Penree et al v. City of Utica, New York et al

Filing 97

MEMORANDUM-DECISION AND ORDER re 73 Motion in Limine; 79 Motion in Limine: The Court hereby ORDERS that Plaintiffs' motion in limine is DENIED without prejudice to renew with respect to the admissibility of Plaintiff Penree's prior arrests and incidents; and the Court further RESERVES decision on Plaintiffs' motion in limine with respect to the admissibility of Defendants' expert's testimony; and the Court further ORDERS that Defendants' motion in limine is GRANTED in part and DENIED in part without prejudice to renew; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 8/10/17. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DANIEL PENREE and D-M.W.,
a minor child, by Daniel Penree,
his father,
Plaintiffs,
vs.

6:13-cv-01323
(MAD/ATB)

CITY OF UTICA POLICE SERGEANT
WATSON; CITY OF UTICA POLICE
OFFICER CICCONE; and CITY OF UTICA
POLICE OFFICER SKABINSKI,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DEEP LAW OFFICE
P.O. Box 300
Clinton, New York 13323
Attorneys for Plaintiff Daniel Penree

NORMAN P. DEEP, ESQ.

BOSMAN LAW FIRM, LLC
201 West Court Street
Rome, New York 13440
Attorneys for Plaintiff D-M.W.

A.J. BOSMAN, ESQ.

CITY OF UTICA CORPORATION
COUNSEL
1 Kennedy Plaza, 2nd Floor
Utica, New York 13502
Attorneys for Defendants

ZACHARY C. OREN, ESQ.

LEONARD, CURLEY & LONGERETTA
205 West Court Street
Rome, New York 13440
Attorneys for Defendants

DAVID A. LONGERETTA, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION

On October 23, 2013, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983,
alleging that Defendants committed various constitutional violations and also alleging state law
tort claims. See Dkt. No. 1. On June 23, 2014, Plaintiffs filed an amended complaint. See Dkt.
No. 19.
In a Memorandum-Decision and Order dated March 4, 2016, the Court granted in part and
denied in part Defendants' motion for summary judgment, dismissing several of Plaintiffs' claims
and several Defendants from this action. See Dkt. No. 48 at 61-64. As a result, Plaintiff Penree's
remaining claims are for malicious prosecution under state law and the Fourth Amendment,
excessive force under the Fourth Amendment, false arrest under the Fourth Amendment, and
unlawful entry under the Fourth Amendment. See id. at 61 n.10. Plaintiff D-M.W.'s remaining
claims are for excessive force under the Fourteenth Amendment and assault and battery. See id.
On March 17, 2016, Defendants filed a notice of appeal to the Second Circuit, arguing that
the Court improperly denied qualified immunity to the individual Defendant officers. See Dkt.
No. 49. The Second Circuit dismissed Defendants' appeal in part and affirmed this Court's order.
See Dkt. No. 59.
Currently before the Court are motions in limine filed by Plaintiffs and Defendants. In
Plaintiffs' motion, they argue that Defendants should be precluded from introducing any evidence
regarding Plaintiff Penree's arrest history or "incidents involving the Plaintiff." See Dkt. No. 79-1
at 7-12. In Defendants' motion, they contend that Plaintiffs should be precluded from "even
mentioning" Plaintiff Penree's Utica City Court criminal proceeding that dismissed the charges
against him. See Dkt. No. 73 at 1; Dkt. No. 72 at 16-18. Defendants also argue that Plaintiffs
should be precluded from introducing any evidence regarding Plaintiff Penree's alleged loss of
child visitation rights as a part of his alleged damages. See Dkt. No. 73 at 1; Dkt. No. 72 at 122

16. Finally, in Plaintiffs' opposition to Defendants' motion in limine, Plaintiff argues that
Defendants' expert, Todd A. Faulkner, offered additional opinions in his trial deposition that were
not contained in his initial expert report, and, therefore, are inadmissible. See Dkt. No. 84 at 6-8.
II. DISCUSSION
A.

Standard
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on

the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude
evidence on a motion in limine only when the evidence is clearly inadmissible on all potential
grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138,
*3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until
trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co.
v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, courts are "free,
in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as "the case
unfolds, particularly if the actual testimony differs from what was contained in the [movant's]
proffer." Luce, 469 U.S. at 41-42.
B.

Plaintiffs' motion in limine
1. Plaintiff Penree's arrest history and prior incidents
Plaintiffs claim that Defendants provided a document containing Plaintiff Penree's arrest

history and "numerous incidents" involving Plaintiff Penree dating back to 2006. See Dkt. No.
79-1 at 7. Plaintiffs argue that this information is not relevant and cannot be used to impeach
Plaintiff Penree. See id. at 7-10. Plaintiffs have not provided the Court with said document, so

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the Court is unsure of the nature of the incidents and arrests that Plaintiffs are referring to.1 Nor
do Plaintiffs describe the arrests or incidents in their current motion. Accordingly, the Court has
no way to determine the admissibility of such incidents without further details.
With that said, Defendants specifically argue that testimony and documentation regarding
the events that transpired the day before the incident giving rise to this case are admissible. See
Dkt. No. 83 at 5-6. The Court held in its March 4, 2016 Memorandum-Decision and Order that
there are questions of fact as to whether the officers had probable cause to arrest Plaintiff Penree,
and, specifically, whether there was reason to doubt Danielle Williams's veracity. See Dkt. No.
48 at 20-21. Defendants contend that Defendant Skibinksi was aware of the events that transpired
the prior day and of the alleged threat that Plaintiff Penree made that day. See id. at 6. The Court
finds that the events that transpired that day, including Plaintiff Penree's threat that he would "kill
all of you," Dkt. No. 41-2 at 2, are relevant to determining whether Defendants had probable
cause to arrest Plaintiff Penree the following day. A jury could find that based on Plaintiff
Penree's conduct toward Danielle Williams and the police the prior day, as well as Plaintiff's
alleged threat, that Danielle Williams was being truthful when she reported the alleged
harassment. Or, at the very least, Plaintiff Penree's conduct the prior day may have been one
consideration to Defendants when determining whether to believe Danielle Williams's allegations.
It is true that the Court held that the alleged threat Plaintiff Penree made did not give Defendants
probable cause to arrest Plaintiff Penree the following day as a matter of law, and thus the Court
denied Defendants' summary judgment motion, but that alleged threat may be submitted to the
fact-finder. The Court also finds that, while this evidence is somewhat prejudicial to Plaintiff

Plaintiffs did not attach this document to their motion or cite to any document in the
record containing Plaintiff Penree's arrest history and prior incidents.
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Penree, it is certainly probative of the issue of whether the officers had probable cause to arrest
Plaintiff Penree. Accordingly, the Court finds that its probative value is not substantially
outweighed by the danger of unfair prejudice.
Finally, the Court agrees with Defendants that the general domestic violence history
between Plaintiff Penree and Danielle Williams may be relevant to the issue of whether there was
a reason to doubt Danielle Williams's veracity, and, thus, whether Defendants had probable cause
to arrest Plaintiff Penree. See Dkt. No. 83 at 5. Accordingly, the Court believes that some of the
incidents may be admissible; however, as the Court has explained, none of the specific incidents
are before the Court at this time. As such, the Court cannot determine exactly which incidents or
arrests are admissible. Accordingly, the Court denies Plaintiffs' motion without prejudice to
renew.
In sum, Plaintiffs' motion to preclude evidence regarding Plaintiff Penree's prior arrests or
incidents is denied without prejudice to renew. However, testimony and documentation regarding
the events that transpired on April 22, 2012, the day before the incident giving rise to this case,
are admissible.
2. Testimony of Defendants' expert
In Plaintiffs' opposition papers, they argue that Defendants' expert, Mr. Faulkner,
exceeded the scope of his expert report when he testified during a trial deposition about the
appropriateness of Defendants' conduct in entering the home and tasing Plaintiff Penree. See Dkt.
No. 84 at 6-7. The deposition transcript has now been filed with the Court, and the Court is going
to make rulings on the objections set forth in that transcript in a separate order. Accordingly, the
Court reserves decision until the Court reviews the transcript and makes rulings with respect to
the objections set forth therein.
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C.

Defendants' motion in limine
1. The Utica City Court Decision and Order
Defendants argue that the Utica City Court Decision and Order (the "Utica Order") that

dismissed the criminal charges against Plaintiff Penree is inadmissible hearsay and unfairly
prejudicial under Fed. R. Evid. 403. See Dkt. No. 72 at 16-18; see also Dkt. No. 37-18. The
Utica Order contains a findings of fact section and a conclusions of law section, and it dismissed
the charges against Plaintiff Penree because the officers entered his house without a warrant and
without exigent circumstances. See Dkt. No. 37-18. Defendants cite several cases, including the
Fourth Circuit's decision in Nipper v. Snipes, 7 F.3d 415 (4th Cir. 1993), that held that judicial
findings of fact are inadmissible hearsay that do not fall within the public records exception in
Fed. R. Evid. 803(8). See Dkt. No. 72 at 18 (citing Nipper, 7 F.3d at 417-18). Plaintiffs cite a
number of cases for the proposition that courts may take judicial notice of other court decisions.
See Dkt. No. 84 at 4. Plaintiffs also argue that the Utica Order is relevant to several elements of
Plaintiff Penree's malicious prosecution claim, particularly that the criminal proceedings
terminated in Plaintiff Penree's favor. See id. at 5. Plaintiffs further contend that the Utica Order
is not unduly prejudicial. See id. at 5-6.
Defendants are correct that judicial findings of fact are inadmissible hearsay. In Nipper,
the Fourth Circuit held that the public records exception to the hearsay rule, "on its face, does not
apply to judicial findings of fact; it applies to factual findings resulting from an investigation
made pursuant to authority granted by law." Nipper, 7 F.3d at 417 (quotation omitted). The
Fourth Circuit concluded that "[t]here is not the slightest hint, from either the text of the rule or
the advisory committee note, that the [public records exception] applies to judicial findings of
fact." Id. Other courts have concluded similarly. See United States v. Nelson, 365 F. Supp. 2d
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381, 388 (S.D.N.Y. 2005) ("[J]udicial findings generally do not fall under the hearsay exception
established by Rule 803(8)(C)."); see also United States v. Boulware, 384 F.3d 794, 806 (9th Cir.
2004) ("A prior judgment is . . . hearsay to the extent that it is offered to prove the truth of the
matters asserted in the judgment."). The cases relied upon by Plaintiffs are inapposite, as most of
them deal with courts taking judicial notice of judicial decisions at the motion to dismiss stage,
and do not deal with the hearsay problem with such decisions. See, e.g., Nemeth v. Vill. of
Hancock, No. 3:10-CV-1161, 2011 WL 56063, *1 n.3 (N.D.N.Y. Jan. 7, 2011) ("On a Rule
12(b)(6) motion, the Court may take judicial notice of a state court decision.").
Moreover, the Court finds that the Utica Order is inadmissible under Fed. R. Evid. 403.
The Utica Order would be unduly prejudicial to Defendants because the Utica City Court Judge
set forth findings of fact, and based on those, found that there were no exigent circumstances
permitting the officers' warrantless entry into the house. See Dkt. No. 37-18 at 2-4. As the
Fourth Circuit has explained, "judicial findings of fact 'present a rare case where, by virtue of
their having been made by a judge, they would likely be given undue weight by the jury, thus
creating a serious danger of unfair prejudice.'" Nipper, 7 F.3d at 418 (quoting Zenith Radio Corp.
v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1185 (E.D. Pa. 1980)). Given the
circumstances presented in this case, and, specifically, given that whether there were exigent
circumstances is directly relevant to Plaintiff Penree's unlawful entry claim, the Court finds that
the Utica Order would present a danger of unfair prejudice to Defendants that substantially
outweighs its probative value.
Plaintiffs are correct, however, that the dismissal of the criminal charges against Plaintiff
Penree is relevant to Plaintiff Penree's malicious prosecution claim. It appears based on
Defendants' submissions that Defendants concede that the proceedings were terminated in
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Plaintiff Penree's favor, and the Court will instruct the jury accordingly. To the extent that
Defendants do not concede this element, Plaintiffs are permitted to establish that Plaintiff Penree's
criminal proceedings were terminated in his favor.
2. Plaintiff Penree's alleged damages based on loss of visitation rights
Defendants contend that they "recently learned that Plaintiff Penree intends to introduce
evidence as to how he may have lost some visitation time with his children as result of a family
court order that may have taken into consideration the charges from this incident." Dkt. No. 72 at
12. Defendants argue that such evidence is inadmissible because Defendants did not proximately
cause this alleged injury by their actions on April 23, 2012. See id. at 12-15. Defendants also
contend that Plaintiff Penree should be precluded from introducing evidence of such damages
because he did not plead them in his amended complaint or set them forth in any discovery
materials. See id. at 15-16. Plaintiffs contend that these damages are a part of the "psychological
pain and suffering, mental anguish and fear, fear of police and loss of enjoyment of life" that
Plaintiffs set forth in the amendment complaint. See Dkt. No. 84 at 2. Plaintiffs also contend that
they set forth damages to "Claimants' family relations" in their notice of claim. See id.; Dkt. No.
84-1 ¶ 6. Finally, Plaintiffs argue that the issue of whether Defendants proximately caused this
injury should be submitted to the jury. See Dkt. No. 84 at 3.
The Court has no information whatsoever regarding this apparent family court order that
allegedly took away some visitation time from Plaintiff Penree. The Court has no information
when such an order was issued or the extent to which the family court judge's determination
relied on the events that occurred on April 23, 2012. The Court also has no knowledge regarding
when Plaintiffs' counsel became aware of such a family court order. Accordingly, Defendants'
motion with respect to these alleged damages is denied without prejudice to renew. At trial,
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Defendants will be permitted to make an offer of proof outside the presence of the jury when and
if such issues arise, and the Court will hear arguments from both sides and render a decision at
that time.
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs' motion in limine is DENIED without prejudice to renew with
respect to the admissibility of Plaintiff Penree's prior arrests and incidents; and the Court further
RESERVES decision on Plaintiffs' motion in limine with respect to the admissibility of
Defendants' expert's testimony; and the Court further
ORDERS that Defendants' motion in limine is GRANTED in part and DENIED in part
without prejudice to renew; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 10, 2017
Albany, New York

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