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Chichakli v. Gerlach

United States District Court, W.D. Oklahoma

July 30, 2018

RICHARD AMMAR CHICHAKLI, Plaintiff,
v.
JIM GERLACH, et al., Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion in Limine [Doc. No. 160], which is fully briefed and at issue. Plaintiff, a former federal prisoner appearing pro se, seeks monetary relief pursuant to 42 U.S.C. § 1983. Alleging a violation of his First Amendment right to religious exercise, Plaintiff asserts in his Complaint that during his confinement at the Grady County Jail he was denied kosher meals.[1]

         Defendants seek pretrial rulings on the admissibility of evidence that may be offered at the jury trial currently set on the Court's August 14, 2018 docket. Upon consideration of the issues raised by Defendants, the Court makes the following determinations.

         A. Untimely Disclosed Witnesses

         1. Plaintiff

         Because Plaintiff did not provide a final witness list or list himself as a witness in the Final Pretrial Report [Doc. No. 158], Defendants seek to preclude Plaintiff from testifying. In response, Plaintiff asserts Defendants are not prejudiced because Defendants have taken Plaintiff's deposition twice and they list Plaintiff as their own witness. Pursuant to Fed.R.Civ.P. 37(c)(1), a party's failure to identify a witness in a timely manner may be excused if the failure was substantially justified or is harmless. Similarly, under the Court's Scheduling Order, a witness omitted from a party's final witness list may be permitted to testify upon a showing of good cause. These standards are met as to Plaintiff's testimony. Although Plaintiff should have filed a witness list and included himself as a witness in the Final Pretrial Report, Defendants are well aware of Plaintiff's allegations and his likely testimony through Plaintiff's pro se filings in the case and his two prior depositions. Thus, Defendants are not prejudiced by Plaintiff's failure to name himself as a witness.

         2. Plaintiff's Other Five Witnesses

         Defendants also move to exclude the testimony of Plaintiff's five witnesses listed in the Final Pretrial Report [Doc. No. 158]. Defendants contend that Plaintiff should not be permitted to call trial witnesses who were not timely disclosed under the Scheduling Order. However, Plaintiff identified these persons as potential witnesses as early as March 19, 2018, when he filed a motion with the Court seeking a court order to direct the United States Bureau of Prisons and the United States Probation Office to allow Plaintiff to communicate with these witnesses. [Doc. No. 130 at ¶ 5]. Plaintiff advised in that motion that the statements of these five “potential witnesses are essential for the trial of this case” and are “intended to address and refute Defendants' raised and asserted defenses related to Plaintiff's adherence and sincerity to the practice of Judaism.” Id. at ¶ 2. Clearly, Defendants had adequate time to depose these witnesses prior to the July 7, 2018 discovery cutoff. [Doc. No. 137 at 3].

         Although Plaintiff never filed a witness list, there is no evidence of record that the failure was brought to his attention by Defendants until Defendants filed their motion in limine. Plaintiff has confirmed his desire to call these five witnesses by listing them as witnesses in the Final Pretrial Report. His failure to list them as witnesses earlier does not prejudice Defendants. The Court will grant a limited extension of discovery until August 10, 2018, to allow Defendants to depose these witnesses if they choose to do so.[2]

         B. Undisclosed Exhibits

         In the Final Pretrial Report [Doc. No. 158], Plaintiff lists Exhibits 7, 8, 9, 10, 19 and 20. Defendants seek to preclude admission of these exhibits because they were not listed in Plaintiff's Final Exhibit List [Doc. No. 134] and have not been provided to Defendants. Plaintiff does not dispute these assertions. Plaintiff has not shown that his failure to timely name these exhibits or provide them to Defendants was substantially justified or is harmless. Thus, Plaintiff will not be permitted to use these exhibits at trial, and they should not be listed by Plaintiff in the revised Final Pretrial Report.[3]

         C. Dismissed Claims

         Defendants move to exclude all references to claims asserted in the Complaint that the Court has resolved by summary judgment (Plaintiff's ability to pray and have access to religious materials). Plaintiff makes no response to this contention. Accordingly, Defendants' motion to prohibit references to Plaintiff's dismissed claims will be granted.

         D. Financial ...


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