Hill v. County of Montgomery et al
Filing
223
ORDER granting in part and denying in part the 200 and 207 Motions in Limine. Signed by Judge Brenda K. Sannes on 2/19/2020. (rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PERRY HILL and JAMES ROGERS, both individually
and on behalf of a class others similarly situated,
9:14-cv-00933 (BKS/DJS)
Plaintiffs,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO and
MICHAEL FRANKO,
Defendants.
Appearances:
For Plaintiffs:
Law Offices of Elmer Robert Keach, III, P.C.
Elmer Robert Keach, III
Maria K. Dyson
One Pine West Plaza, Suite 109
Albany, NY 12205
Migliaccio & Rathod LLP
Nicholas A. Migliaccio
412 H Street N.E., Suite 302
Washington, DC 20002
For Defendants:
Goldberg Segalla LLP
Jonathan M. Bernstein
8 Southwoods Boulevard, Suite 300
Albany, NY 12211
Leary Bride Mergner & Bongiovanni, P.A.
William H. Mergner
7 Ridgedale Avenue
Cedar Knolls, NJ 07927
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiffs Perry Hill and James Rogers bring this conditions-of-confinement class action1
under 42 U.S.C. § 1983 against Defendants County of Montgomery, Michael Amato, and
Michael Franko. (Dkt. No. 136). Plaintiffs allege that Defendants failed to provide adequate
nutrition while they were in the Montgomery County Jail (“MCJ”) in Fultonville, New York, in
violation of the Eighth and Fourteenth Amendments. (Dkt. No. 136). Presently before the Court
are the parties’ motions in limine. (Dkt. Nos. 200, 207). In their motions, the parties address the
admissibility of: (1) inmate grievances, (2) class questionnaires, (3) evidence regarding the
amount of time between inmates’ meals and the “absence of a commissary at MCJ,” (4) evidence
of the commissary’s return in 2019, (5) evidence of inmate weight loss, (6) evidence of prior
civil rights actions against Defendants Amato and Franko, and (7) evidence of the “Hotel
Amato” sign at MCJ. (Dkt. No. 200, 207).2 Defendants also move to limit liability against
Defendants Amato and Franko to the time period prior to their respective retirements from MCJ.
(Dkt. No. 200). On February 14, 2020, the Court held a pretrial conference and heard oral
argument on the parties’ motions. For the following reasons, the parties’ motions are granted in
part and denied in part.
1
On August 20, 2018, the Court granted Plaintiffs’ renewed motion for class certification and certified a primary class
and pre-trial and post-trial detainee sub-classes under Rules 23(b)(3) and (c)(4). Hill v. Cty. of Montgomery, No. 14cv-933, 2018 WL 3979590 (N.D.N.Y. Aug. 20, 2018). The parties represent that the number of class members is
approximately two thousand.
2
The Court has directed further briefing on: (i) whether Plaintiffs’ previously undisclosed witnesses should be
precluded from testifying under Rule 37 of the Federal Rules of Civil Procedure and (ii) the parties’ trial plan for the
damages phase of this case. In addition, the parties have indicated that they will endeavor to resolve any issues
regarding the use of impeachment evidence under Rule 609 of the Federal Rules of Evidence and will bring any
disputes to the Court’s attention prior to trial. Accordingly, the Court reserves decision on those aspects of the parties’
motions in limine.
2
II.
DISCUSSION
A.
Inmate Grievances
Plaintiffs seek to admit into evidence food-related grievances various inmates filed at
MCJ between 2011 and 2015 on the ground that they show Defendants had notice of inmate
complaints of hunger and inadequate nutrition. (Dkt. No. 207, at 5). Defendants oppose the
introduction of the grievances on hearsay grounds. (Dkt. No. 200, at 24 (citing Fed. R. Evid.
801(c))).
Plaintiffs first argue that the inmate grievances are admissible as business records under
Rule 803(6). (Dkt. No. 207, at 5). As the Second Circuit has explained:
A business record may be admitted into evidence even though it is
hearsay if: (a) the record was made at or near the time by—or from
information transmitted by—someone with knowledge; (b) the
record was kept in the course of a regularly conducted activity; (c)
making the record was a regular practice of that activity; (d) the
custodian certifies the record; and (e) the opponent does not show
that the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Abascal v. Fleckenstein, 820 F.3d 561, 565 (2d Cir. 2016) (citing Fed. R. Evid. 803(6)(a–e)).
Plaintiff has not demonstrated how inmates who made grievances were acting “in the course of a
regularly conducted business activity” or how making the grievances was “a regular practice of
that activity.” Fed. R. Evid. 803(6)(B), (C); see Fed. R. Evid. 803, Advisory Committee Notes
(1972 Proposed Rules) (“The element of unusual reliability of business records is said variously
to be supplied by systematic checking, by regularity and continuity which produce habits of
precision, by actual experience of business in relying on them or by a duty to make an accurate
record as part of a continuing job or occupation”); see, e.g., United States v. Strother, 49 F.3d
869, 876 (2d Cir. 1995) (“We are reluctant to adopt a rule that would permit the introduction into
evidence of memoranda drafted in response to unusual or ‘isolated’ events, particularly where
3
the entrant may have a motive to be less than accurate.”) (citations omitted); Abascal, 820 F.3d
at 565 (ruling that prison monitoring report prepared by a private nonprofit corporation based on
inmate questionnaires, interviewing guards and visiting the facility “is not the kind of ‘regularly
conducted activity’ contemplated by the business records exception”).
Defendants argue that the grievances are, in any event, inadmissible under the business
records exception because they “lack overall indications of trustworthiness and reliability.” (Dkt.
No. 216, at 10). “A duty to report . . . ‘has long been recognized as the principal means of
establishing the reliability of a hearsay statement’ offered under the Business Records
Exception.” Abascal, 820 F.3d at 566 (quoting United States v. Reyes, 157 F.3d 949, 952 (2d Cir.
1998)). Here, MCJ inmates were under no duty to submit grievances to facility staff regarding
food or nutrition. In Abascal, the Court found that inmates’ statements “lack[ed] indicia of
trustworthiness” when they “were under no obligation to provide information” to the
investigators preparing a prison monitoring report. Id.; see also Lewis v. Velez, 149 F.R.D. 474,
at 486 (S.D.N.Y. 1993) (concluding incident reports prepared by correction officers following
prison incident, explaining that “reports of inmate beatings show a lack of reliability and
trustworthiness due to the self-interest of the correction officers responsible for the records, such
records are inadmissible”). Accordingly, on this record Plaintiffs have failed to show how the
grievances are admissible under the business records exception.
Plaintiffs further argue that even if the grievances are not admissible as business records,
they are admissible for the purpose of showing that Defendants Amato and Franko had notice
that inmates in MCJ were complaining that they were not receiving enough food and that the
food lacked adequate nutrition. Assuming that Plaintiffs are able to lay a foundation showing
4
Defendant Amato or Franko was aware of the grievances,3 they would not be hearsay if they
were admitted to show that Defendants had notice of complaints regarding the food being
provided at MCJ. “To be sure, an out of court statement offered not for the truth of the matter
asserted, but merely to show that the defendant was on notice of a danger, is not hearsay.”
George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990). Although Defendants argue that
“plaintiffs’ inherent purpose in introducing this evidence is for the truth of the statements
included in the grievances,” (Dkt. No. 216, at 11), the Court, if requested, will issue a limiting
instruction at the time of introduction, and at the end of the case, cautioning the jury to consider
the grievances only on the issue of notice, and not for the truth of the allegations in the
grievances.
B.
Class Questionnaires
Defendants seek to preclude as hearsay, questionnaires completed by class members
concerning their experience at MCJ. (Dkt. No. 200, at 24–25). Plaintiffs stated at the pretrial
conference that they do not intend to introduce the questionnaires into evidence. Indeed, the
questionnaires are not on their exhibit list. (Dkt. No. 211). Accordingly, Defendants’ motion to
preclude the questionnaires is denied as moot.
C.
Time Between Meals and Absence of Commissary
Defendants seek to prohibit Plaintiffs from introducing evidence “related to the amount
of time between inmates’ meals” and the “absence of a commissary” on the grounds that such
evidence is inadmissible under Rules 402 and 403 because it “would only confuse the jury as to
the relevant issues.” (Dkt. No. 200, at 2–5). Defendants argue that they “complied with the state
regulation by ensuring that the inmates received three meals a day within a 24-hour period as
3
There is some evidence Defendant Amato was aware of the 2011 grievances, (Dkt. No. 123-1, at 2), and that
Defendant Franko was aware of the 2013 grievances, (Dkt. No. 180-35, at 2).
5
required.” (Dkt. No. 200, at 4) (citing N.Y. Comp. Codes, R. and Regs. tit. 9, § 7009.6)).
Plaintiffs respond that “evidence that inmates had to go fourteen hours between dinner and
breakfast,” with no access to food, is relevant to their unconstitutional conditions of confinement
claim. (Dkt. No. 218, at 2–4).
Under the objective prong of the Eighth and Fourteenth Amendments, Plaintiffs must
show “that the conditions either alone or in combination, pose an unreasonable risk of serious
damage to his health.” Darnell v. Pinero, 849 F. 3d 17, 30 (2d Cir. 2017) (quoting Walker v
Schult, 717 F.3d 119, 125 (2d Cir. 2013)). The length of time between meals and the absence of
any other source of food, and the impact these conditions had on the hunger inmates allegedly
experienced at MCJ—which allegedly led some inmates to seek nonfood sources to satisfy their
hunger—have long been part of the conditions of confinement claim in this case. See, e.g., Hill v.
Cty. of Montgomery (“Hill II”), 2019 WL 5842822, at *2 (N.D.N.Y. Nov. 7, 2019) (“[I]nmates
often go approximately 14 hours between dinner and breakfast the next day . . . . MCJ provides
no snacks between meals and the commissary has not sold food since 2008.”); Hill v. Cty. of
Montgomery (“Hill I”), 2018 WL 3979590, at *2 (N.D.N.Y. Aug. 20, 2018) (noting Hill’s
testimony that he “ate cocoa butter sticks, vitamins that he purchased from the commissary, and
toothpaste to supplement his diet”). Moreover, as the jury must consider whether the conditions
“alone or in combination” posed a danger to inmates’ health, evidence concerning the timing of
the meals, and the absence of any other food source, is both material and highly relevant.4
Darnell, 849 F.3d at 30. The Court therefore finds that the probative value of this evidence
4
It is also relevant to the issue of Defendant Amato’s notice of the conditions and intent; Plaintiffs intend to introduce
evidence that Defendant Amato removed the nonfood items inmates were eating from the commissary. (Dkt. No. 218,
at 5).
6
substantially outweighs any danger of confusing the issues. Accordingly, Defendants’ motion to
preclude evidence regarding the time between meals and the absence of a commissary is denied.
D.
Return of Commissary
Defendants seek to preclude Plaintiffs from introducing evidence that the Sheriff who
took over following Defendant Amato’s retirement, reopened the commissary in 2019. (Dkt. No.
200, at 5). Defendants assert Rule 407 prohibits evidence of subsequent remedial measures.5
(Id.). Plaintiffs oppose this motion. (Dkt. No. 218, at 5).
Rule 407 provides:
When measures are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measures is
not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or--if disputed--proving ownership, control, or the
feasibility of precautionary measures.
Fed. R. Evid. 407. According to Plaintiffs, the return of the commissary in 2019, “is only
tangential” to their case, but they seek to admit this evidence: (i) for purposes of explaining the
Class definition, and (ii) “to counter Defendant Amato’s claim that he felt the jail couldn’t have a
commissary because there were too many problems with inmates flushing their wrappers down
5
The new Montgomery County Sheriff who reopened the commissary is not a defendant in this case and Plaintiffs
have indicated that the period of liability in this case ends on December 31, 2018, when Defendant Amato retired. The
parties have not addressed how the fact that a nondefendant reopened the commissary affects the application of Rule
407. See Schafer v. Bd. of Co-op. Educ. Servs. of Nassau Cty., No. 06-cv-2531, 2012 WL 5547319, at *1 (E.D.N.Y.
Nov. 15, 2012) ([C]ourts have unanimously held that Rule 407 does not bar evidence of subsequent remedial measures
by non-defendants.” (quoting Lion Oil Trading & Transp., Inc. v. Statoil Marking & Trading (US) Inc., No. 08-cv11315, 2011 WL 855876, at *7, 2011 U.S. Dist. LEXIS 24516, at *21 (S.D.N.Y. Feb. 28, 2011)).
7
the toilet.” (Dkt. No. 218, at 5). Plaintiffs do not explain how the return of the commissary is
relevant to the class definition. To the extent Plaintiffs intend to introduce such evidence for the
purpose of showing a commissary was feasible, it is not clear that feasibility is a contested issue.
The Second Circuit has cautioned that “‘[f]easibility’ is not an open sesame whose mere
invocation parts Rule 407 and ushers in evidence of subsequent repairs and remedies.” In re
Joint E. Dist. & S. Dist. Asbestos Litig., 995 F.2d 343, 345 (2d Cir. 1993). Indeed, “a defendant
must first contest the feasibility of a warning before the subsequent warning would become
admissible.” Id. at 345–46 (citing Fed. R. Evid. 407 advisory committee’s notes (1972 Proposed
Rules) (“The requirement that the other purpose be controverted calls for automatic exclusion
unless a genuine issue be present and allows the opposing party to lay the groundwork for
exclusion by making an admission.”). During his deposition, Defendant Amato testified that they
took the commissary away because inmates were hoarding food, which led to ants, stuffing
wrappers “between furniture, causing fire hazards,” and gambling with food from the
commissary. (Dkt. No. 180-2, at 36). It appears that Defendants have not contended that the MCJ
was unable to provide a commissary; instead they have maintained that they chose to remove it
for health and safety reasons. See In re Joint E. Dist. & S. Dist. Asbestos Litig., 995 F.2d at 346
(“The record is clear that Crane at no point argued that it was unable to issue a warning. Instead,
it vigorously denied that its product required a warning or was defective without a warning.”).
The Court’s ruling will await trial. If Defendants open the door at trial to the feasibility of
a commissary, evidence of its reopening will be admissible.
E.
Inmate Weight Loss
Defendants seek to bar Plaintiffs from introducing evidence of inmate weight loss on the
ground that such evidence is relevant to the issues of causation and damages only and should not
8
be admitted during the liability phase of the trial. (Dkt. No. 200, at 18–21). Plaintiffs oppose
Defendants’ motion. (Dkt. No. 218, at 11).
There was evidence, at summary judgment, that Defendant Franko was aware that
inmates were alleging that they were losing weight. Hill II, 2019 WL 5842822, at *14. Thus,
weight loss may be relevant to show Defendant Franko knew that inmates were not receiving a
sufficient number of calories. Moreover, in deciding both the Eighth and Fourteenth Amendment
claims, the jury will have to determine whether Plaintiffs have established that the conditions
“pose an unreasonable risk of serious damage to [their] health.” Darnell, 849 F.3d at 30.
“[P]ervasive weight loss” among MCJ inmates, as Plaintiffs assert, (Dkt. No. 218, at 11), may be
relevant to this issue. Accordingly, Defendants’ motion to preclude evidence of weight loss is
denied.
F.
Prior Civil Rights Actions
Defendants seek to preclude Plaintiffs from introducing evidence of prior civil rights
lawsuits against them. (Dkt. No. 200, at 21–23). Plaintiffs do not oppose this aspect of
Defendants’ motion. (Dkt. No. 218, at 2). It is, accordingly, denied as moot.
G.
Hotel Amato Sign
Defendants move to bar Plaintiffs from referring to a sign posted in the MCJ intake area
that states: “Welcome to the Hotel Amato. No Frills-No Thrills. If you do not like the service
don’t come back.”6 (Dkt. No. 200, at 25–26). Defendants argue the sign has limited probative
value, is unfairly prejudicial, confuses the issues, will mislead the jury, cause undue delay, and
waste time. (Dkt. No. 200, at 26). Plaintiffs assert that the sign is admissible to show Defendant
Amato’s “indifference” and the “total authority” he exercised at the MCJ. (Dkt. No. 218, at 6).
6
According to Plaintiffs, the sign says: “Welcome to Hotel Amato. No thrills. No frills. Don’t come back if you don’t
like it.” (Dkt. No. 218, at 6).
9
They argue it is also admissible under Rule 404(b) as evidence of his “motive and intent in
denying detainees adequate nutrition,” and his “cruelty” toward the inmates in the jail. (Dkt. No.
218, at 7).
Federal Rule of Evidence 404(b) states in relevant part that “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character” but that it “may be
admissible for another purpose, such as proving motive” or “intent.” Fed. R. Evid. 404(b). The
Second Circuit “follows the ‘inclusionary’ approach, which admits all ‘other act’ evidence that
does not serve the sole purpose of showing the defendant’s bad character and that is neither
overly prejudicial under Rule 403 nor irrelevant under Rule 402.” United States v. Curley, 639
F.3d 50, 56 (2d Cir. 2011) (citing United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996)). To
determine whether to admit Rule 404(b) evidence, the court should consider whether: “(1) the
prior [act] evidence [is being] ‘offered for a proper purpose’; (2) the evidence [is] relevant to a
disputed issue; (3) the probative value of the evidence [is] substantially outweighed by its
potential for unfair prejudice pursuant to Rule 403; and (4) [there is] an appropriate limiting
instruction.” United States v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009) (quoting Huddleston
v. United States, 485 U.S. 681, 691–92 (1988)).7
Subject to balancing the probative value against the 403 concerns at the time of trial, the
sign may be admissible to show Defendant Amato’s intent toward the inmates at MCJ. To
establish a violation of the Eighth Amendment, Plaintiffs must show that Defendant Amato acted
“with ‘a sufficiently culpable state of mind . . . such as deliberate indifference to inmate health or
7
It is not clear that the sign is “other act” evidence under Rule 404(b). Evidence is not considered other act evidence
under Rule 404(b) “if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary
to complete the story of the crime on trial.” United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).
10
safety.’” Walker, 717 F.3d at 125 (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.
2001)). To the extent Plaintiffs offer the Hotel Amato sign to show Defendant Amato’s alleged
state of mind or intent toward the inmates of MCJ, they offer it for a proper purpose for which it
appears to be highly probative. With respect to Defendants’ argument that it is unfairly
prejudicial, the Court notes that “[b]ecause virtually all evidence is prejudicial to one party or
another, to justify exclusion under Rule 403, the prejudice must be unfair. The unfairness
contemplated involves some adverse effect beyond tending to prove a fact or issue that justifies
admission.” Constantino v. Herzog, 203 F.3d 164, 174–175 (2d Cir. 2000). While it would
appear that the sign’s probative value substantially outweighs the danger of unfair prejudice and
other 403 concerns, the Court will, as Plaintiffs suggest, reserve on ruling on this issue until trial.
(Dkt. No. 218, at 7).
H.
Liability following Defendant Amato and Franko’s Retirement
Defendants Amato and Frank assert they should not be held liable for anything at MCJ
following their respective retirements. (Dkt. No. 200, at 6–10). Plaintiffs agree that Defendant
Amato’s retirement marks the end of the liability period. (Dkt. No. 218, at 2). Plaintiffs also
agree that Defendant Franko cannot be held liable for anything after his retirement in November
2016. (Dkt. No. 218, at 2). Accordingly, Defendants’ motion to preclude liability after
Defendants Amato and Franko’s retirement is denied as moot.
III.
CONCLUSION
For these reasons, it is
11
ORDERED that the parties’ motions in limine, (Dkt. Nos. 200, 207), are granted in part
and denied in part.
IT IS SO ORDERED.
Dated: February 19, 2020
Syracuse, New York
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?