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Cross v. Jaeger

United States District Court, D. Nevada

November 3, 2017

ANTHONY CROSS, Plaintiff,
v.
RON JAEGER, Defendant.

          ORDER (PL.'S MOTION IN LIMINE - ECF NO 426; DEF.'S MOTIONS IN LIMINE - ECF NOS. 438, 439)

          MRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Following summary judgment proceedings, the Court permitted Plaintiff to proceed to trial on counts I, I-A, V, and V-A for First Amendment retaliation based on Defendant's handling of an emergency and refusal to provide Plaintiff with a copy of Disciplinary Form III in September 2011 while Plaintiff was housed at the Southern Desert Correctional Center (“SDCC”). (ECF No. 313 at 11-12; ECF No. 5 at 2-6 & 14-15.) This Order addresses the parties' motions in limine (ECF Nos. 426, 438, 439).

         LR 16-3(a) provides that replies to motions in limine “will be allowed only with leave of the court.” Defendant did not obtain leave of court to file reply briefs in connection with his motions in limine. Accordingly, the Court strikes Defendant's reply briefs (ECF Nos. 455, 456, [1] 458).

         II. LEGAL STANDARD

         A 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). It is a preliminary motion that is entirely within the discretion of the Court. See Luce v. United States, 469 U.S. 38, 41-42 (1984). In limine rulings are provisional. Such “rulings are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner).

         III. PLAINTIFF'S MOTION IN LIMINE (ECF No. 426)

         Plaintiff seeks to exclude any evidence relating to the fact that he was charged with a major violation-“MJ2: Assault and MJ3: Battery”-and relating to any disciplinary actions taken while he has been in custody. (ECF No. 426 at 2-3.) Plaintiff argues that such evidence is irrelevant and prejudicial. (Id.) Defendant counters that evidence relating to the disciplinary hearing is relevant because Plaintiff claims that he would have successfully appealed the notice of charges if he had received a copy of Disciplinary Form III. (ECF No. 436 at 3.) The Court agrees that the charges could be relevant if Plaintiff asserts that argument at trial. However, the Court cannot assess whether to exclude the evidence until that issue is raised at trial. For this reason, the Court denies Plaintiff's motion without prejudice and reserves its ruling. Until this issue is resolved at trial, Defendant will not be permitted to reference the content of the notice of charges.

         The Court grants Plaintiff's request to exclude evidence of other past disciplinary records because Defendant did not address this request in its response. (See ECF No. 436 at 2-3.)

         IV. DEFENDANT'S MOTION IN LIMINE NUMBERS 1-5 (ECF No. 438)

         Defendant raises five motions in limine. (ECF No. 438 at 1-2.) Plaintiff disputes only motions no. 3 and 5. The Court therefore grants motions no. 1, 2, and 4.

         A. Motion in Limine No. 3

         Defendant seeks to preclude Plaintiff from discussing the procedural history of this case or the claims that have been dismissed. (ECF No. 438 at 4-5.) The Court agrees that the Court's rulings and the claims that have been dismissed are not relevant and any probative value is substantially outweighed by the potential for unfair prejudice, confusion, and waste of time. In his response, Plaintiff seems to construe Defendant's motion as a request for the Court to prohibit Plaintiff from referencing Defendant's discovery responses and accordingly provides an example of how Defendant's discovery responses may be used for impeachment purposes. (ECF No. 448 at 2-4.) The Court does not construe Defendant's motion as a request for the Court to prohibit Plaintiff from referencing Defendant's discovery responses, but denies the motion to the extent it constitutes such a request. Accordingly, Plaintiff may refer to Defendant's discovery responses to support his claims regarding any inconsistent positions taken by Defendant in this case.

         B. Motion ...


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