# (PC) Gray v. Clark

> District Court, E.D. California · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10050366

## Case

- **Court:** District Court, E.D. California
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 THOMAS EUGENE GRAY, Case No. 1:20-CV-00196-JLT-SAB (PC)
12 Plaintiff, ORDER REGARDING PARTIES’
MOTIONS IN LIMINE
13 v.
14 KEN CLARK, et al., (Docs. 89, 96, 108)
15 Defendants.
16
17 The parties filed several motions in limine regarding evidence expected to be presented at
18 trial (Docs. 89, 96, 108). The Court finds the matters suitable for decision without oral argument
19 pursuant to Local Rule 230(g) and General Order 618.
20 I. FACTUAL BACKGROUND
21 On April 22, 2018, Thomas Gray was a prisoner housed at Corcoran State Prison, and
22 Defendants Siefken, Hurtado, and Sedillo1 were correctional officers employed by the California
23 Department of Corrections and Rehabilitation (CDCR) at Corcoran. (Doc. 101 at 3.) At
24 approximately 10:00 p.m. on April 22, 2018, Mr. Gray and another inmate were involved in a
25 physical altercation in the dayroom of their housing unit. (Id.) Siefken and Hurtado worked as
26 floor officers and Defendant Sedillo worked as a control booth officer in Mr. Gray’s housing unit.
27

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1 (Id. at 3-4.) The parties agree that Sedillo fired a 40mm round that struck Mr. Gray. (Id. at 4.) All
2 other facts surrounding the incident remain disputed.
3 Mr. Gray contends that he notified Defendants Siefken and Hurtado that he was concerned
4 for his safety before the altercation with the other inmate.2 (Doc. 101 at 4.) Mr. Gray alleges that
5 Siefken’s and Hurtado’s failure to take protective actions and failure to intervene during the
6 attack amount to deliberate indifference to his health and safety. (Id.; Doc. 1 at 1-2.) Mr. Gray
7 asserts that Siefken’s and Hurtado’s failure to intervene to protect him during the attack constitute
8 cruel and unusual punishment, and their actions proximately caused serious physical injuries.
9 (Doc. 1 at 5.) With respect to Sedillo, Mr. Gray alleges that she fired the 40 mm round while he
10 was lying face down on the floor, and her actions amount to excessive force and intentional and
11 wanton infliction of unnecessary pain upon Mr. Gray. (Id. at 5-6.) Defendants deny Mr. Gray’s
12 allegations and deny that any of their actions proximately caused any injuries he sustained from
13 the altercation. (Doc. 101 at 4, 16.)
14 Following the altercation on April 22, 2018, medical staff evaluated Mr. Gray and
15 documented his injuries on a CDCR Form 7219. (Doc. 101 at 4.) CDCR issued Mr. Gray a rules
16 violation report for fighting with another inmate. (Id.) On May 24, 2018, a CDCR senior hearing
17 officer found Mr. Gray guilty of the rules violation report, which resulted in a 90-day good-time
18 credit loss. (Id.)
19 On November 2, 2022, in anticipation of trial, Mr. Gray filed a motion in limine. (Doc.
20 89.) On November 14, 2022, Defendants file their own motions in limine and an opposition to
21 Mr. Gray’s motion. (Doc. 96.) Mr. Gray did not file an opposition; however, he met with counsel
22 for Defendants prior to the file of their motions and indicated his opposition to two of their four
23 requests. (See Doc. 96-1 at 2.) On January 9, 2023, Defendants submitted two additional motions
24 in limine regarding Mr. Gray’s newly submitted exhibits, in accordance with the Court’s order.
25 (Doc. 101; Doc. 108.) Mr. Gray likewise did not file an opposition to these additional motions but
26 indicated to counsel that he objected to them. (See Doc. 108 at 2.)
27

28 2 In Mr. Gray’s original complaint, he alleges three other inmates attacked him. (Doc. 1 at 2.) However, the stipulated
1 II. LEGAL STANDARDS GOVERNING MOTIONS IN LIMINE
2 “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the
3 practice has developed pursuant to the district court’s inherent authority to manage the course of
4 trials.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). The Ninth Circuit explained motions in
5 limine allow parties to resolve evidentiary disputes ahead of trial “before attempted use of the
6 evidence before the jury.” United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009).
7 Importantly, motions in limine seeking the exclusion of broad categories of evidence are
8 disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).
9 The Court “is almost always better situated during the actual trial to assess the value and utility of
10 evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). The Sixth Circuit
11 explained, “a better practice is to deal with questions of admissibility of evidence as they arise [in
12 trial]” as opposed to ruling on a motion in limine. Sperberg, 519 F.2d at 712. Nevertheless,
13 motions in limine are “an important tool available to the trial judge to ensure the expeditious and
14 evenhanded management of the trial proceedings.” Jonasson v. Lutheran Child & Family
15 Services, 115 F.3d 436, 440 (7th Cir. 1997).
16 “[A] motion in limine should not be used to resolve factual disputes or weigh evidence,”
17 C & E Services, Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D. D.C. 2008), because that is the
18 province of the jury. See Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150 (2000). The
19 Court will bar use of the evidence in question only if the moving party establishes that the
20 evidence clearly is not admissible for any valid purpose. Jonasson, 115 F. 3d at 440.
21 For example, under the Federal Rules of Evidence, irrelevant evidence is not admissible.
22 Fed. R. Evid. 402. To determine that evidence is relevant, the Court must find “(a) it has a
23 tendency to make a fact more or less probable than it would be without the evidence; and (b) the
24 fact is of consequence in determining the action.” Fed. R. Evid. 401. Nevertheless, relevant
25 evidence may be excluded “if its probative value is substantially outweighed by the danger of one
26 or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
27 wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
28 The rulings on the motions in limine made below do not preclude either party from raising
1 the admissibility of the evidence discussed herein, if the evidence adduced at trial demonstrates a
2 change of circumstances that would make the evidence admissible, such as for impeachment or if
3 the opponent opens the door to allow for its admissibility. If this occurs, the proponent of the
4 evidence SHALL raise the issue with the Court outside the presence of the jury. The rulings
5 made here are binding on all parties and their witnesses and not merely on the moving party.
6 III. DISCUSSION
7 A. Mr. Gray’s Motion in Limine
8 Mr. Gray seeks to exclude evidence of his prior felony convictions. (Doc. 89.) Defendants
9 oppose his motion and intend to introduce Mr. Gray’s conviction for first-degree burglary and
10 assault. (Doc. 96 at 9-10.) The Federal Rules of Evidence permit evidence of a witness’s prior
11 felony convictions (i.e., crimes which are punishable by death or by imprisonment for more than
12 one year), if that conviction occurred within the last ten years or the release from confinement
13 occurred within the last ten years, whichever is later. Fed. R. Evid. 609(a)-(b). Mr. Gray contends
14 that he “received his latest felony conviction on 12/6/2012.” (Doc. 89 at 2.) With their opposition,
15 Defendants submitted Mr. Gray’s abstract of judgment which shows that his convictions for first-
16 degree burglary and assault were entered on December 6, 2013. (Doc. 96-1 at 6.) Therefore, the
17 evidence reveals that Mr. Gray’s felony convictions occurred within the last ten years. Even if the
18 conviction occurred in 2012 as Mr. Gray contends, he does not dispute that he remains in
19 confinement due to these convictions. (Doc. 1 at 11; Doc. 101 at 1.) Thus, Mr. Gray’s convictions
20 for first-degree burglary and assault qualify under the ten-year limit of Rule 609.
21 In addition to the fact of Mr. Gray’s felony convictions, Defendants seek to introduce the
22 statutory name of the convictions (i.e., first-degree burglary and assault), the enhanced penalty
23 imposed for his prior conviction of a strike felony, and the length of his sentence. (Doc. 96 at 9.)
24 The Rules allow evidence of the fact that a witness suffered a relevant felony conviction but not
25 information about the nature or surrounding circumstances of the felony conviction unless the
26 conviction directly bears on issues of credibility. Crowley v. EpiCept Corp., 2015 WL 13827913,
27 at *4 (S.D. Cal. Mar. 9, 2019) (“Any facts surrounding the felony conviction, however, are
28 deemed inadmissible because the probative value of this evidence is substantially outweighed by
1 the danger of unfair prejudice, confusing the issues, and misleading the jury.”). “[A]bsent
2 exceptional circumstances, evidence of a prior conviction admitted for impeachment purposes
3 may not include collateral details and circumstances attendant upon the conviction.” United States
4 v. Sine, 493 F.3d 1021, 1036 n. 14 (9th Cir. 2007) (quoting States v. Rubio, 727 F.2d 786, 797 n.5
5 (9th Cir. 1983).
6 First, regarding the statutory names of Mr. Gray’s felony convictions, the specific offenses
7 provide little to no probative value in comparison to the potential prejudice to Mr. Gray.
8 Defendants rely on United States v. Osazuwa, 564 F.3d 1169 (9th Cir. 2009) to support their
9 contention that the essential facts of the conviction, including the statutory name of each offense
10 and sentence length, is admissible. (Doc. 96 at 9.) In Osazuwa, the Ninth Circuit considered the
11 scope of admissibility for crimes involving dishonesty or false statement under Rule 609(a)(2),
12 which allows for both misdemeanor and felony convictions. Osazuwa, 564 F.3d at 1175. Mr.
13 Gray’s convictions for burglary and assault do not implicate an act of dishonesty or false
14 statement but rather their admissibility arises under Rule 609(a)(1), which only allows for felony
15 convictions. Unlike crimes of dishonesty or false statement, where the impeachment value exists
16 in the nature of the crime, the impeachment value for a felony under Rule 609(a)(1) only derives
17 from the mere fact of conviction. See United States v. Cabrera, 201 F.3d 1243, 1246 n.2 (9th Cir.
18 2000). Moreover, because Mr. Gray’s convictions implicate prior acts of violence and his current
19 claims involve disputed facts of a violent incident, the names of his convictions pose a significant
20 risk of unfair prejudice by suggesting he has a propensity for violence. See Fed. R. Evid.
21 404(b)(1) (“Evidence of any other crime, wrong, or act is not admissible to prove a person’s
22 character in order to show that on a particular occasion the person acted in accordance with the
23 character.”). Given that the statutory names of the convictions could cause greater prejudice than
24 their probative impeachment value, Defendants may only introduce evidence of the fact that Mr.
25 Gray suffered prior convictions but not that those convictions were first degree burglary and
26 assault. See Edwards v. Bratton, 2016 WL 1588398, at *5 (E.D. Cal. Apr. 20, 2016) (“[E]vidence
27 of the particular crimes for which Plaintiff was convicted is not allowed, as this evidence is more
28 prejudicial than probative.”).
1 Second, regarding Defendants’ request to admit evidence of Mr. Gray’s sentence, “[t]here
2 is some disagreement about whether the length of sentence is covered by Rule 609.” Ioane v.
3 Spjute, 2020 WL 2793073, at *6 (E.D. Cal. May 29, 2020). The Ninth Circuit has suggested that
4 only statements that confirm the conviction qualifies as a Rule 609 felony are admissible. See
5 Osazuwa, 564 F.3d at 1175 (“[O]nly the prior conviction, its general nature, and punishment of
6 felony range [are] fair game for testing the defendant’s credibility”). In this district, courts
7 typically find the prejudicial effect of a specific sentence length outweighs any probative value,
8 unless the sentence length bears on a relevant issue. See Scott v. Palmer, 2015 WL 13323123, at
9 *1 (E.D. Cal. Sep. 30, 2015) (“Given that the probative value of the precise length of his sentence
10 is low, the Court finds that the probative value is substantially outweighed by unfair prejudice and
11 Defendants’ inquiry shall be limited to establishing that Plaintiff is serving a lengthy prison
12 sentence.”); see also Venable v. Patel, 2022 WL 902835, at *1 (E.D. Cal. Mar. 28, 2022)
13 (prohibiting defendants from introducing evidence about the “nature of the crime or the length of
14 sentence being served”); but see Jacobs v. Alexander, 2015 WL 8010537, at *5 (E.D. Cal. Dec. 7,
15 2015) (permitting evidence of plaintiff’s life sentence without parole because the sentence length
16 demonstrated that the plaintiff had no incentive to tell the truth). Defendants have not explained
17 what, if any, probative value Mr. Gray’s fifteen-year sentence has. Therefore, Defendants may
18 not introduce evidence or elicit questions about the precise length of his sentence.
19 Third, Defendants are precluded from introducing evidence regarding the enhanced
20 penalty on Mr. Gray’s conviction for similar reasons as previously stated. Defendants have not
21 proffered any probative value of the enhancement, and its admission into evidence risks unfair
22 prejudice. The enhancement relates to a prior conviction for a “strike felony,” implicating a
23 propensity for violence. (Doc. 96 at 9.) In addition, the conviction for this “strike felony” likely
24 occurred outside the ten-year limit of Rule 609(b), given that the burglary and assault convictions
25 occurred at least nine years ago, and the strike felony occurred prior to those convictions. The
26 agedness of the conviction underlying the enhancement further weighs against admissibility.
27 Accordingly, Mr. Gray’s motion in limine is GRANTED in part and DENIED in part.
28 Defendants may introduce the fact that he suffered felony convictions and that he is currently
1 serving a sentence for those convictions, but they may not admit evidence of the name or nature
2 of the crime, the precise length of his sentence, or information about the sentence enhancement.
3 B. Defendants’ Motions in Limine
4 1. Evidence Relating to Dismissed Claims and Dismissed Defendants
5 Defendants seek to exclude any evidence relating to claims or defendants that have been
6 dismissed. (Doc. 96 at 4-5.) On March 31, 2020, the Court dismissed Mr. Gray’s claim against
7 Warden Clark alleging failure to train Siefken, Hurtado, and Sedillo because the complaint did
8 not state a cognizable claim. (Doc. 10; Doc. 11.) On November 4, 2021, the Court denied Mr.
9 Gray’s request to amend his complaint to add a denial of due process claim based on the
10 Defendants’ allegedly falsifying disciplinary reports against Mr. Gray. (Doc. 84; Doc. 91.)
11 Although not entirely clear in Mr. Gray’s request to amend his complaint, Defendants explained
12 that the allegedly falsified reports concern the same incident giving rise Mr. Gary’s excessive
13 force claims. (Doc. 96 at 4.) Mr. Gray does not oppose Defendants’ motion in limine insofar as it
14 seeks to exclude evidence regarding his claims against Warden Clark. (Id. at 5.)
15 Evidence which is not relevant to any existing claim is not admissible. Fed. R. Evid. 402.
16 Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be
17 without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid.
18 401. Because evidence relating to the previously alleged failure to train claim against Warden
19 Clark is not probative of whether the remaining Defendants used excessive force during the
20 incident giving rise to Mr. Gray’s claims, such evidence is inadmissible. However, evidence or
21 testimony about the alleged falsifications of reports concerning that incident may be relevant to
22 Mr. Gray’s still-pending claims. For example, Defendants indicated they intend to introduce
23 documentation that corroborates their account of the incident allegedly giving rise to Mr. Gray’s
24 injuries. (Doc. 96 at 10.) Evidence that the documentation is falsified bears on the credibility of
25 Defendants’ testimony. (See id.) Thus, it may be relevant for impeachment or rebuttal.
26 Accordingly, Mr. Gray may present testimony or evidence relating to the falsification of incident
27 reports but only if Defendants introduce it and only for the purposes of impeachment or to rebut
28 Defendants’ presentation of evidence. He may not present other evidence or argument relating to
1 the denial of due process claim. Defendants’ motion in limine is GRANTED in part and
2 RESERVED in part as outlined above.
3 2. Opinion Testimony by Mr. Gray
4 Defendants seek to prevent Mr. Gray from giving opinion testimony regarding the
5 appropriateness of Defendants’ use of force and medical or mental health opinions, such as
6 diagnosis, prognosis, and causation of alleged injuries. (Doc. 96 at 5-6.) However, Defendants do
7 not seek to preclude Mr. Gray from testifying regarding what he observed, experienced, or felt
8 during or after the incident. (Id.) Under Federal Rule of Evidence 701, a lay witness may testify
9 to opinions that are: (1) “rationally based on the witness’s perception;” (2) “helpful to clearly
10 understanding the witness’s testimony or to determining a fact in issue;” and (3) “not based on
11 scientific, technical, or other specialized knowledge” within the scope of expert testimony. See
12 Fed. R. Evid. 701, 702.
13 For this reason, courts do not allow lay witnesses to testify as to the cause, effect,
14 diagnosis or prognosis of their injuries, because such opinions require testimony from a medical
15 expert. See Howell v. Burns, 2021 WL 4975187, *7 (E.D. Cal. Oct. 26, 2021) (prohibiting
16 plaintiff from testifying “regarding a diagnosis, prognosis, opinions, inferences, or causation of
17 his alleged injuries as he has no medical expertise, training, or education”). Accordingly, Mr.
18 Gray is precluded from testifying about medical opinions related to his alleged injuries. However,
19 Mr. Gray may testify about his own personal experiences, including how he felt before and after
20 his alleged injuries, his symptoms or any physical limitations he experienced. See Stevenson v.
21 Holland, 504 F. Supp. 3d 1107, 1121 (E.D. Cal. 2020) (“But lay witnesses can testify as to
22 perceived symptoms (i.e., what is felt, exhibited, or experienced over time) and how a condition
23 affects one’s ability to function.”).
24 Regarding opinions on the use of force, Defendants argue that any opinions by Mr. Gray
25 about whether the force used by Defendants was “reasonable, necessary, and appropriate” also
26 constitute improper expert opinion. (Doc. 96 at 8.) Lay witnesses may not give opinions that
27 embrace the legal test for excessive force, including whether it was excessive, unreasonable, or
28 greater than necessary. See Tan v. City & County of San Francisco, 2010 WL 726985, at *3 (N.D.
1 Cal. Feb. 26, 2010) (granting a motion in limine to exclude a lay witness’ opinion about “whether
2 force used by Defendants was excessive, unreasonable, or greater than necessary,” finding it
3 “constitutes expert witness testimony”); see also Sienze v. Kutz, 2019 WL 1332184, at *2 (E.D.
4 Cal. Mar. 25, 2019) (“What is clear is that witnesses may not make an opinion as to whether or
5 not a legal test (in this case whether the force used was excessive) is met.”). However, lay witness
6 may testify about their observations of an incident of excessive force. See Chien Van Bui v. City
7 & Cnty. of San Francisco, 2018 WL 1057787, at *7 (N.D. Cal. Feb. 27, 2018) (“Lay witnesses
8 may testify as to what they saw and the situation as they perceived it, but they may not testify as
9 to conclusions of whether the force the defendants used was excessive, unreasonable, or greater
10 than necessary”). These observations may include testimony about the nature and extent of the
11 force used, such as whether participants were acting aggressively or threateningly. Sanchez v.
12 Jiles, 2012 WL 13005996, at **17-18 (C.D. Cal. June 14, 2012); see also McMurray v. Cnty. of
13 Sacramento, 2012 WL 169872, at *3 (E.D. Cal. Jan. 19, 2012) (denying as moot the motion to
14 preclude opinion about whether excessive force was used because plaintiff stated she does not
15 intend to offer her opinion about “whether the use of force was improper, but she will state her
16 observations in this regard”).
17 Defendants seemingly recognize this distinction because they “do not seek to preclude
18 Plaintiff from testifying about matters within his personal knowledge.” (Doc. 96 at 6.) Mr. Gray
19 also acknowledged he has the “ability to testify about what he felt, heard, and experienced.” (Id.)
20 In view of the Court’s guidance above and the parties’ understanding that Mr. Gray can testify
21 about his observations of the use of force and how his injuries felt, Defendants’ motion in limine
22 is GRANTED.3
23 3. Evidence of Other Allegations of Defendants’ Misconduct
24 Defendants seek to exclude any testimony and evidence regarding Defendants or CDCR
25 staff witnesses’ involvement in other lawsuits, claims, or incidents of alleged misconduct. (Doc.
26 96 at 7-8.) Defendants argue that the prior instances of alleged misconduct would be improper
27

28 3 Nothing in this order prevents Mr. Gray, when acting as his own attorney such as during his closing argument, from
1 character evidence under Rule 404(b), and that the danger of unfair prejudice, confusion of issues,
2 and waste of time outweighs any relevance under Rule 403. (Id.) Federal Rule of Evidence 404(b)
3 prohibits the use of prior bad acts to prove a person’s character to show that the person acted in
4 accordance with that character trait on a particular occasion. Under this rule, evidence of
5 defendant officers’ prior misconduct, such as their disciplinary records and history of complaints,
6 are often considered inadmissible as improper character evidence. See Bryant v. Gallagher, 2016
7 WL 5846987, at *2 (E.D. Cal. Oct. 5, 2016); see also Edwards, 2016 WL 1588398, at *3
8 (granting motion in limine to preclude plaintiff from questioning defendants about their personnel
9 records because other inmate’s complaints against defendants are irrelevant and improper
10 propensity character evidence under 404(b)).
11 Although some exceptions to Rule 404(b) exist, which permit the introduction of prior
12 instances of sufficiently similar misconduct4, Mr. Gray indicated he does not oppose Defendants’
13 request and did not specify which records, if any, qualify for admission under an exception. (Doc.
14 96-1 at 2.) Accordingly, the Court GRANTS Defendant’s motion in limine.
15 4. Evidence of State as Payor of Judgment
16 Defendants seek to preclude testimony and evidence that demonstrates that the State of
17 California may be liable to pay any judgment imposed or reimburse Defendants for such
18 judgment. (Doc. 96 at 8.) Under Federal Rule of Evidence 411, whether a person was insured at
19 the time that a party incurred harm is inadmissible to prove liability. The State of California is
20 required to indemnify its employees, at their request, in litigation arising from the course and
21 scope of the employment. Cal. Gov’t Code § 825. Courts typically preclude evidence related to
22 the potential financial repercussions on state or federal government defendants, including “any
23 statements about the State of California’s finances, taxpayers paying a judgment, or how much it
24

25 4 Evidence of prior bad acts may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,
identify, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). If the prior misconduct has sufficient
26 similarity to the current claims, defendant officers’ disciplinary records may be relevant to show “the defendant
officers’ credibility, motive and patterns of behavior.” Zackery v. Stockton Police Dept., 2007 WL 1655634, at *2
27 (E.D. Cal. June 7, 2007); see Harris v. German, 2019 WL 4640503, at *8 (E.D. Cal. Sep. 24, 2019) (“In an excessive
force case such as this, the relevance and discoverability of officers’ disciplinary records, including unfounded
28 complaints and allegations of misconduct, are widely recognized.”); Henderson v. Lizzaraga, 2020 WL 6820775, at
1 would cost the state” to provide compensatory relief. Emery v. Harris, 2014 WL 467081, at *5
2 (E.D. Cal. Feb. 5, 2014). Mr. Gray does not oppose this request. The motion is GRANTED.
3 5. Mr. Gray’s Grievance History
4 Defendants seek to exclude Mr. Gray’s grievance history at CDCR. (Doc. 108 at 4.) The
5 documents within this request include his grievance history report (Doc. 70 at 4), CDCR Form
6 602 grievance documents (id. at 34-37), institutional responses to his grievances (id. at 38-44,
7 51), and several CDCR Form 22 documents (inmate requests for an item, interview, or service)
8 regarding his grievance attempts (id. at 3, 5-8, 45). (Doc. 108 at 4.) Defendants argue that Mr.
9 Gray’s use of the prison’s administrative grievance process is irrelevant to his Eighth Amendment
10 claims because it is not probative of whether Sedillo used excessive force or whether Siefken and
11 Hurtado failed to protect him from harm on April 22, 2018. (Id. at 4-5.) Pursuant to Federal Rule
12 of Evidence 401, 402, and 403, Defendants request these documents be excluded. (Id.)
13 Defendants also contend, but without any additional explanation, that the documents are
14 “impermissible hearsay under Federal Rule of Evidence 802.” (Id. at 5.)
15 Generally, an inmate’s grievances which demonstrate he exhausted the administrative
16 process are irrelevant to the plaintiff’s claims arising from the incident. See Zavala v. Chrones,
17 2013 WL 486280, at *5 (E.D. Cal. Feb. 6, 2013) (“As a practical matter, the administrative
18 grievance process after the assault and prior to the instant action is irrelevant to the underlying
19 question of whether Defendants were deliberately indifferent to Plaintiff’s safety.”); Thomas v.
20 Garcia, 2013 WL 3773861, at *4 (E.D. Cal. July 17, 2013) (“Plaintiff’s inmate grievances solely
21 demonstrate that Plaintiff exhausted his administrative as required by the Prison Litigation
22 Reform Act, which is no longer at issue.”). However, the inmate’s contemporary account of the
23 incident, set forth in an administrative complaint, may be relevant and admissible to rehabilitate
24 the inmate’s testimony at trial, if refuted by the defendants. See Federal Rule of Evidence
25 801(d)(1)(B). Under Federal Rule of Evidence 801(d)(1)(B), a proponent may offer a testifying
26 witness’s prior consistent statement to (1) “rebut an express or implied charge that the declarant
27 recently fabricated it or acted from a recent improper influence or motive in so testifying” or (2)
28 to “rehabilitate the declarant’s credibility as a witness when attacked on another ground.”
1 Defendants broadly argue that Mr. Gray’s entire grievance history is irrelevant. However,
2 Mr. Gray’s CDCR Form 602 contains his recollection of the incident on April 22, 2018, shortly
3 after it occurred. (Doc. 70 at 34-37.) Mr. Gray’s prior consistent statements are not admissible as
4 part of his initial testimony or on direct examination because they would be unduly cumulative of
5 his testimony during trial. See Fed. R. Evid. 403. However, should Defendants seek to impeach
6 Mr. Gray’s truthfulness as to this or another matter, Mr. Gray may introduce his CDCR Form 602
7 form to rebut an attack on his testimony or to rehabilitate an attempt to impeach the truthfulness
8 of his testimony.
9 The remaining portions of Mr. Gray’s grievance history, however, are inadmissible. First,
10 Mr. Gray’s grievance history report shows complaints he filed before the April 2018 incident.
11 (Doc. 70 at 4.) Portions of the inmate’s grievance history, before the incident, may evince notice
12 to prison officials and may support a claim for deliberate indifference to known risk. See Zavala,
13 2013 WL 486280, at *5 (finding a grievance filed prior to the incident was admissible because it
14 showed notice to the prison staff of the plaintiff’s safety concerns). However, the history report
15 merely includes the dates of Mr. Gray’s prior grievances and does not explain the substance of
16 those complaints such that the Court can assess if the prior complaints might relate to notice of
17 the April 2018 incident. (Doc. 70 at 4.) Moreover, Mr. Gray’s complaint does not allege that he
18 gave any written notice to Defendants prior to the attack. (Doc. 1 at 1.) Because he simply alleges
19 that he “verbally inform[ed] prison official of concerns for his safety,” the Court concludes Mr.
20 Gray’s history of grievances prior to the April 2018 incident do not relate to the notice element of
21 his failure-to-protect claim. (See id.)
22 Second, the institutional responses to his grievances (Doc. at 38-44, 51) have no relevance
23 to the claims. The prison administration’s decision regarding Mr. Gray’s complaint and his
24 appeals is irrelevant to whether Sedillo used excessive force and whether Siefken and Hurtado
25 failed to protect Mr. Gray from harm. Furthermore, jurors may give undue weight to decisions by
26 administrative officials regarding the factual circumstances that they must independently
27 evaluate. United States v. Wiggan, 700 F.3d 1204, 1211 (9th Cir. 2012) (“[J]urors are likely to
28 defer to findings and determinations relevant to credibility made by an authoritative, professional
1 factfinder rather than determine those issues for themselves”). Under Federal Rule of Evidence
2 403, any relevance of the institutional responses is outweighed by this prejudicial effect.
3 Finally, Mr. Gray’s several CDCR Form 22 documents (inmate requests for an item,
4 interview, or service) regarding his grievance attempts likewise lack relevance. (Doc. at 3, 5-8,
5 45). None of the documents appear to contain any statements directly regarding the April 2018
6 incident but rather concern grievances about the prison’s handling of Mr. Gray’s initial complaint
7 following the incident. (Id.) Even if improper, the prison’s procedures for processing Mr. Gray’s
8 complaint after the incident have no probative value to whether the Defendants violated Mr.
9 Gray’s rights and caused Mr. Gray’s alleged injuries on April 22, 2018. Accordingly, Defendants’
10 request is DENIED as to Mr. Gray’s CDCR Form 602 and GRANTED as to all remaining
11 portions of Mr. Gray’s grievance history.
12 6. Mr. Gray’s Office of Internal Affairs Letters
13 Defendants seek to exclude Mr. Gray’s post-incident correspondence with the Office of
14 Internal Affairs (Doc. 70 at 45-60).5 (Doc. 108 at 6-7.) Defendants argue the correspondence with
15 Internal Affairs is irrelevant under Rules 401 and 402. (Id.) With respect to the responses from
16 Internal Affairs, Defendants further argue that the responses constitute hearsay under Federal
17 Rule of Evidence 802 and Mr. Gray lacks a foundation for the responses because he “has not
18 listed the authors of the responses as witnesses to testify at trial.” (Id.)
19 Regarding the responses from Internal Affairs, the Court agrees they are inadmissible.
20 (Doc. 70 at 49-50.) The responses include information about how Internal Affairs processed Mr.
21 Gray’s complaints but do not include any factual details about the April 2018 incident. (Id.) The
22 Internal Affairs’ conclusion that the CDCR staff did not violate CDCR policy in their review of
23 Mr. Gray’s administrative grievances has little, if any relevance, to whether Defendants’ violated
24 Mr. Gray’s rights during the April 2018 incident. See Fed. R. Evid. 401; see also Branch v.
25 Umphenour, 2017 WL 220129, at *8 (E.D. Cal. Jan. 18, 2017) (finding the results of the internal
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27 5 Defendants listed page 45 of Mr. Gray’s proposed exhibit list both as part of his grievance history and as part of his
correspondence with Internal Affairs. The document appears more likely to be part of Mr. Gray’s miscellaneous
28 requests in his CDCR Form 22 because he asks for a polygraph examination. (Doc. 70 at 45.) Regardless, the
1 affairs investigation irrelevant to whether defendants failed to protect the plaintiff during the
2 incident subjected to the investigation). Even if relevant, the statements contain inadmissible
3 hearsay, and Mr. Gray lacks a witness who might be able to lay a foundation for a hearsay
4 exception. See Fed. R. Evid. 801, 803(6).
5 Mr. Gray’s letter that he sent to Internal Affairs, however, may be relevant for purposes of
6 rebuttal and rehabilitation. (Doc. 70 at 46-48.) Mr. Gray’s letters to Internal Affairs, if written
7 before a motive to fabricate arose, may explain his version of the events that occurred on April
8 22, 2018, including Siefken’s and Hurtado’s failure to intervene during the attack and Sedillo’s
9 use of the alleged excessive force. (Id.) As explained above with respect to Mr. Gray’s CDCR
10 Form 602, his prior consistent statements that recount Defendants’ actions during the April 2018
11 incident may be relevant and admissible if Defendants attempt to impeach Mr. Gray’s
12 truthfulness of his testimony during trial. Under Federal Rule of Evidence 801(d)(1)(B), Mr. Gray
13 may use the letters to Internal Affairs to “rebut an express or implied” challenge to the
14 truthfulness of his testimony of the events on April 22, 20218 or to rehabilitate an attack to his
15 credibility as a witness. However, Mr. Gray may not introduce his letters to Internal Affairs
16 during his initial testimony or on direct examination because it would be unduly cumulative of his
17 testimony during trial. See Fed. R. Evid. 403. Accordingly, Defendants’ motion is GRANTED in
18 part and DENIED in part as detailed above.
19 IV. ORDER
20 Based on the foregoing, the Court ORDERS:
21 1. Mr. Gray’s motion in limine (Doc. 89) is GRANTED in part and DENIED in
22 part.
23 2. Defendants’ motions in limine (Doc. 96) are GRANTED in part and
24 RESERVED in part.
25 ///
26 ///
27 ///
28 ///
1 3. Defendants’ motions in limine (Doc. 108) are GRANTED in part and DENIED
2 in part.
3
4 IT IS SO ORDERED.
5 | Dated: _ February 7, 2023 Cerin | Tower
TED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10050366. Public record. Not legal advice.