1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL J. HORTON, Case No. 17-cv-01915-JSC

8 Plaintiff,

ORDER FOLLOWING PRETRIAL

9 v. CONFERENCE

10 MOLINA, Defendant. 11

12 13 The Plaintiff, Mr. Horton, asserts that the Defendant, Officer Molina, violated his Eighth 14 Amendment right to not be subjected to excessive force. Mr. Horton alleges that on September 3, 15 2015, while he was incarcerated at Salinas Valley State Prison (“SVSP”), Officer Molina used 16 excessive force while handcuffing Mr. Horton, breaking Mr. Horton’s elbow. Mr. Horton also 17 claims that on that same day, while escorting Mr. Horton back to his cell, Officer Molina struck 18 Mr. Horton’s head against a cell window, causing a laceration to Mr. Horton’s head. Mr. Horton 19 seeks monetary damages against Officer Molina as a result of these incidents. Mr. Horton has the 20 burden of proving these claims. Officer Molina denies Mr. Horton’s claims. (See Dkt. No. 142 at 21 5.) The Court conducted a pretrial conference on October 19, 2022. After carefully reviewing the 22 parties’ briefing and having had the benefit of oral argument, the Court rules as follows and as 23 stated at the pretrial conference. 24 I. MOTIONS IN LIMINE 25 A. Defendant’s Motions 26 1. Motion re: Indemnification (Dkt. No. 140.) 27 Defendant’s motion to exclude evidence that the CDCR will indemnify Defendant for any 1 that a person was or was not insured is not admissible to prove whether the person acted 2 negligently or otherwise wrongfully; see also Larez v. Holcomb, 16 F.3d 1513, 1520 (9th Cir. 3 1994) (holding that district court erred by instructing the jury that the city would likely pay any 4 compensatory damages award). Plaintiff’s insistence that evidence of indemnification is relevant 5 to bias is unpersuasive. The probative value, if any, of such evidence is far outweighed by its 6 prejudicial value. See Fed. R. Evid. 403. 7 2. Plaintiff’s Reference to History of Abuse (Dkt. No. 127) 8 Defendant’s motion to exclude Plaintiff from offering testimony as to his history of abuse 9 is DENIED. Federal Rule of Civil Procedure 403 excludes evidence “if its probative value is 10 substantially outweighed by the danger of the unfair prejudice, confusion of the issues, or 11 misleading the jury, or by considerations of undue delay, waste of time, or needless presentation 12 of cumulative evidence.” “[U]nfair prejudice means [an] undue tendency to suggest decision on an 13 improper basis, commonly, though not necessarily, an emotional one.” U.S. v. Hankey, 203 F.3d 14 1160, 1172 (9th Cir. 2000). 15 “The eggshell skull doctrine, i.e. the defendant takes his victim as he finds him, is a 16 recognized theory in § 1983 cases.” Caruso v. Solorio, 2021 WL 22498, at *26 (E.D. Cal. Jan. 4, 17 2021) (collecting cases). Plaintiff can testify that he was physically abused in the past, that the 18 incident at issue was similar to that abuse, and that the incident brought back trauma and mental 19 distress or made him susceptible to such trauma. However, “extensive and graphic” testimony 20 may create a risk of prejudice. Plaintiff should limit the detail to only such facts as are necessary 21 to make the susceptibility point. See id. 22 As stipulated at the pretrial conference, Plaintiff may discuss his history of depression and 23 past instances of self-harm. However, Plaintiff should avoid citing other specific medical 24 diagnoses, such as post-traumatic stress disorder, which would be based in hearsay. 25 B. Plaintiff’s Motions in Limine

26 1. Evidence of Prior Convictions (Dkt. No. 146) 27 Plaintiff’s motion to exclude evidence of prior convictions—including Exhibits 104, 105, 1 Defendant was unaware of Plaintiff’s criminal history or past disciplinary history at the time of the 2 incident. Thus, the evidence is not relevant and prejudicial and must be excluded. If Defendant 3 believes that Plaintiff has opened the door to such evidence at trial, Defendant should raise the 4 issue with the Court outside the jury’s presence before attempting to offer evidence of prior 5 convictions. 6 2. Evidence of Plaintiff’s Disciplinary History (Dkt. No. 147) 7 Plaintiff’s objection to evidence concerning his disciplinary history as a prisoner at SVSP 8 is GRANTED for the same reasons as his objection to admission of his prior convictions under the 9 conditions proposed by Defendant. Unless Plaintiff opens the door (and the Court rules that he 10 has done so), Defendant should not reference Plaintiff’s disciplinary history before or after the 11 event at issue. Defendant shall not elicit testimony regarding a “fight” or “restraints” that may 12 have caused the 2017 injury, but Defendant may discuss the fact that Plaintiff suffered a 13 subsequent injury. 14 3. Exclude Evidence of CDCR’s Investigation into Allegations (Dkt. No. 15 148) 16 Plaintiff’s motion to exclude evidence of the CDCR’s investigation into Plaintiff’s 17 excessive force complaint arising out of the incident is GRANTED in part. The CDCR’s 18 conclusion that no excessive force was used is inadmissible hearsay. However, Defendant may 19 use Plaintiff’s videotaped statement as it is admissible non-hearsay as a statement of a party 20 opponent. Plaintiff may similarly use statements made by Defendant. At the pretrial conference, 21 the parties agreed to file supplemental briefs as to some investigatory documents. Defendant has 22 filed his brief. The Court will consider the parties’ arguments after Plaintiff responds. 23 C. Daubert Motions 24 Defendant moves to exclude Plaintiff’s use of force expert Bradford Hansen and Plaintiff 25 moves to exclude Defendant’s use of force expert Defoe. 26 Federal Rule of Evidence 702 provides: 27 opinion or otherwise if: (a) the expert's scientific, technical, or other 1 specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on 2 sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the 3 principles and methods to the facts of the case. 4 Trial courts serve a “gatekeeping” role “to ensure the reliability and relevancy of expert 5 testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). “Kumho Tire heavily 6 emphasizes that judges are entitled to broad discretion when discharging their gatekeeping 7 function.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004). A trial 8 court has broad latitude in “determining whether an expert’s testimony is reliable” and “deciding 9 how to determine the testimony's reliability.” Id. 10 Rule 702 should be applied with a “liberal thrust” favoring admission, but it requires that 11 “[e]xpert testimony . . . be both relevant and reliable.” Messick v. Novartis Pharm. Corp., 747 F.3d 12 1193, 1196 (9th Cir. 2014) (citation omitted). If the expert fails to “employ[ ] in the courtroom the 13 same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” 14 her testimony must be excluded. Kumho, 526 U.S. at 152. 15 Trial courts should “not exclude opinions merely because they are impeachable.” City of 16 Pomona v. SQM North America Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (citation omitted). 17 “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and 18 attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 19 2010). The proponent of the expert testimony has the burden of proving admissibility. Lust By & 20 Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 21 1. No Expert may Testify to What the Facts are. 22 Both parties complain that the other party’s expert testifies as to what the facts are, as 23 opposed to giving an opinion on a hypothetical set of facts. Neither expert may testify that the 24 evidence that fact X or fact Y is true; instead, each expert may assume certain facts are true while 25 making it clear they are not giving an opinion on whether those facts are true. This means that 26 each expert should not be citing to or reciting the evidentiary record. 27 2. Ultimate Issue Testimony 1 Neither expert may opine as to the ultimate issue—whether Defendant’s conduct here 2 violated Plaintiff’s rights under the Eighth Amendment. While both experts may use specialized 3 terms such as “excessive force,” “reasonable force,” or “necessary force,” experts should tether 4 those terms to specific CDCR or SVSP regulations, and not the jury instruction standard. 5 3. Hansen 6 Plaintiff’s expert is Bradford Hansen, a former warden and corrections officer trainer. 7 (Dkt. No. 139-5 at 3–5.) Hansen’s testimony covers both “use of force” opinions, (Dkt. No. 139-5 8 ¶¶ 44– 60), and opinions on the conditions and culture at SVSP, (id. ¶¶ 61–87). 9 As to “use of force,” Hansen may explain regulations, best practices, and his experience in 10 corrections. (See id. ¶¶ 45–51.) And he may opine, based on assumed facts, as to whether a 11 particular practice differs from regulations or best-practices based on his experience. (See, e.g., id. 12 ¶ 53 (“if Mr. Horton resisted [in a particular manner], Officer Molina could have stepped back and 13 had another officer step in . . . as CDCR use of force policy requires”; “if Mr. Horton was upset 14 and using obscenities with officers, such conduct does not justify the use of force under applicable 15 policy…”)). And, based on his experience, he may opine that he “cannot recall any occasion in 16 which a corrections officer broke an inmate’s elbow in the process of placing the inmate in 17 restraints.” (Id. ¶ 54.) But, as discussed above and at the pretrial conference, Hansen may not 18 testify as to the facts of what occurred on September 3, 2015. (Id. ¶ 59 (“Officer Molina 19 deliberately sought to escalate the situation to create a physical confrontation with Mr. Horton.”)) 20 Hansen’s opinions as to the conditions and culture at SVSP are excluded. (Id. ¶¶ 61–87.) 21 Any connection between SVSP’s culture and Officer Molina’s subjective intent on September 3, 22 2015, is too remote to allow such testimony. As there is no Monell claim here, any probative 23 value in that testimony is far outweighed by the danger of “confusing the issues” or misleading the 24 jury. Fed. R. Evid. 403. 25 4. Defoe 26 a. Defoe’s Qualifications 27 Defendant’s expert, Scott Defoe, is a former police officer and deputy sheriff. (Dkt. No. 1 2010. (Id. at 28–29.) He served in various roles including patrol officer, detective, and SWAT 2 supervisor. (Id.) From 2010 until 2016, he served as a Reserve Police Officer with the LAPD. 3 (Id. at 28.) During that period, Defoe spent approximately 10 months working as a Deputy Sheriff 4 at Riverside County’s Robert Presley Detention Center—a county jail. (Id. at 27.) He took a 5 “Riverside Sheriff’s Department Jail Operations Course,” which included “Title XV” training for 6 correctional officers. (Id. at 31.) And Defoe oversaw detainee holding areas during his time as a 7 police officer. (Dkt. No. 149-1 at 3.) 8 Plaintiff challenges that Defoe’s extensive expertise in law enforcement does not translate 9 to expertise in corrections. Specifically, Plaintiff argues that correctional officers use force 10 differently from police officers because prisons—unlike the public forum generally—are heavily 11 controlled settings. See Petrolino v. County of Spokane, 2009 WL 10690383 (E.D. Wash. Aug. 14, 12 2009) (finding a police chief not qualified to speak as to correctional matters). 13 The Court disagrees. Defendant’s expert has vast experience regarding use of force. And 14 unlike the police chief expert in Petrolino v. County of Spokane, Defoe has some specialized 15 correctional experience and has received some correctional training. Id. That experience is 16 sufficient. See Fed. R. Evid. 702. While Defendant concedes Defoe’s experience is not as 17 extensive as Plaintiff’s expert, that issue goes to weight rather than admissibility. 18 b. Defoe’s Testimony 19 Defoe may testify regarding his knowledge of best practices, including de-escalation 20 tactics (Dkt. No. 152-4 at 8–1), CDCR regulations (id. ¶ 11–12), and use of force techniques, (id. 21 at 13). And using assumed facts, Defoe may apply his experience to particular hypothetical 22 scenarios. (Id.) But, as with Hansen, Defoe may not testify as to the factual events of September 23 3, 2015. (See, e.g., id. at 19 (“[B]ased on my testimony there is no evidence that Correctional 24 Officer J. Molina, and or Correctional Officer R. Perez slammed Inmate Michael Horton’s face 25 into the wall adjacent to his cell.”) Nor may Defoe opine on Officer Molina’s training at CDCR. 26 (Id. at 19 (“Opinion 4”).) 27 II. Scheduling 1 case to the jury for their deliberations on October 27, 2022. Opening statements will be made on 2 || the first day of trial. Plaintiff shall be prepared to call his first witness(es). The trial day will go 3 from 8:30 a.m. to approximately 4:00 p.m. Counsel shall be in the courtroom beginning at 8:00 4 a.m. each trial day to address any matters that arise. 5 Ill. Time Limits 6 Each party has 7.5 hours for direct and cross-examination. Opening statements may not 7 exceed 30 minutes each side. 8 IT IS SO ORDERED. 9 This Order disposes of Dkt. Nos. 125, 126, 127, 139, 140, 146, 147, 148, 149, 150 10 Dated: October 21, 2022 11

JAQQUELINE SCOTT CORL

13 United States District Judge © 15 16

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