Howell v. Town of Ball et al
MEMORANDUM ORDER granting in part and denying in part 202 Motion in Limine. Signed by Magistrate Judge Joseph H L Perez-Montes on 8/31/2017. (crt,Tice, Y)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
THOMAS R. HOWELL,
CIVIL ACTION NO. 1:12-CV-00951
MAGISTRATE JUDGE PEREZ-MONTES
MEMORANDUM RULING AND ORDER
Before the Court is a Motion in Limine (Doc. 202) filed by Defendant, the Town
of Ball (the “Town”). The Town seeks exclusion of two categories of evidence: (1) “Any
testimony, reference, or tangible evidence of any allegation regarding the plaintiff’s
§1983 conspiracy claim and his state law intentional infliction of emotional distress
[“IIED”] claim”; and (2) “Any state law claim regarding a vested right in employment
pursaunt to the Officer’s Bill of Rights. Plaintiff, Thomas R. Howell (“Howell”),
opposes the motion, at least in part. The Motion in Limine is hereby GRANTED IN
PART AND DENIED IN PART.
Howell’s Conspiracy Claim
As correctly noted by the Town, the Court granted summary judgment and
dismissed Howell’s conspiracy claims as abandoned. Howell did not challenge that
ruling on appeal. And Howell does not argue to the contrary now.
Nonetheless, the Town maintains Howell “cannot now, post appeal and
dismissal of conspiracy claims, be allowed to make reference to any testimony or
tangible evidence regarding any allegations referring to plaintiff’s § 1983 conspiracy
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claim at the trial of this matter.” (Doc. 202-1, p. 4). The Town does not specify what
“testimony or tangible evidence” may be at issue. Howell notes only that he plans to
introduce witness testimony indication that former Mayor Roy Hebron asked Kristan
Delaney to make a false complaint against Howell, and that Police Chief Daniel
Caldwell (“Caldwell”) told Delaney he was “building a case” against Howell. (Doc.
223, pp. 1-2). The parties agree – as far as the Court is aware – that Caldwell’s
motivations in recommending Howell’s termination are a viable, and disputed, fact
to be addressed at trial.
Given the dismissal of Howell’s conspiracy claims, evidence which would
pertain solely to those claims, along with explicit references to a “conspiracy”
regarding Howell’s termination, would be irrelevant, confusing, and potentially
prejudicial if admitted at trial. Accordingly, any such evidence will be excluded at
Absent reference to specific evidence, the Court cannot provide specific rulings.
But the Court can envision evidence which may have been pertinent to a conspiracy
claim, and is also relevant to Howell’s remaining First Amendment retaliation or
False Claims Act claims. Delaney’s testimony is an example. Any such evidence
relevant to Howell’s remaining claims will not be excluded at trial.
Howell’s IIED Claim
As also correctly noted by the Town, Howell’s IIED claim was dismissed by this
Court on summary judgment, and was not reinstated on appeal. However, the parties
agree – again, as far as the Court is aware – that Howell is still asserting a claim for
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compensatory damages for emotional distress. Absent reference to specific evidence,
the Court can only rule that any evidence which would be relevant exclusively to
Howell’s former IIED claim – and would not be relevant to Howell’s claim for
compensatory damages for emotional distress – is inadmissible.
evidence which would tend to establish Howell’s right to recover, if any, for emotional
distress, will be admissible.
The Police Officer’s Bill of Rights
Finally, the Town seeks to exclude Howell’s references to La. R.S. 40:2531, the
Police Officer’s Bill of Rights. In his original Complaint, Howell maintained that he
sought “judicial remedies pursuant to” the statute because he was not notified of the
purported investigation against him, and that all defendants (including the Town)
failed to “comply with the procedural provisions” of the statute. (Doc. 1, pp. 2, 5).
According to Howell, this amounted “to a denial of due process granted to [Howell]”
under the Fourteenth Amendment. (Doc. 1, pp. 2, 5, 7).
Plaintiff maintains that “[n]o Order was issued considering plaintiff’s claim
against the City for its failure to comply with the provisions of LSA-R.S. 40:2531.”
(Doc. 223, p. 3). The Town now argues that, for several reasons, the Police Officer’s
Bill of Rights did not apply to Howell’s situation.
The District Judge dismissed all of Howell’s Fourteenth Amendment due
process claims – specifically including his claims as to the Police Officer’s Bill of
Rights – “against all Defendants.” (Doc. 149, p. 20). In its ruling, the Fifth Circuit
mentioned neither the Fourteenth Amendment due process claims in general, nor
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Howell’s references to the Police Officer’s Bill of Rights specifically. This Court can
only assume that Howell did not brief – and therefore abandoned – this argument
before the Fifth Circuit. See Bray v. Young, 261 Fed.Appx. 765, 768 (5th Cir. 2008)
(“‘An appellant abandons all issues not raised and argued in its initial brief on
appeal.’” (quoting Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (emphasis in
original). In any event, the Fifth Circuit did not reverse the District Judge’s ruling.
Therefore, references to the Police Officer’s Bill of Rights are foreclosed.
For the foregoing reasons,
IT IS ORDERED that the Motion in Limine (Doc. 202) is hereby GRANTED
IN PART to the extent it seeks exclusion of evidence which is relevant solely to
Howell’s conspiracy and IIED claims, as well as his Fourteenth Amendment due
process claim referencing the Police Officer’s Bill of Rights, La. R.S. 40:3521.
IT IS FURTHER ORDERED that the Motion in Limine (Doc. 202) is hereby
DENIED IN PART to the extent it may seek exclusion of evidence which is relevant,
at least in part, to Howell’s First Amendment retaliation claims, Howell’s False
Claims Act claim, or Howell’s claim for compensatory damages for emotional distress.
THUS DONE AND SIGNED in Alexandria, Louisiana, this 31st_____
day of August, 2017.
Joseph H.L. Perez-Montes
United States Magistrate Judge
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