Richards has undergone treatment for his injury in the time since the close of initial discovery. 10 Notably, Dr. Gregory performed eye surgery on Richards on May 9, 2022. The relevance of 11 Richards’s medical treatment to his overall claim justifies the need for supplemental disclosures. 12 Richards contends that once Dr. Gregory’s deposition transcript is available, Richards 13 will have the information necessary to serve a more accurate supplemental disclosure consistent 14 with Fed. R. Civ. P. 26(a)(2)(C). (ECF No. 142). Moreover, defendants have adequate notice 15 and opportunity to conduct their own discovery on this matter and will not be unfairly prejudiced 16 by the supplemental disclosure. Therefore, defendants' second motion in limine (ECF No. 135) 17 is denied, as moot. 18 C. Defendants’ motion in limine No. 3 19 Finally, defendants seek to introduce a report containing information about Richards’s 20 arrest following his release from Ely State Prison. (ECF No. 136). Richards was arrested in Los 21 Angeles County in 2016 for involvement in a prostitution scheme with a minor. (ECF No. 142). 22 According to the arrest record, Richards was operating a motor vehicle at night at the time of 23 arrest. (Id.). 24 Defendants argue that the arrest record is relevant for three reasons: (1) to assess 25 Richards’s alleged blindness considering his night-time driving, (2) to undermine Richards’s 26 future damages as he continues to be involved in criminal conduct, and (3) to demonstrate that 27 Richards’s emotional distress was caused by the 2016 arrest rather than the April 21, 2015, 28 James C. Mahan U.S. District Judge -4- Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 5 of 6 1 incident. (ECF No. 134). Defendants further argue the arrest report falls under the public record 2 exception to the rule against hearsay. (Id.). 3 Richards concedes that the 2016 arrest has some relevance under Fed. R. Evid. 402. 4 (ECF No. 142). However, he claims a substantial portion of the report, including the cause for 5 his arrest, contains unfairly prejudicial information irrelevant to his claim. (Id.). Richards 6 claims he will stipulate to driving at the time of arrest, spending a year in Los Angeles County 7 Jail having pled no contest to a felony, and serving two years in Nevada on a parole violation. 8 (Id.). 9 In Old Chief v. United States, the Court held that it was an abuse of discretion for a 10 district judge to fail to consider an offer to stipulate when the “name or nature of the prior 11 offense raises the risk of a verdict tainted by improper considerations.” Old Chief v. United 12 States, 519 U.S. 172, 191 (1997). The Old Chief Court reasoned that while a prior arrest may be 13 otherwise admissible, where the effect of introducing such evidence raises the risk of unfair 14 prejudice, an offer to stipulate that would accomplish the probative value of the evidence is 15 necessarily worth considering. Id. The court thus takes note of Richards’s objections to the 16 entirety of the arrest record, while acknowledging the defendants’ limited request to deem it 17 exempt from the rule against hearsay. 18 Federal Rule of Evidence 402 provides for the general admissibility of relevant evidence. 19 Fed. R. Evid. 402. Both parties acknowledge the relevance of Richards’s arrest to his alleged 20 blindness. (ECF Nos. 134, 142). Richards predicates his claim for emotional distress on being 21 legally blind. 22 undermines his claim. 23 Thus, the 2016 arrest showing Richards was driving at night substantially The Ninth Circuit holds that district courts should admit law enforcement reports, if at all, 24 only under the public records exception observed by Rule 803(8). 25 Gutierrez, 222 F.3d 1080 (9th Cir. 2000). Rule 803(8) allows the admission of public records 26 “setting forth… matters observed pursuant to duty imposed by law as to which matters there was 27 a duty to report.” Id. The court finds that the arrest record satisfies the public record exception 28 James C. Mahan U.S. District Judge -5- United States v. Pena- Case 2:16-cv-01794-JCM-NJK Document 149 Filed 10/26/22 Page 6 of 6 1 to the rule against hearsay under Rule 803(8) insofar as it relies on the officer’s own 2 observations. 3 Defendants' third motion in limine is thus granted in that the court finds the police report 4 will not be excluded in its entirety as hearsay. See (ECF No. 136 at 9). This does not mean the 5 court deems the report admissible, however, and plaintiff may still object to its admission, as 6 well as to specific statements contained within, on other grounds, including relevance under Rule 7 402, unfair prejudice under Rule 403, and specific hearsay statements within the larger report. 8 IV. 9 Conclusion Accordingly, 10 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motions in 11 limine Nos. 1 and 2 (ECF Nos. 134; 135) be, and the same hereby are, DENIED, consistent with 12 this order. 13 14 15 16 17 18 19 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion in limine No. 3 (ECF No. 136) be, and the same hereby is, GRANTED, consistent with this order. Presently before the court is the matter of Richards v. Cox et al., case number 2:16-cv01794-JCM-BNW. DATED October 26, 2022. __________________________________________ UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-
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