Dickens v. Taylor, et al

Filing 241

MEMORANDUM ORDER regarding rulings on the pretrial issues before the Court (See Order for further details). Signed by Judge Leonard P. Stark on 4/3/13. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KEVIN L. DICKENS,
Plaintiff,
V.

C.A. No. 04-00201-LPS
COMMISSIONER STAN TAYLOR, et al.,

Defendants
MEMORANDUM ORDER

At Wilmington this 3rd day of April, 2013:
IT IS HEREBY ORDERED THAT:
1.

All claims against Defendants Howard, Sagers, Seacord, and Taylor are

DISMISSED WITHOUT PREJUDICE and said Defendants are DISMISSED from this case

due to lack of personal jurisdiction. See Federal Rule of Civil Procedure 12(b)(2). It is
undisputed that these Defendants were never served, as required by Federal Rule of Civil
Procedure 4. Accordingly, the Court lacks jurisdiction over them. See Ayres v. Jacobs &
Crumplar, P.A., 99 F.3d 565, 569-70 (3d Cir. 1996). To the extent the Court nonetheless has
discretion to extend the time for service, see Griffin-£! v. Beard, 2009 WL 1542790, at *2-3
(E.D. Pa. May 29, 2009), considering the equities, the Court declines to exercise such discretion
to extend the time for service under the circumstances here, which include: Defendants' assertion
of a defense of failure to serve since the time they answered the complaint (see D.I. 70 at p. 13,
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9-11; D.I. 86 at p.13, ~~ 9-11; D.I. 226 Ex. 4 at 4); Plaintiffs failure to timely request an

extension of time to serve (despite Plaintiffs request for such relief with respect to other

Defendants, see D.I. 140; see also D.I. 170; D.I. 226 at 6; D.I. 230 at 4); the fact that at least
some of these four Defendants are retired from the official roles which led to their being named
as Defendants; and the fact that trial is now less than two weeks away.
2.

Defendants' blanket criticism that Plaintiff's allegations lack "particularity and

specificity" (D.I. 234 at 19) does not provide a basis for any relief at this point. At the January
25, 2013 pretrial conference, the Court indicated that Defendants should "report back ... as to
whether there are specific things that the defendants believe are missing." (Tr. at 19-20; see also
D.I. 224) Defendants' efforts to do so have failed to persuade the Court.
3.

Plaintiff's case-in-chief will not be limited solely to those allegations about which

he testified in his deposition. Defendants fail to cite authority for such a restriction. Specific
objections to the scope of Plaintiff's case will be addressed at trial.
4.

To the extent Defendants are seeking summary judgment, or reargument of

previous denials of summary judgment, such requests (see, e.g., D.I. 226 at 3-4, 7-16) are
DENIED.
5.

Both sides seek to prevent the other side from calling at trial any witness who was

not disclosed during discovery. (See D.I. 234 at 24, 27) The parties' requests in this regard are
DENIED. All potential trial witnesses have been listed in the various versions of the proposed
pretrial order. There has been adequate time since that disclosure for the parties to seek relief
less extreme than exclusion of relevant testimony (e.g., a deposition). See generally Meyers v.
Pennypack Woods Home Ownership Ass 'n, 559 F.2d 894, 905 (3d Cir. 1977). There has also

been adequate time since such disclosures for the parties to prepare for trial. Additionally, it
appears that most (if not all) of the witnesses listed for trial were at least mentioned in materials
produced during discovery. Finally, the parties failed in their most recent submissions to state

with any particularity which witnesses they were objecting to and the specific bases for such
objections. (See, e.g., D.I. 234 at 24) ("Defendants object to every witness listed above by
Plaintiffwho was not identified by Plaintiff as a witness during discovery.")
6.

Plaintiffs Motion in Limine 1, to preclude admission or use of his convictions, is

DENIED. Plaintiffs convictions- which the Court understands to include as many as 19
convictions for felony assault, at least some of which occurred in prison, and all of which
apparently occurred between approximately 2001 and 2010- are highly relevant to Defendants'
defenses, including defenses relating to Plaintiffs challenges to his conditions of confinement,
which Defendants contend are in response to the risk created by Plaintiffs prior conduct while
incarcerated. Plaintiffs criminal record is also relevant to Plaintiffs request for injunctive relief,
including his request that the Court order him to be transferred to a different facility.
Furthermore, as it appears that most if not the entirety of the evidence in support of many of
Plaintiffs claims is his own testimony, Plaintiffs credibility will be crucial, making it reasonable
to permit Defendants to attempt to impeach Plaintiff based, in part, on his demonstrated
willingness to violate criminal laws. See, e.g., Marvel v. Snyder, 2003 WL 22134838, at *3 (D.
Del. Sept. 9, 2003); United States v. O'Driscoll, 2003 WL 1401891, at *3 (M.D. Pa. Jan. 22,
2003); Fed. R. Evid. 609(a). The relevance of these convictions is not substantially outweighed
by the danger of unfair prejudice or any of the other concerns of Federal Rule of Evidence 403.
This is particularly so because the jury will necessarily know, due to the nature of Plaintiffs
claims as well as the security measures required in this trial, that Plaintiff is incarcerated and,
therefore, must have a criminal record.
Additionally, Defendants' intended use ofPlaintiffs convictions is not prohibited by
Federal Rule of Evidence 404(b), as Defendants will not be permitted to argue or suggest to the

jury that Defendants' convictions make it likely he acted in conformity with a propensity for
violence. Plaintiffs objection to the evidence of his convictions being cumulative is likewise
unavailing.
7.

To the extent Plaintiff also moves in limine to preclude admission or use of

convictions of any of his witnesses, this motion is DENIED WITHOUT PREJUDICE to renew at
trial on a witness-by-witness and conviction-by-conviction basis. At this time the Court does not
know precisely which witnesses will appear at trial, which of them have criminal histories, and
which portions of such criminal histories Defendants intend to use at trial. Nor have the parties
provided any briefing particular to any witness other than Plaintiff himself.
8.

Plaintiffs Motion in Limine 2, to Preclude Propensity Evidence, is DENIED.

Evidence as to whether Plaintiff is and/or is perceived to be a behavioral problem or security risk
in prison is highly relevant to Defendants' defenses, including defenses relating to Plaintiffs
challenges to his conditions of confinement. The relevance of this evidence is not substantially
outweighed by the danger of unfair prejudice or any of the other concerns of Rule 403.

9.

Defendants' Motion in Limine, to preclude Plaintiff from testifying regarding his

medical condition or diagnoses, is DENIED. Plaintiff will be permitted to testify as to his lay
impressions as to what happened to his body and what injuries and conditions he suffered,
including when they began and his belief as to causation. Defendants will be permitted to crossexamine Plaintiff and establish his lack of medical training and expertise. Should either party
seek to introduce any of Plaintiffs medical records, such records should be offered as separate
exhibits (i.e., they should not be offered into evidence en masse) and the Court will address any
objections to such exhibits consistent with the procedures set forth in the Final Pretrial Order (see
D.l. 234 at 36-37).

10.

The Court hereby ADOPTS the proposal it made at the last pretrial conference

(see Jan. 25, 2013 Tr. at 49-52) as follows: due to security concerns, Plaintiff will appear at trial

in his prison uniform, with shackles, and will be accompanied by personnel from the United
States Marshals Service ("USMS") and the Court's Security Officers ("CSO"), who may be
dressed and armed as they deem appropriate consistent with their ordinary procedures. All
reasonable measures recommended by the USMS and/or CSOs to maintain security in the
courtroom will be implemented. (See Jan. 25, 2013 Tr. at 49-52)
11.

The Court hereby ADOPTS the additional proposal it made at the last pretrial

conference (see Jan. 25, 2013 Tr. at 49-52) as follows: trial will be held from 10 a.m. to 4 p.m.,
which the Court anticipates will give Plaintiff the opportunity to meet with counsel between
approximately 9 a.m. and 10 a.m. and approximately 4 p.m. to 5 p.m. on trial days. Any
additional arrangements Plaintiffs counsel wishes to make to meet with their client away from
Court must be sought through the proper authorities.
12.

Counsel shall make themselves available to meet with the Court and address any

issues each day of trial between 8:30 and 9:00a.m.
13.

The Court is not available for trial on Friday, April26, 2013. If the trial is not

completed before that date, it will be continued on Monday, April29, 2013.
14.

Witnesses not listed in the proposed Final Pretrial Order (D.I. 234 at 23-26) will

not be permitted to testify, even for rebuttal or impeachment purposes, unless good cause is
shown, which will require at a minimum a showing that the relevance ofthe witness's intended
testimony could not have been reasonably foreseen prior to the submission of the Final Pretrial
Order on March 18, 2013.
15.

Defendants' proposal that each side advise the other side of their schedule and

names of witnesses 48 hours prior to the witnesses' direct testimony (D.I. 234 at 59) is
ADOPTED.
16.

Exhibits not listed in the proposed Final Pretrial Order (D.I. 234 at 28-36) will not

be permitted to be used, except for impeachment purposes, unless good cause is shown, which
will require at a minimum a showing that the relevance of the exhibit could not have been
reasonably foreseen prior to the submission of the Final Pretrial Order on March 18, 2013. (See
Jan. 25, 2013 Tr. at 34-35)
17.

The parties are reminded of their obligations pursuant to the proposed Final

Pretrial Order (D.I. 234 at 36-37) that they must disclose the exhibits they intend to use on direct
examination (i.e., a subset of those listed at D.I. 234 at 28-36) no later than 3:00p.m. the day
before the witness is anticipated to be called to testify. Failure to comply with this requirement

will result in the party being precluded from using such an exhibit with the witness.
18.

The parties are further reminded of their obligations pursuant to the proposed

Final Pretrial Order (D.I. 234 at 36-37) that they must provide objections to the admission of
exhibits on a witness-by-witness basis no later than 7:30p.m. the day before the witness is
anticipated to be called to testify. Failure to comply with this requirement will result in the

party's objection(s) being deemed waived.
19.

The parties are further reminded of their obligations pursuant to the proposed

Final Pretrial Order (D.I. 234 at 37) regarding the exchange of demonstrative exhibits. Failure

to comply with these requirements will result in a party being precluded from using a
demonstrative exhibit and/or waiver of an objection to such demonstrative exhibit, as
appropriate.
20.

At the final pretrial conference to be held tomorrow, counsel shall be prepared to

argue: the disputes regarding the proposed final jury instructions relating to Statute of
Limitations (D22) and Liability in Connection with the Actions of Another (P23 and D23); the
dispute regarding the number of peremptory strikes to be accorded to each side pursuant to 28
U.S.C. § 1870; the number ofhours, less than 22 per side, now requested by each side in light of
the Court's rulings; and any other matter on which they seek t e Court's attention.

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UNITED STATES DISTRI