Poma-Pratt v. Thomas et al (INMATE 1)

Filing 163

MEMORANDUM OPINION AND ORDER regarding Defendants' 141 Objections to Specific Exhibits Designated by Plaintiff. It is hereby ORDERED that the Defendants Objections to Exhibits 3, 4, 5, and 6 are SUSTAINED to the extent that if the Plaintiff co ntends that the Defendants have opened the door to the use of this evidence, the Plaintiff must first take it up admission of the evidence outside of the presence of the jury, and the court will take up any objection to the evidence at that time. Signed by Honorable Judge W. Harold Albritton, III on 11/9/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JIMMY POMA-PRATT
Plaintiff,
v.
FRANKIE BROWN, ET. AL,
Defendants.

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CASE NO. 2:12cv291-WHA
(wo)

MEMORANDUM OPINION AND ORDER
This cause is before the court on the Defendants’ Objections to Specific Exhibits
Designated by Plaintiff (Doc. #141). The Defendants object to exhibits listed by the Plaintiff as
Exhibits 3, 4, 5, and 6.
The Defendants object to the admission of the personnel files on the ground that the
disciplinary actions contained in the files are unduly prejudicial under Rule 403. Additionally,
the Defendants contend Exhibit 3 and Exhibit 6 are improper character evidence under Rule 404.
Plaintiff’s Exhibit 3 is Frankie Brown’s Alabama Department of Corrections Employee
File. Defendant specifically objects to a written reprimand for an incident dated July 6, 2012
contained in the Defendant’s personnel record. Defendant Brown was reprimand for utilizing leg
irons instead of handcuffs. The Defendants point out that this incident occurred after the events
in question in this case.
Plaintiff’s Exhibit 4 is Michael Freeman’s Alabama Department of Corrections
Employee File. Specifically, the Defendants object to the following disciplinary actions
contained in Freeman’s personnel file:
1. 1/29/2004

Suspension for sleeping on post

2. 7/23/2004

Suspension for sleeping on post

3. 4/10/2009

Warning for being late for work and not using proper call-in
procedure.

4. 1/7/2010

Written reprimand for being late for work and not using proper
call-in procedures.

5. 8/10/2010

Suspension for being late for work and not using proper call-in
procedures.

6. 8/15/2011

Suspension for being late for work and not using proper call-in
procedures.

7. 3/10/2014

Warning for being late for work and not using proper call-in
procedures.

The Defendants argue that none of these disciplinary actions involved excessive force
and the probative value that they may have is greatly outweighed by the danger of unfair
prejudice under Rule 403.
Plaintiff’s Exhibit 5 is Ed Sasser’s Alabama Department of Corrections Employee File.
Specifically, the Defendants object to the following disciplinary actions contained in Sasser’s
personnel file:
1. 3/20/15

Counseling Session for failing to report to the I & I Director that
an Alabama Department of Corrections employee had been
arrested.

2. 6/3/15

Warning for providing polygraph services at a fishing tournament
in Tennessee. Sasser was on leave of absence from work and used
his own polygraph equipment. Sasser had been involved with this
tournament for many years with permission from his supervisors.

3. Pending

There is a pending issue involving Defendant Sasser’s picking up
and or-taking a grandchild to-from school in state assigned vehicle.

The Defendants state that these disciplinary actions were taken after the events in
question and do not involve excessive force or retaliation.
Plaintiff’s Exhibit 6 is Darian Tucker’s Alabama Department of Corrections Employee
File. Specifically, the Defendants object to the following disciplinary actions contained in
Tucker’s personnel file:
1. 3/2/2001

Suspension for failing to intervene when another officer used force
on an inmate, failing to provide an appropriate report, and
providing incorrect or false information concerning the incident.

2. 10/11/2006

Written reprimand for having Business Boosters and Parade of
Homes magazines in his lunchbox.

3. 10/28/2008

Suspended for sleeping on post.

4. 11/18/2012

Written reprimand for losing state issued property.

5. 8/25/2014

Suspended for improperly handcuffing an inmate and allowing the
inmate to get loose and run. Defendant was required to use force
on the inmate to handcuff him again.

The Defendants argue with respect to the 2001 incident that it is too remote in time to be
probative, and to admit the document would be improper character evidence. With respect to the
August 2014 incident, the Defendants state that it occurred after the events in question and is not
probative and is due to be excluded under Rule 403. With respect to the other disciplinary
actions, the Defendants argue they do not involve allegations of excessive force and are due to be
excluded under Rule 403.
In response to all of these objections, the Plaintiff argues the files are relevant because
they demonstrate the officers “understanding of and ability, or lack thereof, to follow ADOC
policies and procedures” and dispute evidence of positive employee evaluations. The Plaintiff

also argues some documents are relevant under Rule 406 to show habit. The Plaintiff also states
that these exhibits were listed out of an abundance of caution because the Plaintiff will seek to
rebut or dispute testimony regarding positive employee performance evaluations.
To the extent the Plaintiff seeks to offer the disciplinary actions to show propensity, that
the Defendants did or did not act a certain way, the evidence is improper character evidence and
inadmissible under Rule 404. See, e.g., Giles v. Rhodes, No. 94 CIV. 6385 (CSH), 2000 WL
1425046, at *2 (S.D.N.Y. Sept. 27, 2000) (finding in a prison excessive force case that evidence
“regarding an unrelated assault by one of the defendants is precisely the sort evidence of other
crimes, wrongs or acts that Rule 404(b) makes inadmissible.”). While courts in the Eleventh
Circuit have concluded that other incidents of abuse by guards may be admissible if a guard
denies intent, that is not the purpose for which the Plaintiff seeks to offer the evidence in this
case. See Hooks v. Langston, No. 6:05cv65, 2007 WL 1831800, at *2-3 (S.D. Ga. June 25,
2007). The Plaintiff states that the evidence is offered to show the officers’ ability to understand
and obey ADOC policies, but the issue in this case is whether the force used was unreasonable,
not whether a policy, other than a policy against unreasonable use of force, was followed.
The incidents pointed to also are not frequent and regular enough to establish habit under
Rule 406. Reyes v. Missouri Pac. R. Co., 589 F.2d 791, 795 (5th Cir. 1979) (stating that four
prior incidents over a three and a half year period were not enough to establish habit).
Discipline for actions which were not similar to those in this case, namely excessive force
or retaliation, or which are remote in time or occurred after the event in question are of limited
probative value, and the danger of unfair prejudice and confusion of the issues substantially
outweighs whatever probative value they may have, pursuant to Rule 403.

The court, however, agrees with the Plaintiff that the evidence may become admissible if
Defendants open the door to the use of such evidence. Giles, 2000 WL 1425046, at *2 (stating
that plaintiff “correctly notes that evidence inadmissible under Rule 404(b) may nonetheless be
admitted to impeach a witness' credibility if the witness opens up that subject through contrary
testimony.”). Therefore, if the Plaintiff seeks to use this evidence in rebuttal, he may first take it
up outside of the presence of the jury, and the court will take up any objection to the evidence at
that time.
Accordingly, it is hereby ORDERED that the Defendants’ Objections to Exhibits 3, 4, 5,
and 6 are SUSTAINED to the extent that if the Plaintiff contends that the Defendants have
opened the door to the use of this evidence, the Plaintiff must first take it up admission of the
evidence outside of the presence of the jury, and the court will take up any objection to the
evidence at that time.

Done this 9th day of November 2015.

/s/ W. Harold Albritton________________
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE