Ramos v. LaJoie et al

Filing 94

RULING denying without prejudice to renewal at trial 72 defendant's Motion to Preclude; and granting in part and denying in part 90 plaintiff's Motion to Preclude. See attached ruling for details. Signed by Judge Sarah A. L. Merriam on 10/28/2015. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JOSHUA RAMOS
:
:
v.
:
:
JOSHUA TRIFONE
:
:
------------------------------x

Civ. No. 3:11CV00679(SALM)

October 28, 2015

RULING ON PENDING MOTIONS TO PRECLUDE
EVIDENCE AT TRIAL [DOC. ## 72, 90]
Pending before the Court are defendant Joshua Trifone
(“defendant”) and plaintiff Joshua Ramos‟s (“plaintiff”) motions
to preclude certain evidence from being introduced at trial,
which is scheduled to commence on November 16, 2015. [Doc. ##72,
90]. Both plaintiff and defendant object to the other‟s pending
motion. [Doc. ##75, 77]. For the reasons articulated below,
defendant‟s motion to preclude [Doc. #72] is DENIED without
prejudice to renewal at trial, and plaintiff‟s motion to
preclude [Doc. #90] is GRANTED in part and DENIED in part.
I.

BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C. §1983

alleging that he was subjected to excessive force while
incarcerated at Northern Correctional Institution. See Compl.,
Doc. #1. Specifically, plaintiff alleges that on March 8, 2010,
following a recreation yard fight in which plaintiff was
involved, defendant, a K-9 officer, allowed his canine “Apollo”
1

to bite the plaintiff while the plaintiff was handcuffed and
lying face-down on the ground. Doc. #1 at 5-6, Doc. #54 at 3.
As a result of the dog bite, plaintiff was taken to an outside
hospital and received seven stiches on his right calf.1 Doc. #1
at 6.
Defendant denies plaintiff‟s allegations, and contends that
plaintiff, who was armed at the time of the incident, was
refusing to get on the ground and drop his weapon when Apollo
bit him. Defendant also asserts a qualified immunity defense.2
See Doc. #69 at 2.
Trial in this matter is presently scheduled to commence on
November 16, 2015, with jury selection to occur on November 5,
2015. See Doc. #83. In anticipation of trial, the parties have
each filed a motion to preclude with respect to certain evidence
the other intends to introduce at trial. See Doc. ##72, 90.

1

Plaintiff initially brought claims for supervisory liability and
use of excessive force against five defendants, one of which was
the canine Apollo. [Doc. #1]. However, Judge Christopher F.
Droney‟s initial review order [Doc. #4], and Judge Dominic J.
Squatrito‟s rulings on a motion to dismiss and motion for
summary judgment [Doc. ##23, 54], disposed of all defendants and
claims, except for the excessive force claim at issue against
Officer Trifone.
It does not appear that Officer Trifone filed an Answer or
Affirmative defenses in this matter. However, Officer Trifone
raised a qualified immunity defense in his Motion for Summary
Judgment. See Doc. #51-1
2

2

II.

LEGAL STANDARD
The purpose of a motion in limine is to allow the trial

court to rule in advance of trial on the admissibility and
relevance of certain anticipated evidence. See Luce v. United
States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d
136, 141 (2d Cir. 1996). “Evidence should be excluded on a
motion in limine only when the evidence is clearly inadmissible
on all potential grounds.” Jean-Laurent v. Hennessy, 840 F.
Supp. 2d 529, 536 (E.D.N.Y. 2011) (citation omitted). “Indeed,
courts considering a motion in limine may reserve judgment until
trial, so that the motion is placed in the appropriate factual
context.” Id. (citing Nat‟l. Union Fire Ins. Co. v. L.E. Myers
Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y. 1996)). “[T]he court‟s
ruling regarding a motion in limine is „subject to change when
the case unfolds, particularly if the actual testimony differs
from what was [expected].‟” Id. (quoting Luce, 469 U.S. at 41).
The Federal Rules of Evidence govern the admissibility of
evidence at trial. Rule 402 permits admissibility of only
relevant evidence, which Rule 401 defines as evidence having
“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(a)-(b). “Therefore,
the court‟s determination of what constitutes „relevant
evidence‟ is guided by the nature of the claims and defenses in
3

the cause of action.” Jean-Laurent, 840 F. Supp. 2d at 536. In
an Eighth Amendment excessive force case, the “„core judicial
inquiry‟” is “not whether a certain quantum of injury was
sustained, but rather „whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.‟” Wilkins v. Gaddy, 559 U.S. 34, 37
(2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
Bearing this standard in mind, and the parties‟ claims and
defenses, the Court turns to the pending motions.
III. DISCUSSION
A. Defendant’s Motion to Preclude [Doc. #72]
Defendant seeks to preclude the plaintiff from: (1)
referencing or introducing as evidence the administrative
investigation of Correctional Officer Badeua regarding his
actions that occurred before the recreation yard fight on March
8, 2010; and (2) introducing exhibits (ix), (x), and (xi),
which, according to defendant, “involve plaintiff‟s Freedom of
Information Request for documents related to the administrative
investigation of Correctional Officer Badeua prior to the
recreation yard fight.” [Doc. #72 at 1]. Defendant argues that
these documents are immaterial, irrelevant, and not probative to
the matters at issue in this action. Plaintiff objects to the
motion to preclude, and argues that the defendant incorrectly
frames the purpose for which plaintiff seeks to introduce the
4

exhibits. [Doc. #90 at 1]. Specifically, plaintiff claims that
these documents do not relate to Officer Badeua, but rather,
relate to plaintiff‟s grievance filed in connection with the
alleged use of force. Id.
The plaintiff‟s reasons for seeking to introduce these
exhibits are not related to the Badeua investigation. Rather,
plaintiff contends that he seeks to introduce these documents to
show that no investigation occurred regarding the alleged use of
force and/or that plaintiff‟s grievance was “compromised,”
meaning that it was found to have some merit. [Doc. #90 at 1].
Defendant represents that “[t]o the extent there exist any
reports or documents that involve the investigation of this
defendant in this specific incident, the defendant has no
objection to their introduction into evidence. However, what the
plaintiff is seeking to introduce is a report that while part of
the larger incident, involves a third party and does not relate
to the allegations in this lawsuit.” [Doc. #72 at 2 n.1]. The
face of the exhibits in dispute, however, belies this
characterization. Indeed, the exhibits at issue make no explicit
mention of Officer Badeua or any other third party. Rather, the
exhibits appear to relate to the alleged use of force at issue
in this matter. Therefore, on the current record, the Court will
reserve ruling on the admission of plaintiff‟s exhibits (ix),
(x), and (xi), until plaintiff has an opportunity to lay a
5

proper foundation for their admission, and the Court has an
opportunity to evaluate the exhibits‟ relevance in the
appropriate factual context.3 See Baxter Diagnostics, Inc. v.
Novatek Med., Inc., No. 94 CIV. 5220 (AJP), 1998 WL 665138, at
*3 (S.D.N.Y. Sept. 25, 1998) (“[T]he Court will not rule on this
motion now, but rather „will reserve judgment on the motion
until trial when admission of particular pieces of evidence is
in an appropriate factual context.‟” (quoting Nat‟l. Union Fire
Ins. Co., 937 F. Supp. at 287)).
Therefore, defendants‟ motion to preclude [Doc. #72] is
DENIED without prejudice to renewal at trial.

3

Nevertheless, the Court cautions plaintiff that to the extent he
seeks to introduce exhibits (ix), (x), and (xi) in connection
with Officer Badeua, the Court would be inclined to grant
defendant‟s motion to preclude. Officer Badeua is not a
defendant in this matter; his actions prior to the alleged
incident are not relevant to any claims or defenses and would
only serve to confuse a jury. See Fed. R. Evid. 403 (“The court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: ... confusing the issues, ... [or] misleading the
jury[.]”); Jean-Laurent, 840 F. Supp. 2d at 537 (“In making a
Rule 403 determination, courts should ask whether the evidence‟s
proper value „is more than matched by [the possibility] ... that
it will divert the jury from the facts which should control
their verdict.‟” (citations omitted)).
6

B. Plaintiff’s Motion to Preclude4
Plaintiff has filed a “Memorandum of Fact and Law
Concerning Evidentiary Problems.” The Court construes this as a
motion to preclude, and has directed the Clerk of Court to
docket it as such. [Doc. #90]. Plaintiff seeks to preclude
evidence of his: criminal history; disciplinary infractions or
other alleged “bad acts”; alleged gang affiliation; alleged drug
use; mental health history; and video footage depicting events
after the alleged use of force. Id. at 1. Plaintiff also seeks
to “limit the number of times the defendant can show the
relevant video footage and limit the testimony and evidence
regarding general characteristics of northern correctional
institution.” Id. Defendant has filed a response in opposition.
[Doc. #75]. The Court will address each disputed evidentiary
issue in turn.
1. Plaintiff’s Criminal History
Plaintiff seeks to exclude evidence of his criminal
history, and the circumstances of those crimes, arguing that
“such evidence may unfairly lead the jury to believe that [he]
has a violent or „bad‟ character and that defendant‟s version of
events that [plaintiff] provoked the specific use of force at

Plaintiff does not point to any specific defense exhibits in his
motion. To the extent that this ruling does not cover all of
plaintiff‟s concerns with the defense exhibits, he should raise
these issues via motion filed on ECF immediately.
4

7

issue is therefore more likely to be true.” [Doc. #90 at 1].
Defendant argues that plaintiff‟s prior convictions should be
admitted pursuant to Federal Rules of Evidence 609 and 403 as
they are highly relevant and will not unduly prejudice
plaintiff. Plaintiff has five prior convictions, sentenced on
the following dates: (1) rioting at a correctional institution
in October 2011 (Conn. Gen. Stat. §53a-179b);5 (2) possession of
weapon or dangerous instrument in correctional institution in
July 2009 (Conn. Gen. Stat. §53a-174a);6 (3) escape in the first
degree in August 2007 (Conn. Gen. Stat. §53a-169);7 (4) criminal
possession of a firearm in August 2007 (Conn. Gen. Stat. §53a217);8 and (5) criminal possession of a pistol or revolver in
January 2006 (Conn. Gen. Stat. §53a-217c).9 See Doc. #88-1 at 15.
A class B felony, Conn. Gen. Stat. §53a-179b(b), which is
punishable by “a term not less than one year not more than
twenty years[.]” Conn. Gen. Stat. §53a-35a(6).
5

A class B felony, Conn. Gen. Stat. §53a-174a(b), which is
punishable by “a term not less than one year not more than
twenty years[.]” Conn. Gen. Stat. §53a-35a(6).
6

A class C felony, Conn. Gen. Stat. §53a-169(b), which is
punishable by “a term not less than one year not more than ten
years[.]” Conn. Gen. Stat. §53a-35a(7).
7

A class C felony, Conn. Gen. Stat. §53a-217(b), which is
punishable by “a term not less than one year not more than ten
years[.]” Conn. Gen. Stat. §53a-35a(7).
8

A class C felony, Conn. Gen. Stat. §53a-217c(b), which is
punishable by “a term not less than one year not more than ten
years[.]” Conn. Gen. Stat. §53a-35a(7).
9

8

“Under Fed. R. Evid. 609, defendant[] [is] entitled to
inquire for impeachment purposes into the nature of the crime
plaintiff was convicted of, the date of disposition and the
sentence imposed, if the conviction meets certain criteria.”
Martino v. Korch, 131 F. Supp. 2d 313, 315 (D. Conn. 2000)
(citation omitted); see also Twitty v. Ashcroft, No.
3:04CV410(DFM), 2010 WL 1677757, at *1 (D. Conn. Apr. 30,
2010)(“[Rule 609(a)(1)] requires district courts to admit the
name of a conviction, its date, and the sentence imposed unless
the district court determines that the probative value of that
evidence „is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.‟ Fed. R. Evid. 403. This
determination is left to the sound discretion of the district
court.” (citation omitted)). “Rule 609(a)(1) allows prior
convictions to be used for impeachment purposes where the „crime
was punishable by death or imprisonment in excess of one year,‟
subject to the balancing test of Rule 403.” Martino, 131 F.
Supp. at 315 (quoting Fed. R. Evid. 609(a)(1)). Rule 609(b)
limits the use of evidence of convictions “if more than 10 years
have passed since the witness‟s conviction or release from
confinement for it, whichever is later.” Fed. R. Evid. 609(b).

9

Here, each of plaintiff‟s five convictions meet the
requirements of Rule 609(a)(1) and are not subject to the
limitation set forth in Rule 609(b) for convictions ten years or
older. As required by 609(a)(1), all five convictions are for
crimes punishable by imprisonment for more than one year. See
footnotes 5 through 9, supra. Because plaintiff‟s earliest
conviction dates to January 2006, see Doc. #88-1 at 5, he has
not been released from confinement for more than ten years.
Accordingly, because plaintiff‟s felony convictions meet the
requirements of 609(a)(1), the Court next turns to whether their
relevance is outweighed by the danger of unfair prejudice.
In balancing the probative value against prejudicial effect
under Rule 609, “courts examine the following factors: (1) the
impeachment value of the prior crime, (2) the remoteness of the
prior conviction, (3) the similarity between the past crime and
the conduct at issue, and (4) the importance of the credibility
of the witness.” Daniels v. Loizzo, 986 F. Supp. 245, 250
(S.D.N.Y. 1997) (citation omitted).
As to the first factor, although “Rule 609(a)(1) presumes
that all felonies are at least somewhat probative of a witness‟s
propensity to testify truthfully[,]” United States v. Estrada,
430 F.3d 606, 617 (2d Cir 2005), “all Rule 609(a)(1) felonies
are not equally probative of credibility.” Id. Here, the
plaintiff‟s convictions are not necessarily probative as to
10

honesty or veracity. See, e.g., id. at 617-18 (noting that
convictions for violent or assaultive crimes generally do not
relate to credibility).
Turning to the second factor, “the probative value of a
conviction decreases as its age increases.” Twitty, 2010 WL
1677757, at *2 (citation and internal quotation marks omitted).
Here each of plaintiff‟s convictions occurred more than four
years ago. Although defendant argues that each conviction
occurred no more than four years from the alleged use of force,
the Court nevertheless finds that this factor diminishes the
probative value of plaintiff‟s convictions.10
The third factor pertaining to similarity of the crimes,
“deals with the similarity of the charged crimes, or
the incident at issue in the pending case, to the
conviction. The less similar the pending case to the
prior conviction, the less prejudicial its admission
is.” Stephen v. Hanley, No. 03–CV–6226 (KAM)(LB), 2009
WL 1471180, at *5 (E.D.N.Y. May 21, 2009). On the
other hand, a conviction for a crime that bears a
close resemblance to actions alleged in the current
case might cause “unfair prejudice to the party
against whom they are offered by suggesting that the
party has a propensity to commit such acts.” Lewis v.
Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993).
Twitty, 2010 WL 1677757, at *2. Defendant admits that “the
conduct of plaintiff in escaping from prison, possessing a

The Court further notes that the offense dates for each of
plaintiff‟s convictions at issue further diminishes their
probative value. For example, although plaintiff‟s rioting
conviction was entered on October 14, 2011, the offense date was
more than one year prior, on March 8, 2010.
10

11

weapon in a correctional institution and rioting are similar to
the conduct at issue in this case,” but contends that this
information will “give the jury insight into the intent and plan
of the plaintiff when officers responded to the prison yard
assault[.]” [Doc. #75 at 7]. Defendant further argues that
evidence of plaintiff‟s prior convictions will “give the jury
insight into the intent and plan of the plaintiff when officers
responded to the prison yard assault and witnessed the plaintiff
brutally attacking a fellow gang member and prisoner.” [Doc. #75
at 7].
As conceded by defendant, several of plaintiff‟s
convictions are for conduct similar to the conduct at issue in
this case. These convictions “skirt too close to the
impermissible suggestion that the plaintiff had a propensity
toward violence and acted in conformity with his aggressive
predisposition.” Lewis, 149 F.R.D. at 483. Indeed, the nature of
plaintiff‟s prior convictions, particularly those occurring
during plaintiff‟s incarceration, would almost surely unfairly
bias the jury against him. “The court is persuaded that the jury
is likely to draw the inference from the nature of plaintiff‟s
convictions that he has the propensity to engage in violent
behavior.” Twitty, 2010 WL 1677757, at *2. Accordingly, the
third factor weighs against the convictions‟ admission.

12

Finally, the fourth factor, the importance of the
credibility of the witness, weighs in favor of admitting the
convictions. Here, it is undisputed that plaintiff‟s credibility
is a central issue given that the alleged use of force occurred
outside the view of cameras monitoring the recreation yard.
Therefore, this factor weighs in favor of admitting the
convictions for impeachment purposes pursuant to Rule 609. See
Twitty, 2010 WL 1677757, at *3; see also Gora v. Costa, 971 F.2d
1325, 1330 (7th Cir. 1992) (“The idea underlying Rule 609,
whether right or wrong, is that criminals are more likely to
testify untruthfully.”).
Based on the totality of the above considerations, the
Court finds that the probative value of the fact of plaintiff‟s
felony convictions, as well as the date and the sentence
imposed, outweighs their prejudicial effect. “However, the
probative value of the name and nature of the convictions is
substantially outweighed by the danger of unfair prejudice.
Accordingly, evidence as to the date of plaintiff‟s [] felony
convictions and the sentence is admissible; the names of the
convictions is not.” Twitty, 2010 WL 1677757, at *3 (compiling
cases for proposition that the Court retains the discretion to
limit evidence of prior conviction to fact that plaintiff was
convicted of felony and the sentence imposed).

13

Accordingly, for the reasons stated, plaintiff‟s motion to
preclude with respect to his felony convictions is GRANTED in
part and DENIED in part.
2. Plaintiff’s Disciplinary Infractions and Other “Bad Acts”
Plaintiff next seeks to preclude the defendant from
introducing evidence of plaintiff‟s prison disciplinary records
and other alleged “bad acts.” [Doc. #90 at 4-12]. Defendant
represents that other than the disciplinary infraction resulting
from the incident at issue in the Complaint, “the defendant will
not offer any past disciplinary infractions unless it is for
impeachment purposes or the plaintiff otherwise raises it as an
issue at trial.” [Doc. #75 at 2].
With respect to plaintiff‟s past disciplinary infractions
not related to the alleged use of force at issue, and in light
of defendant‟s representation, the Court denies plaintiff‟s
motion as moot and without prejudice to renewal at trial.
With respect to the disciplinary infraction resulting from
the alleged use of force, plaintiff contends that “these
disciplinary reports are not relevant to show state of mind or
intent on the part of [plaintiff] or the defendant.” [Doc. #90
at 8]. On the record before the Court it is not clear the
purpose for which defendant intends to introduce the
disciplinary infraction, and defendant should be allowed the
opportunity to proffer the basis for which he seeks its
14

introduction. At the pretrial conference scheduled for November
3, 2015, defendant shall make a proffer concerning the purpose
and relevancy of offering this disciplinary infraction.
Accordingly, plaintiff‟s motion to preclude with respect to the
disciplinary infraction resulting from the alleged use of force
is DENIED without prejudice to renewal after such proffer is
made.
3. Plaintiff’s Alleged Gang Affiliation
Plaintiff also seeks to preclude defendant from offering
evidence relating to any alleged gang affiliation. [Doc. #90 at
13]. Plaintiff argues that any such evidence is highly
prejudicial and impermissible character evidence. Defendant
responds that this evidence is relevant as it formed the basis
of plaintiff‟s actions in the recreation yard, which led to the
use of force at issue. [Doc. #75 at 8].
Federal Rule of Evidence 404(b) provides that “[e]vidence
of a crime, wrong, or other act 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). However, Rule 404(b) also provides for
an exception to this rule and allows the admissibility of such
evidence “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid.
15

404(b)(2). The Second Circuit follows “an inclusionary rule,
allowing the admission of such evidence for any purpose other
than to show a defendant‟s criminal propensity, as long as the
evidence is relevant and satisfies the probative-prejudice
balancing test of Rule 403 of the Federal Rules of Evidence.”
United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994)
(citation omitted).
With respect to plaintiff‟s alleged gang affiliation,
defendant proffers:
Plaintiff‟s gang affiliation forms the basis of his
actions, which led to the use of force. Evidence will
show that plaintiff was a high-ranking gang member who
committed this vicious assault upon a fellow gang
member because this inmate failed and/or refused to
carry out plaintiff‟s order for him to “terminate”
another gang member. This brazen action by the
plaintiff demonstrates his determination to carry out
this assault at all costs and the need for the
defendant to respond to plaintiff‟s action in the
manner in which he did.
Doc. #75 at 8. Defendant further contends that it is especially
important for officers to respond “quickly and swiftly to
reestablish order” where an incident is gang-related. Id. at 11.
Plaintiff argues that evidence of gang membership is irrelevant
to any issue at trial, and there is no indication that his
purported gang affiliation had any relevance to the force
defendant used against him. [Doc. #90 at 13].
The Court does not find plaintiff‟s alleged gang membership
relevant in light of defendant‟s proffer. Plaintiff‟s alleged
16

motivations for carrying out the assault which led to the use of
force by the defendant are not relevant to the claims or
defenses in this matter. There could be circumstances under
which a defendant‟s knowledge of a plaintiff‟s gang affiliation
could be relevant to the question of whether that defendant‟s
actions were objectively reasonable under the circumstances
confronting him at the time of the alleged use of force. See,
e.g., United States v. Abel, 469 U.S. 45, 52-53 (1984) (holding
that evidence of defendant and defense witness‟s membership in
the Aryan Brotherhood was probative of bias where the gang‟s
tenets required its members to lie and cheat to protect one
another). Here, however, there is no evidence that defendant was
aware of the particular motivations behind plaintiff‟s actions,
even if defendant‟s assessment of those motivations was
accurate. Nor is there any basis for finding that more or less
force is necessary to subdue an inmate based on the reason he is
involved in an altercation. In a case presenting similar facts,
the Court noted that the simple assertion by defendants that a
plaintiff in a prisoner excessive force case “was a known gang
member,” without more, does not justify admission of the gang
evidence.

“Defendants improperly suggest that evidence of gang

membership automatically supports their argument that any level
of force was used in a good faith effort to maintain or restore

17

discipline.” Joyner v. O‟Neil, No. 3:10CV406, 2012 WL 2576355,
at *3 (E.D. Va. July 3, 2012).
Even if plaintiff‟s gang affiliation is relevant, its
probative value is outweighed by the prejudicial effect the
evidence would have on the jury. “Evidence of a witness's
affiliation with a gang is highly prejudicial, especially when
the gang evidence is not relevant to a central issue in a case.”
Case v. Town of Cicero, No. 10CV7392, 2013 WL 5645780, at *5
(N.D. Ill. Oct. 16, 2013) (internal citation and quotation marks
omitted); see also United States v. Reyes, No. 11CR1(MRK), 2012
WL 3727995 at *2 (D. Conn. May 1, 2012) (“Evidence that a
defendant is a member of a gang can be highly prejudicial” and
should be treated with particular caution where membership in
the gang is not an element of the offense.) “Evidence of gang
affiliation must be handled with care, because a jury is likely
to associate gangs with criminal activity and deviant behavior,
raising the specter of guilt by association or a verdict
influenced by emotion.” United States v. Molton, 743 F.3d 479,
482 (7th Cir. 2014) (internal citation and quotation marks
omitted).
Here, the probative value of the evidence regarding
plaintiff‟s alleged gang affiliation is minimal, at best, and it
“is significantly outweighed by the risk of unfair prejudice to
plaintiff[].” Valtierra v. City of Los Angeles, No.
18

2:13CV07562(CAS), 2015 WL 1644894, at *3 (C.D. Cal. Apr. 13,
2015) (excluding testimony regarding civil rights plaintiff‟s
gang affiliation); see also Anderson v. City of Chicago, No.
09CV2311, 2010 WL 4811937 (N.D. Ill. Nov. 19, 2010) (excluding
evidence of plaintiff‟s gang affiliation in an excessive force
case); Finley v. Lindsay, No. 97CV7634, 1999 WL 608706 (N.D.
Ill. Aug. 5, 1999) (same); Charles v. Cotter, 867 F. Supp. 648,
658 (N.D. Ill. 1994) (“Identifying Charles as a gang member is
unfairly prejudicial insofar as it encourages the inference that
Charles is an evil and menacing person.”). The Ninth Circuit has
held that “evidence relating to gang involvement will almost
always be prejudicial and will constitute reversible error.
Evidence of gang membership may not be introduced ... to prove
intent or culpability.” Kennedy v. Lockyer, 379 F.3d 1041, 1055
(9th Cir. 2004).
Accordingly, on the record currently before the Court,
plaintiff‟s motion to preclude evidence relating to his alleged
gang affiliation is GRANTED.
4. Plaintiff’s Alleged Drug Use
Plaintiff seeks to preclude defendant from introducing
evidence of his alleged prior drug use, arguing that any such
evidence is not relevant, prejudicial, and impermissible
character evidence. [Doc. #90 at 13-14]. Defendant responds that
he “will not offer any evidence of the plaintiff‟s alleged drug
19

use unless it is for impeachment purposes or the plaintiff
otherwise raises it as an issue at trial.” [Doc. #75 at 2]. In
light of this representation, the Court DENIES plaintiff‟s
motion with respect to his alleged prior drug use as moot and
without prejudice to renewal at trial.
5. Plaintiff’s Mental Health History
Plaintiff next seeks to preclude defendant from introducing
evidence of his mental health history. Defendant again
represents that he “will not offer any evidence of the
plaintiff‟s mental health history unless it is for impeachment
purposes or the plaintiff otherwise raises it as an issue at
trial.” [Doc. #75 at 2]. In light of this representation, the
Court DENIES plaintiff‟s motion with respect to his mental
health history as moot and without prejudice to renewal at
trial.
6. Video Footage of Incident
Plaintiff also seeks to exclude video footage depicting
events following the alleged use of force, beginning when Mr.
Ramos is escorted to the medical room for evaluation of his
injuries. [Doc. #90 at 15]. Plaintiff argues that this evidence
is cumulative, wastes judicial resources, and is prejudicial as
it depicts “irrelevant „bad acts.‟” Id. Plaintiff also seeks to
limit the number of times defendant can show the relevant video
footage to the jury. Id. at 16. Defendant seeks to admit the
20

entirety of the video footage, arguing that it “will demonstrate
not only the viciousness of plaintiff‟s attack, but more
importantly the reasonableness of defendant‟s actions, the
demeanor and condition of plaintiff following the incident, and
the very limited injury sustained by the plaintiff following the
incident.” [Doc. #75 at 14].
Defendant submitted three CDs under seal, which
collectively depict the entirety of the video at issue in
plaintiff‟s motion. The first CD is a video of the recreation
yard incident, and the correctional officers‟ response giving
rise to plaintiff‟s claim. The duration of this video is
approximately ten minutes. Plaintiff “does not seek to exclude
any portions of the video that are relevant to the use of force
against him.” [Doc. #90 at 16]. Accordingly, the Court will
permit the entirety of that portion of the video depicting the
recreation yard incident, as well as the correctional officers‟
immediate response to the incident.
The next CD, which contains a video lasting 50 minutes,
depicts plaintiff after the alleged use of force, including his
escort to the medical room for treatment, and his sitting in
restraints while guarded by several correctional officers. The
third video, lasting 38 minutes and 27 seconds, is a
continuation of the second video, and similarly depicts
plaintiff sitting in restraints while guarded by several
21

correctional officers. This portion of the video also shows
plaintiff receiving further medical attention for his injury,
including the suturing of his wound, all while remaining in hand
and foot restraints.
After reviewing the video footage, the Court agrees with
plaintiff that the entirety of the video should not be shown to
the jury. Indeed, the video contained on the second and third
CDs, totaling nearly an hour and a half, would waste the jury‟s
time, is not particularly probative, and is likely to be
cumulative of the testimonial and documentary evidence at trial.
Although defendant offers that this footage is probative of
plaintiff‟s demeanor and condition following the incident, this
evidence can be conveyed through testimony of the correctional
officers and medical staff who attended to plaintiff following
the alleged use of force. Accordingly, the Court GRANTS
plaintiff‟s motion to the extent that it seeks to preclude the
admission of the video following the alleged use of force at
issue. See Fed. R. Evid. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: ... undue delay, wasting
time, or needlessly presenting cumulative evidence.”).11

However, should plaintiff‟s testimony contradict the evidence
in the excluded portions of the videos, the Court will permit
defendant to introduce additional portions of the video for
impeachment purposes.
11

22

Last, plaintiff seeks to limit the number of times
defendant may show the relevant video footage, contending that
“[t]he repeated expos[ure] to the events leading up to excessive
force will cause the jury to confuse the issues in this case.”
[Doc. #90 at 17]. Notably, plaintiff fails to cite to any
authority supporting this position. The Court DENIES plaintiff‟s
motion with respect to limiting the number of times the relevant
video footage may be shown. The Court will not dictate how
defendant presents his defense to plaintiff‟s claims. Should the
defendant articulate a legitimate reason that the admitted video
should be shown to a particular witness who was present for
and/or involved in the incidents depicted, the Court will allow
it. To the extent that “repeated exposure” causes plaintiff
prejudice, this may be cured through an appropriately crafted
jury instruction.
7. Evidence re: Northern Correctional Institution
At the time of the incident in question, plaintiff was
incarcerated at Northern Correctional Institution (“Northern”),
which, per defendant, “is reserved for the most dangerous and
problematic inmates in the correctional system.” [Doc. #75 at
16]. Plaintiff seeks to limit the evidence presented concerning
the general characteristics of Northern, including: its status
as a maximum security facility; the nature of the inmates housed
there; and statistics concerning other inmate “incidents.” [Doc.
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#90 at 17]. Plaintiff argues that such evidence is tantamount to
impermissible character evidence prohibited by Rule 404. Id.
Defendant argues that evidence regarding the general aspects and
characteristics of Northern “goes to whether the force used
against the plaintiff was excessive or reasonable under the
circumstances and it also goes to the underlying state of mind
of the defendant.” [Doc. #75 at 15].
Evidence of the general characteristics of Northern is
relevant to the question of whether defendant‟s actions were
objectively reasonable under the facts and circumstances
confronting him at the time of the alleged use of excessive
force. Indeed, evidence of Northern‟s general characteristics
directly bears on the objective reasonableness of defendant‟s
conduct, and is therefore relevant to the claim asserted.
However, statistical evidence regarding prior unrelated
incidents is not relevant, and provides no support for the
claims or defenses in this case.
Plaintiff argues that the probative value of this evidence
is substantially outweighed by the risk of unfair prejudice
because the jury may infer that because plaintiff was
incarcerated at Northern, he is a “bad” person. [Doc. #90 at
17]. Rule 403 of the Federal Rules of Evidence provides that a
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice, among
24

other reasons. See Fed. R. Evid. 403. A trial judge‟s rulings
with respect to Rule 403 are entitled to considerable deference
and will ordinarily not be overturned absent an abuse of
discretion. Costantino v. Herzog, 203 F.3d 164, 173 (2d Cir.
2000). Although evidence of Northern‟s general characteristics
may prejudice plaintiff, the Court does not find that, on
balance, the probative value of this evidence is substantially
outweighed by unfair prejudice. Indeed, the Seventh Circuit came
to a similar conclusion in an excessive force case presenting
the same evidentiary issue:
The evidence that the scuffle took place in the
confinement
unit
reserved
for
inmates
with
a
propensity for violent behavior was not inadmissible
“character evidence.” It was relevant to the issue
whether the force used against West was excessive or
reasonable under the circumstances ... Defendants‟
assessment of the danger posed by the situation in
that unit bears on the issue whether they acted
reasonably and in good faith ... That defendants were
dealing
with
an
inmate
housed
in
the
special
confinement unit rather than with a trust[ee] housed
on a prison farm is clearly relevant to their
assessment of the danger posed and the amount of
reasonable force to be applied. This evidence bearing
on defendants‟ states of mind was admissible under
Rule 404(b). Crawford v. Edmonson, 764 F.2d 479, 484
(7th Cir. 1985); Carson v. Polley, 689 F.2d 562, 573
(5th Cir. 1982). The reality of this case is that
plaintiff is a felon housed in a state prison, which
itself suggests that his character is not entirely
above reproach. We conclude that the trial court did
not abuse its discretion in admitting this evidence.
West v. Love, 776 F.2d 170, 174 (7th Cir. 1985).

25

Moreover, to the extent that evidence of Northern‟s general
characteristics unfairly prejudices plaintiff, any such risk can
be cured through an appropriately crafted jury instruction. See
James v. Tilghman, 194 F.R.D. 408, 420-21(D. Conn. 1999)
(finding that the court‟s jury instructions cured any prejudice
caused by defense counsel‟s statements that a certain
correctional institution‟s inmates were the “worst of the
worst”). Accordingly, plaintiff‟s motion with respect to
evidence regarding Northern is GRANTED in part and DENIED in
part. Defendant may introduce evidence regarding the general
characteristics and purpose of Northern, but may not, on this
record, introduce statistics regarding other incidents at the
facility.
IV.

CONCLUSION
Therefore, for the reasons stated, defendant‟s motion to

preclude [Doc. #72] is DENIED without prejudice to renewal at
trial, and plaintiff‟s motion to preclude [Doc. #90] is GRANTED
in part and DENIED in part.
A final pre-trial conference is scheduled in this matter
for November 3, 2015, at 10:00AM. Jury selection is scheduled
for November 5, 2015, at 9:00AM, with evidence to commence on
November 16, 2015, at 9:00AM.

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This is not a recommended ruling. The parties consented to
proceed before a United States Magistrate Judge [Doc. #76] on
July 20, 2015, with appeal to the Court of Appeals.
SO ORDERED at New Haven, Connecticut this 28th day of
October 2015.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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