Dziuba v. Smith

Filing 29

OPINION and ORDER Granting Defendant's 23 Motion in Limine and Granting In Part and Denying In Part Plaintiff's 22 Motion in Limine. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Bernard Dziuba,
Plaintiff,
v.

Case No. 16-cv-10869
Judith E. Levy
United States District Judge

Shane Smith,
Mag. Judge Patricia T. Morris
Defendant.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION IN
LIMINE [23] AND GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION IN LIMINE [22]
This is an excessive force case arising out of a traffic stop on May
13, 2014.

Plaintiff alleges that on that date, he was riding his

motorcycle to his home in Alpena, Michigan, and that once he arrived,
defendant pushed him to the ground, beat his head into the concrete
floor of his garage, arrested him, slammed a car door into his legs, and
refused him medical attention. (Dkt. 1 at 3.) Trial is set for August 23,
2017.

Pending are plaintiff’s (Dkt. 22) and defendant’s (Dkt. 23)

motions in limine.
I.

Plaintiff’s Motion in Limine

Plaintiff seeks to exclude the following information at trial:
1.

His receipt of Social Security and Medicaid benefits since the
1990s.

2.

Evidence of his two neck fusions and a knee injury resulting
from a 1991 accident where plaintiff was hit by a car as a
pedestrian, the accident itself, and the resulting lawsuit arising
from the accident.

3.

A 1999 surgery for non-Hodgkin’s lymphoma involving his
arms and neck.

4.

An accident where plaintiff was on his bicycle and hit by a
police car when he was six years old.

5.

Evidence that plaintiff was riding his motorcycle on May 23,
2014, with a learner’s permit and without the accompaniment
of an authorized individual.

6.

Evidence that plaintiff’s son served prison time for a drug
offense.

7.

Evidence of plaintiff having previously severed his right
thumb from his hand while working with cattle.

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8.

Evidence of the burning of plaintiff’s eyes and eyelids while
working at a muffler shop.

9.

Evidence of plaintiff’s possession of a medical marijuana
card.

10.

Evidence regarding plaintiff’s reasons for filing this lawsuit.

11.

Evidence regarding plaintiff’s treatment for alcohol addiction

and his history of alcohol use.
12.

The breathalyzer results from the test taken on the date of

the arrest.
13.

Plaintiff’s tattoos.

14.

Evidence of plaintiff’s criminal history.

Defendant has agreed to exclude significant portions of the
information outlined above. In light of this, the motion will be granted
as to the information defendant has already agreed to exclude,
including the lawsuit arising from the 1991 motor vehicle accident, the
accident from when plaintiff was six months old, and the various
portions of plaintiff’s criminal history that defendant agrees to exclude,
which comprise part or all of categories 2, 4, and 14. (Dkt. 22 at 3-5.)
A. Plaintiff’s Receipt of Social Security and Medicaid
Benefits
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Plaintiff’s complaint and motion are unclear as to what damages
he seeks, and his deposition reveals only that he seeks monetary
damages related to out-of-pocket costs arising from the May 23, 2014
encounter. (Dkt. 22-4 at 40.) He moves to exclude any evidence of his
receipt of Social Security and Medicaid benefits. For reasons that are
again unclear to the Court, plaintiff describes the medical history that
serves as the basis for his receipt of these benefits, which include
numerous medical issues that mirror the injuries he says resulted from
the events at issue in this case. (Dkt. 22 at 20.) Plaintiff argues that
any evidence of his receipt of benefits will be prejudicial to him under
Fed. R. Evid. 403, as “the introduction of said evidence will more than
likely mislead the jury to believe that Plaintiff does not need additional
monies from a jury verdict, since he already receives government
assistance.” (Id.) Defendant argues that plaintiff’s income is relevant
to his claim for damages, because the effect of the encounter on his
income, as well as any out-of-pocket expenses incurred must both be
established.
Defendant has not shown that plaintiff is seeking lost wages as
part of his claim for monetary damages, nor has he shown that
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plaintiff’s out-of-pocket costs should have been covered by Medicaid.
Further, the Court is guided by the collateral source doctrine, where
“money received from an independent source will not diminish recovery
from a wrongdoer.” Roundhouse v. Owens-Illinois, Inc., 604 F.2d 990,
994 (6th Cir. 1979); see also Jackson v. City of Cookeville, 31 F.3d 1354,
1360 (6th Cir. 1994) (holding that payments from a collateral source are
normally inadmissible unless the plaintiff puts the payments at issue in
his request for damages); Hamlin v. Charter Twp. of Flint, 165 F.3d
426, 436 (6th Cir. 1999) (holding that it was error to deduct disability
pension-related collateral benefits from a damage award).
doctrine normally applies to . . . disability benefits.”

“The

Id. (collecting

cases). Plaintiff’s motion in limine is granted with respect to category 1,
assuming that he is not seeking lost wages.

However, if plaintiff’s

request for damages involves a request for lost wages, defendant may
introduce evidence of his Social Security benefits.
B. Plaintiff’s Medical History
Plaintiff alleges that, following his encounter with defendant, he
“sustained shoulder problems; neck pain; wrist pain, numbness in his
hands; injury to his right foot; knee pain; forehead injuries (bruising
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and a cut); arm pain; and head pain.” (Id. at 2.) He seeks to exclude
the information set forth in categories 2, 3, 7, and 8 above.
Plaintiff seeks to exclude evidence of two neck fusions and a knee
injury arising from a 1991 accident. Here, he alleges neck pain and
knee pain. Evidence of prior injury to the precise areas alleged to have
been injured in the incident at the center of this case is relevant for the
purposes of calculating damages. Likewise, a prior surgery to his arms
and neck is relevant to his complaints of neck pain and arm pain, and
the severing of his right thumb is relevant to his complaints of
numbness in his hands. The burning of his eyelids and eyes does not
appear to be relevant to his complaints of head pain, and it will be
excluded unless defendant can provide more information at the time of
trial to show that the eye injury is connected to the head pain
complained of in this lawsuit.
Because most of plaintiff’s prior medical history is relevant to the
injuries he alleges resulted from the May 23, 2014 encounter and to any
calculation of damages arising from those injuries, plaintiff’s motion in
limine is denied with respect to categories 2, 3, and 7, and granted with

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respect to category 8, unless defendant offers some proof that plaintiff’s
eye injuries are related to his current complaints of head pain.
C. Plaintiff’s
Learner’s
Permit
and
Lack
Accompaniment By An Authorized Individual

of

Although plaintiff references this as a category of evidence he
seeks to have excluded, he provides no argument as to why it should be
excluded.

That plaintiff was not in compliance with the law while

riding his motorcycle is relevant to the encounter. Plaintiff’s motion in
limine is denied without prejudice with respect to category 5. However,
plaintiff may object to the introduction of this evidence at trial if he sets
forth appropriate reasons.
D. Plaintiff’s Son’s Criminal History
Defendant agrees to exclude plaintiff’s son’s criminal history
unless he is called as a witness at trial, in which case defendant
reserves the right to impeach him pursuant to Fed. R. Evid. 609.
Plaintiff makes no argument regarding the grounds for excluding his
son’s criminal history, or what that history is. Because plaintiff’s son
may be called as a witness at trial, and because his unspecified criminal
history may potentially be used to impeach his character for

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truthfulness under Rule 609, plaintiff’s motion in limine is denied with
respect to category 6.
E. Plaintiff’s Medical Marijuana Card
Plaintiff argues that evidence of his having a medical marijuana
card must be excluded under Rule 403, because raising the issue “would
only divert the jury’s attention away from the essential issues of the
case by way of innuendo.” (Dkt. 22 at 21.) Defendant argues that the
evidence should be admitted because plaintiff consumed medical
marijuana prior to the encounter, and it is relevant to his behavior
during the encounter, as well as his baseline health level and the extent
of his damages.
To be issued a medical marijuana card in Michigan, a person must
be a “qualifying patient,” defined as “a person who has been diagnosed
by a physician as having a debilitating medical condition.” MICH. COMP.
LAWS § 333.26423(l).

A “debilitating medical condition” is defined as

one or more of: “[c]ancer, glaucoma, positive status for human
immunodeficiency

virus,

acquired

immune

deficiency

syndrome,

hepatitis C, amyotrophic lalteral sclerosis, Chron’s disease, agitation of
Alzheimer’s disease, nail patella, or the treatment of these conditions,”
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or “[a] chronic or debilitating disease or medical condition or its
treatment that produces 1 or more of the following: cachexia or wasting
syndrome; severe and chronic pain; severe nausea; seizures, including
but not limited to those characteristic of epilepsy; or severe and
persistent muscle spasms, including but not limited to those
characteristic of multiple sclerosis,” or “[a]ny other medical condition or
its treatment approved by the [Department of Licensing and Regulatory
Affairs].” MICH. COMP. LAWS § 333.26423(b).
If plaintiff had consumed medical marijuana before the encounter,
and was still under the influence of it when driving his motorcycle, it
would potentially provide some explanation for his behavior during the
encounter. The underlying condition that makes plaintiff a qualifying
patient may also be relevant to his claims of injury from the encounter.
Plaintiff’s motion in limine is denied with respect to category 9 without
prejudice to any objection plaintiff might have to the specific use of this
evidence during trial.
F. Plaintiff’s Reasons for Filing This Lawsuit

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Plaintiff seeks the exclusion of all evidence regarding his reasons
for filing this lawsuit. During his deposition, he stated that the point he
decided to file the lawsuit was when:
Whenever I got fed up with being beat, lied about,
manipulated, and actually they’re almost like the Ku Klux
Klan in Michigan, the Michigan State Police, the way they
operate their system. You can have one – you can have the
state troopers from one town to the other town all get on
their little radio and make whatever they want to make.
(Dkt. 22-4 at 43.) Defendant argues that this testimony is relevant to
plaintiff’s credibility as a witness and “speaks to why he reacted the
way he did to the traffic stop at issue in this case.”
If the encounter occurred as plaintiff alleges, a police officer
unjustly beat him, causing him serious and chronic physical injury. A
dislike and distrust of police would, for many people, flow from that
experience. That plaintiff was motivated to file this suit because he
does not like the police is not relevant to the validity of his claims or his
credibility as a witness. Plaintiff’s motion in limine is granted with
respect to category 10.
G. Plaintiff’s History of Alcohol Use and Treatment for
Alcohol Addiction

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Plaintiff seeks the exclusion of his history of alcohol use and
treatment for alcohol addiction after the encounter took place.
Defendant argues that this knowledge is necessary to “assist the trier of
fact in determining what version of the facts transpired in this case,”
plaintiff’s physical and mental state during the encounter, and
plaintiff’s motivation for attempting to flee defendant. (Dkt. 28 at 8.)
Plaintiff’s use of alcohol at any point other than on the day at
issue in this case and any subsequent treatment he received for his use
of alcohol are categorically irrelevant to whether defendant used
excessive force during an arrest on May 23, 2014, or failed to attend to
plaintiff’s medical needs after the arrest. Use of alcohol at some other
point in time does not make any version of events on that day more or
less likely to have occurred, or make defendant’s actions more or less
justified in context. Treatment for alcohol use or abuse after the fact
does not make any version of events on that day more or less likely to
have occurred. Prior use of alcohol, if that use did not affect plaintiff’s
behavior at the time of the encounter, cannot be relevant to his claims.
Treatment he received for alcohol use days, weeks, or months after the

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encounter cannot factor into any use-of-force analysis on the day in
question.
Plaintiff’s motion in limine is granted with respect to category 11.
H. Plaintiff’s
Preliminary
Breathalyzer Results

Breath

Test

and

Plaintiff seeks the exclusion of his preliminary breath test (“PBT”)
and breathalyzer results from his arrest.
In assessing the reasonableness of a use of force, it “must be
judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S.
389, 396 (1989) (further citation omitted). Under Graham, an officer’s
actions are to be judged based on the knowledge he had at the time of
the incident giving rise to the claim of excessive force.
Plaintiff provides defendant’s incident report, which indicates that
the PBT and breathalyzer were both given after the point where
defendant is alleged to have used excessive force. (Dkt. 22-8.) Although
defendant argues that excluding this evidence would be “highly
prejudicial” to him, (Dkt. 28 at 9), it would be prejudicial to plaintiff to
permit defendant to present it in relation to this claim. At the time of
the encounter, defendant did not know plaintiff’s blood-alcohol level,
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and that later-gained knowledge cannot serve as justification for
defendant’s earlier behavior.
The wrinkle in this case, however, is plaintiff’s claim of
defendant’s deliberate indifference to his serious medical need in
violation of the Fourteenth Amendment. (Dkt. 1 at 5-6.) To assert this
claim, a plaintiff must make an objective showing of a “sufficiently
serious medical need.” Phillips v. Roane Cty., Tenn., 534 F.3d 531, 539
(6th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A
plaintiff must also “allege facts which, if true, would show that the
official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference,
and that he then disregarded that risk.” Comstock v. McCrary, 273
F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837).
The time period for plaintiff’s deliberate indifference claim would
include the entire time plaintiff was in custody and defendant failed to
address his alleged serious medical need. That period of time includes
the administration of the PBT and breathalyzer, and those results could
factor into defendant’s perception of risk to plaintiff and whether he
disregarded that risk if he inferred it. Defendant has not, however,
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shown that the precise results are more probative than prejudicial with
respect to this claim. It is unclear why defendant would need to share
the results with the jury, as opposed to the general results showing that
plaintiff was over the legal limit for operating a motor vehicle.
The Court will deny plaintiff’s motion in limine without prejudice
with respect to category 12. If plaintiff’s degree of intoxication comes
into question during trial, defendant may raise the issue of introducing
the specific results of the administered tests outside the hearing of the
jury, at which point the Court will hear plaintiff’s objections and rule on
their admission.

I. Plaintiff’s Tattoos
Plaintiff asks that the Court exclude evidence of his tattoos, but
does not indicate what tattoos he has or why they should be excluded.
Because the Court cannot tell what the actual evidence is plaintiff seeks
to exclude or the basis for the exclusion, his motion in limine is denied
with respect to category 13. That said, it is difficult to imagine the
relevance of plaintiff’s tattoos in this particular case.
J. Plaintiff’s Criminal History
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Plaintiff seeks the exclusion of four portions of his criminal
history: 1) the drunk driving bench trial arising from this incident that
resulted in a guilty verdict and an unsuccessful appeal; 2) his three
drunk driving convictions (one in 2014 and two in or around 1991); 3) a
1991 resisting and obstructing an officer charge; 4) a 1999 resisting and
obstructing an office charge; and 5) a 2001 operating without a license
charge. (Dkt. 22 at 13-14.)
Defendant argues that “[t]hese events are germane to Dziuba’s
motive to flee on May 31, 2014, and the potential rationale for his
actions.”

(Dkt. 28 at 10.)

However, Dziuba’s “motive to flee” and

“potential rationale for his actions” do not figure into the Graham
analysis for an excessive force case, unless defendant was aware of
these prior charges and convictions at the time of the encounter. On
review of defendant’s contemporaneous police report, he does not state
that he ran a search for plaintiff’s criminal history, or that he was
aware of it at any time during the encounter. (See Dkt. 22-8.) Nor can
the prior convictions figure into a deliberate indifference to a serious
medical need claim.

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Fed. R. Evid. 609 permits the use of a criminal conviction to attack
a witness’s character for truthfulness if the crime was punishable by
imprisonment for more than one year, subject to Fed. R. Evid. 403. Fed.
R. Evid. 609(a)(1). However, if more than ten years have passed from
the later of the witness’s conviction or release, the evidence is
admissible only if its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect, and the
proponent gives the adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its
use. Fed. R. Evid. 609(b).
Plaintiff’s 2014 conviction on the drunk driving charge falls
squarely within Rule 609(a)(1), as he admits. Plaintiff contends that
admission of that charge as evidence would violate Rule 403, which bars
“relevant evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” However, plaintiff cites only general “disdain . . . toward
people driving under the influence of alcohol and/or drugs” as a reason
to exclude this conviction. (Dkt. 22 at 17.) The fact that a juror might
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feel disdain for a particular type of criminal conviction is not reason
enough, on its own, to completely bar the evidence of that conviction
where it would otherwise be admissible.
The remainder of the criminal charges are all more than ten years
old, and so fall under Rule 609(b). At this juncture, defendant has made
no specific argument as to the probative value of the resisting and
obstructing charges. Defendant has provided an argument as to the
probative value of the other drunk driving charges, supported by
specific facts. However, the probative value of the prior charges would
be outweighed by the prejudice to plaintiff where defendant appears to
have had no knowledge of the charges at the time of the encounter, and
the reason for their admission is not to challenge plaintiff’s
truthfulness, but instead to establish a hypothetical motivation for
unspecified actions plaintiff took on May 23, 2014.

Defendant also

argues that the 2001 operating without a license charge should be
admissible because plaintiff could have faced the same charge again in
2014. But simply facing the same charge has no probative value in this
case, and defendant has provided no other reason why it should be
admissible.
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For the reasons set forth above, plaintiff’s motion in limine is
denied as to the 2014 drunk driving conviction, which may at the very
least be used to attack plaintiff’s character for truthfulness pursuant to
Rule 609, and granted as to the rest of plaintiff’s criminal history, which
is excluded at trial.
II.

Defendant’s Motion in Limine

Defendant seeks to exclude evidence of two prior lawsuits and two
internal affairs investigations, all arising from his time as a police
officer. (Dkt. 23.) Plaintiff states that he “does not intend to raise these
issues during trial, unless defendant ‘opens the door.’” (Dkt. 27 at 2.) It
is unclear what “opening the door” means in this context, or how
defendant would do so.
All of the lawsuits and investigations at issue took place over a
decade ago, and do not involve any admission or finding of liability or
wrongdoing.

Because plaintiff cannot articulate a basis for the

admissibility of this evidence, and it does not appear to be relevant to
the allegations in this case, defendant’s motion in limine is granted and
this evidence will be excluded at trial.
III. Conclusion
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For the reasons set forth above, it is hereby ordered that:
Plaintiff’s motion in limine (Dkt. 22) is GRANTED IN PART AND
DENIED IN PART; and
Defendant’s’ motion in limine (Dkt. 23) is GRANTED.
IT IS SO ORDERED.
Dated: July 20, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 20, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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