Hill v. Kilbourne et al

Filing 124

RULING and ORDER denying 110 Motion in Limine. The 104 , 111 and 112 Motions in Limine are DENIED WITHOUT PREJUDICE. Plaintiff's 120 Objection to Defendant's Proposed Charges/Instructions/Verdict Form is OVERRULED. Signed by Judge John W. deGravelles on 3/13/2015. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARCUS D. HILL #310825
CIVIL ACTION
v.
NO. 11-778-JWD-SCR
TRYONE KILBOURNE, ET AL.
RULING AND ORDER ON PRETRIAL MOTIONS AND OBJECTION
This matter comes before the Court on several motions in limine filed by the parties
(R.Docs.

110-112

&

104)

and

an

Objection

to

Defendant’s

[sic]

Proposed

Charges/Instructions/Verdict Form filed by the Plaintiff Marcus D. Hill. (R.Doc. 120).
Considering the facts in the record, the law, and the parties’ briefing, the Court makes the
following rulings:
The Plaintiff’s Motion in Limine Regarding Comparative Fault (R. Doc. 110) is
DENIED. Plaintiffs seek the exclusion of all evidence related to the comparative fault of the
Plaintiff. However, Plaintiff has made a 42 U.S.C. § 1983 claim for excessive force in violation
of the Eighth Amendment. (R.Docs. 54, 98). Evidence of the Plaintiff’s conduct may be relevant
to certain factors related to that claim. See Sonnier v. Honeycutt, No. 12-292, 2015 WL 222317,
at *3 (M.D.La. Jan. 14, 2015) (Jackson, C.J.) (and cases cited therein).1 Thus, the motion is
denied.
The Plaintiff’s Motion in Limine to Suppress Testimony and Evidence regarding Inmate
Witnesses (R.Doc. 111) is DENIED WITHOUT PREJUDICE.

As explained by this court in

Sonnier, 2015 WL 222317, at *4, and Jackson v. Barrere, No. 13-124, 2014 WL 1119124

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The Court further notes that, while the Plaintiff has made no negligence claim in this action, evidence of
contributory negligence would clearly be relevant if she had, even if the Plaintiff had also made a different type of
§ 1983 claim. In such an instance, the Court would caution the jury that the evidence of contributory negligence
would be admissible as to the state law negligence claim but not as to the § 1983 claim.

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(M.D.La. March 20, 2014) (Brady, J.), this Court cannot rule on the admissibility of convictions
of inmate witnesses without having any factual details or background about those witnesses.
This evidence could be admissible under Fed.R.Evid. 609 for impeachment, depending upon the
date(s) of the conviction(s). Sonnier, 2015 WL 222317, at *4. Accordingly, the Court denies
the motion at this time and will rule on these issues as they arise at trial, at which time the Court
can be apprised of the details necessary to make a proper ruling. However, if any evidence of
any such convictions is admitted, “evidence regarding the factual details surrounding or
underlying convictions will be excluded as irrelevant and inflammatory.” Sonnier, 2015 WL
222317, at *4.
The Plaintiff’s Motion in Limine to Suppress Testimony and Evidence (R.Doc. 112) is
DENIED WITHOUT PREJUDICE.

First, as explained above, evidence of the Plaintiff’s

conviction may be relevant for impeachment under Rule 609. However, because the Court has
no evidence concerning the Plaintiff’s conviction (other than that he is a felon), the Court cannot
determine at this time whether the evidence is admissible under Rule 609. Thus, as in Sonnier
and Jackson, the Court denies the motion without prejudice on this issue. The Court will rule on
this issue as it arises at trial in accordance with the Federal Rules of Evidence.
Second, there is no evidence concerning the nature of the Plaintiff’s arrest; while
inadmissible under Rule 609, this evidence could be admissible under Rule 404(b) as evidence
of intent or absence of mistake, depending on the nature of the arrest. Accordingly, the motion
is denied without prejudice on this issue as well. The Court will rule on this issue if it arises at
trial in accordance with the Federal Rules of Evidence.
Third, as to the disciplinary report and charges, the Court denies the motion without
prejudice. As this Court explained in Sonnier, “Disciplinary reports are out-of-court statements

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and, to the extent that they are offered for the truth of the matters asserted therein, constitute
inadmissible hearsay under Rules 801(c) and 802.” 2015 WL 222317, at *3. However, as in
Sonnier, the Court cannot rule on whether an exception to the hearsay rule applies without
knowing the contents of the disciplinary report. Further, as in Sonnier, the Defendants are
entitled to testify regarding: “(1) what they personally observed, pursuant to Rule 602, (2) the
fact that Plaintiff was charged with disciplinary violations as a result of the incident in question,
and (3) to matters within their personal knowledge, subject to the relevance requirement of Rule
402.” Id. Defendants are also entitled to testify as to relevant statements made by the Plaintiff
“as non-hearsay admissions by party opponent under Rule 801(d)(2), if such statements meet the
requirements of that rule.” Id.
The Defendants’ Motion in Limine to Exclude Certain Testimony of Witnesses and
Exhibits (R.Doc. 104) is DENIED WITHOUT PREJUDICE.

First, Defendants seek the

exclusion of evidence of “any prior civil lawsuits, investigations, grievance complaints,
disciplinary infractions or other complaints made against the defendants on occasions unrelated
to” the facts at issue here, or of “[a]ny testimony related to any alleged habitual behavior and/or
other instances where the defendants may have allegedly used excessive/unnecessary force
against other inmates on occasions unrelated to the” facts at issue here (R.Doc. 104). As the
Court explained in Sonnier, where the Defendants made a similar request:
Though Defendants are certainly correct in their assertion that Rule 404(a)(1)
prohibits the introduction of evidence of a person's character or character trait to
prove that on a particular occasion the person acted in accordance with that trait,
the same is not true for evidence of habitual behavior. Contrary to Defendants'
assertion, evidence of a person's regular response to a particular kind of situation
with a specific type of conduct is admissible under Rule 406. Moreover, under
Rule 404(b)(2), evidence of prior wrongs or other acts may be admissible for
other purposes, such as proving motive.
Id. The Court has not been apprised of enough information regarding the Defendants’ conduct to
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make an accurate determination of the admissibility of this evidence under the above rules.
Thus, as in Sonnier, the Court “will rule on the admissibility of such evidence in line with the
Federal Rules of Evidence as it is presented and timely objected to at trial.” Id.
With respect to the medical record summaries, the parties have provided no information
about the contents of the medical records. Presumably, they are relevant to any claim for
damages; however, without more information, the Court cannot make this determination.
Further, contrary to what Defendants argue about the original writing rule, Fed.R.Evid. 1006
provides:
The proponent may use a summary … to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently examined in
court. The proponent must make the originals or duplicates available for
examination or copying, or both, by other parties at a reasonable time and place.
And the court may order the proponent to produce them in court.
Here, the Court has no information concerning whether the medical records are “voluminous” or
whether the Plaintiff made the originals “available for examination or copying, or both, by other
parties at a reasonable time and place.” Assuming the Plaintiff satisfies these requirements, the
Court will require the Plaintiff to produce the originals at trial for the jury.
Finally, the Defendant objects that the “Louisiana Department of Employee Manual”
[sic] is “very broad and irrelevant” (R.Doc. 104-1). However, the Court has been presented with
no evidence of what is contained in this document or why it is relevant. Accordingly, the motion
is denied without prejudice as to this evidence.
Plaintiff’s Objection to Defendant’s Proposed Charges/Instructions/Verdict Form
(R.Doc. 120) is OVERRULED. Plaintiff complains that the issue of qualified immunity should
not be presented to the jury. First, the very fact that the Fifth Circuit created a pattern jury
charge on qualified immunity suggests, by itself, that the Fifth Circuit believes the issue should

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be presented to the jury. In any event, if Plaintiff had bothered to read the annotations to the
Fifth Circuit Patter Jury Instruction on Qualified Immunity (10.3), Plaintiff would have seen a
citation to McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000). In McCoy, the Fifth Circuit
specifically rejected Plaintiff’s argument:
[Plaintiff] McCoy argues that the district court erred when it submitted the
question of whether the officers were entitled to qualified immunity to the jury.
McCoy contends that only the court may decide the qualified immunity issue.
However, we have previously held that while qualified immunity ordinarily
should be decided by the court long before trial, if the issue is not decided
until trial the defense goes to the jury which must then determine the
objective legal reasonableness of the officers' conduct. Snyder v. Trepagnier,
142 F.3d 791, 799 (5th Cir.1998). Therefore, McCoy's argument regarding the
submission of the qualified immunity issue to the jury is without merit.
Id. (emphasis added). The Fifth Circuit has cited McCoy for this proposition as recently as 2012
in Waganfeald v. Gusman, 674 F.3d 475, 483-484 (5th Cir. 2012) (“Qualified immunity should
be adjudicated ‘at the earliest possible stage in litigation,’ but ‘if the issue is not decided until
trial the defense goes to the jury which must then determine the objective legal reasonableness of
the officers' conduct.’”). Thus, this motion is denied.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion in Limine Regarding Comparative Fault (R.
Doc. 110) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine to Suppress Testimony
and Evidence regarding Inmate Witnesses (R.Doc. 111), Plaintiff’s Motion in Limine to
Suppress Testimony and Evidence (R.Doc. 112), and Defendants’ Motion in Limine to Exclude
Certain Testimony of Witnesses and Exhibits (R.Doc. 104) are DENIED WITHOUT
PREJUDICE; and

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IT IS FURTHER ORDERED that Plaintiff’s Objection to Defendant’s Proposed
Charges/Instructions/Verdict Form (R.Doc. 120) is OVERRULED.
Signed in Baton Rouge, Louisiana, on March 13, 2015.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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