Sublett v. Sheets
Filing
144
MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 11/16/2017 granting in part and denying in part 107 Motion in Limine; dismissing as moot 130 Motion in Limine cc: Counsel, plaintiff pro se(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:15-CV-199-TBR
DAMIEN SUBLETT,
PLAINTIFF
v.
MARLENE SHEETS, et al,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon two motions in limine made by Plaintiff
Damien Sublett (“Plaintiff”). [DN 107, 130.] Defendants Laura Delaney (“Delaney”) and Kaci
Simmons (“Simmons”) have responded. [DN 114, 115, 134, 135.] These matters are now ripe for
adjudication. For the following reasons, Plaintiff’s first motion, [DN 107], is GRANTED in
part and DENIED in part, and Plaintiff’s second motion, [DN 130], is DISMISSED AS
MOOT.
Plaintiff’s two motions in limine cover largely the same issues: in his first motion, [DN
107], Plaintiff seeks to exclude from trial the following pieces of evidence: (1) any and all
disciplinary reports relating to Plaintiff during his time of incarceration at the Kentucky State
Penitentiary (“KSP”); (2) any evidence of prior complaints Plaintiff has filed in other civil
actions pursuant to 42 U.S.C. § 1983; and (3) any and all disciplinary reports filed by Delaney
against other inmates at KSP. [See DN 107, at 1.] In his second motion, [DN 130], Plaintiff seeks
to exclude from trial the following pieces of evidence: (1) “Plaintiff[’s] prior civil actions filed
against Department of Corr[ections] Officials,” and (2) “Plaintiff[’s] Disciplinary History.” [DN
130, at 1.] As his second motion only addresses issues covered in his first motion, it has been
rendered moot, and the Court’s substantive analysis will only cover his first motion.
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I. Plaintiff’s First Motion in Limine
A. Plaintiff’s Prior Disciplinary Reports
The first issue addressed by Plaintiff’s first motion in limine is whether his prior
disciplinary reports while housed at KSP are admissible. Plaintiff’s principle arguments in favor
of exclusion are (1) the reports are irrelevant under Federal Rules of Evidence 401 and 402; and
(2) the reports constitute propensity evidence under Federal Rule of Evidence 404(b)(1). The
Court will address each of these arguments in turn.1
First, with respect to the relevancy of these prior disciplinary reports, the Court is
satisfied that they are relevant. Pursuant to Rule 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Plaintiff states in conclusory fashion that
evidence of his past disciplinary infractions should be excluded from trial by this Court on the
basis that it is irrelevant, simply stating that the “disciplinary reports are not probative of any fact
[of] consequence in determining the present actions.” [DN 107, at 3.] The Court disagrees.
Delaney points out in rebuttal in her Response, “Plaintiff’s disciplinary history reflects
that Plaintiff…engages in various infractions, including failure to obey orders to join the general
population.” [DN 115, at 2.] Due to the fact that one of Delaney’s arguments is that “plaintiff
engages in such behavior in order to either be moved to a different area of the prison…or to have
a vehicle…to intimidate staff from monitoring Plaintiff as vigilantly as they otherwise would,”
[see id.], Plaintiff’s disciplinary history would certainly make such facts more probable, and is
material to the case. Moreover, Simmons points out in her Response that Plaintiff has apparently
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Plaintiff also makes a passing reference to Rule 403, under which relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. However, beyond referencing the Rule, Plaintiff makes no argument as to how it would apply in this
case. At any rate, the Court addresses the issue of Rule 403 during its 404(b) analysis below.
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“been found guilty of 80 disciplinary violations, at least 35 of which involve incidents in which
Mr. Sublett was found guilty of knowingly exposing himself and/or masturbating in front of a
female corrections officer or nurse.” [DN 114, at 3.] Because one of Defendants’ theories of the
case is that Plaintiff was doing exactly that when they observed him, his prior conduct relating to
precisely this issue is “of consequence in determining the action,” and passes the low threshold
for relevancy under the Federal Rules of Evidence.
Plaintiff’s second argument is that the past disciplinary reports constitute inadmissible
propensity evidence under Rule 404(b) and must be excluded as such. Pursuant to Rule
404(b)(1), “[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.” Essentially, Plaintiff argues that Defendants seek to introduce his past disciplinary
infractions to show his propensity for violating prison rules, thereby inviting the jury to infer
that, because he has acted one way in the past, he was likely acting that same way on this
occasion.
Plaintiff correctly points out that, in evaluating Rule 404(b) challenges, the Court
employs a three-part test:
First, the district court must make a preliminary determination regarding whether
there is sufficient evidence that the ‘other acts’ took place. The district court must
then determine whether those ‘other acts’ are admissible for a proper purpose
under Rule 404(b). Finally, the district court must determine whether the ‘other
acts’ evidence is more prejudicial than probative.
United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (citing United States v. Lattner, 385 F.3d
947, 955 (6th Cir. 2004)). Defendants have produced sufficient evidence that the other acts in
question actually took place. [See, e.g., DN 58-4; 58-5; 87-1; 87-3.] In these cited filings,
Defendants have provided to the Court many instances of Plaintiff’s disciplinary history while
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incarcerated. The next question is whether there is an admissible purpose for the proffered
evidence. At this juncture, the Court finds it necessary to differentiate between the disciplinary
write-ups Plaintiff has received for indecent exposure and/or masturbation, and those relating to
other prison infractions. The Court finds that there is a proper purpose for the former to be
admitted at trial, but not for the latter at this time.
Rule 404(b)(2) provides that, while propensity evidence is not allowed, “[t]his evidence
may be admissible for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” The principal argument put
forth by Defendants in support of their contention that this disciplinary history evidence should
be admissible is that it goes to Plaintiff’s motive and/or intent. The Court finds the specificity of
Delaney’s argument persuasive. Delaney argues that the disciplinary history is admissible
because it goes to Plaintiff’s dual-purposes motive:
Plaintiff engages in such behavior [exposure and/or masturbation] in order to
either be moved to a different area of the prison (specifically segregation, as
Plaintiff has refused to join the general population in the past) or to have a vehicle
(through false grievances, false PREA claims, and frivolous lawsuits) to
intimidate staff from monitoring Plaintiff as vigilantly as they otherwise would.
[DN 115, at 2.] This argument dovetails with Simmons’ argument regarding Plaintiff’s intent,
and why his disciplinary history should be admitted: “Mr. Sublett has acquired at least 35 guilty
violations for knowingly exposing himself or masturbating in front of female corrections officers
and medical staff. [DN 114, at 4.] Additionally, “from Sublett’s prior acts, [it is shown] that he
has established a motive and intent to masturbate or otherwise expose his genitals in front of
female staff members….[T]hese violations show Sublett’s intent to expose himself to females.”
[DN 114, at 4.]
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The admissibility Plaintiff’s disciplinary history with respect to exposing himself and/or
masturbating is a question for this Court, and Sixth Circuit precedent supplies an affirmative
answer. In United States v. Persinger, 83 F. App’x 55 (6th Cir. 2003), the defendant was found
guilty of aiding and abetting the distribution of cocaine, and it was held that the district did not
err in admitting evidence of the defendant’s prior narcotics charge. In United States v. Ray, 549
F. App’x 428, 431 (6th Cir. 2013), the defendant was found guilty of possessing cocaine with
intent to distribute, and the Sixth Circuit held that the district court did not err in admitting “prior
acts” evidence “of six prior instances of possession and distribution of crack cocaine” by the
defendant. In United States v. Stevens, 303 F.3d 711, 713 (6th Cir. 2002), the district court was
held not to have erred in admitting evidence “relating to prior fires for which [the defendant] has
collected insurance proceeds” in a case where the defendant was ultimately convicted of arson.
Here, the Court is satisfied that the prior acts of Plaintiff, specifically, the prior instances in
which Plaintiff was disciplined by prison officials for exposing himself and/or masturbating in
violation of prison policies, goes to Plaintiff’s motive and/or intent, thereby providing a proper
purpose for admission under Rule 404(b).
The final step in the three-part inquiry is whether Plaintiff’s disciplinary history is more
prejudicial than probative. “Unfair prejudice does not mean the damage to a [party’s] case that
results from the legitimate probative force of the evidence; rather, it refers to evidence which
tends to suggest [a] decision on an improper basis.” United States v. Newsom, 452 F.3d 593, 603
(6th Cir. 2006) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (citation and
quotation marks omitted)). “Such improper grounds include ‘generalizing a defendant’s earlier
bad act into bad character and taking that as raising the odds that he did the latter bad act now
charged….’” Bell, 516 F.3d at 445 (quoting Old Chief v. United States, 519 U.S. 172, 180-81
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(1997)). Under the Rule 403 analysis, courts must “look at the evidence in the light most
favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.”
Newsom, 452 F.3d at 603 (quoting Bonds, 12 F.3d at 567).
Plaintiff argues primarily that his disciplinary history is irrelevant for purposes for Rules
401 and 402, and should be excluded as such. However, as explained above, his disciplinary
history relating to past instances of him exposing himself and/or masturbating in front of prison
officials is highly relevant to the instant case. Plaintiff only addresses in cursory fashion Rule
403 as it pertains to this issue. He merely states that the probative value of introducing such
evidence is substantially outweighed by unfair prejudice and confusing or misleading the jury.
[DN 133 at 7-8.] In short, Plaintiff does not present a cogent argument that actually delves into
exactly why Rule 403 weighs in his favor here. Conversely, Defendants present persuasive
support for their argument that such evidence is highly probative and is crucial to their defense.
Any damage done to Plaintiff by “the legitimate probative force” of this evidence is insufficient
for a finding of unfair prejudice to him.
Importantly though, the Court’s ruling on Plaintiff’s disciplinary history only extends to
instances in which Plaintiff was formally reprimanded for exposing himself and/or masturbating
in violation of prison policies. Simmons noted that Plaintiff has apparently been written up for
disciplinary violations at least 80 times during his time in prison, and that at least 35 of those
write-ups were related to exposure or masturbation. It is only those exposure and masturbation
write-ups that the Court will allow under Rule 404(b)(2) as evidence of Plaintiff’s motive and
intent, so long as Defendants are able to lay the proper foundation. The Court will give an
appropriate limiting instruction to the jury at trial. Plaintiff’s motion is thus denied as to those
write-ups, but is granted as to unrelated write-ups. If, at trial, Defendants believe introduction of
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the other write-ups would be proper, they may request to approach the bench and the Court will
address those issues at that time.
B. Plaintiff’s Prior Civil Complaints
The second issue addressed by Plaintiff’s first motion in limine is whether the complaints
he has filed in other civil actions are admissible in this trial. Plaintiff argues that such evidence is
irrelevant under Rules 401 and 402. [DN 107 at 2-3.] Irrespective of the relevance of Plaintiff’s
other lawsuits against the Department of Corrections and its employees, the Court finds that Rule
403 demands exclusion of such evidence, and so rules. “The charge of litigiousness is a serious
one, likely to result in undue prejudice against the party charged, unless the previous claims
made by the party are shown to have been fraudulent.” Outley v. City of New York, 837 F.2d 587,
592 (2d Cir. 1988) (citing McCormick on Evidence § 196 at 578-81 (3d ed. 1984)); see also
Hemphill v. Washington Metro. Area Transit Auth., 982 F.2d 572, 574 (D.C. Cir. 1993)
(“Regarding prior mishaps and claims, the mere fact of their occurrence is today regarded as
insufficiently probative of a plaintiff’s credibility to warrant automatic admission.”). See also
McCormick on Evidence § 196 (7th ed. 2016) (“[I]f the evidence is merely that the plaintiff is a
chronic litigant with respect to all sorts of claims, the courts consider the slight probative value
overborne by the countervailing factors. This evidence they usually exclude.”).
Defendants do not raise persuasive arguments to the question of whether evidence of
Plaintiff’s other lawsuits should be admissible at trial. The issue is not mentioned in Delaney’s
Response to Plaintiff’s first motion in limine,2 and Simmons only argues that Plaintiff’s past
pleadings and statements in other lawsuits constitute “judicial admissions” under the Federal
2
Delaney states, in response to Plaintiff second motion in limine, that she “joins Defendant Simmons’ assertions
regarding the admissibility of Plaintiff’s prior civil actions and adopts that argument….” [DN 135 at 1.]
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Rules in both her Response to Plaintiff’s first motion, [DN 114], and her Response to Plaintiff’s
second motion. [DN 134.] Specifically, Simmons argues that Plaintiff
has filed numerous lawsuits in Federal Court alleging that his Fourth Amendment
Right to Privacy and First Amendment Right to be Free from Retaliation have
been violated. In many of the lawsuits, Mr. Sublett has made nearly identical
claims to those at issue in the case at bar. Statements made in pursuit of those
claims amount to judicial admissions…and should, therefore, be permitted for
cross examination purposes.
[DN 114 at 8.] Simmons goes on to state that Plaintiff’s “prior civil lawsuits are relevant under
the Federal Rules and they are more probative than prejudicial.” [Id.] Her argument in her
Response to Plaintiff’s second motion is largely the same, wherein she argues further that
Plaintiff’s previous statements in pleadings in other lawsuits amount to judicial admissions.
While the Court agrees with respect to the question of relevancy, as explained above, the
prejudicial effect the introduction of this evidence could have against Plaintiff substantially
outweighs any probative value at this time. Additionally, neither Simmons nor Delaney has
brought to the Court’s attention any definitive evidence that any of Plaintiff’s other actions were
or are fraudulent. It is true that, upon review by the Court, Plaintiff has filed numerous other
actions with similar claims to the case at bar. However, the case law cited above demonstrates
that similarity, without proof of fraudulent activity, is almost always insufficient. With respect to
Simmons’ argument regarding cross-examination, if facts are brought to light such that Simmons
or Delaney feels that introduction of this evidence is warranted, they may approach the bench
and so move for introduction at that time.
C. Disciplinary Reports Filed Against Other Inmates
The third issue addressed in Plaintiff’s first motion in limine pertains to the admissibility
of past disciplinary reports filed by Delaney against other individuals incarcerated at KSP.
Plaintiff contends that these write-ups should be excluded from evidence on the basis of
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relevancy under Rules 401 and 402, outlined above. The Court disagrees, and finds instead that
the reports are quite relevant to Delaney’s defense in this case.
Plaintiff refers to the other individuals as “unknown,” but in her Response to Plaintiff’s
first motion in limine, Delaney expressly notes that the disciplinary reports she seeks to have
introduced at trial are for three other individuals incarcerated at KSP: Michael Cooper, Glenn
Odom, and Kelvin Richardson. [DN 115, at 2.] Delaney apparently wrote up these three
individuals for disciplinary infractions (“inappropriate sexual behavior”), and now contends that
these write-ups are relevant to the issue of her motive in writing up Plaintiff for the same or
similar conduct. The Court agrees. Plaintiff’s case against Delaney is for retaliation in violation
of Plaintiff’s Constitutional rights. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)
(en banc) (explaining that, on the causal connection prong of the retaliation inquiry, the plaintiff
must show that the adverse action taken by the defendant “was motivated at least in part by the
plaintiff’s protected conduct.”) As such, one of the elements that Plaintiff must prove is that
Delaney held a retaliatory motive, at least in part, when she wrote him up for masturbation.
Therefore, the question of how, when, and why Delaney wrote up Plaintiff, as well as other
individuals incarcerated at KSP, for disciplinary infractions is “of consequence in determining
the action.” Fed. R. Evid. 401. This evidence is admissible.
II. Plaintiff’s Second Motion in Limine
As previously explained, the issues addressed in Plaintiff’s second motion in limine are
completely encompassed by his first motion in limine, analyzed above. As such, it has been
rendered moot.
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III. Conclusion
For the reasons stated herein, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s motion in limine [DN 107] is DENIED in part as to his disciplinary history
with respect to sexually inappropriate behavior. This evidence will be admissible.
2. Plaintiff’s motion in limine [DN 107] is GRANTED in part as to his disciplinary
history with respect to other infractions. This evidence will be excluded.
3. Plaintiff’s motion in limine [DN 107] is GRANTED as to his prior civil actions. This
evidence will be excluded.
4. Plaintiff’s motion in limine [DN 107] is DENIED as to the disciplinary history of
other individuals incarcerated at KSP. This evidence will be admissible.
5. Plaintiff’s second motion in limine [DN 130] is DISMISSED AS MOOT.
IT IS SO ORDERED.
November 16, 2017
cc:
Damien Sublett, 134575
Pro se Plaintiff
cc:
Counsel of record
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