Mapp v. Georgia Department of Corrections et al

Filing 81

ORDER granting in part and denying in part 74 Motion in Limine. Signed by Judge B. Avant Edenfield on 9/23/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
AL RICO MAPP,
Plaintiff,
V.

6:11-cv-124
ALTON MOBLEY,
Defendant.

ORDER
Before the Court is Alton Mobley's Motion in Limine, ECF No. 74, in which he seeks to
exclude six categories of evidence at trial: (1) a Department of Corrections ("DOC") internal
affairs investigation into the incident at the center of Al Rico Mapp's claims; (2) prior excessive
use of force allegations against Mobley; (3) other excessive use of force allegations made by
Mapp; (4) alleged violations of DOC policies; (5) a disciplinary report issued against Mapp
stemming from the incident in question here; and (6) liability insurance coverage provided DOC
employees by the Georgia Department of Administrative Services. ECF No. 74-1. For the
following reasons, the motion is GRANTED IN PART and DENIED IN PART.
A. The Internal Affairs Investigation
Mobley argues that an internal affairs investigation and associated comments or notes
"should not be admitted into evidence for any reason." ECF No. 74-1 at 3. The Court disagrees
and denies such a broad request. Federal Rule of Evidence 803(8) provides an exception to the
general prohibition against hearsay for records or statements of a public office from a legally
authorized investigation unless "the source of information. .. indicate[s] a lack of

trustworthiness." Until Mobley can demonstrate that the internal investigation is untrustworthy,
it remains admissible.'
Nevertheless, to the extent that statements made to investigators by Mobley's co-workers
are not factual findings, they do not fall within the public records exception and will be excluded.
Roxbury-Smellie v. Florida Dept of Corr., 324 F. App'x 783, 785 (11th. Cir 2009); see also
Jessup v. Miami-Dade County, 697 F. Supp. 2d. 1312, 1322 (S.D. Fla. 2010) (extending the
reasoning of Roxbury-Smellie to ajail internal investigation). But any statements by Mobley for
the investigation, regardless of whether they are factual findings of the investigation, are
admissible as statements by a party-opponent. See Fed. R. Evid. 801(d)(2). And, as Mobley
concedes, any statements made during the investigation may be used to impeach the declarant,
should he or she testify. ECF No. 74-1 at 3.
B. Prior Excessive Use Of Force Allegations Against Mobley
Mobley anticipates that Mapp may present evidence that Mobley "has been accused of
using excessive force against other inmates in the past to demonstrate a propensity to use
excessive force against [Mapp] in this action." Id at 4. Mobley argues that "[s]uch evidence is
improper and should be excluded pursuant to Fed.R.Evid. 404(b)." Id.
1. Rule 404(b)

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." Such evidence may, however, "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). If offered for a
'Mobley also argues that Rule 403 bars introduction of the internal investigation. ECF No. 74-1 at 3. Mosley's
failure to provide a rationale for why the danger of confusion substantially outweighs the probative value of the
evidence dooms this argument.

purpose enumerated in 404(b)(2), prior bad acts evidence is admissible only if (1) it actually
relates to an issue in 404(b)(2), not solely to the defendant's character; (2) the plaintiff
sufficiently proves the prior act so a jury can determine the defendant committed the act; and (3)
the prior act evidence possesses probative value not substantially outweighed by undue
prejudice. United States v. Floyd,

F. App'x

, No. 12-15113, 2013 WL 2500612, at * 1

(11th Cir. June 12, 2013) (citing United States v. Matthews, 431 F.3d 1296, 1310-11(11th Cir.
2005)).
Mobley believes Mapp cannot demonstrate that any allegation of prior excessive use of
force by Mobley is relevant to a 404(b)(2) exception. ECF No. 74-1 at 6. Perhaps that's true.
But at this point Mobley's objection is purely speculative. Nevertheless, if at trial Mapp
attempts to introduce evidence of Mobley's alleged prior use of excessive force, he will have to
satisfy his burden to show that the evidence (1) is relevant to a 404(b)(2) issue; (2) allows a jury
to find by a preponderance that the prior event actually occurred; and (3) that the probative value
of the evidence is not substantially outweighed by undue prejudice to Mobley. Floyd, 2013 WL
2500612 at *1. For now the Court refrains from imposing a blanket exclusion on Mapp's
potential introduction of 404(b) evidence.
C. Prior Excessive Use Of Force Allegations By Mapp
Mobley also believes Mapp may try to introduce evidence that other correctional officers
have subjected him to abuse. ECF No. 74-1 at 8. Mobley argues such evidence is (1) irrelevant
and barred by Federal Rule of Evidence 402; (2) prior bad act evidence and thus barred by Rule
404(b); and (3) excludable under Rule 403 because its probative value is substantially
outweighed by the danger of undue prejudice, confusion of issues, and undue consumption of
time. Id.

Any prior incident of excessive force committed by someone other than Mobley is
irrelevant to the claims in this case. Mapp alleges that Mobley used excessive force, not some
other prison guard. What someone other than Mobley may have done in the past holds no value
in Mapp's quest to prove that Mobley violated his Eighth Amendment rights. Any evidence
Mapp tries to introduce relating to prior incidents of excessive force by guards other than
Mobley will be excluded.
D. Violations Of Department Of Corrections Policies
Mobley argues that any testimony that he violated DOC policies and procedures is
irrelevant because violation of a policy does not equate to violation of a constitutional right.
ECF No. 74-1 at 9; Fed. R. Evid. 402 (barring the introduction of irrelevant evidence). Mobley
is correct. Testimony that Mobley violated a DOC policy is irrelevant because it has no bearing
on whether he also violated Mapp's constitutional right to be free from the use of excessive
force. See Fed. R. Evid. 401 (defining relevant evidence as that which "has any tendency to
make a fact more or less probable . . . and. . . is of consequence in determining the action.").
Any testimony regarding violation of DOC policies therefore will be excluded.
E. The Disciplinary Report
Mobley seeks to exclude evidence of the disciplinary report filed against Mapp following
the incident at issue on both hearsay and relevancy grounds. Id. at 10. Like the internal affairs
investigation report, the disciplinary report falls under the public records exception to the general
hearsay exclusion. Fed. R. Evid. 802, 803(8). As Mobley has made no showing of
untrustworthiness, see id. at 803(8)(B), the Court will not exclude the disciplinary report as
hearsay.

Nor will the Court exclude the evidence as irrelevant. Mobley contends that because
Mapp admitted to stopping during his escort, the disciplinary report is irrelevant. ECF No. 74-1
at 10. But the disciplinary report may provide a pertinent account of the incident, including noncompliance with an officer's order and resistance, both disciplinary violations alleged by
Mobley. ECF No. 69 at 4. The disciplinary report may also tend to prove or disprove whether
Mobley used excessive force under the circumstances. See Fed. R. Evid. 401 (a). Mobley has
suggested such an element as a part of his requested special jury verdict. ECF No. 69 at 28. The
Court denies the motion in limine as to the disciplinary report.
F. Department Of Corrections' Liability Insurance
Finally, Mobley seeks to bar any reference by Mapp to liability insurance coverage
provided by the Georgia Department of Administrative Services. ECF No. 74-1 at 11. The
Court GRANTS Mobley's request because Federal Rule of Evidence 411 prohibits admission of
"[e]vidence that a person was. . . insured against liability" "to prove whether the person acted
negligently or otherwise wrongfully." 2
I.

CONCLUSION
The Court GRANTS IN PART Mobley's motion and EXCLUDES:
1. evidence of prior excessive use of force allegations by Mapp;
2. evidence that Mobley violated DOC policies and procedures in his treatment of
Mapp; and
3. any reference to liability insurance coverage provided by the Georgia Department of
Administrative services.
The Court DENIES IN PART Mobley's motion and DECLINES to exclude:

2

Rule 411 allows admission of insurance evidence in order to show things like ownership or control. That

exception to the general rule barring insurance evidence does not apply here.

1. the internal affairs investigation report unless Mobley can demonstrate its
untrustworthiness;
2. all evidence of prior instances of excessive force by Mobley. But any such evidence
must satisfy Rule 404(b) else the Court will exclude it at trial; and
3. evidence of a disciplinary report Mapp received related to the incident in question.

The2$'day of September, 2013

'. AVINT'EIYNFIELD, JUDGE /
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA