Nina Alley v. County of Pima, et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nina Alley,
Plaintiff,
v.
County of Pima, et al.,
Defendants.
No. CV-15-00152-TUC-RM
ORDER
On June 7, 2024, the Court vacated the firm jury trial that had been set in the above-
captioned matter and stayed all proceedings pending resolution of former Plaintiff Louis
Taylor’s1 state post-conviction proceedings challenging his 2013 convictions. (Doc. 1174.)
The Court later administratively closed this matter pending the resolution of the post-
conviction proceedings. (Doc. 1192.) After the denial of Taylor’s state Petition for Post-
Conviction Relief, the parties filed a Joint Motion to Reopen (Doc. 1202), which the Court
granted (Doc. 1204). Trial is now set for September 14, 2026. (Doc. 1209.)
The Court resolves herein the following Motions which were pending at the time
the June 7, 2024 stay went into effect: Plaintiff’s Motion re: Equitable Estoppel (Doc.
1112), Defendants’ Motion to Disregard New Arguments (Doc. 1159), Defendants’
Motion to Bifurcate Trial (Doc. 1086), Defendants’ Motion for Order re: Sealed Declarant
(Doc. 1088), Plaintiff’s Motion to Permit Witness Charlene Smith to Testify by
1 Taylor’s Guardian and Conservator, Nina Alley, has been substituted in place of Taylor
as the named plaintiff in this action. (Doc. 624.) The Court uses the term “Plaintiff” herein
to refer interchangeably to Taylor.
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Contemporaneous Transmission (Doc. 1123), Plaintiff’s Motion for Order re: Other-Act
Evidence (Doc. 1145), Plaintiff’s Motion to Reconsider Ruling re: Privilege (Doc. 1169),
and several Motions in Limine previously taken under advisement (Docs. 954, 956, 958,
967, 976).2
I. Background
During the night of December 19-20, 1970, a fire killed 28 people at the Pioneer
Hotel in downtown Tucson, Arizona. (Doc. 343 at ¶ 56; Doc. 365 at ¶ 56; Doc. 374 at ¶
56.)3 On March 21, 1972, a jury convicted Taylor of 28 counts of murder arising from the
deaths. (Doc. 340-9 at 10-12.) Taylor was sentenced to life imprisonment. (Id. at 36-37.)
In 2012, Taylor filed a Petition for Post-Conviction Relief, and the Pima County Attorney’s
Office began a review of his case. (Doc. 335 at ¶ 624; Doc. 348-3; Doc. 367 at ¶ 624.)
Following the review, the Pima County Attorney offered Taylor a plea by which Taylor
received a time-served sentence and was released from prison in exchange for pleading no-
contest to the original 28 counts of murder. (Doc. 348-10; Doc. 348-11.) After his release,
Plaintiff filed the above-entitled civil action, raising claims under 42 U.S.C. § 1983. (Doc.
1.)
On March 16, 2017, this Court ruled that—due to his outstanding 2013
convictions—Plaintiff is barred by Heck v. Humphrey, 512 U.S. 477 (1994), from
premising his § 1983 claims “on the alleged constitutional injuries of being wrongfully
charged, convicted, and imprisoned” and that Plaintiff is precluded from seeking
incarceration-based compensatory damages. (Doc. 63 at 10-11, 19-20.) On interlocutory
appeal, the Ninth Circuit Court of Appeals affirmed, holding that “[a] plaintiff in a § 1983
action may not recover incarceration-related damages for any period of incarceration
supported by a valid, unchallenged conviction and sentence.” Taylor v. Cnty. of Pima, 913
F.3d 930, 936 (9th Cir. 2019).
2 Defendant Pima County’s renewed Motion for Summary Judgment (Doc. 1213)—which
was filed after the lifting of the stay and administrative reopening of this case—will be
resolved separately.
3 All record citations herein refer to the page numbers generated by the Court’s electronic
filing system.
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Plaintiff then obtained leave (Doc. 167) to file a Third Amended Complaint that
added a claim for a declaratory judgment expunging his 2013 convictions as
unconstitutional and invalid (Doc. 169 at 26). The Court originally denied summary
judgment on the expungement claim (Doc. 869 at 20-28), but later reconsidered its decision
and dismissed the claim (Doc. 1115).
Taylor filed a state-court Petition for Post-Conviction Relief challenging his 2013
convictions, and the state court denied relief on November 6, 2025. (Doc. 1202 at 15-40.)
II. Motion re: Equitable Estoppel and Motion to Disregard New Arguments
On April 16, 2024, Plaintiff submitted a sealed Memorandum re: Equitable Estoppel
(lodged at Doc. 1105 and filed at 1109), which this Court construed as a Motion (Doc.
1115) and ordered filed publicly in redacted form (Doc. 1108; Doc. 1112).4 In the Motion,
Plaintiff argues that a Heck bar is an affirmative defense that may be waived or forfeited,
and that this Court should equitably estop Defendants from asserting a Heck bar in this
case. (Doc. 1112.) Plaintiff contends that applying equitable estoppel is appropriate here
because Pima County Attorney Laura Conover would have moved to dismiss his 2013
convictions if not for misconduct by Pima County, and therefore a Heck bar would not
exist in this case if not for the alleged misconduct. (Id.) Plaintiff further argues that the
doctrine if “in [pari] delicto” also applies to bar “a party who has participated in
wrongdoing from recovering damages resulting from the wrongdoing.” (Id. at 4.) Plaintiff
concedes in the Motion that he has been unable to locate any case in which a government
defendant was precluded from asserting a Heck bar due to misconduct, but he argues that
“[e]quity does not wait upon precedent.” (Id. at 15, 17.) Plaintiff indicates he may move
to amend his Complaint to assert equitable estoppel but argues that “a motion to amend is
likely unnecessary.” (Id. at 1-3.)
Defendants responded to Plaintiff’s Motion re: Equitable Estoppel. (Docs. 1157,
1160.)5 Defendants argue that Plaintiff’s Motion is legally baseless because the doctrine
4 The Court later ordered the unredacted Motion unsealed. (Doc. 1215.) The Court cites
herein to the redacted version at Document 1112, as that is the version that appears as
pending on the docket.
5 Defendants filed an unredacted Response under seal (Doc. 1157) and publicly filed a
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of equitable estoppel applies only when a party detrimentally relies on an opposing party’s
inconsistent position or affirmative misrepresentation—circumstances that Plaintiff does
not allege. (Doc. 1157 at 19-23.) Defendants dispute that Heck is an affirmative defense
and argue that, even if it is, they did not waive or forfeit the defense, having raised it in
their first responsive pleading. (Id. at 23-24.) Defendants further argue that Plaintiff’s
allegations of misconduct by Pima County are factually baseless, and that Plaintiff cannot
prove his 2013 convictions would have been vacated if not for the alleged misconduct. (Id.
at 25-36.) Finally, Defendants argue that Plaintiff’s Motion is untimely, as Plaintiff has
known of the allegations underlying the Motion since at least August 2022 and January
2023 but waited until the eve of the previously scheduled trial to file the Motion. (Id. at
37.)
Plaintiff filed a Reply in support of the Motion. (Docs. 1149, 1158.)6 Plaintiff
clarifies that his Motion relies on federal equitable estoppel law, and he contends that
equitable estoppel applies to preclude a party, based on the party’s misconduct, from
asserting a right the party would otherwise have. (Doc. 1158 at 3-4.) Plaintiff further
contends that he need not amend his Complaint for the Court to invoke equitable estoppel,
but that the Court may treat his Motion re: Equitable Estoppel as a motion to amend. (Id.
at 4.) Plaintiff also argues that his no-contest plea should be treated as the functional
equivalent of a release-dismissal agreement and found invalid as against the public interest
under the reasoning of Newton v. Rumery, 480 U.S. 386 (1987). (Id. at 5-9.)7 Plaintiff
argues that Defendants should be equitably estopped from asserting Heck upon a showing
of the factual predicates that this Court previously determined would support expungement
of Taylor’s 2013 convictions under Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978) (per
redacted Response (Doc. 1160). The Court later unsealed the unredacted Response. (Doc.
1215.) The Court cites herein to the now unsealed, unredacted version of Defendants’
Response. (Doc. 1157.)
6 Plaintiff filed an unredacted Reply under seal (Doc. 1158) and publicly filed a redacted
Reply (Doc. 1149). The Court later unsealed the unredacted Reply. (Doc. 1215.) The
Court cites herein to the now unsealed, unredacted Reply. (Doc. 1158.)
7 This Court has previously found Plaintiff’s reliance on Rumery misplaced because that
case did not involve a Heck bar. (Doc. 1115 at 6.) Furthermore, Plaintiff failed to raise
any arguments concerning Rumery in his Motion re: Equitable Estoppel. Accordingly, the
Court declines to address the arguments raised in Plaintiff’s Reply concerning Rumery.
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curiam). (Id. at 9; see also Doc. 869 at 27-28.) Plaintiff then argues that Defendants should
be precluded from asserting Heck based on the equitable doctrine of “unclean hands.”
(Doc. 1149 at 9-11.) Plaintiff argues that neither the doctrine of equitable estoppel nor the
doctrine of unclean hands requires him to prove that his 2013 convictions would have been
dismissed if not for the alleged misconduct of Pima County. (Id. at 11-13.) Plaintiff details
alleged misconduct by Pima County and its attorneys in 2013 and since 2020. (Id. at 14-
22.) He reiterates his argument that Heck is an affirmative defense under Ninth Circuit
precedent. (Id. at 22-23.) Finally, he argues that the timing of his Motion “was dictated in
large part by Defendant’s 11th hour maneuvering regarding Shipp expungement,” and that
Defendants need not conduct any additional discovery related to the equitable estoppel
arguments. (Id. at 23-24.)
After the filing of Plaintiff’s Reply, Defendants filed a Motion asking the Court to
disregard new arguments raised for the first time in the Reply. (Doc. 1159.) Defendants
argue that Plaintiff’s Reply relies on case law not cited in Plaintiff’s Motion; that it sets
forth for the first time a specific definition of misconduct; that it expands the factual
allegations underlying Plaintiff’s request for application of the doctrine of equitable
estoppel; that it raises a new argument concerning an alleged ethical rule violation; that it
argues the doctrine of unclean hands for the first time; and that it requests for the first time
that the Motion re: Equitable Estoppel be treated as a motion to amend Plaintiff’s operative
complaint. (Id. at 2-3.) In response, Plaintiff argues that his Reply properly responds to
arguments raised in Defendants’ Response and cites new authority in support of existing
arguments. (Doc. 1164.)
On May 21, 2024, Plaintiff filed an ethical report by Lynda C. Shely as a
supplemental exhibit to his Motion re: Equitable Estoppel. (Doc. 1163.) In the report,
Shely opines that counsel for Pima County may have committed ethical violations by
submitting an affidavit contradicting Conover’s deposition testimony, by threatening
Conover with a bar complaint if she moved to dismiss Taylor’s 2013 convictions, and by
failing to provide a sealed declaration to Conover. (Id.) Defendants argue that the Court
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should strike the report from the docket because the deadline for disclosing expert
testimony has expired and Plaintiff did not seek leave to modify that deadline, nor did
Plaintiff seek leave to file evidence directly on the docket, which the Court has previously
ordered Plaintiff not to do. (Doc. 1170 at 5 (citing Doc. 561).)8 Defendants argue that the
expert report is based on incorrect assumptions and allegations, and that Defendants are
prejudiced by the timing of the report, as they have had no opportunity to provide a rebuttal
expert report. (Id. at 5-10.)
The Ninth Circuit has held that “Heck is an affirmative defense that may be waived
or forfeited.” Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024). But Defendants
did not waive or forfeit Heck; they raised Heck in their first Motions to Dismiss at the outset
of this case (Docs. 5, 6), and the impact of Heck on Plaintiff’s claims has been heavily
litigated ever since. The issue before the Court is whether, given that Heck is an affirmative
defense under Ninth Circuit case law, a party may be equitably estopped from asserting it.
Equitable estoppel “is used to bar a party from raising a defense or objection it
otherwise would have.” Jablon v. United States, 657 F.2d 1064, 1068 (9th Cir. 1981).9
The doctrine is flexibly “invoked to avoid injustice in particular cases” when a party
reasonably and detrimentally relied on its adversary’s misleading conduct or
misrepresentations. Heckler v. Cmn’ty Health Servs. of Crawford Cnty., Inc., 467 U.S. 51,
59 (1984). Under Ninth Circuit precedent, equitable estoppel may be applied against the
government “where justice and fair play require it.” Watkins v. U.S. Army, 875 F.2d 699,
706 (9th Cir. 1989). A plaintiff seeking to equitably estop a government defendant must
show: (1) the defendant’s “knowledge of the true facts”; (2) the defendant’s “intent to
8 Defendants also preemptively objected to the filing of the expert report in their Motion to
Disregard New Arguments. (Doc. 1159 at 4.) Because the Court finds that Plaintiff’s
factual allegations, even if proven, do not implicate the elements of the doctrine of
equitable estoppel, the Court has not relied on the expert report; however, the Court
declines to strike the report from the docket.
9 Defendants argue that Plaintiff should be precluded from relying on Jablon because he
cited the case for the first time in his Reply. (Doc. 1159 at 2-3.) The Court does not find
it improper to cite additional authority in support of existing arguments in a reply;
furthermore, the Court is not limited to considering only those cases cited in a party’s
motion. However, as discussed below, neither Jablon nor any other case cited by Plaintiff
supports a finding that the doctrine of equitable estoppel applies here.
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induce reliance”; (3) the plaintiff’s “ignorance of the true facts”; (4) the plaintiff’s
“detrimental reliance”; and (5) “affirmative misconduct (not mere negligence) and a
serious injustice outweighing the damage to the public interest of estopping the
government.” Est. of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (finding
application of equitable estoppel appropriate to preclude government defendant from
raising a statute of limitations defense where the defendant’s affirmative
misrepresentations and misconduct dissuaded the plaintiff from timely bringing a 42
U.S.C. § 1983 claim). The “affirmative misconduct prong . . . requires an affirmative
misrepresentation or affirmative concealment of a material fact by the government.” Bolt
v. United States, 944 F.2d 603, 609 (9th Cir. 1991) (internal quotation marks omitted).
Plaintiff’s Motion re: Equitable Estoppel does not address the elements of equitable
estoppel, nor does it show that Plaintiff can prove them. Although Plaintiff alleges
misconduct by Pima County and its counsel in this matter, he does not allege the type of
affirmative misrepresentations and detrimental reliance that implicate the doctrine of
equitable estoppel. Plaintiff does not allege that Defendants misrepresented or
affirmatively concealed material facts from him, resulting in his detrimental reliance.10
None of the cases cited by Plaintiff involve factual allegations remotely similar to those at
issue here, and the Court has been unable to locate any case in which a defendant in a 42
U.S.C. § 1983 action was equitably estopped from asserting a Heck bar.
Neither is the doctrine of in pari delicto applicable. That doctrine provides that “a
plaintiff who has participated in wrongdoing cannot recover when he suffers injury as a
10 Plaintiff alleges that Pima County’s attorneys in this matter concealed the Bruce
Wallmark declaration from Conover (Doc. 1109 at 10-13), but those allegations do not
implicate the doctrine of equitable estoppel because the declaration was not concealed from
Plaintiff, nor did the alleged concealment result in Plaintiff’s detrimental reliance. Plaintiff
also alleges that Defendants should be equitably estopped from asserting Heck if a jury
finds that the prosecution in 2013 leveraged Taylor’s existing incarceration to obtain a no-
contest plea for purposes of creating a Heck bar to civil liability. (Doc. 1112 at 2.) If
Defendants affirmatively misrepresented or affirmatively concealed the consequences of
Plaintiff’s no-contest plea on their future civil liability, and Plaintiff was ignorant of the
consequences and detrimentally relied on Defendants’ affirmative misconduct, then this
theory could potentially align with principles of equitable estoppel. However, Plaintiff
does not contend that he was unaware of the consequences of his plea on Defendants’ civil
liability, he does not contend that Defendants affirmatively misrepresented or concealed
those consequences, and he does not allege detrimental reliance.
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result of the wrongdoing.” ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1040 (9th
Cir. 2016). Here, Plaintiff is not seeking to preclude Defendants from recovering for injury
they suffered as a result of their wrongdoing.11
Plaintiff’s recitation of general principles that “no party may benefit from its own
misconduct” and “[e]quity does not wait upon precedent” (Doc. 1112 at 16-17) is
insufficient to overcome his failure to establish the elements of equitable estoppel. Plaintiff
has raised serious allegations of potential misconduct by Pima County, but the alleged
conduct is not the type of misconduct that implicates the doctrine of equitable estoppel.
Court will accordingly deny Plaintiff’s Motion re: Equitable Estoppel. Defendant’s Motion
to Disregard New Arguments re: Plaintiff’s Reply will be partially granted and partially
denied, as set forth in footnotes 7, 9, and 11, supra.
III. Previously Filed Motion to Reopen Discovery
While this matter was stayed pending Taylor’s state post-conviction proceedings,
Plaintiff filed a Supplemental Exhibit to the Motion re: Equitable Estoppel, as well as a
Motion to Reopen Discovery. The Court struck both documents because they were filed
in violation of the stay of litigation in this matter. (Doc. 1185 at 3.) Plaintiff seeks to re-
file the documents. (Doc. 1202 at 3.) However, the insurance carrier letters in the
previously filed Supplemental Exhibit do not alter the Court’s conclusion that the
misconduct alleged by Plaintiff does not implicate the doctrine of equitable estoppel, and
further discovery based on those letters is unwarranted. Accordingly, the Court will not
11 Plaintiff argues for the first time in his Reply that Defendants should be precluded from
asserting Heck under the doctrine of unclean hands. Defendants accused Plaintiff of having
unclean hands in their Response. (Doc. 1160 at 4.) Plaintiff’s new argument that the
doctrine of unclean hands precludes Defendants from asserting Heck, however, is not a
response to Defendants’ argument that Plaintiff has unclean hands; rather, it is an entirely
new ground for relief that is not raised in Plaintiff’s Motion. Accordingly, the Court
declines to consider the argument. See Charles v. Ariz. Legal Document Servs. LLC, No.
CV-16-3544-PHX-DKD, 2017 WL 11607029, at *2 (D. Ariz. June 1, 2017) (“It is
hornbook law that arguments raised for the first time in a reply will not be considered[.]”).
Even if the Court were to consider the argument, the doctrine of unclean hands is not
applicable here. The doctrine applies as a defense when a plaintiff’s alleged misconduct
relates to a claim for which he seeks relief. See Slep-Tone Entm’t Corp. v. Granito, No.
CV 12-298-TUC-DCB, 2013 WL 3816737, at *2 (D. Ariz. July 23, 2013). Plaintiff does
not cite any authority applying the doctrine of unclean hands to preclude a defendant from
asserting an affirmative defense.
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entertain a refiled Supplemental Exhibit or Motion to Reopen Discovery.
IV. Motions in Limine
On May 1, 2024, the Court resolved numerous Motions in Limine and took several
others under advisement pending resolution of Plaintiff’s Motion re: Equitable Estoppel.
(Doc. 1136.) The Court addresses below the Motions in Limine taken under advisement.
A. Defendants’ Joint Motion in Limine re: Compensatory Damages
Defendants move for a ruling that Plaintiff is not entitled to recover, argue for, or
present any evidence of compensatory damages. (Doc. 956.) The Court previously found
that, if the Heck bar in this action stands, Plaintiff cannot obtain incarceration-based
damages. (Doc. 1136 at 43.) The Court noted that “Heck may not bar Plaintiff from
seeking non-incarceration-based compensatory damages,” but that “Plaintiff has failed to
disclose or identify any emotional distress damages that can be disentangled from
incarceration-based damages.” (Id.)
Given the Court’s denial of Plaintiff’s Motion re: Equitable Estoppel, Heck
continues to bar Plaintiff from seeking incarceration-based damages. And given this
Court’s prior finding that Plaintiff has failed to disclose or identify any damages that can
be disentangled from incarceration-based damages, the Court will grant Defendants’
Motion in Limine re: Compensatory Damages. Plaintiff will be limited to seeking nominal
damages at trial.
B. City of Tucson’s Motion in Limine No. 14 re: Lesley Hoyt-Croft
In the Joint Proposed Pretrial Order, Plaintiff identifies Lesley Hoyt-Croft as a “fact
and damage witness” who will testify regarding Taylor’s history, his damages, and her
experiences with him. (Doc. 932 at 289.) The City of Tucson moves to preclude Plaintiff
from calling Hoyt-Croft as a witness at trial and from introducing her documentaries and
any related video or audio clips. (Doc. 954.) Because Hoyt-Croft’s testimony appears to
be relevant only to compensatory damages, and the Court finds for the reasons set forth
above that Plaintiff is precluded from introducing evidence of compensatory damages, the
Court will grant the City’s Motion in Limine.
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C. City of Tucson’s Motion in Limine No. 16 re: Lindsay Herf
In the Joint Proposed Pretrial Order, Plaintiff identifies Lindsay Herf as a “fact and
damage witness” who will testify about her work on Taylor’s behalf with the Arizona
Justice Project and her analysis of the psychological impact on Taylor of being wrongfully
convicted. (Doc. 932 at 291.) The City of Tucson moves to preclude Plaintiff from calling
Herf as a witness or using her as a conduit to introduce matters set forth in documentaries
and related video or audio clips, including a documentary entitled “This Damn Town.”
(Doc. 967.) Because Herf’s testimony appears to be relevant only to compensatory
damages, and the Court finds for the reasons set forth above that Plaintiff is precluded from
introducing evidence of compensatory damages, the Court will grant the City’s Motion in
Limine.
D. Pima County’s Motion in Limine re: Post-2013 Conduct
Pima County moves to preclude Plaintiff from introducing evidence of or discussing
any alleged conduct by the Pima County Attorney’s Office, Conover, Jack Chin, Pima
County, Pima County’s counsel, or David Berkman that occurred after Taylor accepted his
2013 no-contest plea. (Doc. 976.) Because the Court has dismissed Plaintiff’s
expungement claim and denied his Motion re: Equitable Estoppel, and the evidence at issue
poses a risk of prejudice and confusion of the issues and is irrelevant to the remaining
claims in this case, the Court will grant Pima County’s Motion.
E. Pima County’s Motion in Limine Re: Dismissed Theories and Claims
Pima County moves to preclude Plaintiff from arguing or introducing evidence
regarding theories and claims that Pima County asserts are foreclosed by this Court’s prior
rulings. (Doc. 958.) In its May 1, 2024 Order, the Court took the Motion under advisement
pending resolution of Plaintiff’s Motion re: Equitable Estoppel to the extent the Motion
seeks to preclude evidence of the Pima County Attorney’s Office 2020 conflict-of-interest
determination and retention of outside counsel in this matter. (Doc. 1136 at 45.) Given
the dismissal of Plaintiff’s expungement claim and the denial of Plaintiff’s Motion re:
Equitable Estoppel, evidence of the 2020 conflict-of-interest determination and Pima
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County’s retention of outside counsel is irrelevant to the remaining claims in this case.
Accordingly, the under-advisement portion of Pima County’s Motion will be granted.
V. Motion to Bifurcate Trial
Defendants previously moved to bifurcate the trial of Plaintiff’s 1972 damages
claims and Plaintiff’s request for a declaratory judgment expunging his 2013 convictions,
and to also bifurcate trial on causation and damages. (Doc. 1086.) Because Plaintiff’s
request for a declaratory judgment expunging the 2013 convictions has been dismissed on
summary judgment, and the Court herein denies Plaintiff’s Motion re: Equitable Estoppel
and finds that Plaintiff will be limited to seeking nominal damages at trial, Defendants’
Motion to Bifurcate Trial will be denied as moot.
VI. Motion for Order re: Sealed Declarant
Defendants ask the Court to rule on whether restrictions previously put in place
concerning the Sealed Declarant shall remain in place during trial and, if so, to determine
procedures for conducting the trial. (Doc. 1088.) It is now public information that the
Sealed Declarant testified in Taylor’s 1972 trial as “Bruce Wallmark.” (See Docs. 1201,
1202, 1206.) If the witness testifies during the trial in the above-captioned matter, his true
current name and identifying information will be sealed and he will be referred to as Bruce
Wallmark in all public proceedings. Defendants’ Motion for Order re: Sealed Declarant
will be granted to the extent this Order provides the clarification sought.
VII. Motion to Reconsider Ruling re: Privilege
Plaintiff asks the Court to reconsider a ruling made during Conover’s deposition
upholding claims of privilege by Pima County. (Doc. 1169.) Plaintiff asserts that the
communications withheld as privileged “are directly related to [his] equitable estoppel
claim.” (Id. at 2.) As discussed above, even if the factual allegations made in Plaintiff’s
Motion re: Equitable Estoppel are assumed true, the Motion fails because the conduct at
issue does not implicate the doctrine of equitable estoppel. Because the withheld
documents at issue in Plaintiff’s Motion to Reconsider are relevant only to Plaintiff’s failed
equitable estoppel arguments, the Court will deny the Motion to Reconsider as moot.
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VIII. Motion to Permit Charlene Smith to Testify by Contemporaneous
Transmission
Plaintiff requested permission for witness Charlene Smith to testify by
contemporaneous transmission because she had plans to travel to Washington during the
previously scheduled trial dates. (Doc. 1123.) It is unclear whether Smith is available to
testify in person during the currently scheduled trial dates; accordingly, the Court will deny
this Motion as moot, with leave to refile if necessary.
IX. Motion for Order re: Other-Act Evidence
Plaintiff previously moved in limine to preclude Defendants from introducing any
evidence of his conduct in prison or after his release, arguing that the evidence is irrelevant,
prejudicial, and inadmissible under Federal Rules of Evidence 401, 402, 403, 404, and 609.
(Doc. 947.) The Court found that the parties had “not provided sufficient information to
allow the Court to determine whether other-act evidence may be admissible for a proper
purpose at trial,” and accordingly denied Plaintiff’s Motion to the extent it sought a ruling
in limine, with leave for the parties to raise the issues addressed in the Motion at trial.
(Doc. 1136 at 19.)
Plaintiff then filed a Motion asking the Court to prohibit Defendants from offering
or referencing other-act evidence at trial without first demonstrating its admissibility
outside the presence of the jury. (Doc. 1145.) Defendants argue that Plaintiff’s Motion is,
in substance, either a motion for reconsideration of this Court’s Order resolving Plaintiff’s
Motion in Limine re: Bad Acts or an untimely and procedurally improper new motion in
limine. (Doc. 1166.) In reply, Plaintiff argues that his Motion is neither a motion in limine
nor a motion for reconsideration, as he is not asking the Court to exclude other-act evidence
or to reconsider its deferment of ruling on the admissibility of such evidence; rather,
Plaintiff is merely requesting a rule concerning the conduct of trial. (Doc. 1172.)
The Court agrees that Plaintiff’s Motion does not constitute a new motion in limine,
as it is not requesting to exclude other-act evidence. Nor is the motion seeking
reconsideration of the Court’s deferment of ruling on the admissibility of other-act
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evidence. The Court will partially grant and partially deny Plaintiff’s Motion. If
Defendants intend to introduce evidence of Taylor’s criminal history (other than the 1972
criminal proceedings at issue) or Taylor’s prison disciplinary record, they should provide
advance notice outside the presence of the jury, either at a sidebar or when the jury is not
present in the courtroom. Plaintiff’s Motion is otherwise denied.
IT IS ORDERED:
1. The City of Tucson’s Motion in Limine No. 14 re: Lesley Hoyt-Croft (Doc.
954) is granted.
2. Defendants’ Motion in Limine re: Compensatory Damages (Doc. 956) is
granted.
3. The under-advisement portion of Pima County’s Motion in Limine re:
Dismissed Theories and Claims (Doc. 958) is granted, as set forth above.
4. The City of Tucson’s Motion in Limine No. 16 re: Lindsay Herf (Doc. 967)
is granted.
5. Pima County’s Motion in Limine re: Post-2013 Conduct (Doc. 976) is
granted.
6. Defendants’ Motion to Bifurcate Trial (Doc. 1086) is denied as moot.
7. Defendants’ Motion for Order re: Sealed Declarant (Doc. 1088) is granted
to the extent this Order provides the clarification sought.
8. Plaintiff’s Motion re: Equitable Estoppel (Doc. 1112) is denied.
9. Plaintiff’s Motion to Permit Witness Charlene Smith to Testify by
Contemporaneous Transmission (Doc. 1123) is denied as moot, with leave
to refile if necessary.
10. Plaintiff’s Motion for Order re: Other-Act Evidence (Doc. 1145) is partially
granted and partially denied, as set forth above.
11. Defendants’ Motion to Disregard New Arguments (Doc. 1159) is partially
granted and partially denied, as set forth above.
. . . .
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12. Plaintiff’s Motion to Reconsider Ruling re: Privilege (Doc. 1169) is denied
as moot.
Dated this 31st day of March, 2026.
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