Free Motion in Limine - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendants. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION IN LIMINE REGARDING PLAINTIFF'S PSB INVESTIGATION CLAIM

Defendants City of Phoenix, Griffin, Monson, Lynde and Dunn, through counsel, submit this Motion in Limine to preclude at trial any evidence of Plaintiff's Professional Standards Bureau ("PSB") Investigation claim. Defendants' Motion is supported by the following Memorandum of Points and Authorities, exhibits attached hereto and any oral argument the Court may hold in this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. A. Factual Background.

Plaintiff was arrested for domestic violence assault of her grandson and resisting arrest on June 10, 2002. During the course of Plaintiff's arrest, she struggled
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with the officers and resisted. As a result, the officers had to use the police authorized technique of the arm bar hold in order to facilitate handcuffing. Pursuant to police policy, a "Use of Force/Injured Prisoner" report was completed after Plaintiff's arrest by supervisor Eric Wykoff. This type of report is

prepared any time a suspect/inmate clams injury or when force is used on or by a suspect/inmate. In the report, the event was described as follows: Officers attempted to take Theresa August into investigative custody for a domestic violence assault. Officer Griffin took hold of her left arm and notified her that she was under investigative detention. Theresa twisted her upper body breaking free from his hold. She notified the officers that she was leaving and they could not detain her. Officer Griffin took hold of her left arm again, placing it behind her back. Officer Monson took hold of her right arm. Theresa pushed against Officer Monson causing him to be pushed against the wall. Theresa continued to flail her body and actively attempted to strike Monson with her knees. Officers Dunn and Lynde became involved in an attempt to restrain Theresa. The four officers placed Theresa against a wall of the residence and arranged to handcuff her behind her back. No obvious signs or symptoms of injury were immediately present. Post arrest Theresa complained of pain to her right elbow area. Phoenix Fire responded for treatment at the scene. She was taken to Maricopa Medical Center by police and treated for a dislocated right elbow.1 Sgt. Wyckoff notified PSB, the department responsible for investigating complaints against police, of the possible claim by Plaintiff regarding the officers' use of force. He did so even though, Plaintiff did not formally complain to any investigative officer regarding the incident. Officer Cecil Jackson advised Sgt. Wyckoff that Plaintiff "may" be complaining of the alleged use of excessive force.
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See Use of Force Report, attached hereto as Exhibit 1.
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Sergeant Tomory of PSB was assigned as the lead investigator for the case. On July 31, 2002, he contacted Plaintiff to discuss the incident. As is routine, Sgt Tomory recorded the call.2 Plaintiff advised Sergeant Tomory that she had a lawyer and would not discuss the incident, he would have to go through her lawyer. Plaintiff advised of her lawyer's name and told Sergeant Tomory to contact the lawyer. On July 31, 2002, Sergeant Tomory called Plaintiff's attorney, Daniel Treon. Once again, the call was recorded.3 Sergeant Tomory explained that he was conducting an investigation and needed to talk to Mrs. August. During the call, Mr. Treon advised that he would not allow his client to speak with Tomory. Mr. Treon confirmed this in writing on October 14, 2002.4 The investigation was thereafter put on hold based on Mr. Treon's refusal to allow Plaintiff to speak with Sergeant Tomory regarding the facts and circumstances surrounding her arrest on June 10, 2002. To date, Mr. Treon has not allowed his client to be interviewed by Sergeant Tomory. Sergeant Tomory was deposed on January 18, 2005. During the deposition, Plaintiff's attorney asked questions regarding Sergeant Tomory's investigation into this matter, including, but not limited to: (1) how Sergeant Tomory investigated Plaintiff's "claims" of abuse; (2) what documents he reviewed during his attempts to investigate Plaintiff's "claims" of abuse; (3) whether Sergeant Tomory should have reviewed other documents or interviewed other individuals regarding Plaintiff's "claims" of abuse; (4) whether the City of Phoenix properly or improperly retained the radio transmissions of the Defendant officers in this matter; (5) why and how static occurred on several taped transmissions between Sergeant Tomory and Plaintiff's attorney; (6) whether the PSB tracking log and all paperwork had been completed correctly; (7) whether Sergeant
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See transcript of this interview, attached hereto as Exhibit 2. See transcript of this interview, attached hereto as Exhibit 3. 4 See correspondence, attached hereto as Exhibit 4.
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Tomory should have further investigated Plaintiff's claims after receiving her Notice of Claim; (8) whether Sergeant Tomory should have obtained copies of the deposition testimony by the Defendant officers, witnesses and Plaintiffs in this case so that he could complete his investigation into Plaintiff's claims; and (9) whether PSB was planning on investigating inconsistent testimony by the Defendant officers in this case. Plaintiff has advised that she will be alleging at trial that the Phoenix Police Department's internal investigation of this matter was deficient. B. Plaintiff's Claims and Negligent Post Arrest Investigation Theory.

On November 22, 2002, Plaintiff filed a Notice of Claim with the City of Phoenix. Plaintiff's Notice of Claim asserts claims of: (1) breach of statutory duty; (2) negligence/gross negligence; (3) denial of constitutional rights under 42 U.S.C. § 1983; (4) municipal policy depriving claimant of constitutional rights; and (5) conspiracy to deny constitutional rights.5 Nowhere in Plaintiff's Notice of Claim did she assert that the City of Phoenix conducted a negligent or improper PSB investigation in this case. Plaintiff filed this lawsuit on June 9, 2003. Plaintiff's Complaint asserted state law claims for negligence, gross negligence, false arrest, and excessive force. Plaintiff also brought a claim under 42 U.S.C. § 1983. Nowhere in Plaintiff's Complaint did she assert that the City of Phoenix conducted a negligent or improper PSB investigation in this case. Plaintiff's section of the Joint Case Management Plan filed with the Court on February 10, 2004, asserted the following legal theories: (1) "Teresa (sic) August's state law claims for wrongful arrest and excessive force;" and (2) "Teresa (sic) and Mark August's § 1983 claims" for unreasonable seizures and excessive force. Plaintiff failed to
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See Plaintiff's Notice of Claim, attached hereto as Exhibit 5.
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detail their state law claims of negligence or gross negligence (as asserted in their Complaint). Nowhere in the Joint Case Management Plan did Plaintiff assert that the City of Phoenix conducted a negligent or improper PSB investigation in this case. Because Plaintiff failed to assert a claim for negligent or improper PSB investigation in their Notice of Claim, Complaint or Joint Case Management Plan, Plaintiff must be prohibited from presenting any evidence on this legal theory at trial. II. LEGAL ANALYSIS. A. Plaintiff's Cannot Assert a Negligent Investigation Claim.

Plaintiff intends to allege at trial that the PSB investigation of this matter was deficient. Even if this were true, this allegation does not state a claim because the

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1523 (7th Cir. 1990) (plaintiffs had no claim for faulty internal investigation where the investigation did not harm the or deprive them of any right).
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Department's own investigation did not cause Plaintiff any harm.6 In addition, Plaintiff is barred from asserting a negligent investigation in this case because she failed to assert this claim in their Notice of Claim, a violation of A.R.S. § 12-821.01, and did not assert this as a separate claim in their Complaint. Therefore, because Plaintiff has not asserted a cognizable claim regarding the alleged negligent PSB investigation into Plaintiff's alleged injuries, Plaintiff must be prohibited from asserting this claim at trial. B. Evidence Regarding the Internal Affairs Investigation is Irrelevant and Unfairly Prejudicial

Rule 407, Federal Rules of Evidence, excludes evidence of a subsequent

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remedial measure in an action for negligence.7 Here, any evidence on whether the City of Phoenix, did or did not, complete a PSB investigation is barred by Rule 407. A case directly on point is the Ninth Circuit opinion in Maddox v Los Angeles.8 In Maddox, the Ninth Circuit ruled that the District Court did not err in excluding the police officer's admission, made during a post-incident departmental disciplinary proceeding, that he violated city policy regarding the use of choke holds. The Ninth Circuit found that "[t]he Internal Affairs investigation and measures taken by the

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Fed R. Evid. 407 states that: "when, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. " 8 792 F.2d 1408 (9th Cir. 1986). 9 Id. 10 Id. at 1417. 11 Maddox, 792 F2d at 1417. See also, Specht v Jenson, 863 F2d 700 (10th Cir. 1988) (press release summarizing results of city's internal investigation of the event in question was properly excluded under Rule 407.)
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defendant city were remedial measures taken after the incident."9 Pursuant to FED. R. EVID. 407, evidence of these proceedings was therefore properly excluded with respect to the city's liability."10 The Maddox court also ruled that, with respect to one officer's liability, the evidence of disciplinary proceedings was properly excluded under Rule 403: "The jury might have inferred that Officer Harris was guilty of wrongdoing merely because the police department conducted disciplinary proceedings."11 Testimony or evidence regarding the attempt to conduct a PSB
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investigation, before being halted by Plaintiff's attorney, should likewise be excluded from evidence. If the jury were to consider this evidence, they could wrongfully infer

responsibility upon the City based on the attempt to conduct (or lack of) a PSB investigation. Therefore, all evidence of the investigation should be excluded. C. The PSB Investigation is Irrelevant to Whether Officers Used Excessive Force.

Rules 401 and 402, Federal Rules of Evidence, preclude the admission of irrelevant evidence at trial. Evidence regarding Plaintiff's negligent PSB investigation is irrelevant to Plaintiff's remaining excessive force claim. Accordingly, the evidence must be prohibited. D. Unfair Prejudice of Introducing Evidence on Investigations Outweighs any Probative Value.

Rule 403, Federal Rules of Evidence, precludes the admission of evidence where its probative value is substantially outweighed by the danger of unfair prejudice. Any minimal probative value regarding the attempted PSB investigations is clearly outweighed by extreme prejudice. Because Plaintiff failed to assert a negligent PSB investigation claim, the only purpose for raising it at trial is to misdirect the jury and raise unfounded suspicions. This is inherently prejudicial to the Defendants and barred. E. Plaintiff's Fifth Supplemental Disclosure Statement.

On October 6, 2006, Plaintiff filed her Fifth Supplemental Disclosure Statement, which included three exhibits: (1) letter from defense counsel to Plaintiff's counsel dated February 17, 2005; (2) letter to Sergeant Tomory from Plaintiff's counsel
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dated September 20, 2006; and (3) letter to Plaintiff's counsel from defense counsel dated September 21, 2006.12 Discovery closed in this case on February 28, 2005. Plaintiff failed to request leave of court to extend the discovery deadline and has failed to provide "good cause" for the untimely disclosure.13 Accordingly, any exhibits attached to Plaintiff's Fifth Supplemental Disclosure Statement related to the alleged negligent PSB investigation must be precluded at trial.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 See Plaintiff's Fifth Supplemental Disclosure Statement, attached hereto as Exhibit 6. 13 See correspondence to Plaintiff's counsel dated October 19, 2006, attached hereto as Exhibit 7. Plaintiff did not respond to Defendants' correspondence.
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F.

Plaintiff's Attorney as Witness.

As outlined, Plaintiff has never made a claim that the Department was negligent in their PSB investigation. Yet, Plaintiff insisted, during the discovery process, to pursue Sergeant Tomory and the "why didn't you investigate more thoroughly" theory. Should Plaintiff have the opportunity to present evidence regarding the alleged negligent PSB investigation, Defendants must be allowed to call the person responsible for the halting of the PSB investigation during trial: Dan Treon. As a result of Dan Treon's refusal to permit his client to be interviewed by PSB, Mr. Treon has made himself a witness to any negligent investigation allegation. It is only reasonable and fair that the Defendants are permitted the opportunity to call Mr. Treon as a witness to determine his knowledge of the facts and circumstances surrounding
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Sergeant Tomory's attempts to investigate this claim, the basis for his refusal to allow the PSB investigation to move forward, the basis for his refusal to permit the interview of his client, and the basis for his decision to draft the October 14, 2002 letter and anything else he did or did not do to pursue or assist in the PSB investigation. Mr. Treon's testimony is relevant and critical to defending against an issue Plaintiff has injected into the case. Even if the reasons for Plaintiff's actions were considered "privileged", there has been an implied or anticipatory waiver.14 Finally, Mr. Treon's testimony is crucial to the City's defense against Plaintiff's claim of inadequate investigation. The jury must hear that the City's

investigation was stopped in its tracks by Plaintiff's attorney who likely fully expected to sue the City later on and did want his client "creating a record" of this incident before suit was filed or without the benefit of his directing the interview. III. CONCLUSION. Based on the foregoing, Defendants respectfully requests the Court enter an Order to preclude at trial any evidence of Plaintiff's Negligent Professional Standards Bureau ("PSB") Investigation claim.

See Savoy v. Richard A. Carrier Trucking, Inc., 178 FRD 345 (D.C. Mass 1998); see also State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, ¶ 12, 13 P.3d 1169, ¶ 12 (2000) ( "waiver [of attorney client privilege] can be implied when a party injects a matter that, in the context of the case, creates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert the privilege."; Bain v. Superior Court, 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986) (implied waiver of physician patient privilege occurs when "a privilege holder ... or (2) places a particular ... condition at issue by means of a claim or affirmative defense".
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DATED this 15th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By

s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson

Electronically filed and served this 15th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003 By: s/Gloria Gray

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