Dominick v. Barrere et al

Filing 67

RULING granting 59 Motion in Limine to Exclude Testimony of Witnesses Roland Lewis, Daniel Bellard, and Kennedy Jackson; and granting in part and denying in part 60 Motion in Limine to Exclude Enumerated Plaintiff's Exhibit Lists, so that the affidavits of Adrian Almadovar, LaShawnda Horne, Frank Johnson,and Jonathan Roundtree are inadmissible. Signed by Judge James J. Brady on 02/28/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DONALD DOMINICK
CIVIL ACTION
VERSUS
NO. 12-497-JJB-RLB
CAPTAIN TODD BARRERE, ET AL.
RULING ON MOTIONS IN LIMINE
This matter is before the Court on the following motions: (1) the defendants’ Motion
[doc. 59] in Limine to Exclude Testimony of Witnesses Roland Lewis, Daniel Bellard, and
Kennedy Jackson; and (2) the defendants’ Motion [doc. 60] in Limine to Exclude Enumerated
Plaintiff’s Exhibit Lists. The plaintiff opposed both motions. (Docs. 63 & 64). The Court will
deal with these motions seriatim.
1. Motion in Limine to Exclude Testimony of Witnesses Roland Lewis, Daniel Bellard,
and Kennedy Jackson (Doc. 59)
Initially, the defendants seek to exclude the testimony of Roland Lewis, Daniel Bellard,
and Kennedy Jackson, as these witnesses will only testify to “[o]ther instances where Major
Barrere has sprayed chemicals in the mouth or anus of an inmate.” (Doc. 59-1, p. 1). The
defendants contend that there is no provision of the Federal Rules of Evidence that would allow
these witnesses to testify as to other instances. But, the plaintiff contends that these witnesses’
testimony is “highly relevant to punitive damages and shows that Barrere has a disregard for the
federally protected rights of inmates.” (Doc. 63, p. 1). Additionally, the plaintiff avers that the
evidence is “relevant as to the amount of punishment and/or monetary damages that may be
necessary to deter someone such as Barrere.” Id.
“In Smith v. Wade, the Supreme Court held that a jury may award punitive damages in a
federal civil rights action based on 42 U.S.C. § 1983 ‘when the defendant’s conduct is shown to
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be motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.’” Lincoln v. Case, 340 F.3d 283, 291 (5th Cir. 2003)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Nevertheless, the only plaintiff before this
Court is Donald Dominick, and the Court is only looking at the incident that allegedly occurred
on January 8, 2012. Rule 404(b) of the Federal Rules of Evidence provides that “[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.” This Court fails to see
how evidence of alleged prior conduct of Major Barrere goes to show that his specific, alleged
conduct as to the plaintiff was motivated by evil motive or intent, or involved reckless or callous
indifference to the federally protected rights of the plaintiff. Id. (quoting Smith, 461 U.S. at 56).
Regardless of how the plaintiff attempts to couch it, this evidence would only be used to
prejudice the jury and attempt to “prove [Major Barrere’s] character in order to show that on a
particular occasion [he] acted in accordance with the character.” Fed. Rule Evid. 404(b).
Accordingly, the Court finds that the testimony of Roland Lewis, Daniel Bellard, and Kennedy
Jackson is inadmissible.
2. Motion in Limine to Exclude Enumerated Plaintiff’s Exhibit Lists (Doc. 60)
The defendants also seek to exclude a plethora of the plaintiff’s exhibits listed in the joint
pre-trial order. (Doc. 57). After review, the Court will defer ruling on the admissibility of the
majority of these exhibits until the trial on the merits, when this Court can better assess the
admissibility of these items based on the plaintiff’s use at the trial.
Nevertheless, the Court does find that the following exhibits are inadmissible hearsay: (1)
Affidavit of Adrian Almadovar, (2) Affidavit of LaShawnda Horne, (3) Affidavit of Frank
Johnson, and (4) Affidavit of Jonathan Roundtree. The plaintiff contends that these documents

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contain “statements of a party opponent in a personal or representative capacity.” (Doc. 64, p. 2).
However, these four individuals are not parties to the suit and do not act in a representative
capacity for any of the five defendants. It is true that some of these affidavits contain statements
made by the defendants. Nevertheless, Rule 805 of the Federal Rules of Evidence 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.” While the affidavits may contain statements
made by a party opponent, these non-party affidavits—in and of themselves—are hearsay. The
plaintiff has failed to show how the affidavits qualify for an exclusion or exception to hearsay,
and this Court cannot otherwise find an applicable hearsay exception or exclusion. Accordingly,
the affidavits from Adrian Almadovar, LaShawnda Horne, Frank Johnson, and Jonathan
Roundtree are also inadmissible.
Therefore, the Court (1) GRANTS the defendants’ Motion [doc. 59] in Limine to
Exclude Testimony of Witnesses Roland Lewis, Daniel Bellard, and Kennedy Jackson; and (2)
GRANTS IN PART AND DENIES IN PART the defendants’ Motion [doc. 60] in Limine to
Exclude Enumerated Plaintiff’s Exhibit Lists, so that the affidavits of Adrian Almadovar,
LaShawnda Horne, Frank Johnson, and Jonathan Roundtree are inadmissible.
Signed in Baton Rouge, Louisiana, on February 28, 2014.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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