Filed: Jun. 08, 2015
Latest Update: Jun. 08, 2015
Summary: SECOND SUPPLEMENT TO PRETRIAL ORDER GARLAND E. BURRELL, Jr. , Senior District Judge . Defendants' Supplemental Pretrial Statements filed June 5, 2015, (ECF Nos. 277, 279), indicate the following second supplement to the February 20, 2015 Pretrial Order ("PO") should issue. AFFIRMATIVE DEFENSES The following affirmative defenses are preserved for trial: 1) Statute of limitations concerning Plaintiff's claims against Defendants McCargar, Baughman, and Micheels concerning the September 27,
Summary: SECOND SUPPLEMENT TO PRETRIAL ORDER GARLAND E. BURRELL, Jr. , Senior District Judge . Defendants' Supplemental Pretrial Statements filed June 5, 2015, (ECF Nos. 277, 279), indicate the following second supplement to the February 20, 2015 Pretrial Order ("PO") should issue. AFFIRMATIVE DEFENSES The following affirmative defenses are preserved for trial: 1) Statute of limitations concerning Plaintiff's claims against Defendants McCargar, Baughman, and Micheels concerning the September 27, 1..
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SECOND SUPPLEMENT TO PRETRIAL ORDER
GARLAND E. BURRELL, Jr., Senior District Judge.
Defendants' Supplemental Pretrial Statements filed June 5, 2015, (ECF Nos. 277, 279), indicate the following second supplement to the February 20, 2015 Pretrial Order ("PO") should issue.
AFFIRMATIVE DEFENSES
The following affirmative defenses are preserved for trial:
1) Statute of limitations concerning Plaintiff's claims against Defendants McCargar, Baughman, and Micheels concerning the September 27, 1997 Rules Violation Report ("RVR"), and
2) Qualified immunity alleged by each Defendant.
As the Ninth Circuit states in Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993):
[T]he determination of what conduct underlies the alleged violation-what the officer and claimant did or failed to do-is a determination of fact [to be decided by a jury;] however, . . . the determination whether those facts support an objective belief that [the officer reasonably believed he was not violating Plaintiff's right to be free from excessive force] is ordinarily a question for the court.
Since the jury will not decide the question of law involved in determining whether any Defendant is entitled to qualified immunity, the proposed jury instructions need not include instruction on this affirmative defense. The jury will resolve the discrete issues of fact, if any, and all assertions made by the parties regarding the defense of qualified immunity shall be confined to those issues of fact.
Accordingly, a special verdict or interrogatories shall be filed by each party for all factual disputes to be resolved by the jury concerning the qualified immunity affirmative defense no later than July 21, 2015. Further, no later than July 21, 2015, each party shall file proposed prevailing party findings of fact and conclusions of law concerning this affirmative defense.
Defendants also assert their position that "[t]he Federal Civil Rights Act provides liability only against those who, through their personal involvement or failure to perform legally required duties, caused the deprivation of another's constitutionally protected rights[,]" and they did not "personally cause Plaintiff any harm." (Defs. Adams, Akins, Baughman, Colvin, Gold, McCargar, Micheels, and Yamamoto's Supp. Pretrial Stmt. 2:2-4, 2:12, ECF No. 277; Def. Scarsella's Supp. Pretrial Stmt. 1:26-28, 2:8-9, ECF No. 279.) However, argument that "merely negates . . . element[s]" of a claim is not an affirmative defense. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.").
