Human Rights Defense Center v. Union County, Arkansas et al

Filing 82

ORDER granting 71 Motion in Limine. Signed by Honorable Susan O. Hickey on February 1, 2023.(mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
HUMAN RIGHTS DEFENSE CENTER
v.

PLAINTIFF

Case No. 1:17-cv-1064

UNION COUNTY, ARKANSAS, et al.

DEFENDANTS
ORDER

Before the Court is Plaintiff Human Rights Defense Center’s (“HRDC”) Motion in Limine.
ECF No. 71. Defendants have responded. ECF No. 76. The Court finds the matter ripe for
consideration.
DISCUSSION
Plaintiff HRDC brings claims against Defendants pursuant to 42 U.S.C. § 1983. Plaintiff
alleges that Defendants violated its First and Fourteenth Amendment rights through the
implementation of the mail policy at the Union County, Arkansas jail. Plaintiff now moves to
preclude Defendants from bringing forth certain testimony, evidence, and references during the
trial in this matter. Plaintiff makes seven specific requests for exclusion, arguing that the matters
are barred by the Federal Rules of Evidence because they are not relevant to the issues at trial
while also being overly prejudicial. The trial in this matter is set to commence on March 6, 2023.
“Evidence is relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence and the fact is of consequence in determining the action.” Fed. R.
Evid. 401. “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. The purpose of Rule 403 is to “exclude matter of scant or cumulative probative

force, dragged in by the heels for the sake of its prejudicial effect.” Bryant v. Mascara, 800 F.
App’x 881, 887 (11th Cir. 2020) (quotation omitted). “In evaluating probative value, we consider
how essential the evidence is to proving a relevant point: evidence which is inessential and only
introduced to bolster other evidence will be weighed less heavily against its potential prejudicial
effect” Id. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
The Court will now examine each of Plaintiff’s requests for exclusion.
1. Paul Wright Conviction
Plaintiff seeks to bar “any testimony, evidence, or reference by defense counsel to the fact
that HRDC’s Executive Director, Paul Wright, was convicted of murder or that he served time in
prison.” Pursuant to Rule 609(b), Plaintiff argues that Mr. Wright’s conviction in 1987 and release
from confinement in 2003 clearly indicates that his conviction is beyond the ten-year period in
which a criminal conviction may be used for impeachment purposes. Plaintiff further argues that
whatever probative value the conviction has does not substantially outweigh the prejudice that
would occur if counsel for Defendants are permitted to reference the conviction. Plaintiff also
notes that Defendants have not given notice in writing that they intent to use the conviction, which
is required under Rule 609(b)(2). Defendants argue that Mr. Wright’s conviction is clearly
indicative of his credibility as a witness and therefore the jurors are entitled to be informed about
it. Defendants do not contest that they have not given written notice to Plaintiff regarding their
intent to use Mr. Wright’s prior conviction to attack his credibility as a witness.
A witness’ prior criminal conviction is generally admissible for attacking that witness’
character for truthfulness if the crime involved a dishonest act or the probative value outweighs its
prejudicial effect. Fed R. Evid. 609(a). However, if the conviction or release from confinement
occurred more that ten years prior, “evidence of the conviction is admissible only if: (1) its

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probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its use.” Fed. R. Evid. 609(b).
The Court finds that Plaintiff has shown good cause to preclude Defendants from
referencing Mr. Wright’s conviction at trial. Mr. Wright’s release from confinement was greater
than ten years prior to the trial in this matter, which makes any reference to it made by Defendants
subject to Rule 609(b). Reference to his conviction could have a significant prejudicial effect.
While Defendants have argued that the conviction gives significant insight into Mr. Wright’s lack
of credibility as a witness, they have not demonstrated how its probative value for his credibility
“substantially” outweighs its prejudicial effect to comply with Rule 609(b)(1). Defendants have
similarly failed to comply with Rule 609(b)(2)’s requirement to give Plaintiff prior written notice
of their intent to use Mr. Wright’s conviction at trial to attack his credibility. Accordingly,
Plaintiff’s request to bar Defendants from referencing, introducing evidence, or eliciting testimony
regarding Mr. Wright’s conviction is hereby GRANTED.
2. Prior Lawsuits by HRDC
Plaintiff seeks to bar “most testimony, evidence, or reference by defense counsel that
Plaintiff, either as HRDC or under its predecessor name Prison Legal News, has filed other
lawsuits against other jails and prisons[.]”

Plaintiff requests that the only evidence of prior

lawsuits that should be admitted is the number of cases for which Plaintiff’s expert witness, John
L. Clark, has been hired to assist Plaintiff. Plaintiff argues that any further evidence of its prior
litigation is both irrelevant to the issues in this matter and would be overly prejudicial because
none of its prior lawsuits were fraudulent. Defendants argue that Plaintiff’s litigious nature is

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clearly probative of its true motivations in bringing its claims, which Defendants allege is to simply
get settlements and fees to “keep the doors open.”
Evidence of a witness or party’s prior acts is “not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). Prior lawsuits by a party are considered “prior acts” that are generally
not admissible under Rule 404(b). See Weitz Co. LLC v. MacKenzie House, LLC, 665 F.3d 970,
975 (8th Cir. 2012) (citing Batiste-Davis v. Lincare, Inc., 526 F.3d 377, 380 (8th Cir. 2008)).
However, “[t]his evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). “This type of evidence is admitted only when one of these
legitimate purposes is at issue in the case.” Weitz, 665 F.3d at 975 (citation omitted). Evidence
of a prior lawsuit may be admitted if it is (1) relevant to a material issue; (2) proved by a
preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4)
similar in kind and close in time to the lawsuit at issue. See Batiste-Davis, 526 F.3d at 380
(citations omitted). “The charge of litigiousness is a serious one, likely to result in undue prejudice
against the party charged, unless the previous claims made by the party are shown to have been
fraudulent.” Id. at 380-81 (quotation omitted).
The Court finds that Plaintiff has shown good cause to preclude Defendants from
referencing Plaintiff’s prior lawsuits beyond the number of prior instances in which Mr. Clark has
been an expert witness for Plaintiff. Defendants’ alleged motive for Plaintiff bringing this suit has
no bearing on the substantive issues underlying Plaintiff’s claims and is not admissible under Fed.
R. Evid. 404(b)(2).

See Weitz, 665 F.3d at 975.

Also, permitting evidence of Plaintiff’s

litigiousness would be overly prejudicial because Defendants have not attempted to show that any

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of Plaintiff’s prior suits were fraudulent. See Batiste-Davis, 526 F.3d at 380-81. Accordingly,
Plaintiff’s request to bar Defendants from referencing Plaintiff’s prior lawsuits, outside of Mr.
Clark’s prior expert appearances for Plaintiff, is hereby GRANTED.
3. Attorney’s Fees
Plaintiff seeks to have the Court bar Defendants from referencing or offering testimony or
evidence regarding the fact that Plaintiff may recover attorney’s fees if it prevails. Plaintiff argues
that attorney’s fees are clearly a matter a law and not a question of fact relevant for a jury’s
consideration. Plaintiff also contends that any reference to its ability to collect attorney’s fees in
this matter is overly prejudicial. Defendants argue that a jury is entitled to know that Plaintiff
derives most of its revenue from litigation. Defendants further argue that the Court should take
notice of Plaintiff’s willingness to accept nominal damages of $1.00 for its claims because this
demonstrates that Plaintiff is not genuinely interested in the damages from its alleged claims but
rather the potential attorney’s fees. Defendants request that any jury instruction that contains an
option to award nominal damages should also inform the jury that attorney’s fees may be allotted
to the prevailing party.
The Court finds that Plaintiff has shown good cause to bar Defendants from referencing
that the prevailing party may be awarded attorney’s fees. The allotment of attorney’s fees to the
prevailing party in an action pursuant to 42 U.S.C. § 1983 is a power reserved to the Court. See
42 U.S.C. § 1988(b). The topic of attorney’s fees is also irrelevant to the substantive merit of
Plaintiff’s claims and the factual questions posed to the jury. Accordingly, Plaintiff’s request to
bar Defendants from referencing that the prevailing party may be awarded attorney’s fees is hereby
GRANTED.

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4. HRDC Income from Lawsuits
Plaintiff seeks to have the Court bar Defendants from referencing or offering testimony or
evidence regarding Plaintiff’s income from lawsuits. Plaintiff reiterates their arguments from
request No. 3, emphasizing that it is not relevant to the substance of their claims and that it would
be overly prejudicial even if it was relevant. Defendants similarly reiterate their arguments from
request No. 3, contending that the jury should be made aware that the instant litigation is not for
the protection of rights but for the collection of income.
The Court finds that Plaintiff has shown good cause to bar Defendants from referencing
Plaintiff’s income from lawsuits. The Court does not see any way in which this information is
relevant to the substance of Plaintiff’s claims and thus admissible. Accordingly, Plaintiff’s request
to bar Defendants from referencing Plaintiff’s income from lawsuits is hereby GRANTED.
5. Dismissal of Other Claims
Plaintiff seeks to bar Defendants from referencing that Plaintiff’s claims against
Defendants Ricky Roberts, Richard Mitcham, and Paul Krugler in their individual capacities have
been dismissed. Defendants state that they have no objection to this request. Accordingly,
Plaintiff’s request to bar Defendants’ reference to claims that have been dismissed is hereby
GRANTED.
6. HRDC’s Citizenship
Plaintiff seeks to have the Court bar Defendants from referring to HRDC as an “out-ofstate” publisher or making similar statements.

Plaintiff argues that HRDC’s citizenship is

completely irrelevant to its claims and that mention of it could only serve to prejudice a jury against
it or cause the jury to make its decisions on an improper basis. Defendants make no specific
argument in opposition to this request.

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The Court finds that Plaintiff has shown good cause to preclude Defendants from making
references to HRDC’s out-of-state citizenship. HRDC’s citizenship is not relevant to the substance
of Plaintiff’s claims and Defendants have not offered how it may be relevant to a substantive
defense. Accordingly, Plaintiff’s request to bar Defendants’ reference to HRDC’s citizenship is
hereby GRANTED.
7. Practice Location and Number of Plaintiff’s Counsel
Plaintiff seeks to have the Court bar Defendants from referencing that any of Plaintiff’s
counsel practice in another state or referencing the number of counsel for Plaintiff. Defendants
argue that out-of-state attorneys should not be permitted to remain anonymous to the jury.
Defendants also contend that courts typically request counsel to introduce itself and state their
place of practice.
The Court finds that Plaintiff has shown good cause to preclude Defendants from making
references to the place of practice of HRDC’s counsel or the number of counsel. Neither topic is
relevant to the substance of Plaintiff’s claims and Defendants have not offered how they may be
relevant to a substantive defense. Accordingly, Plaintiff’s request to bar Defendants’ reference to
the number and practice locale of Plaintiff’s counsel is hereby GRANTED.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion in Limine (ECF No. 71) is hereby
GRANTED. Defendants are barred from referencing or introducing evidence and testimony
related to the seven matters requested by Plaintiff in the instant motion.
IT IS SO ORDERED, this 1st day of February, 2023.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

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