BEST v. STATE OF INDIANA, et al.

Filing 200

ENTRY ON MOTIONS IN LIMINE - For the foregoing reasons, the Court grants in part and denies in part Best's Motion in Limine (Filing No. 184 ) and the Defendants' Motion in Limine (Filing No. 167 ). An order in limine is not a final, ap pealable order. If the parties believe that evidence excluded by this Order becomes relevant or otherwise admissible during trial, counsel may approach the bench and request a hearing outside the presence of the jury. Likewise, if the parties believe that specific evidence is inadmissible during the course of the trial, counsel may raise specific objections to that evidence. (See Entry.) Signed by Judge Tanya Walton Pratt on 8/1/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY BEST, JR.,
Plaintiff,
v.
INDIANA DEPARTMENT OF
CORRECTION, DUSHAN ZATECKY,
JOHN SAFFORD, JEFFERY KING,
and HERBERT DUNCAN,
Defendants.

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Case No. 1:16-cv-02549-TWP-MJD

ENTRY ON MOTIONS IN LIMINE
This matter is before the Court on Motions in Limine filed by Plaintiff Larry Best, Jr.
(“Best”) (Filing No. 184) and Defendants the Indiana Department of Correction (“IDOC”), Dushan
Zatecky, John Safford, Jeffery King, and Herbert Duncan (collectively, “Defendants”) (Filing No.
167). After spending more than three and a half years in administrative segregation at the Pendleton
Correctional Facility, Best was moved back into the general population at the prison, and two
weeks later, he was attacked and seriously injured by fellow inmates. Best initiated this lawsuit
against the Defendants as well as other prison officials and medical staff for violating his Eighth,
Ninth, and Fourteenth Amendment rights by failing to protect him and having a deliberate
indifference toward his health and safety. Following motions to dismiss and motions for summary
judgment, this case is now set for a jury trial on Best’s constitutional claims against the Defendants
for deliberate indifference and failure to protect. For the following reasons, Best’s Motion in
Limine is granted in part and denied in part, and the Defendants’ Motion in Limine also is
granted in part and denied in part.

I.

LEGAL STANDARD

“[J]udges have broad discretion in ruling on evidentiary questions during trial or before on
motions in limine.” Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The
Court excludes evidence on a motion in limine only if the evidence clearly is not admissible for
any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D.
Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until
trial so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400–
01. Moreover, denial of a motion in limine does not necessarily mean that all evidence
contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the Court
is unable to determine whether the evidence should be excluded. Id. at 1401.
II.

DISCUSSION

Best and the Defendants each filed a Motion in Limine, asking the Court to make a pretrial
determination regarding the admissibility of particular evidence. The Court will address each
Motion in turn.
A.

Best’s Motion in Limine
Best asks the Court to exclude any of his prior convictions and his criminal record pursuant

to Federal Rule of Evidence 609. He asserts that his prior convictions and criminal history are
irrelevant to the issues at trial and have limited or no probative value, and this evidence does not
speak to his truthfulness. Convictions of drug possession and dealing, burglary, and resisting law
enforcement do not speak to truthfulness or credibility, and such evidence would only unfairly
inflame the jury. Best explains that other courts in the Circuit have excluded evidence of prior
arrests in § 1983 cases as “grossly unfairly prejudicial in a way that greatly outweighs its minuscule
probative value.” Bruce v. City of Chi., 2011 U.S. Dist. LEXIS 83421, at *29 (N.D. Ill. July 29,

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2011). Best asserts, “Defendants should only be allowed to introduce the fact that Plaintiff was
convicted of a felony and is currently serving a sentence in prison for his crime. This Court should
exclude evidence of the Plaintiff’s underlying crimes.” (Filing No. 185 at 2.)
In response, the “Defendants concede plaintiff’s motion in limine No. 1 as to plaintiff’s
prior criminal convictions.” (Filing No. 193 at 1.) Best’s request to exclude evidence as to his prior
convictions and his criminal record is well-taken and is granted.
Next, Best asks the Court to exclude any evidence, testimony, or argument about his history
of illegal drug use. His drug use prior to the prison assault on August 7, 2015, has little probative
value and an unduly prejudicial effect. Such evidence is inadmissible character evidence under
Rule 404(b), and the evidence is not relevant to the issues for trial. Best asserts that there is no
evidence that he was under the influence of any drugs at the time that he was assaulted.
In response, the “Defendants concede plaintiff’s motion in limine No. 2 as to plaintiff’s
prior drug use, as defendants do not contend plaintiff was intoxicated or under the influence of
drugs at the time of the August 7, 2015 altercation, or that intoxicants played a role in the
altercation.” (Filing No. 193 at 1.) Best’s request to exclude evidence and argument as to his prior
drug use is well-taken and is granted.
Next, Best asks the Court to exclude any evidence concerning “his rule violation history
including a detention, administrative findings, any change in his inmate classification status as a
result of any administrative findings and/or adjudication, and any administrative charges or
convictions which arose out of incidents preceding August 7, 2015.” (Filing No. 185 at 4.) Rule
404(b) provides, “[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,” but such evidence “may be admissible for another purpose.” Best contends that

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evidence of rules violations and administrative hearings and findings would be impermissible
character evidence, unduly prejudicial, and irrelevant.
The Defendants oppose the motion in limine. They argue “the cause and origin of the
altercation which occurred on August 7, 2015 is a key issue in this case.” (Filing No. 193 at 2.)
Best alleges that he needed protection because he refused to join the Aryan Brotherhood prison
gang. The Defendants assert that Best’s rules violation history shows misconduct that led Best to
incur debts to other inmates, and his debts led to his attack. The Defendants argue that Best’s debt
to other inmates was the ultimate reason for his transfer to another prison. Thus, they argue, Best’s
rules violation history is relevant to the claims at issue and should be considered by the jury.
At this stage, the Court is unable to determine whether this evidence is clearly not
admissible for any purpose. See Hawthorne, 831 F. Supp. at 1400. Best has not met the “exacting
standard” to exclude this evidence in limine. Accordingly, evidentiary rulings concerning Best’s
rules violation history must be deferred until trial so that questions of relevancy and prejudice may
be resolved in context. Therefore, this request is denied.
Finally, Best asks the Court to allow him “to be unshackled, dress in civilian clothes and
be separated [a] reasonable distance from IDOC staff while in the presence of the jury to minimize
any prejudice that the prison attire and guard may cause.” (Filing No. 185 at 4.) “Security
permitting, Plaintiff should not be hand-cuffed during the course of the trial and any leg shackles
removed or obstructed from the view of the jury.” Id. at 5.
The Defendants respond that Best’s earliest possible release date is in May 2028, and with
at least another eight years of incarceration, Best has great incentive to flee if the opportunity is
presented. The Defendants agree that handcuffs are not necessary during trial, but leg shackles
should not be removed and can simply be obstructed from the view of the jury. They also argue

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that Best should wear prison clothing to make him easily identifiable if he tries to flee, and the jury
will know that he is incarcerated, so there is no prejudice to him wearing prison clothing. 1
The Court grants Best’s request concerning handcuffs and clothing and denies his request
regarding leg shackles. Best may attend trial without handcuffs and be dressed in civilian clothing
to minimize any prejudice based on personal appearance. However, for security purposes and at
the direction of the U.S. Marshal, Best must remain in leg shackles throughout the course of the
trial. Prisoners often appear for jury trials in this courthouse. The courtroom tables will be skirted
to conceal the leg shackles and Best will be moved about the courtroom with leg shackles outside
the presence of the jury. The Court leaves to the discretion of IDOC officers what constitutes a
“reasonable distance of separation” between IDOC staff and Best while the jury is in the
courtroom.
B.

Defendants’ Motion in Limine
1. Employee disciplinary actions
The Defendants ask the Court to exclude any argument, questions, testimony, or evidence

regarding prior workplace discipline of defendants Jeffery King, John Safford, Hubert Duncan,
and Dushan Zatecky, or any current or former IDOC employee testifying on behalf of the
Defendants. They assert that such evidence would be offered only to show bad character, which is
not permissible, and such evidence is not relevant. Best replies that he “does not intend to attempt
to introduce evidence concerning workplace disciplinary actions against any of the individual
defendants.” (Filing No. 197 at 1.) The Court determines that this request is well-taken and is
therefore granted.

For security purposes and at the direction of the U.S. Marshal, Best’s counsel is directed to deliver clothing for Best
to wear during trial to the Marshal’s Office in the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis
by no later than 12:00 p.m. on Friday, August 23, 2019.
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2. Dismissed and denied claims in this lawsuit
The Defendants ask the Court to exclude any argument or evidence about Best’s claims
that have been dismissed or denied in this action. They point out that the case was initially brought
against nine defendants with numerous claims, including a claim of systemic understaffing of the
prison. Most of Best’s claims have been settled, dismissed, or denied. Testimony or evidence about
dismissed or denied claims is irrelevant and highly prejudicial and would result in confusion of
the issues.
Best responds that he does not intend to raise any claims against individuals who are not
defendants in this case. However, he asserts, the claims that were dismissed against some
individual defendants still remain pending as to other individual defendants, and thus, the evidence
related to those claims will be presented. Best also argues, “In addition, there are state law claims
of negligence that require testimony or evidence concerning the acts and omissions of the
dismissed defendants as employees of the State of Indiana Department of Correction.” (Filing No.
197 at 2.) Best does not intend to present testimony and evidence concerning the dismissed
defendants’ alleged liability. However, he argues that Blaine Hurt and Walter Peterson, now
dismissed defendants, have knowledge of the events at issue in this case, and their testimony is
relevant and admissible as to the remaining claims.
The introduction of testimony and evidence concerning dismissed, denied, or settled claims
would be unduly prejudicial, would confuse the issues before the jury, and would be an
unnecessary waste of time and resources. Additionally, the dismissed, denied, and settled claims
are not relevant. Therefore, the Court grants the Defendants’ request to prohibit testimony and
evidence about dismissed and denied claims. This is not to say that dismissed defendants cannot
offer testimony concerning the factual events underlying this action. Blaine Hurt, Walter Peterson,

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and Paul Talbot likely have information concerning matters that pertain to the claims that will be
presented to the jury.
The Court notes that there are no state law claims pending in this action, contrary to Best’s
assertion in his response to the Motion in Limine. In the Court’s Entry on State Defendants’ Motion
to Dismiss (Filing No. 90 at 12–14), Count III of Best’s initial Complaint—the sole state law
claim—was dismissed based on immunity under the Indiana Tort Claims Act. The Court reiterated
that the sole state law claim had been dismissed in its Entry of Plaintiff’s Motion to Reconsider
Dismissal of Dushan Zatecky and Indiana Department of Corrections and Motion to Amend
Complaint (Filing No. 155 at 5). In that Entry, the Court permitted Best to amend his Complaint
to reallege his two constitutional claims in Count I and Count II only. Id. at 9–10.
3. Other lawsuits involving the Defendants or the State of Indiana
Next, the Defendants ask the Court to exclude any argument or evidence about other
lawsuits or claims against the State of Indiana or the Defendants as such information would be
inadmissible hearsay, and it is irrelevant. Additionally, it would be unduly prejudicial, confuse the
issues, and cause undue delay. Best responds that he does not intend to offer evidence about other
lawsuits. The Court determines that this request is well-taken and is therefore granted.
4. IDOC policies and procedures
The Defendants assert that the Court should exclude any arguments, evidence, or testimony
about the IDOC’s policies and procedures to suggest that the Defendants violated such policies
and procedures. They argue that whether the Defendants violated IDOC’s policies and procedures
is irrelevant to Best’s claim for failure to protect. They assert that such an argument would confuse
the issues for the jury and would be unfairly prejudicial.
In response, Best states,

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Plaintiff intends to offer evidence of the IDOC policy and procedure related to
regular department head meetings on Monday, Wednesday and Friday to discuss
the events, gang activity, any incidents that occurred at the prison, not to prove the
violation of such policy but to show the existence of the policy that would have
provided IDOC and its agents information about the dangerous condition at the
prison. Plaintiff does not intend to use any policy, procedure nor practice showing
that his rights were violated.
(Filing No. 197 at 5.)
Best’s argument is well-taken, and at this stage, the Court is unable to the conclude that
this evidence clearly is not admissible for any purpose. See Hawthorne, 831 F. Supp. at 1400. An
evidentiary ruling concerning IDOC’s policies and procedures must be deferred until trial so that
questions of foundation, relevancy, and prejudice may be resolved in context. Therefore, this
request is denied.
5. Settlement negotiations
The Defendants next ask the Court to exclude any argument or evidence about settlement
negotiations. Evidence of offers to compromise or statements made in settlement negotiations is
expressly made inadmissible by Rule 408, and thus, the Court should prohibit any reference by
any of the parties or witnesses to settlement negotiations which have taken place in connection
with this matter. Best responds that he does not intend to offer evidence about settlement
negotiations. The Court grants this request.
6. Indemnification of the Defendants
The Defendants ask the Court to exclude any argument or evidence indicating that the
Defendants may be indemnified against any judgment in this case. The Defendants assert that such
evidence violates federal law that evidence of indemnification against liability is inadmissible,
irrelevant, and highly prejudicial to the issue of liability under Rule 411. Further, indemnification

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of state employees is not absolute under Indiana Code § 34-13-4-1, so reference to indemnification
of the Defendants could possibly be a misstatement of the law.
Best responds that Indiana Code § 34-13-4-1 provides indemnification to the Defendants
so long as they were acting within the scope of their employment, and in this case, it is undisputed
that the Defendants were acting within the scope of their employment at all relevant times. Best
argues that, when a defendant benefits from a right to indemnification and argues to the jury that
they are unable to pay a damages award, the defendant opens the door to evidence of the statutory
entitlement to indemnification. See Bruce, 2011 U.S. Dist. LEXIS 83421, at *10 (“Evidence of
indemnification is inadmissible unless defendants open the door by injecting their personal
financial circumstances into the case. Additionally, if Defendants choose to apprise the jury of the
fact that the individual officers will have to bear punitive damages out of their own pockets, then
fairness would dictate that the jury also be informed of the true situation (indemnification) as to
compensatory damage.”).
Under Rule 411’s general exclusion of indemnification evidence, the Court grants the
Defendants’ request to exclude such evidence. However, if the Defendants open the door with
testimony about their inability to pay a damages award or their responsibility to pay punitive
damages, then Best will be permitted to introduce evidence concerning indemnification.
7. Defense lawyers work for the State of Indiana or Attorney General’s Office
Next, the Defendants assert that Best should not be permitted to refer to the Defendants’
attorneys as “State lawyers,” “the State,” or “Deputy Attorneys General,” because counsel’s
employer is irrelevant and might suggest to the jury that the State of Indiana will pay any judgment
in the case. Instead, they should be referred to by their names or as “Defense counsel.” Best

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responds that he and his counsel do not intend to refer to defense counsel in a way that refers to
the State of Indiana.
The Indiana Attorney General’s representation of the State of Indiana in cases involving
the state's interest and that it provides legal defense to state officials or agencies in court is common
knowledge. All trial counsel will be introduced by the Court and it is a relevant inquiry to
determine whether any member of the jury venire or their family members are presently or in the
past have been employed by or represented by the Indiana Attorney General’s office or the law
firm of Plaintiff’s counsel. This standard inquiry is necessary to determine bias and whether a
prospective juror can be impartial. The Court finds the probative value of this inquiry outweighs
any potential prejudice to Defendants, especially since Plaintiff’s counsel does not intend to refer
to the state of Indiana. The Court will grant a motion in limine as to who will pay any judgment
in the case, but otherwise denies a motion in limine on this issue.
8. A “Golden Rule” argument
The Defendants ask the Court to exclude any “golden rule” argument, which asks the jurors
to place themselves in the plaintiff’s shoes. As the Seventh Circuit has explained, the argument “is
universally recognized as improper because it encourages the jury to depart from the neutrality
and to decide the case on the basis of personal interest and bias rather than on the evidence.” United
States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007) (internal citation and quotation marks omitted).
In response, Best explains that he does not intend to present the “golden rule” argument. This
request is well-taken and is therefore granted.
9. Evidence of attorney fees
The Defendants argue that evidence about attorney fees and the potential cost of legal
expenses should not be presented to the jury because attorney fees are a matter to be determined

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by the Court, not the jury. See 42 U.S.C. §§ 1997e(d); 1988. Best replies that he does not intend
to offer evidence concerning attorney fees. The Court grants this request to exclude evidence of
attorney fees and costs.
10. Reference to medical conditions (other than subjective symptoms)
Next, the Defendants ask the Court to exclude any reference to Best’s medical conditions
other than his subjective symptoms. They assert that any testimony by Best regarding his
subjective symptoms resulting from the assault is permissible because such testimony does not
require the knowledge of an expert witness. However, they argue that Best has not disclosed any
expert witnesses regarding any medical condition, and any testimony concerning medical
conditions that would require medical expertise should be excluded by Rule 702 and Federal Rule
of Civil Procedure 26(a)(2).
Best responds that he plans to testify about his pain, symptoms, and medical treatment. He
then argues the “Defendant’s motion in limine is overly broad. To the extent that Defendants seek
to bar Plaintiff or other witness from testifying about his medical condition at all, the motion should
be denied.” (Filing No. 197 at 7.) A lay person’s testimony should be allowed if “rationally based
on the witness’s perception.” Rule 701. Thus, Best argues, his witnesses should be allowed to
testify about his physical condition before and after the assault based on their perception. Best also
asserts that in his final witness list (Filing No. 154; Filing No. 171) he designates Dr. Paul Talbot
as the treating physician and an expert witness.
Best’s “Final Witness List” at Docket 154 listed Dr. Paul Talbot as an expert witness and
the treating physician. However, Best’s later-filed “Final Witness List” at Docket 171 lists Dr.
Paul Talbot only as the treating physician. Furthermore, Federal Rule of Civil Procedure 26(a)(2)
requires additional disclosures for expert witnesses, and Best does not assert that he has complied

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with the additional disclosure requirements. Best and his witnesses may testify about matters
properly admitted under Rule 701 that are rationally based on the witness’s perception. Dr. Talbot
may testify regarding his treatment, diagnosis and prognosis (if reached during his treatment of
Best). However, the Court grants the Defendants’ request to exclude any testimony concerning
medical conditions that would require medical expertise and opinions such as causation.
11. Evidence supporting a claim under Indiana tort law
The Defendants ask the Court to exclude any evidence against the IDOC or any claim
arising under Indiana tort law because no such claim is articulated in the Amended Complaint.
They argue this evidence is irrelevant, unduly prejudicial, would cause undue delay, and confuse
the issues. In response, Best argues that the parties have continued to litigate state law claims
throughout the life of this case by noting state law claims in various filings. He also points to
various allegations in his Amended Complaint to argue that state law claims still persist in this
litigation.
The Court has previously addressed the issue of state law claims in Subsection 2 above
when discussing the dismissed and denied claims. The allegations Best points to in his Amended
Complaint support only his constitutional claims that remain pending. The Court grants the
Defendants’ request to exclude reference to specific state law claims; however, Best is permitted
to present evidence concerning the factual underpinnings of his case.
12. Evidence supporting an Eighth Amendment “deliberate indifference” claim
against the IDOC
Finally, the Defendants ask the Court to exclude any evidence or argument regarding a
claim against IDOC arising under the Eighth Amendment because IDOC is not a “person” subject
to being sued under 42 U.S.C. § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

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(1989). They argue that such evidence is irrelevant, would be unduly prejudicial, cause undue
delay, and confuse the issues.
Best responds that he does not intend to offer evidence concerning a deliberate indifference
claim against IDOC, but the Court allowed him to amend his Complaint to reallege Count II against
IDOC, and he points back to his argument regarding state law claims against IDOC under
Subsection 11.
The United States Supreme Court has held that states, state agencies, and state officials
sued in their official capacity for damages are not “persons” under Section 1983. Lapides v. Bd. of
Regents, 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71. In light of the Supreme Court precedent
and Best’s acknowledgement that he is not advancing a deliberate indifference claim against
IDOC, the Court grants the Defendants’ request to exclude reference to a deliberate indifference
claim against IDOC; however, Best is permitted to present evidence concerning the factual
underpinnings of his claims.
III.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Best’s Motion in
Limine (Filing No. 184) and the Defendants’ Motion in Limine (Filing No. 167). An order in limine
is not a final, appealable order. If the parties believe that evidence excluded by this Order becomes
relevant or otherwise admissible during trial, counsel may approach the bench and request a
hearing outside the presence of the jury. Likewise, if the parties believe that specific evidence is
inadmissible during the course of the trial, counsel may raise specific objections to that evidence.
SO ORDERED.
Date:

8/1/2019

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Distribution:
Bessie M. Davis
LAW OFFICE OF BESSIE M. DAVIS, LLC
[e-mail]
David C. Dickmeyer
INDIANA ATTORNEY GENERAL
[e-mail]
Jonathan Paul Nagy
INDIANA ATTORNEY GENERAL
[e-mail]

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