Marsalis v. Barrere et al

Filing 94

ORDER denying 83 Motion to Supplement Pretrial Conference. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 10/7/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FREDDIE MARSALIS (#451967)

CIVIL ACTION

VERSUS
CAPT. KEVIN BARRERE, ET AL.

NO. 12-0037-JWD-RLB

ORDER
This matter comes before the Court on the plaintiff’s Motion to Supplement Pretrial
Conference (R. Doc. 83), which Motion has been referred to the undersigned Magistrate Judge.
This Motion is opposed.
A video pre-trial conference was conducted in the above-captioned proceeding on June
24, 2014. Prior to the conference, the Court entered an Order (R. Doc. 74), directing the parties
to identify their proposed exhibits and witnesses for trial. At the subsequent conference, the
Court addressed the parties’ proposed exhibits and witnesses and, in a Supplemental Pretrial
Order dated June 24, 2014 (R. Doc. 80), made determinations regarding the likely admissibility
of the proposed exhibits and the likely allowance of the proposed witnesses. The plaintiff lodged
objections to certain of the Court’s determinations, and the Court advised the plaintiff that he
could file a motion seeking reconsideration. The instant Motion has followed.
The plaintiff first complains regarding certain of the Court’s conclusions and
recommendations regarding his proposed exhibits and regarding the likely evidentiary rulings
that will be made at trial relative thereto. The plaintiff initially points out that, inasmuch as the
defendant did not object at the pretrial conference to the admissibility of certain of his exhibits,
e.g., to excerpts from his 2011 administrative remedy proceedings and an Investigative Report

prepared by Officer Joe R. Jones (Exhibits B, C, D, E and F (in part)), the Court should not have
suggested deferral as to the admissibility thereof. The plaintiff also contends that the Court’s
recommended deferral in connection with Elayn Hunt Institutional Policy No. 100-A-16 (re:
“Shakedowns and Searches”) (Exhibit H) was improper. Finally, the plaintiff complains that the
Court should not have determined the likely inadmissability of certain other exhibits, e.g.,
excerpts from his administrative remedy proceedings filed in 2013 (Exhibit F (in part)), unsigned
hand-written “declarations” by co-inmate witnesses (Exhibit G), copies of certain discovery
requests propounded to the defendant (Exhibits J and K), the plaintiff’s Motion to Compel
Discovery (Exhibit M), excerpts from the defendant’s Motion for Summary Judgment and the
Magistrate Judge’s Report and Ruling entered in connection therewith (Exhibits F (in part), N
and O), a settlement proposal made by the plaintiff (Exhibit P), and an item of correspondence
authored by attorney Donna Grodner (Exhibit R).
The plaintiff’s arguments relative to his proposed exhibits and the Court’s suggested
evidentiary dispositions in connection therewith are rejected. As noted, the Court’s
Supplemental Pretrial Order provided only the Court’s predictions as to the likely admissibility
of the plaintiff’s exhibits, and thus, no Ruling in fact has been made as to the admissibility of any
of these exhibits. The plaintiff may offer any or all of these exhibits into evidence at trial, and
the District Judge will make Rulings as to the admissibility thereof. As for those exhibits to
which the defendant has not objected and/or to which he does not object at trial, the Court may
well allow the introduction of same in whole or in part.
In addition to the foregoing, the plaintiff also seeks reconsideration of the Court’s
determinations, in the Supplemental Pretrial Order, that certain of the plaintiff’s proposed
witnesses be excluded as inappropriate, i.e., Attorney Donna Grodner, or unnecessary, i.e.,

Warden N. Burl Cain, Warden Howard Prince, and Ass’t Warden Stephanie Lamartinere.1
Having reviewed the plaintiff’s arguments in support of modifying the Court’s determinations in
this regard, the Court finds no basis for modification of the Court’s prior determinations.
Finally, the plaintiff complains that the defendant’s Exhibit No. 3, which is identified as
being the plaintiff’s Conduct Record, is irrelevant and should not be allowed. As noted above,
however, the Court has not made a definitive ruling regarding the admissibility of this exhibit
and has merely deferred to the trial judge a determination in connection therewith. The plaintiff
is entitled to re-urge his objection at the time of trial. The Court further notes that the defendant
has been directed to redact extraneous references from the plaintiff’s Conduct Record, “so as to
reflect only a disciplinary charge issued against the plaintiff on June 17, 2011 (the day after the
excessive force incident complained of). Such redaction substantially minimizes the prejudicial
effect which may result from admission of the referenced exhibit. Accordingly,
IT IS ORDERED that the plaintiff’s Motion to Supplement Pretrial Conference (R. Doc.
83) be and it is hereby DENIED.
Signed in Baton Rouge, Louisiana, on October 7, 2014.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1. The Court further notes that, by including in the instant Motion a list of his witnesses
that includes ten (10) co-inmate witnesses, the plaintiff is apparently complaining regarding the
Court’s determination that he should limit the number of his co-inmate witnesses to five (5). The
Court has addressed the plaintiff’s contentions in this regard in a separate Order.