Free Motion in Limine - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Cora Miles UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, Plaintiff, v. Cora Miles and Earl Scalet, Defendants. NO. CV-03-1819-PHX-JAT DEFENDANT CORA MILES' MOTION IN LIMINE NO. 3 TO PRECLUDE PLAINTIFF FROM OFFERING ANY EVIDENCE AT TRIAL ABOUT ANY DEFENDANTS OR CLAIMS PREVIOUSLY DISMISSED BY THE COURT

Defendant Cora Miles, through counsel, hereby moves in limine for the Court to enter and Order precluding Plaintiff from offering evidence at trial regarding claims already dismissed by this Court or as against Defendants no longer part of this lawsuit. This Motion is supported by the following Memorandum of Points and

Authorities and all pleadings on file with the Court. MEMORANDUM OF POINTS AND AUTHORITIES

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BACKGROUND The only issue in that remains in this 42 U.S.C. § 1983 lawsuit is whether

Defendants Miles and Scalet retaliated against Plaintiff's for the filing of grievances and lawsuits. Because Defendant Miles received information that inmates were likely to view

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Plaintiff as a snitch or otherwise would "see that something happened" to Plaintiff, Defendant Miles had Plaintiff placed in administrative detention on protective custody status. Although in Plaintiff's Amended Complaint he also asserted claims against Defendants A. Gluch, Stella Ponce, Frank Garcia, and two Officer John Does, those defendants no longer remain in the case. This Court granted Plaintiff's motion to dismiss Defendant Garcia with prejudice on May 27, 2004. In this Court's August 30, 2006, Order granting in part and denying in part Defendants' Motion for Summary Judgment, this Court granted summary judgment in favor of Defendant Ponce, finding that "her conduct could not be considered retaliatory." See Order dated August 30, 2006 at 6. Likewise, Summary Judgment was granted for Defendants Talamantes and Cason, finding that they were not deliberately indifferent in failing to protect Plaintiff's safety. See id. at 13. Additionally, summary judgment was granted for Defendant Gulch with regard to Plaintiff's due process claims. See id. at 13-14. This Court also dismissed Plaintiff's
Violation of Due Process in Disciplinary Proceedings claim, finding that Plaintiff failed to state a claim upon which relief could be granted. See Order dated June 17, 2004 at 5.

II.

LAW AND ARGUMENT
Defendant Miles anticipates that at trial, Plaintiff will attempt to offer evidence

regarding claims which have already been dismissed by the Court; namely: (1) that Eloy Detention Center officials and corrections officers failed to take reasonable steps to ensure his safety at an INS hearing; (2) allegations that Plantiff was denied due process in the grievance process; and, (3) his due process was violated in subsequent disciplinary proceedings after he had been placed in the Special Housing Unit. Plaintiff's existing claim against Defendant Miles pertains only to her alleged retaliation in placing him in the Special Housing Unit on August 14, 2003 and claims that she told other inmates he was a "snitch." Therefore, Plaintiff cannot causally connect Defendant Miles to any other alleged failure to protect his safety or due process
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rights.

Defendant Miles anticipates that at trial, Plaintiff will attempt to offer evidence regarding claims which have already been dismissed by the Court, namely: (1) This Court must preclude Plaintiff from offering evidence of liability relating to dismissed claims and dismissed Defendants. Such evidence has no "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401, 402. Evidence regarding alleged wrongful conduct by dismissed Defendants or reference to dismissed claims will not aid the jury in determining the only remaining issue in this case which is whether Defendant Miles retaliated against Plaintiff for the filing of lawsuits and grievances by 1) placing him in the Special Housing Unit and 2) telling other inmates that Plaintiff was a "snitch". Moreover, even if relevant, such evidence should be excluded under Rule 403, Fed. R. Evid., because the probative value of such evidence is

outweighed by danger of confusing or misleading the jury and also would result in undue delay and waste of time. See Fed. R. Evid. 403. Permitting the jury to hear Plaintiff complain about incidents which do not pertain to Defendant Miles' alleged wrongful conduct would only result in extreme jury confusion and prejudice to Defendant Miles as the jury may find Defendant Miles liable based upon what other personnel may or may not have done in other instances and under different circumstances. III. CONCLUSION Based upon the foregoing, Defendant Miles respectfully requests this Court to enter an Order precluding Plaintiff for offering evidence in support of dismissed claims and as against dismissed Defendants as such will mislead and confuse the jury as well as delay the completion of trial and waster judicial resources. /// ///
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RESPECTFULLY SUBMITTED this 4th day of December 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Cora Miles CERTIFICATE OF SERVICE I hereby certify that on December 4, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John R. Mayfield U.S. ATTORNEY'S OFFICE 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet ________________________________________________________________ I hereby certify that on December 4, 2006, I served the attached document by: mail on the following, who are not registered participants of the CM/ECF System: Carlos Arthur Powell C/O AMICUS CURIAE ASSOCIATION FOUNDATION ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff

s/Dianne Clark

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