Bryant et al v. Serebrenik et al

Filing 56

ORDER granting 52 Motion in Limine. For the reasons explained in the attached opinion, defendants' motions in limine are granted, and plaintiffs' motion in limine is denied. Ordered by Judge Allyne R. Ross on 2/23/2017.(Matsumura, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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X
:
LAKISHA BRYANT, AS MOTHER AND NATURAL
:
GUARDIAN OF INFANT I.K.; LOURETTE MATHURIN, :
AS MOTHER AND NATURAL GUARDIAN OF INFANT :
J.M.,
:
:
Plaintiffs,
:
:
-against:
:
MARK SEREBRENIK; FRANK STANKEVICIUS; LUIS :
FALCON; GREGORY JORDAN; MATTHEW COLON; X
and JOSEPH PALMIOTTO

15-CV-3762 (ARR)(CLP)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

Defendants.
--------------------------------------------------------------------ROSS, United States District Judge:
In preparation for trial in this civil rights action brought against defendant police officers,
the parties have submitted various matters for resolution in limine. See Proposed Pretrial Order,
Joint, ECF No. 50, at 10; Mot. in Limine, ECF No. 52. The factual and procedural background
of this case are set forth in my ruling on summary judgment. See Opinion & Order (Oct. 28,
2015), ECF No. 44, at 3-4. Defendants have moved to preclude plaintiffs from referencing the
City of New York, requesting a specific dollar amount from the jury, and inquiring into
defendants’ disciplinary histories. Plaintiffs have requested permission to present evidence of a
specific complaint against one defendant officer. As set forth below, defendants’ motions in
limine are granted, and plaintiffs’ motion in limine is denied.

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DISCUSSION
(1) References to City of New York
Defendants have moved to preclude plaintiff from referring to defense counsel as “City
attorneys,” or referring to indemnification by the City. Based on plaintiffs’ written submissions,
which do not address this request, I assume plaintiffs do not oppose this motion. In any event,
the City of New York is not a defendant in this action. Further, defendants have indicated that
they are willing to stipulate that the individual defendants were acting in the course of their
employment. On the basis of this stipulation, I see no reason for plaintiff to reference the City of
New York. Therefore, this motion is granted.
(2) Requesting a Specific Dollar Amount
Defendants have moved to preclude plaintiffs from requesting a specific dollar amount
from the jury. Once again, based on plaintiffs’ written submissions, which do not address this
request, I assume plaintiffs do not oppose this motion. In any event, within this circuit,
“specifying target amounts for the jury to award is disfavored.” Consorti v. Armstrong World
Indus., Inc., 72 F.3d 1003, 1016 (2d Cir. 1995), vacated on other grounds, 518 U.S. 1031 (1996).
Although the determination falls within the discretion of the district court, Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997), I see no reason to contravene the circuit’s wellestablished policy disfavoring it. Accordingly, this motion is granted.
(3) Defendants’ Disciplinary Histories, Complaints
Against Officers, and Prior Lawsuits
Defendants have moved to exclude evidence of their prior disciplinary histories,
complaints, and prior lawsuits with respect to any testifying officer as inadmissible character
evidence under Rule 404(b). Defendants have also moved to exclude evidence of prior lawsuits
brought against the individual defendants or non-party officers called to testify on the basis that
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this evidence is more prejudicial than probative, and any documentation concerning these
lawsuits is inadmissible hearsay under Rule 802.
Plaintiffs’ sole motion in limine requests permission to introduce evidence that Officer
Palmiotto allegedly in the past improperly withheld his name and badge number. Plaintiffs’
written submissions do not identify any other evidence of disciplinary history, complaints or
prior lawsuits plaintiffs wish to introduce. With respect to the evidence plaintiffs have identified,
it apparently consists of entries on Officer Palmiotto’s personnel files indicating that there was
complaint of “failure to provide name/shield” on March 17, 2011, and that the allegation was
unsubstantiated and closed on September 25, 2012. Plaintiffs may also wish to question Officer
Palmiotto about this incident.
Plaintiffs argue that this evidence is probative of Officer Palmiotto’s untruthfulness and
therefore admissible under Rule 608(b). Plaintiffs further argue that such evidence shows
Officer Palmiotto’s intent to order the false arrest of plaintiffs and is therefore admissible under
Rule 404(b).
First, this evidence is not admissible under Rule 608(b). This rule provides that “[e]xcept
for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s character for
truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of . . . the witness.” As a preliminary
matter, this rule does not allow plaintiffs to introduce extrinsic evidence such as the personnel
files.
However, Rule 608(b) allows plaintiffs to cross-examine Officer Palmiotto about “prior
specific instances . . . probative of [his] character for truthfulness or untruthfulness.” “[C]ase

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law interpreting the express purpose of Rule 608(b) makes clear that not all prior bad acts are
admissible to impeach a witness. Such acts are only admissible insofar as they bear on a
witness’s propensity for truthfulness or untruthfulness,” United States v. Devery, 935 F. Supp.
393, 407 (S.D.N.Y. 1996), aff’d 128 F.3d 38 (2d Cir. 1997), and “[u]nder Rule 608(b), the court
has discretion to permit or deny a line of inquiry on cross-examination,” United States v. Cruz,
894 F.2d 41, 43 (2d Cir. 1990).
Complaints against officers are not probative of a law enforcement witness’s truthfulness
or untruthfulness unless the underlying conduct involves dishonesty. United States v. Horsford,
422 Fed. App’x 29, 30 (2d Cir. 2011). Other courts in this district have found that an officer’s
failure to provide his name or badge number does not bear on credibility. See, e.g., United States
v. Barret, No. 10-CR-809 (KAM), 2012 WL 194992, at *1-2 (E.D.N.Y. Jan. 23, 2012); United
States v. Stone, No. 05 CR 401, 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007). Therefore,
because failure to provide a name or badge number is not a dishonest act and does not bear on
Officer Palmiotto’s propensity for truth-telling, the evidence is not admissible under Rule 608(b),
and cross examination about this topic will not be permitted.
Second, this evidence is not admissible under Rule 404(b), which governs crimes,
wrongs, and other acts, and provides that they are inadmissible “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character.”
Plaintiffs contend that evidence of this incident is admissible for another purpose: to show intent.
Under the law of this circuit, admission of extrinsic acts as evidence of intent under Rule
404(b) is permitted only if “the other act is ‘sufficiently similar to the conduct at issue to permit
the jury reasonably to draw from that act the knowledge or intent inference advocated by the
proponent of the evidence.” United States v. Ozsusamlar, 428 F. Supp. 2d 161, 166 (S.D.N.Y.

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2006) (alterations removed) (quoting United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994)).
Additionally, the proponent of the evidence must satisfy the probative-prejudicial balancing test
of Rule 403. See United States v. Ortiz, 857 F.2d 900, 903 (2d Cir. 1988).
Here, the intent evidence plaintiffs hope to offer is not at all similar to the conduct at
issue. There is no allegation that, in the present case, Officer Palmiotto declined to provide his
name, badge number, or other information to which plaintiffs were entitled. This evidence
simply does not bear on whether or not Officer Palmiotto intended to order the false arrest of
plaintiffs. The evidence is therefore not admissible under Rule 404(b).
In any event, I would exclude this evidence under Rule 403. Any possible probative
value of this evidence is substantially outweighed by the danger of unfair prejudice to Officer
Palmiotto. Plaintiffs seek to introduce mere allegations on a personnel report which were found
by the department to be unsubstantiated. The fact that the report recounts a mere allegation
lessens its probative value significantly. See Berkovich v. Hicks, 922 F.2d 1018, 1023 (2d Cir.
1991) (“[T]he strength of the evidence establishing the similar act is one of the factors the court
may consider when conducting the Rule 403 balancing.” (quoting Huddleston v. United States,
485 U.S. 681, 689 n.6 (1988)). For this reason, district courts in this circuit have excluded
evidence of unsubstantiated civilian complaints offered under Rule 404(b). See, e.g., JeanLaurent v. Hennessy, 840 F. Supp. 2d 529, 556 (E.D.N.Y. 2011); Hardy v. Town of Greenwich,
629 F. Supp. 2d 192, 197-98 (D. Conn. 2009).
Further, the nature of plaintiffs’ evidence raises issues about how plaintiffs could
introduce this evidence given that any statement by a third party in a personnel report is
inadmissible hearsay within hearsay under Rule 805. Finally, admitting this evidence would
inevitably lead to a mini-trial on the provenance and veracity of the complaint. The time and

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potential confusion wrought by admitting evidence required to contextualize this allegation
would overwhelm its probative value. See Hardy, 629 F. Supp. 2d at 198.
CONCLUSION
For the reasons set forth above, defendants’ motions in limine are granted in full.
Plaintiffs’ motion in limine is denied.
SO ORDERED.

___________/s/__________________
Allyne R. Ross
United States District Judge
Dated:

February 23, 2017
Brooklyn, New York

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