Pinson v. Dukett ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Pinson, No. CV-19-00422-TUC-RM 10 Plaintiff, ORDER 11 v. 12 United States, 13 Defendant. 14 15 Pending before the Court is Plaintiff Jeremy Pinson’s Motion for Reconsideration 16 of Order in Limited Parts. (Doc. 229.) In the Motion, Plaintiff asks the Court to partially 17 reconsider its October 10, 2023 Order (Doc. 217) resolving the parties’ Motions in 18 Limine. Specifically, Plaintiff argues that this Court should reconsider the portions of the 19 Order granting Defendant’s Motion in Limine No. 2: Evidence of Other Incidents and/or 20 PREA Noncompliance and Defendant’s Motion in Limine No. 4: Department of Justice 21 Investigator General and Report. (Doc. 229 at 1-10.) Plaintiff also asks the Court to 22 reconsider its finding that the record does not support Plaintiff’s contention that she 23 timely disclosed a witness list during discovery in this case. (Id. at 10-11.) 24 I. Background 25 In the remaining claim in this case, Plaintiff seeks monetary damages under the 26 Federal Tort Claims Act (“FTCA”), alleging that United States Penitentiary (“USP”)- 27 Tucson prison officials failed to address her reports that her cellmate, Ricki Makhimetas, 28 was threatening to rape her. (See Docs. 21, 22, 25, 53, 117.) 1 On October 10, 2023, the Court resolved the parties’ Motions in Limine. (Doc. 2 217.) In relevant part, the Court denied Defendant’s Motion in Limine No. 1: Failure to 3 Timely Disclose Witnesses and granted Defendant’s Motion in Limine Nos. 2 and 4. 4 (Id.) With respect to Defendant’s Motion in Limine No. 1, the Court found that the 5 record did not support Plaintiff’s contention that she timely disclosed a witness list, but 6 the Court declined to preclude Plaintiff’s witnesses on the grounds of untimely 7 disclosure. (Id. at 3-5.) With respect to Defendant’s Motion in Limine No. 2, the Court 8 found that evidence of Prison Rape Elimination Act (“PREA”) non-compliance or 9 retaliation on unrelated occasions by Officer Vasquez or other Bureau of Prisons 10 (“BOP”) staff members was inadmissible under Federal Rule of Evidence 404(b) because 11 it appeared Plaintiff intended to introduce such evidence for the impermissible purpose of 12 proving “that Officer Vasquez failed to respond appropriately during the incident at issue 13 in this case.” (Id. at 5-7.) The Court also found that Rule 403 concerns significantly 14 outweighed any probative value of the evidence. (Id. at 7.) With respect to Defendant’s 15 Motion in Limine No. 4, the Court found that Inspector General Horowitz’s anticipated 16 testimony concerning the BOP’s PREA non-compliance was inadmissible and that the 17 apex doctrine provided further reason to preclude the testimony because Inspector 18 General Horowitz lacks first-hand knowledge of the facts at issue in this case. (Id. at 9- 19 10.) 20 II. Standard of Review 21 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 22 showing of manifest error or a showing of new facts or legal authority that could not have 23 been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Mere 24 disagreement with a previous order is an insufficient basis for reconsideration. See Leong 25 v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). 26 III. Discussion 27 In her Motion for Reconsideration, Plaintiff argues with respect to the Court’s 28 ruling on Defendant’s Motion in Limine No. 2 that (1) at the time of Makhimetas’ attack, 1 BOP staff were bound to follow PREA regulations and Program Statement 5324.12; (2) 2 Officer Miguel Vasquez has a motive to lie at trial and Plaintiff should be allowed to call 3 witnesses “to impeach him if he stands on his lie of no wrongdoing”; (3) evidence of 4 other incidents of PREA non-compliance is relevant to the BOP’s “failure to monitor, 5 audit, and correct the non-compliance by its staff”; and (4) Officer Vasquez’s failure in 6 his duties on the date of Makhimetas’ attack “was part of a pattern and practice at USP 7 Tucson” of deviating from PREA regulations and Program Statement 5324.12. (Doc. 8 229 at 3-8.) Plaintiff also argues that this Court misconstrued her intent in offering 9 evidence of other incidents of PREA non-compliance. (Id. at 8.) Plaintiff argues that her 10 intent in offering such evidence is not “to prove that Officer Vasquez failed to respond 11 appropriately during the incident at issue in this case,” but, rather, “to prove that the 12 United States’ employees failed to adhere to PREA and despite repeated and distinct 13 opportunities to correct such . . . the United States/BOP took no corrective action by 14 willfully ignoring its duties.” (Id. at 8-9.) With respect to the Court’s ruling on 15 Defendant’s Motion in Limine No. 4, Plaintiff argues that Inspector General Horowitz 16 has first-hand knowledge of his duties under PREA, his actions to meet those duties, and 17 his report and conclusion that the BOP was PREA-noncompliant. (Id. at 10.) 18 Evidence is relevant if it has any tendency to make a fact of consequence in 19 determining the action either more or less probable. Fed. R. Evid. 401. In the remaining 20 FTCA claim in this case, Plaintiff alleges that Defendant’s employees negligently failed 21 to act on her reports that Makhimetas was threatening her. To be relevant, evidence must 22 relate to that claim. Punitive damages are not available under the FTCA, 28 U.S.C. § 23 2674, and this case is not a referendum on the BOP’s compliance or non-compliance with 24 PREA in general. Plaintiff has not shown that the Court manifestly erred in finding that 25 evidence of unrelated incidents of PREA non-compliance—including evidence regarding 26 Inspector General Horowitz’s report and conclusions—is inadmissible. 27 With respect to the Court’s ruling on Defendant’s Motion in Limine No. 1, 28 Plaintiff contends that a piece of certified mail—that Defendant avers contained a witness list for a different case—actually contained the witness list for the other case as well as 2|| the witness list for this case. Ud. at 10-11.) Assuming the truth of this contention would || not change the Court’s ruling on Defendant’s Motion in Limine No. 1, as the Court 4|| denied that Motion and declined to preclude Plaintiffs witnesses on the grounds of 5 || untimely disclosure. 6 Accordingly, 7 IT IS ORDERED that Plaintiff's Motion for Reconsideration (Doc. 229) is 8 || denied. 9 Dated this 30th day of October, 2023. 10 1 ff 12 a □□□ 13 TD 4 tigi □□ Honorable Rostsiary □□□□□□□ 14 United States District □□□□□ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-