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Kloberdanz v. Pellino

United States District Court, D. Arizona

January 1, 2017

Daniel L. Kloberdanz, Plaintiff,
Joseph K. Pellino, Defendant.

          ORDER FROM CHAMBERS (Motion at Docket 221)



         At docket 221, Defendant Joseph Pellino (“Pellino”) filed a motion asking the court to reconsider its order at docket 220, which denied his motion in limine at docket 218. Plaintiff Daniel Kloberdanz (“Kloberdanz” or “Plaintiff”) responded to the motion for reconsideration as directed at docket 224. Oral argument was requested, but would not be of assistance to the court.


         Kloberdanz filed suit in state court against numerous defendants seeking to recover damages arising from events which transpired on June 15, 2012. Early in the litigation, Kloberdanz agreed to the dismissal of his claims against the Maricopa County Board of Supervisors, the five individual Supervisors, and the Maricopa County Attorney. In an order at docket 20, the court granted defense requests to dismiss Kloberdanz's claims against defendants Arpaio, the Maricopa County Sheriff's office and Maricopa County. The remaining claims were those pled against Defendants Burghart, Carpenter, and Pellino. Later, the parties stipulated to dismiss Count Three in its entirety as to all defendants and Count Seven, which was directed only at Pellino.[1]The remaining claims were the subject of a seven-day jury trial in August of 2016.

         During trial, the court granted a directed verdict in favor of Pellino as to the Malicious Prosecution claim. The jury later returned verdicts in favor of Burghart and Carpenter on Kloberdanz's Fourth Amendment Excessive Force claim, his only claim against them. The jury also returned a verdict in favor of Pellino on Kloberdanz's false arrest claim, but could not agree on verdicts on Kloberdanz's other claims against Pellino. A mistrial was declared as to those claims. They will be litigated in a second trial scheduled for February 6, 2017.

         Pellino filed a motion in limine at docket 218. In that motion, Pellino asked that the court “issue an order precluding the presentation of any evidence of claim for damages regarding Plaintiff's allegations that, after he was pushed by Pellino and then taken to the ground to be arrested, Pellino then pounded/slammed Plaintiff's head into the ground three times, before he was stood up in handcuffs, and also that he was kicked and punched during that same time.”[2] Plaintiff filed a response in opposition at docket 219. The court filed a text order denying the motion, indicating that it found Plaintiff's position to be correct.[3] Pellino then filed his motion for reconsideration, arguing that Plaintiff's response did not adequately address his arguments nor provide any credible rebuttal for the court to rely upon. The court directed Kloberdanz to respond.


         Under the law of the case doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court or a higher court in the same case.[4] However, as long as a district court retains jurisdiction over a case, it has inherent power to reconsider and modify an interlocutory order for sufficient cause.[5] That inherent power is not unfettered: “the court may reconsider previously decided questions in cases in which there has been an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice.”[6] Local Rule of Civil Procedure 7.2(g)(1) recites essentially the same rule, requiring a showing of “manifest error.”[7]


         Pellino's motion in limine is essentially asking the court to find that collateral estoppel prevents Kloberdanz from retrying the issue of whether any head slamming, kicking, and punching took place during his arrest. Collateral estoppel, or issue preclusion, “prohibits relitigation of issues that have been adjudicated in a prior action.”[8]It applies when the following requirements have been met: (1) the issue sought to be precluded is the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the final judgment.”[9]“The party asserting issue preclusion bears the burden of proof as to all elements and must introduce a sufficient record to reveal the controlling facts and the exact issues litigated.”[10]

         The requirement that an issue be actually litigated and determined does not mean that there had to be a specific finding or opinion on the matter.[11] Necessary inferences from the entire record-the judgment, pleading, evidence, and jury instructions-will be given preclusive effect as well.[12]

         Here, Pellino asks this court to consider what the jury necessarily determined about Pellino's conduct based on its verdict in favor of Burghart on the Excessive Force claim. In that claim, which was brought against all three officers, Kloberdanz alleges that Pellino pushed him down to the ground and that when he stood back up Pellino knocked him back down to the ground. He alleges that while he was on the ground being handcuffed, Pellino pushed and pounded his head into the ground multiple times and some combination officers kicked and punched him. Burghart and Carpenter are not alleged to have been involved in the push and take down ...

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