Tilmon v. Keith et al
**VACATED***REPORT AND RECOMMENDATIONS re 85 MOTION in Limine filed by Kevin Jordan, Timothy Keith, Corrections Corp of America, Richard Cotton. IT IS RECOMMENDED that Defendants' MIL 85 be DENIED as premature. Objections to R&R due by 12/18/2017. Signed by Magistrate Judge Joseph H L Perez-Montes on 12/4/2017. (crt,Tice, Y)(b) Modified on 12/5/2017 (Tice, Y)to reflect this is vacated per Memorandum Order 95 .
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
TERRY D. TILMON
CIVIL ACTION NO. 1:13-CV-03127
TIMOTHY KEITH, et al.
MAGISTRATE JUDGE PEREZ-MONTES
REPORT AND RECOMMENDATION
Before the court is a civil rights complaint filed pursuant to 42 U.S.C. § 1983,
in forma pauperis, by pro se plaintiff Terry D. Tilmon (“Tilmon”) on November 22,
2013 and amended on March 28, 2014 (Doc. 10). The remaining named defendants
are Corrections Corporation of America (“CCA”) (former operator of the Winn
Correctional Center (“WCC”) in Winnfield, Louisiana), Warden Timothy Keith
(“Keith”), and WCC corrections officers Kevin Jordan (“Jordan”) (Housing Unit
Manager at WCC) and Richard Cotton (“Cotton”) (foreman of the Prison Enterprise
Garment factory at WCC).
The remaining claims are whether Tilmon was subjected to unconstitutional
conditions of confinement while he was incarcerated in WCC: (1) exposure to weather
extremes due to broken windows in his dorm; (2) he re-injured his back while
performing a work assignment that did not adhere to medical restrictions; and (3) he
has been subjected to high levels of environmental tobacco smoke and synthetic
marijuana smoke in his housing unit due to understaffing in WCC which have caused
shortness of breath, headaches, sleeplessness, and disorientation.
monetary damages (including punitive) and injunctive relief (Doc. 10). Tilmon is still
confined in WCC.
Defendants filed a motion in limine (Doc. 85) seeking to preclude Tilmon from
presenting evidence (testimony and an article 1) by Shane Bauer, an investigative
journalist who was trained and employed as a prison guard at WCC for four months
in 2014 and 2015. That motion is before the Court for disposition.
Law and Analysis
Defendants seek to exclude testimony from and an article written by Shane
Bauer (Doc. 85).
Tilmon contends he will offer Bauer’s testimony as to his personal knowledge
of understaffing and the inability to enforce the policy on smoking at WCC (Doc. 89).
Defendants argue that, since Bauer was employed in December 2014 through March
2015, and Tilmon’s complaint was filed in 2013, Bauer’s evidence is not relevant
because it involves a different period of time. Tilmon argues the constitutional
violations at WCC that he complains of were ongoing through 2015, when Corrections
Corporation of America (“CCA”) ceased operating WCC.
Defendant’s motion is preemptive, based on Tilmon’s contention that he is
trying to contact Bauer about testifying on his behalf. Tilmon has not yet subpoenaed
Bauer’s article, “My Four Months as a Private Prison Guard,” is available at: http://www.
Bauer, nor has Bauer agreed to testify. Therefore, this motion is premature and
should be dismissed. See Laughlin v. Falcon Operators, Inc., 2001 WL 474282, *1
(E.D. La. 2001) (motion to exclude a witness made before the witness was served with
a subpoena was premature).
For the foregoing reasons, IT IS RECOMMENDED that Defendants’ motion in
limine (Doc. 85) be DENIED as premature.
Under the provisions of 28 U.S.C. ' 636(b)(1)(c) and Fed. R. Civ. P. 72(b), the
parties have fourteen (14) days from service of this Report and Recommendation to
file specific, written objections with the Clerk of Court. A party may respond to
another party=s objections within fourteen (14) days after being served with a copy
thereof. No other briefs (such as supplemental objections, reply briefs etc.) may be
filed. Providing a courtesy copy of the objection to the magistrate judge is neither
required nor encouraged. Timely objections will be considered by the district judge
before making a final ruling.
A PARTY=S FAILURE TO FILE WRITTEN OBJECTIONS TO THE
CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) CALENDAR DAYS
FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY,
EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL
THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
_____ day of December, 2017.
Joseph H.L. Perez-Montes
United States Magistrate Judge
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