Arce et al v. Louisiana State et al

Filing 159

ORDER AND REASONS denying in part, deferring in part, and dismissing in part 100 MOTION in Limine to Exclude and/or Redact Documentary Evidence; FURTHER ORDERED that the parties file with the Court all proposed limiting instructions by 12/6/2017, at 12:00 noon. Signed by Judge Lance M Africk on 12/5/2017.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NELSON ARCE ET AL.

CIVIL ACTION

VERSUS

No. 16-14003

LOUISIANA STATE ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion in limine filed by plaintiff. 1 The motion requests
exclusion of ten of Louisiana’s exhibits—referred to by plaintiff as Exhibits 2, 5, 17,
18, 19, 33, 34, 38, 39, and 40. The motion also requests redactions from numerous
other exhibits. 2
First, Louisiana does not intend to introduce Exhibits 6, 9, and 18. 3 Thus,
plaintiff’s objections with respect to those exhibits are moot.
Further, the parties agree on redactions with respect to Exhibits 20, 22, 26, 27,
28, and 29. 4 The parties also agree on most, but not all, redactions with respect to
Exhibits 11 and 23. 5 The parties also agree that Exhibits 3, 15, and 16 are admissible
subject to a limiting instruction as to their permissible use by the jury. 6
With respect to plaintiff’s remaining objections, and for the following reasons,
plaintiff’s motion is denied in part, deferred in part, and dismissed as moot in part.

See R. Doc. No. 100; see also R. Doc. No. 114 (plaintiff’s supplemental memorandum).
The Court has already addressed plaintiff’s objections to Exhibit 8. See R. Doc. No.
141; R. Doc. No. 152.
3 R. Doc. No. 132, at 8, 10.
4 Id. at 10.
5 Id. at 8.
6 Id. at 6.
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I.
Before turning to the objections, it would be useful to briefly explain the two
statutory provisions at issue in this case: Title II of the Americans with Disabilities
Act (“ADA”) and § 504 of the Rehabilitation Act of 1973.
Title II “focuses on disability discrimination in the provision of public services.”
Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc). To that end,
it provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. Liability under Title II requires a disabled plaintiff
to establish “(1) that he has a qualifying disability; (2) that he is being denied the
benefits of services, programs, or activities for which the public entity is responsible,
or is otherwise discriminated against by the public entity; and (3) that such
discrimination is by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th
Cir. 2011).
Section 504 “prohibits disability discrimination by recipients of federal
funding.” Frame, 657 F.3d at 223. Section 504 provides, in relevant part, that “[n]o
otherwise qualified individual with a disability in the United States . . . shall, solely
by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving

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Federal financial assistance.” 29 U.S.C. §794(a). “The ADA and the Rehabilitation
Act generally are interpreted in pari materia.” 7 Frame, 657 F.3d at 223.
With this legal landscape mapped out, the Court will now consider each of
plaintiff’s objected-to exhibits in turn.
II.
A.
Exhibit 2 is an email allegedly sent by Nelson Arce to his probation officer. 8
Plaintiff raises objections to this exhibit on relevance, prejudice, authenticity, and
hearsay grounds. 9 According to plaintiff, Louisiana cannot authenticate the email as
authored by Nelson, and thus the email is irrelevant and more prejudicial than
probative. 10 Further, plaintiff contends that the email constitutes hearsay. 11
Under Rule 901, “the proponent [of an item of evidence] must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” Fed.
R. Evid. 901(a). The proponent may authenticate the evidence by “[a]ppearance,
contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.” Fed. R. Evid. 901(b)(4); see United States v. Smith,
918 F.2d 1501, 1510 (11th Cir. 1990) (“The government may authenticate a document
solely through the use of circumstantial evidence, including the document’s own

Indeed, “[t]he only material difference between the two provisions lies in their
respective causation requirements.” Bennett-Nelson v. Louisiana Bd. of Regents, 431
F.3d 448, 454 (5th Cir. 2005). Unlike § 504, “under Title II of the ADA, discrimination
need not be the sole reason for the exclusion of or denial of benefits to the plaintiff.”
Id. (internal quotation marks omitted).
8 See R. Doc. No. 100-3, at 2.
9 R. Doc. No. 114, at 2.
10 See id. at 2-4.
11 See id. at 3-4.
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distinctive characteristics and the circumstances surrounding its discovery.”). With
respect to emails, courts have not required the testimony of an email’s purported
sender in order to properly authenticate the email.

See, e.g., United States v.

Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000). For example, the email address
from which an email is sent, as well as the context and content of the email, are
factors that may support authentication. See id. at 1322-23.
As such, Louisiana may be able to authenticate the email at trial under Rule
901 through the testimony of Nelson’s probation officer. If the email is authenticated,
then it will constitute the statement of a party-opponent and thus fall outside the
Federal Rule of Evidence’s definition of hearsay. 12 See Fed. R. Evid. 801(d)(2)(A) (“A
statement that meets the following conditions is not hearsay: . . . The statement is
offered against an opposing party and was made by the party in an individual or
representative capacity.”); cf. Siddiqui, 235 F.3d at 1323; Tamez v. City of San
Marcos, Tex., 118 F.3d 1085, 1098 (5th Cir. 1997) (noting that the interrogatory
responses of the deceased plaintiff, whose family members had been substituted in
his place in the litigation, were admissible as statements of a party-opponent).
With respect to plaintiff’s relevance objection, the Court points out that “the
standard of relevance in an evidentiary context is not a steep or difficult one to
satisfy.” Pub. Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321

Plaintiff also suggests that the email may feature hearsay within hearsay. See id.
at 3 (“Additionally, because we do not know if Nelson authored the email or provided
input to a person who then authored the email, the email could be hearsay within
hearsay — in other words, one person wrote the email based in part upon what
another person told them.”). However, this suggestion is pure speculation. Therefore,
the Court will not consider it.
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(5th Cir. 2014). “Evidence 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.” Fed. R. Evid. 401.
Relevant evidence is admissible unless otherwise provided by the Constitution,
a federal statute, another Federal Rule of Evidence, or another rule prescribed by the
Supreme Court. Fed. R. Evid. 402. For example, Rule 403 provides that 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, the Fifth Circuit has counseled that Rule 403
is meant to be applied “sparingly.” Baker v. Can. Nat./Ill. Cent. R.R., 536 F.3d 357,
369 (5th Cir. 2008).
If Louisiana properly authenticates the email, then the email will easily pass
Rule 401’s relevance threshold. Indeed, plaintiff concedes that “whether Nelson Arce
understood that he needed permission to leave the state of Louisiana is a disputed
material issue in this case.” 13 Further, the Court can discern no basis at this point
to justify exclusion of the email under Rule 403—again, assuming that it is properly
authenticated. If authenticated, then it will simply constitute a relevant statement
of a party-opponent, and while it may be prejudicial to plaintiffs’ position, it is not
unfairly so. See United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (“Relevant
evidence is inherently prejudicial; but it is only unfair prejudice, substantially

Id. at 4; see also R. Doc. No. 132, at 2-4 (Louisiana explaining the email’s relevance
to the case).
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outweighing probative value, which permits exclusion of relevant matter under Rule
403.”).
As the Court’s disposition of plaintiff’s objections to Exhibit 2 will turn on
whether Louisiana properly authenticates the email, the Court will defer a formal
ruling on the objections until trial. At that point, the Court will be in a better position
to assess the merits of the plaintiff’s objections.
B.
Exhibit 5 is a fax sent to Nelson’s probation officer, purportedly from a case
manager at Awakenings Substance Abuse Recovery Program for the Deaf and Hard
of Hearing Persons. 14 Plaintiff objects to Exhibit 5 on relevance, prejudice, character
evidence, authenticity, and hearsay grounds. 15
According to plaintiff, Louisiana cannot authenticate the fax as sent by the
case manager. 16 As with Exhibit 2, however, Louisiana may be able to authenticate
the fax under Rule 901 through the testimony of Nelson’s probation officer. Cf. United
States v. Khorozian, 333 F.3d 498, 506 (3rd Cir. 2003) (“Kono could—and did—
authenticate the fax under Federal Rule of Evidence 901(a) by testifying that she
received the fax on the date indicated on the header.

Authentication does not

conclusively establish the genuineness of an item; it is a foundation that a jury may
reject.”).

See R. Doc. No. 100-8, at 2.
R. Doc. No. 114, at 5.
16 See id.
14
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Plaintiff further contends that the fax constitutes hearsay and also features
hearsay within hearsay. 17 The Federal Rules of Evidence define “hearsay” as “a
statement that the declarant does not make while testifying at the current trial or
hearing; and a party offers in evidence to prove the truth of the matter asserted in
the statement.” Fed. R. Evid. 801(c)(1)-(2). However, where a party offers an out-ofcourt statement not for the truth of the matter asserted—for example, where it is
“offered to show the effect on the listener”—then it is not hearsay under the Federal
Rules of Evidence. White v. Fox, 470 Fed. App’x 214, 222 (5th Cir. 2012).
Louisiana indicates that it plans to introduce Exhibit 5 “to demonstrate the
information [that Nelson’s probation officer] had and her response to it.” 18 In other
words, Louisiana does not plan to offer the fax for the truth of the matter asserted,
but rather for its effect on the probation officer. Assuming that the effect is relevant
to the case, then Louisiana may seek to admit the fax into evidence for this purpose.
With respect to the hearsay-within-hearsay issue, plaintiff points to only one
sentence in the fax that she claims constitutes hearsay within the fax: “On Oct 27,
2015, a floor staff reported that Mr. Arce insulted her by using a word that
discriminates her race [sic].” 19 Plaintiff argues that the “floor staff” mentioned in the
fax “is someone other than [the fax’s author] who then made statements to [the fax’s
author] about what happened on October 27, 2015, which [the fax’s author] then
relayed in” the fax.

See id. at 5-6.
R. Doc. No. 132, at 6.
19 R. Doc. No. 114, at 6.
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Rule 805 provides that “[h]earsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements conforms with an exception
to the rule.” “[T]he mere fact that one level of a multiple-level statement qualifies as
‘non-hearsay’ does not excuse the other levels from rule 805’s mandate that each level
satisfy an exception to the hearsay rule for the statement to be admissible.” United
States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987).
Louisiana does not discuss the hearsay-within-hearsay issue identified by
plaintiff. At trial, Louisiana will have to demonstrate that this layer of hearsay in
the fax is independently admissible, either because it is non-hearsay or because it is
exempt from the hearsay bar. Cf. Brauninger v. Motes, 260 Fed. App’x 634, 637 (5th
Cir. 2007) (“Although the reports contained statements made by FALMS employees
to Williamson or Ellison during the course of their interviews, the district court
correctly found that those statements are not hearsay. Because they were offered to
prove what was said to Williamson and Ellison, and thus what Williamson and
Ellison relied on in making the decision to fire Brauninger, the statements were not
offered to prove the truth of the matters asserted.”).
Plaintiff also argues that “the reasons surrounding Nelson Arce’s discharge
from Awakenings are not relevant to any material issue in this case, would be more
prejudicial than probative, 20 and would simply be offered to paint Nelson as a bad
person who didn’t follow the rules.” 21 The Court previously questioned the relevance

The Court points out that exclusion of evidence under Rule 403 requires that the
evidence’s probative value be substantially outweighed by the danger of unfair
prejudice. It is not enough that evidence simply be more prejudicial than probative.
21 R. Doc. No. 114, at 7.
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of the reasons why Nelson was discharged from drug treatment facilities and deferred
the issue until trial. 22 The Court will do the same with respect to Exhibit 5.
The Court will defer a formal ruling on plaintiff’s objections to Exhibit 5 until
trial. At that time, the Court will be in a position to determine whether Louisiana
properly authenticates the fax, whether Louisiana demonstrates that the fax does not
run afoul of the hearsay rules, whether the fax is relevant, and whether the fax’s
probative value is substantially outweighed by the danger of unfair prejudice.
C.
Exhibit 11 and Exhibit 23 both consist of paperwork related to Nelson’s
probation. 23 Plaintiff objects to the following sentence in Exhibit 11 on the ground
that it violates Rules 602 and 701: “The offender indicated he understood the
conditions as outlined.” 24

Plaintiffs also object to the following substantially

identical sentence in Exhibit 23 on the same basis: “The offender indicated
understood [sic] the conditions as outlined.” 25 According to plaintiff, neither exhibit
provides a foundation to support this purported opinion. 26
Under Rule 602, “[a] witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal knowledge of
the matter.” Fed. R. Evid. 602. Moreover, “[e]vidence to prove personal knowledge
may consist of the witness’s own testimony.” Id.

See R. Doc. No. 152.
See R. Doc. No. 100-12 (Exhibit 11); R. Doc. No. 100-13 (Exhibit 23).
24 R. Doc. No. 114, at 18-19; see also R. Doc. No. 100-12, at 8.
25 R. Doc. No. 114, at 19; see also R. Doc. No. 100-13, at 2.
26 See R. Doc. No. 114, at 19-20.
22
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Under Rule 701, a non-expert witness who intends to provide “testimony in the
form of an opinion” must limit her opinions to ones that are “(a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Louisiana
does not contend that these provisions of the Federal Rules of Evidence do not apply
to the statements in these exhibits.
The Court concludes that plaintiff’s objection lacks merit. The exhibits both
include the following sentence: “The conditions of probation were read, signed and
explained to the offender, after which he signed same.” 27 Further, both exhibits
feature Nelson’s signature below a confirmation that Nelson received a copy of his
supervision plan and understood the plan’s requirements. 28

These statements

undermine plaintiff’s objections to Exhibits 11 and 23.
Therefore, the Court denies plaintiff’s request to order that the objected-to
sentence in each exhibit be redacted.
D.
Exhibit 17 is a September 2014 copy of the Offender Complaints and
Grievances policy statement promulgated by the Director of the Division of Probation
and Parole. 29 The purpose of the statement is “[t]o establish policy and procedure for
receiving, routing, hearing, and reviewing offender complaints and grievances.” 30

R. Doc. No. 100-12, at 8 (emphasis added); R. Doc. No. 100-13, at 2 (emphasis
added).
28 R. Doc. No. 100-12, at 8; R. Doc. No. 100-13, at 2.
29 R. Doc. No. 100-14.
30 Id. at 2.
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Plaintiff objects to Exhibit 17 on the basis of relevance. 31 According to plaintiff,
“[t]here has been no suggestion that a copy of this policy was provided or explained
to Nelson Arce or to his father,” and in any event the policy “is not relevant to any
material issue” in the case. 32 Louisiana counters that “[t]he evidence will show that
Nelson received a document setting forth” the policy and that “[h]e never filed a
grievance.” 33

In Louisiana’s view, “Exhibit 17 may be used by the State to

demonstrate how the grievance procedure works and how the State would have
addressed Nelson’s complaints, had he taken the opportunity to file a grievance.” 34
The Court will defer consideration of plaintiff’s relevance objection to this
exhibit until trial. At that point, the Court will be better positioned to consider its
relevance to the case.
E.
Exhibit 19 is a regulation promulgated by the Secretary of the Louisiana
Department of Public Safety and Corrections. 35 The purpose of the regulation is “[t]o
state the Secretary’s policy regarding the placement and participation of offenders”
in various state programs, “including offenders who participate in the American Sign
Language Interpreting Program at state correctional facilities.” 36
Plaintiff contends that Exhibit 19 is irrelevant to the case and more prejudicial
than probative. 37 According to Louisiana, offenders who participated in the ASL

See R. Doc. No. 114, at 20.
Id.
33 R. Doc. No. 132, at 9.
34 Id.
35 R. Doc. No. 100-16.
36 Id. at 2.
37 R. Doc. No. 114, at 20.
31
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Interpreting Program provided interpretive services during at least one meeting
between Nelson and his probation officer, and the regulation is thus “relevant to the
question of the qualifications of the individuals who interpreted for the probation
meeting.” 38
The Court cannot at this point determine how much of this document, if any of
it, is relevant to the issues in this case. Relatedly, the Court is unaware of any
evidence that Louisiana plans to offer to show that the participating offenders who
interpreted at one or more of Nelson’s probation meetings met the criteria set forth
in the exhibit. Therefore, as with Exhibit 17, the Court will defer consideration of
plaintiff’s objections to Exhibit 19 until trial. At that point, the Court will be better
positioned to evaluate the objections.
F.
Exhibit 33 is the transcript of Nelson’s Rule to Revoke hearing, Exhibit 34 is
the transcript of Nelson’s guilty plea, and Exhibit 39 is Nelson’s criminal record. 39
Plaintiff objects to these exhibits on numerous bases, including that the documents
were never disclosed and were not on Louisiana’s original exhibit list, and that the
documents are irrelevant, more prejudicial than probative, and constitute improper
character evidence. 40 No party has submitted these exhibits to the Court.
Louisiana indicates that it does not plan to offer these exhibits into evidence. 41
Rather, it only intends to use the exhibits for impeachment purposes. 42 Thus, the

R. Doc. No. 132, at 10.
Id.
40 R. Doc. No. 114, at 21-22.
41 Id.
42 Id.
38
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Court concludes that plaintiff’s objections to these exhibits are moot.

However,

plaintiff may renew her objections to these exhibits in the event that Louisiana moves
to offer them into evidence at trial.
G.
Exhibit 38 is a document signed by both Nelson and his probation officer in
which Nelson allegedly admits to using two illegal drugs around June 21 or 22,
2016. 43 Plaintiff contends that the exhibit is irrelevant and more prejudicial than
probative, and constitutes improper character evidence. 44
The only theory of relevance that Louisiana offers in support of this exhibit is
that “Nelson’s drug use is relevant to his apparent claim for emotional distress or
mental anguish damages.” 45 Louisiana explains as follows:
According to plaintiffs’ pretrial pleadings, witnesses are expected to
testify that Nelson suffered emotional distress because of the
discrimination he allegedly suffered. The fact that Nelson used various
types of illegal drugs[ ] is relevant to the reasons for Nelson’s changes in
behavior and mood. Thus, it appears that if Nelson was suffering from
any adverse effects to his behavior or mood, the fact that he may have
been impaired is relevant. 46
The Court previously rejected this theory of relevance in the context of
Louisiana’s Exhibit 8. 47 With respect to that exhibit, the Court noted that it was not
persuaded that “three documented instances of Nelson admitting to using, or testing
positive for, [ ] particular drugs—spread out over a one-year period—[were] relevant
to whether Nelson suffered emotional distress as a result of Louisiana’s alleged

R. Doc. No. 100-23.
R. Doc. No. 114, at 24.
45 R. Doc. No. 132, at 10.
46 Id. at 10-11.
47 See R. Doc. No. 141, at 4 n.14.
43
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treatment toward him.” 48 Louisiana has also not indicated that it will offer any
testimony to establish a cause-and-effect relationship between Nelson’s documented
instances of drug use, and Nelson’s alleged emotional distress. Mere speculation as
to what impact the drugs may have had on Nelson’s mood and behaviors is not
sufficient to demonstrate relevance. 49
Because the relevance of Exhibit 38—and, relatedly, its probative value and
the danger of unfair prejudice that it poses—will become more clear at trial, the Court
will defer a formal ruling on plaintiff’s objections to the exhibit until that time.
H.
Lastly, Exhibit 40 consists of an email exchange between Scott Huffman and
Nelson’s probation officer. 50 Plaintiff objects to Exhibit 40 on the basis of relevance. 51
Louisiana indicates that it only intends to use this exhibit for impeachment
purposes. 52 The Court therefore concludes that plaintiff’s objection to the exhibit is
moot. However, plaintiff may renew her objection to this exhibit in the event that
Louisiana moves to offer it into evidence at trial.
III.
Accordingly,
IT IS ORDERED that the motion is denied in part, deferred in part, and
dismissed as moot in part as set forth herein.

Id.
However, testimony may support an argument that Nelson’s emotional distress
could have resulted from a fear that his probation might be revoked based on his drug
use.
50 R. Doc. No. 100-24.
51 R. Doc. No. 114, at 26.
52 See R. Doc. No. 132, at 11.
48
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IT IS FURTHER ORDERED that the parties file with the Court all proposed
limiting instructions by Wednesday, December 6, 2017, at 12:00 noon.

New Orleans, Louisiana, December 5, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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