Davis v. Green et al

Filing 62

OPINION and ORDER granting in part and denying in part Defendant Carlos C. Green's 41 Second Motion in Limine; denying Defendant Green's 56 Motion to Reconsider the Court's Order to Depose Marcus Taylor. Signed by Judge William S. Duffey, Jr on 6/3/2015. (dfb)

County corrections officers. Plaintiff alleges that, while Plaintiff was detained in
the Clayton County Jail, Defendants entered his cell, slammed his head against the
concrete wall and metal bed, and knocked him unconscious. Plaintiff alleges that
Defendants failed to provide him with medical assistance after he was assaulted.
He claims he suffered permanent and severe physical and emotional injuries as a
result of the alleged assault. Plaintiff contends that Defendants violated his rights
under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States
Constitution.
On May 15, 2013, the Court dismissed Defendant Pough from this action for
insufficient service of process. On May 29, 2014, the Court administratively
closed this case because the case was inactive for several months. The Court
required the parties to file a Motion to Vacate within sixty (60) days, warning that
a failure to move to vacate would result in a dismissal of the action with prejudice.
On July 28, 2014, Plaintiff moved to vacate the May 29, 2014, Order. On
November 18, 2014, the Court reopened this matter. On January 12, 2015,
Defendant Green moved for Judgment on the Pleadings on the ground that res
judicata bars Plaintiff from litigating his federal claims in this Court. On
April 13, 2015, the Court denied Defendant Green’s Motion for Judgment on the
Pleadings.

2

On April 27, 2015, Defendant Green moved in limine to preclude Plaintiff
from introducing the testimony of witnesses and documents that were not disclosed
during discovery, and evidence regarding several other matters. The Court now
addresses each category of evidence that Defendant Green seeks to exclude.
II.

DISCUSSION
A.

Analysis
1.

Testimony of Undisclosed Witnesses

Defendant Green seeks to exclude Plaintiff from introducing the testimony
of the following witnesses: Ben Davis, William Dubee, Garland Watkins, Ranisha
Pendleton, Geraldine Washington, Renee Bright, Shon Hill, John Doe (Plaintiff’s
cellmate at the Clayton County Jail), Marcus Taylor, Cassandra Pitts, Phillip
Neely, Jane Doe (Clayton County Jail nurse), Jim Doe (inmate at Clayton County
Jail), Kymberly Winfrey, J. Williams, Moss, Martin, John Doe (Clayton County’s
investigator), Turnipseed, Carlos Green, Jamie Williams and Clide Moss (“the
witnesses”). Defendant Green argues that the testimony of these witnesses should
be excluded because Plaintiff failed to disclose them, and Plaintiff’s failure to do
so is not substantially justified or harmless.2

2

On May 27, 2015, at the direction of the Court, Plaintiff advised the Court of the
twenty (20) witnesses he intends to call in his case-in-chief. The Court notes that
Plaintiff failed to provide all of the information required for each witness. Not all
3

Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure requires that a
party must provide to other parties the name of “each individual likely to have
discoverable information that the disclosing party may use to support its claims or
defenses, unless solely for impeachment.” See Fed. R. Civ. P. 26(a)(1)(A)(i).
Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure requires the parties to
supplement their Rule 26 disclosures in a timely manner. See Fed. R. Civ. P.
26(e)(1)(A).
Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, “if a party fails
to provide information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” See Fed. R. Civ. P. 37(c)(1); Romero v. Drummond Co., Inc., 552 F.3d
1303, 1323 (11th Cir. 2008) (A party that “fails to provide information . . . as
required by Rule 26(a) . . . is not allowed to use that information or witness to
supply evidence . . . at trial unless the failure was substantially justified or is
harmless.”) (internal quotation marks and citations omitted)). The initial

of the witnesses Defendant seeks to exclude in his Second Motion in Limine
appear on the May 27, 2015, witness list. In light of Plaintiff’s erratic and
unreliable litigation practices in this case, the Court considers the Motion in
Limine with respect to all of the persons identified in the Motion.

4

disclosure requirements of Rule 26 are fundamental to the orderly, efficient,
cost-effective and fair litigation of civil cases and the Rule 37(c)(1) remedies are
directed at sanctioning a litigant for failing to provide or supplement the most basic
information necessary to efficiently and fairly litigate a dispute.
Plaintiff admits that he did not disclose the witnesses Defendant Green seeks
to exclude from testifying at trial. Plaintiff did not supplement his disclosures and
identify any of these witnesses until May 13, 2015, the day after Plaintiff filed his
response to Defendant’s Second Motion in Limine. At this point, when this
“disclosure was made” the case had been pending for two and one half years,
discovery had been closed for months, and the trial was set to take place in less
than four weeks. Plaintiff’s only argument advanced to excuse this discovery and
disclosure failure is that he failed to identity the witnesses or disclose the
subject-matter of their testimony because “the court file containing challenged
information had been misplaced and was not located until the parties were
preparing the [p]retrial [o]rder.” Pl.’s Resp. at 2. This vague excuse is not
supported by facts. Plaintiff does not explain who misplaced the court file or how
the court file was allegedly misplaced. Plaintiff contends that his failure to
disclose the witnesses was harmless because Defendant Green provided some of
the “challenged information on or about February 8, 2010 per the public record

5

request submitted by plaintiff’s counsel to the Clayton County Sherriff’s
Department.” Id. This conclusory claim also is not supported by facts, and it does
not excuse Plaintiff from fulfilling his discovery obligations.
In Nance v. Ricoh Electronics, Inc., the Eleventh Circuit rejected the
plaintiff’s argument that the defendant was not prejudiced by plaintiff’s failure to
disclose witnesses because the undisclosed witnesses were the defendant’s
employees “with whom [the defendant] was familiar.” 381 App’x 919, 923
(11th Cir. 2010). The Eleventh Circuit held that the plaintiff’s argument did not
justify his failure to disclose the witnesses. Id. Here, Plaintiff argues that his
failure to disclose should be excused because Defendant Green provided him with
information pursuant to a public record request. Id. Plaintiff does not explain why
Defendant Green should have known about the undisclosed witnesses based on a
public record request initiated by Plaintiff. Even if the Court assumes that
Defendant Green was familiar with the undisclosed witnesses, mere “familiarit[y]”
with a witness does not justify Plaintiff’s failure to comply with his discovery
obligations. Id. The disclosure of people who have knowledge of the facts of a
case are fundamental and critical to civil litigation. It is these disclosures that put a
party on notice of the evidence that it must understand and with which it may have
to contend at trial. The disclosures are essential to develop a reasoned,

6

cost-effective plan for discovery. It allows a party to assess its case and the end
result is often an early resolution to the dispute. Plaintiff’s refusal to embrace
these litigation obligations thwarted the purpose of these discovery rules.
Plaintiff here failed to provide any argument that his failure to disclose was
substantially justified. The Court also finds that the failure to disclose these
witnesses is not harmless because Defendant Green did not have the opportunity to
depose them and conduct proper discovery. See Nance, 381 F. App’x at 923
(holding that failure to disclose witnesses was not harmless because defendant did
not have the opportunity to depose the witnesses and conduct discovery).
Defendant Green’s Motion in Limine to exclude the witnesses that were not
disclosed is granted, except with respect to Marcus Taylor for the reasons stated
below.
The Court considers Taylor separately. The Court notes that it entered an
Order on May 28, 2015, in response to Plaintiff’s Motion to Reconsider its
May 21, 2015, Order, denying a writ to arrange for Taylor to appear at trial from
his place of incarceration in Savannah, Georgia. The Court denied the writ, but,
sua sponte allowed Plaintiff to depose Taylor before trial. The decision to allow
the deposition was made without having yet evaluated the Second Motion in
Limine. Although Plaintiff did not identify Taylor in a Rule 26(a)(1)(i) disclosure,

7

the Court notes that Plaintiff did produce to Defendant a copy of a statement made
by Taylor regarding the incident at issue in this case. The statement was produced
on September 3, 2013. Taylor’s identity and the substance of what he knew was
thus effectively disclosed by Plaintiff on September 3, 2013, and Defendant had
the opportunity to depose him and he cannot claim now surprise or unfairness. The
Court notes that Taylor is scheduled to be deposed in Savannah on
Friday, June 6, 2015. Both parties thus will have a chance to record his testimony
before trial. 3
2.

Testimony of Treating Physicians

Plaintiff seeks to introduce the testimony of Dr. Kerry Miller and Dr. Robert
Howard regarding the treatment they provided to Plaintiff and their opinion on the
cause of Plaintiff’s injuries. Plaintiff contends that Dr. Miller and Dr. Henry were
not required to provide a written expert report, as required by Rule 26(a)(2)(B) of
the Federal Rules of Civil Procedure, because Plaintiff did not retain them to
testify at trial. Defendant Green seeks to exclude the testimony of Dr. Miller and
Dr. Henry on the ground that Plaintiff did not disclose the subject-matter of their
testimony or provide a summary of the facts and opinions on which their testimony
3

Defendant requests reconsideration of the Court’s decision to allow the
deposition. Because Taylor was identified to Defendant in September 2013, the
Motion for Reconsideration is denied.

8

is based.
Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure, which governs the
disclosure of treating physicians, requires a party to provide “(i) the subject matter
on which the witness is expected to present evidence under Federal Rule of
Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which
the witness is expected to testify.” See Fed. R. Civ. P. 26(a)(2)(C). A failure to
provide the subject matter of a treating physician’s testimony or a summary of the
facts and opinions of the treating physician precludes a party from introducing
their testimony at trial unless the failure was substantially justified or harmless.
See Fed. R. Civ. P. 37(c)(1); Romero, 552 F.3d at 1323; see also Kondragunta v.
Ace Doran Hauling & Rigging Co., No. 1:11-CV-01094-JEC, 2013 WL 1189493,
at *6 (N.D. Ga. Mar. 21, 2013); Faile v. Dillard’s Inc., No. 5:11-cv-41-RS-CJK,
2011 WL 7641239, at *1 (N.D. Fla. Nov. 4, 2011) (identifying treating physicians
and asserting that they “may be an expert to the extent an opinion is rendered as to
causation and damages” does not satisfy Rule 26(a)(2)(C) disclosure
requirements); Schultz v. Ability Ins. Co., No. C11-1020, 2012 WL 5285777, at *5
(N.D. Iowa Oct. 25, 2012) (finding that merely identifying treating physicians was
insufficient to satisfy Rule 26(a)(2)(C)’s requirements).
In his response, Plaintiff does not acknowledge the disclosure requirements

9

of Rule 26(a)(2)(C). Plaintiff contends, without any authority, that the Second
Motion in Limine should be denied because Plaintiff is not required to provide a
written expert report. Plaintiff’s response misapprehends the requirements of Rule
26(a)(2)(C). An expert report is required to be provided if the expert is retained
and specially employed to provide testimony in a case, and it is true this
requirement does not apply to Plaintiff’s treating physicians. See Fed. R. Civ. P.
26(a)(2)(B). Rule 26(a)(2)(C), however, has a specific requirement for disclosures
regarding treating physicians, with which Plaintiff must comply.
Plaintiff did not provide the subject-matter of his treating physicians’
testimony or the facts and opinions on which their testimony is based. Plaintiff did
not meet this minimal obligation, and he did not explain why he failed to disclose
the nature and substance of his treating physicians’ testimony, and he does not
explain why his failure to comply with Rule 26(a)(2)(C) was substantially justified
or harmless.4 Defendant’s Motion to preclude their testimony is granted.

4

The Court has examined Plaintiff’s response to Defendant’s discovery request,
and notes that Plaintiff produced a “personal injury narrative” report that was
signed by Dr. Miller and Dr. Howard. This report does not contain the equivalent
of a “summary of the facts and opinions to which the witness is expected to testify”
as required by Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.

10

3.

Undisclosed Documents

In the pre-trial order, Plaintiff listed thirteen (13) documents that were not
disclosed in his initial disclosures or in response to Defendant Green’s discovery
requests. These documents are:
 Defendant Green’s letter of resignation from Clayton County Jail.
 A notice of pre-disciplinary complaint concerning I.A. complaint number
2009FEB007.
 Defendant Green’s Clayton I.A. file number 2009FEB007.
 A memorandum from Captain D. Cash to Sergeant Geraldine Washington
concerning the assaults by Defendant Green upon Ranisha Pendleton.
 Ranisha Pendleton’s written report of the physical assault upon her person
by Defendant Green.
 Notice of Internal Investigation to Defendant Green regarding I.A.
investigation number 2009FEB007.
 Defendant Green’s Clayton I.A. file numbers 2008IA009 and 2007IA008.
 Clayton County Sherriff’s Department’s Standard Operating Procedures.
 Plaintiff’s medical records at the Clayton County Jail in 2008.
 Plaintiff’s medical records and bills from his treating physicians.
 Defendant Green’s employment file and I.A. files from 2007 to present.
 A photograph of Plaintiff’s jail cell.
 Defendant Green’s Georgia POST file.
Defendant Green argues that Plaintiff should not be allowed to introduce these
documents at trial because he failed to disclose them in his initial disclosures or in
response to discovery. Plaintiff does not dispute that he failed to identify or
disclose these documents or that these documents were the subject of proper
discovery requests. Plaintiff instead refers to the same arguments that he made to
support that his undisclosed witnesses should not be excluded. The Court finds
11

these arguments to be unconvincing, and wholly insufficient to excuse Plaintiff’s
failure to abide by the basic discovery requirement to produce documents required
to be disclosed in discovery. Plaintiff does not offer any argument to show that his
failure to disclose these documents in his initial disclosures or in response to
Defendant Green’s discovery requests is substantially justified or harmless.
Defendant Green’s Motion Limine to exclude Plaintiff from introducing the above
mentioned documents at trial is granted. See Fed. R. Civ. P. 37(c)(1); Romero,
552 F.3d 1303 at 1323.
4.

Disciplinary Actions and Investigations Related to Sergeant
Pough and Officer Era

Defendant Green seeks next to exclude evidence of “disciplinary actions
taken or recommended against or investigation findings made regarding Sergeant
Pough or Officer Era.” Mot. in Limine at 18. Sergeant Pough was a Defendant in
this action, but he was dismissed for insufficient service of process. In his
Complaint, Plaintiff alleged that Sergeant Pough also assaulted him at the Clayton
County Jail. Officer Era was not named a Defendant in this case. Defendant
Green does not explain who Officer Era is or why his actions are relevant to this
dispute. Defendant Green concedes that Sergeant Pough’s and Defendant Era’s
disciplinary record shows that they violated several departmental rules, including
rules against the excessive use of force. Defendant Green does not explain the
12

nature or substance of any investigation that was conducted into Sergeant Pough’s
and Officer Era’s conduct, the context of the investigations, the results of the
investigations or disciplinary proceedings, including whether these investigations
and disciplinary proceedings related to the incident that gave rise to this dispute.
The Court is unable to determine whether the evidence Defendant Green seeks to
exclude is relevant to this dispute because the parties have failed to explain the
nature of what Defendant Green seeks to exclude and why it is required to be
excluded. Defendant Green’s Motion in Limine to exclude evidence of
disciplinary actions and investigations related to Sergeant Pough and Officer Era
is, at this point, denied, but without prejudice to object to the evidence should
Plaintiff seek to introduce it at trial.5
5.

References to an “assault” and “battery” on Plaintiff

Defendant Green argues that Plaintiff should be excluded from introducing
evidence of an assault or battery on Plaintiff’s person on the ground that the Fulton
County State Court granted Defendant’s Motion for Summary Judgment on
Plaintiff’s claims for assault and battery, and res judicata bars Plaintiff from

5

If Plaintiff elects to introduce disciplinary evidence regarding Pough or Era at
trial, he is directed to request the Court to consider the evidence during a scheduled
break in the proceedings or before the commencement of a trial day. It shall not be
first offered when the jury is present.

13

asserting these claims at trial. On April 13, 2015, the Court denied Defendant
Green’s Motion for Judgment on the Pleadings, and found that res judicata does
not apply to Plaintiff’s federal claims. Defendant’s Motion in Limine to exclude
all evidence of an assault and battery on Plaintiff’s person is denied.
6.

Hearsay and Authentication

Defendant Green argues that “several documents” Plaintiff seeks to
introduce at trial are hearsay or are required to be authenticated by witnesses that
were not disclosed, and thus should be prohibited from testifying at trial.
Defendant Green does not identify all of these documents, or explain the
evidentiary basis for their exclusion. For this reason, Defendant Green’s Motion in
Limine to exclude unidentified documents on the grounds that they are hearsay and
cannot be authenticated is denied without prejudice to Defendant objecting to this
evidence at trial.
7.

Plaintiff’s Other Constitutional Claims

Defendant Green seeks to exclude “all evidence or references to a violation”
of Plaintiff’s substantive due process rights under the Fifth and Fourteenth
Amendments, and the right to be free from unlawful searches and seizures under
the Fourth Amendment. Defendant Green argues that Plaintiff should not be
allowed to present evidence on these constitutional claims because these claims fail

14

as a matter of law. For example, Defendant Green contends that Plaintiff cannot
assert a substantive due process claim under the Fourteenth Amendment because
he was already incarcerated at the time of the alleged assault, and prisoners do not
have a liberty interest under the Due Process Clause. Defendant Green did not
move to previously dismiss these constitutional claims. It is improper to use a
Motion in Limine to argue the merits of the dispute. A Motion in Limine is “any
motion, whether made before or during trial, to exclude anticipated prejudicial
evidence before the evidence is actually offered.” See Luce v. United States, 469
U.S. 38, 40 n.2 (1984). It is well-settled that a party cannot raise non-evidentiary
matters in a Motion in Limine. See Louzon v. Ford Motor Co., 718 F.3d 556,
561-62 (6th Cir. 2013); Meyer Intellectual Props. Ltd. v. Bodum, Inc., 690 F.3d
1354, 1378 (Fed. Cir. 2012); Mid-America Tablewares, Inc. v. Mogi Trading Co.,
100 F.3d 1353, 1363 (7th Cir. 1996). Defendant Green’s Motion in Limine to
exclude evidence of Plaintiff’s claims under the Fourth, Fifth and Fourteenth
Amendments is denied.6
8.

Uncontested Evidence Defendant Seeks to Exclude

Defendant Green seeks to exclude Plaintiff from introducing evidence of

6

The Federal Rules of Civil Procedure provide a means to move to dismiss claims
not proved at trial.

15

allegations of misconduct levied against Defendant Green in other cases,
disciplinary actions or recommended disciplinary actions taken against Defendant
Green, and evidence related to Defendant Green’s resignation from the Clayton
County Jail. Defendant Green also seeks to exclude Plaintiff from introducing the
testimony of any witness who did not personally observe the alleged altercation
between Plaintiff and Defendant Green, and evidence regarding medical treatment
from any person who did not personally attend to the Plaintiff’s injuries. Plaintiff
did not oppose Defendant Green’s request to exclude these categories of evidence.
Plaintiff has thus abandoned his claim to introduce evidence on these categories at
trial. See United States v. Hoys, 3 F.3d 232, 236 (7th Cir. 1993) (holding that a
failure to object to a motion in limine waives the objection); see also
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995);
N.D. Ga. L.R. 7.1(B) (failure to respond to motion indicates there is no opposition
to the motion). Defendant Green’s Motion in Limine to exclude evidence on the
categories identified in this section of the Court’s Order is granted.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Green’s Motion in Limine is

GRANTED in part and DENIED in part [42]. Defendant Green’s Motion to

16

Exclude (i) the testimony of the witnesses identified in this Order, with the
exception of Marcus Taylor, (ii) the testimony of Dr. Miller and Dr. Howard, (iii)
the documents identified in this Order, and (iv) uncontested categories of evidence
identified in sub-section 8 of this Order is GRANTED. Defendant Green’s
Motion to exclude (i) the disciplinary actions and investigations related to Sergeant
Pough and Officer Era, (ii) references to an assault and battery on the Plaintiff,
(iii) documents that contain hearsay or cannot be authenticated, and (iv) evidence
regarding Plaintiff’s Fourth, Fifth and Fourteenth Amendment claims is DENIED.
IT IS FURTHER ORDERED that Defendant Green’s Motion to
Reconsider the Court’s Order to Depose Marcus Taylor is DENIED [56].

SO ORDERED this 3rd day of June 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

17