Joseph v. Deluna et al
Filing
105
OPINION AND ORDER re: 93 FIRST MOTION in Limine filed by Nicholas Lane, Michelle Batista, Anthony Perlongo, Jose Luis Deluna, City of New York, 92 FIRST MOTION in Limine filed by Isaac Joseph. Joseph's motion in limine is GRANTED. Defendants' motions to remove Officer Lane from the caption and to preclude Joseph from mentioning or offering any evidence that the City may indemnify the Individual Defendants are also GRANTED. In addition, Joseph may not mention a specific damages amount during his opening statement. All of Defendants' other motions in limine are DENIED, with the exception that both parties may file additional motions in limine before November 2, 2018. The parties are ORD ERED to contact the Chambers of Magistrate Judge Fox, to schedule a settlement conference. The settlement conference shall take place no later than November 21, 2018. The parties are further ORDERED to submit joint proposed voir dire questions and j oint proposed jury instructions by December 5, 2018. These submissions must comply with this Court's Individual Rules and Practices. The final pretrial conference is ADJOURNED to December 13, 2018, at 11:00 a.m. The Clerk of Court is directed to terminate the motions at ECF Nos. 92 and 93, and to amend the caption of this case to remove Officer Nicholas Lane. SO ORDERED. (Motions due by 11/2/2018. Final Pretrial Conference set for 12/13/2018 at 11:00 AM before Judge Kimba M. Wood.) (Signed by Judge Kimba M. Wood on 10/19/2018) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE F-IL_E_D_:_/_o_/_1_'1_/_1C6
I
•
ISAAC JOSEPH,
Plaintiff,
-againstSERGEANT JOSE LUIS DELUNA, Shield No.
3058, P.O. NICHOLAS LANE, Shield No.
5044, P.O. ANTHONY PERLONGO, Shield
No. 7866, P.O. MICHELLE BATISTA, Shield
No. 15578, P.O. CARLOS RAMOS, Shield No.
2287, and THE CITY OF NEW YORK,
15-CV-5602 (KMW)
OPINION & ORDER
-~ J
Defendants.
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KIMBA M. WOOD, United States District Judge:
Plaintiff Isaac Joseph ("Joseph") brings this action against Sergeant Jose Luis Deluna
("Deluna"), Police Officers Nicholas Lane, Anthony Perlongo, Michelle Batista, and Carlos
Ramos (collectively, the "Individual Defendants"), and the City of New York (the "City"), for
alleged civil rights violations and torts arising out of Joseph's 2014 arrest.
Pending before the
Court are the parties' motions in limine.
BACKGROUND
I.
Around midday on April 23, 2014, Joseph exited from a train onto a platform at the 96th
Street-Lexington Avenue subway station, where he saw a man in handcuffs and a woman seated
nearby, crying hysterically. 1
Sergeant Deluna and Officer Batista were attempting to calm the
woman, while Officer Perlongo and Officer Ramos tended to the man.
Joseph observed the
scene for a time, determined that Sergeant Deluna and Officer Batista were aggravating the
1
These facts are taken from the Court's March 23, 2014 Opinion and Order. See Joseph v. Deluna, No. 15CV-5602 (KMW), 2018 WL 1474398 (S.D.N.Y. Mar. 23, 2018) (Wood, J.). Because the factual background
to this case is set forth in detail in there 1 it is only briefly summarized in this opinion.
woman's distress, and approached the woman to console her.
The parties' accounts of what
happened next differ, but they agree that the exchange culminated in Sergeant Deluna giving
Joseph until "the count of three to walk away."
When Sergeant Deluna counted to three and
Joseph did not walk away, Deluna reached for Joseph to place him under arrest, at which point
Joseph pulled his hand away.
Joseph was ultimately arrested by Sergeant Deluna and Officers
Batista and Perlongo and charged with obstructing governmental administration in the second
degree, resisting arrest, and disorderly conduct.
All of the charges were later dismissed.
Joseph alleges that during his arrest he was punched between twenty and forty times,
kicked between ten and twenty times, stomped at least ten times, struck with a rod, and his head
was bashed into the floor.
He claims to have suffered both physical and emotional injuries as a
result of his arrest, although he never sought medical treatment for these injuries.
The
Individual Defendants deny that any of them struck or kicked Joseph.
On July 17, 2015, Joseph filed this suit.
(ECF No. 1.)
On August 24, 2016, he filed
the operative complaint, alleging claims for false arrest and excessive force under 42 U.S.C.
§ 1983 and claims for false arrest, assault and battery, and malicious prosecution under New
York state law.
(ECF No. 37.)
based on his state-law claims.
He also alleged respondeat superior claims against the City
On March 23, 2018, the Court granted summary judgment in
favor of Defendants on Joseph's state and federal false arrest claims and on his malicious
prosecution claim.
(ECF No. 81.)
The Court denied summary judgment with respect to
Joseph's excessive force claims, his assault and battery claims, and his respondeat superior
claims against the City.
Trial is scheduled to begin on February 5, 2019.
On June 4, 2018, Joseph moved in limine to preclude Defendants from offering testimony
related to his prior arrests.
(ECF No. 92.)
Also on June 4, 2018, Defendants moved in limine
to (1) amend the caption in this cuse to remove the City and Officer Lane; (2) preclude Joseph
2
from referring to defense counsel as "City attorneys" and from referencing the City's potential
indemnification obligations to the Individual Defendants; (3) preclude Joseph from suggesting a
specific dollar amount to the jury as a damages award; (4) preclude Joseph from offering certain
photographs of his injuries into evidence; and (5) preclude Joseph from offering a "certificate of
disposition" showing that the charges against him based on the April 23, 2014 incident were
dismissed.
(ECF No. 93.)
proposed jury instructions.
II.
The parties have also each filed proposed voir dire questions and
(ECF Nos. 85, 87, 90, 91.)
LEGAL STANDARD
"The purpose of an in limine motion is to aid the trial process by enabling the Court to
rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial."
Palmieri v.
Defaria, 88 F .3d 136, 141 (2d Cir. 1996) (internal quotation marks and citation omitted).
Where such a motion requests that certain evidence be precluded, Fed. R. Evid. 104 requires the
court to make a preliminary determination on the admissibility of the evidence.
Soley v.
Wasserman, No. 08-CV-9262 (KMW), 2013 WL 3185555, at *3 (S.D.N.Y. June 21, 2013)
(Wood, J.).
Because a ruling on a motion in limine is '"subject to change as the case unfolds,"'
the Court retains discretion to alter a previous in limine ruling during trial.
Palmieri, 88 F.3d at
139 (quoting Luce v. United States, 469 U.S. 38, 41 (1984)).
III.
DISCUSSION
A.
Joseph's Prior Arrests
Joseph moves pursuant to Fed. R. Evid. 402 and 403 to preclude evidence of his prior
arrests.
During his deposition, Joseph testified that prior to the incident at issue in this suit, he
was twice arrested for turnstile jumping.
(ECF No. 99, Ex. 1, at 60: 1-70:2.)
remember exactly when those arrests occurred1 ~n4 hi~
3
He could not
wimin~l r~~Qr~ ~Q~~ UQt ~hQW ;ith;r
arrest.
(Id., Ex. 1, at 60:9-13, 68:22-69:3.)
According to Defendants, Joseph's prior arrests
are probative of his state of mind, evincing why Joseph inserted himself into a potentially volatile
situation on the subway platform and remained there despite officers asking him to leave.
During the incident, Joseph told the defendant officers he had been arrested previously, those
charges had been dismissed, and he expected any charges stemming from the current arrest
would be dismissed as well.
Defendants argue this statement, coupled with Joseph's prior
arrests, shows that Joseph thought "he could simply get through court, get the charge dismissed
and even perhaps receive a settlement from the City after bringing a lawsuit."
(Id. at 3-4.)
Defendants fail to explain why Joseph's state of mind at the time of the arrest is relevant
to his remaining claims, which are all force-based.
Joseph's allegedly cavalier attitude toward
being arrested has no bearing on whether the defendant officers used excessive force or
committed assault or battery.
Moreover, even assuming Joseph's state of mind is somehow
relevant, his prior arrests fail Fed. R. Evid. 403's balancing test, which permits the court to
exclude relevant evidence if its probative value is substantially outweighed by the danger of
unfair prejudice to a party.
Joseph's earlier arrests are, at best, minimally probative of his state
of mind during the incident at issue in this case.
By comparison, the arrests present a risk that
the jury will render a verdict based not on the conduct of the officers, but on Joseph's allegedly
improper motives.
On balance, even assuming Joseph's state of mind is relevant-which the
Court finds it is not-the probative value of the arrests are outweighed by the prejudice to
Joseph.
Therefore, because Joseph's prior arrests are irrelevant, or in the alternative are unduly
prejudicial, Joseph's motion to preclude his deposition testimony on those arrests is GRANTED.
B.
Caption
Defendants move to amend the caption to remove the City and Officer Lane. The
4
motion to remove the City from the caption is DENIED because the City is a defendant in this
action.
See Deluna, 2018 WL 1474398, at *7 (stating that Joseph's respondeat superior claims
against the City survive for trial).
The motion to remove Officer Lane from the caption, which
Joseph does not oppose, is GRANTED because no claims remain against Office Lane.
C.
References to "City Attorneys" and to the City's Potential Indemnification of
the Individual Defendants
Defendants move to preclude Joseph from referring to defense counsel as City attorneys
and from mentioning or offering any evidence that the City may indemnify the individual officers
if they are found liable.
Because the City is a defendant in this action, the motion to preclude
Plaintiff from referring to Defendants' attorneys as "City Attorneys" is DENIED.
no argument with respect to indemnification.
Joseph offers
Therefore, Defendants' motion to preclude Joseph
from mentioning or offering any evidence that the City may indemnify the individual officers is
GRANTED as unopposed.
D.
Request for a Specific Damages Amount
Defendants move to preclude Joseph from requesting a specific dollar amount from the
Jury.
Although in this Circuit counsel are not prohibited from making such a request, specifying
target amounts for the jury to award is "disfavored," and trial judges are encouraged to bar such
recommendations or impose other reasonable limitations on counsel.
Consorti v. Armstrong
World Industries, Inc., 72 F.3d 1003, 1016 (2d Cir. 1995), vacated on other grounds sub nom.
Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031 (1996); see also Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 912-13 (2d Cir. 1997); Mileski v. Long Island R.R., 499 F.2d 1169,
1174 (2d Cir. 1974).
The Court agrees that the danger that a jury will give undue weight to the
figures advanced by counsel is present in this case.
See Mileski, 499 F.2d at 1174.
Therefore,
Defendants' motion is GRANTED in part and DENIED in part: Joseph will not be permitted to
5
suggest a specific damage award in his opening statement.
The Court reserves decision on
whether such a suggestion will be permitted during summation.
E.
Photographs of Joseph's Injuries
Defendants move to preclude Joseph from offering certain photographs of his injuries on
the ground that Joseph cannot sufficiently authenticate the photographs, in contravention of Fed.
R. Evid. 901. 2
At his deposition, Joseph testified that the photographs were taken within a year
of the incidents at issue, but that he was not certain on what date the photographs were taken.
(See ECF No. 72, Ex. 6, at 165:24-170:14.)
Defendants argue that, based on this testimony, a
reasonable juror could not conclude that the photographs are authentic.
Under Fed. R. Evid. 901(a), to authenticate an item of evidence, "the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is."
United States v. Tin Yat Chin, 371 F.3d 31, 38
The standards for authentication are "minimal."
(2d Cir. 2004).
Rule 901 's requirement is satisfied, for example, if a witness with knowledge
"[t]esti[fies] that [the] item is what it is claimed to be."
Fed. R. Evid. 901(b)(l).
"The
proponent is not required 'to rule out all possibilities inconsistent with authenticity, or to prove
beyond any doubt that the evidence is what it purports to be."'
Tin Yat Chin, 371 F.3d at 38
(quoting United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999)).
Here, a reasonable juror could conclude that the photographs are authentic, even if Joseph
is unable to pinpoint the date they were taken.
Joseph's inability to identify exactly when the
photographs were taken goes to their evidentiary weight, not their admissibility.
2
See, e.g.,
The parties did not include the referenced photographs as an attachment to their motions in limine or their joint
proposed pre-trial order. However, the Court is aware that Joseph included copies of the photographs as an
exhibit to his summary judgment papers, and has examined those copies in deciding Defendants' motion to
preclude the photo0raphs. \See ECF No. 75, Ex. 15.)
6
United States v. Whittingham, 346 F. App'x 683, 685 (2d Cir. 2009) (holding that properlyauthenticated still images derived from surveillance videos were not rendered inadmissible by
testimony that time-stamps on the images may have been incorrect).
Defendants' motion to
preclude the photographs is therefore DENIED.
F.
Certificate of Disposition of Criminal Charges Stemming from Joseph's Arrest
on April 23, 2014
Defendants move to preclude Joseph from offering into evidence the "certificate of
disposition" showing that the charge for which Joseph was arrested on April 23, 2014, was
dismissed, relying on Fed. R. Evid. 402 and 403. 3
Joseph opposes this motion on the ground
that if Defendants intend to present evidence regarding the charges brought against him, then he
should be allowed to offer the certificate so that the jury is not led to believe he was convicted on
those charges.
Because Joseph's argument depends on whether the City introduces evidence on
the charges brought against Joseph-and it is not clear to the Court whether Defendants intend to
do so----it is premature to rule on Defendants' motion at this time.
Defendants' motion to
preclude the certificate is therefore DENIED without prejudice to renewal at trial.
IV.
The Parties' Proposed Voir Dire Questions and Proposed Jury Instructions
The parties have separately submitted separate proposed voir dire questions and proposed
jury instructions.
(ECF Nos. 85, 87, 90, 91.)
Those submissions do not comply with the
Court's Individual Rules and Practices ("Individual Rules"), which are available online at
http://nysd.uscourts.gov/judge/Wood.
The Court's Individual Rules require, among other
things, parties to jointly submit proposed voir dire questions and proposed jury instructions, with
3
The parties did not include the certificate of disposition as an exhibit to their motions in limine or their joint
proposed pre-trial order. However, the Court is aware that Defendants included a copy of the certificate as an
exhibit to their summary judgment papers, and, in deciding Defendants' motion, has examined that copy. (See
ECF No. 72, Ex. 13)
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any disagreements in red-line.
By December 5, 2018, the parties shall jointly submit amended proposed voir dire
questions and proposed jury instructions that comply with the Court's Individual Rules.
If the
parties cannot agree on any aspect of their proposed jury instructions or proposed voir dire
questions, they are ordered to notify the Court by joint letter, not to exceed three pages in length,
describing their disputes.
V.
Conclusion
Joseph's motion in limine is GRANTED.
Defendants' motions to remove Officer Lane
from the caption and to preclude Joseph from mentioning or offering any evidence that the City
may indemnify the Individual Defendants are also GRANTED.
In addition, Joseph may not
mention a specific damages amount during his opening statement.
All of Defendants' other
motions in limine are DENIED, with the exception that both parties may file additional motions
in limine before November 2, 2018.
The parties are ORDERED to contact the Chambers of Magistrate Judge Fox, to schedule
a settlement conference.
The settlement conference shall take place no later than November 21,
2018.
The parties are further ORDERED to submit joint proposed voir dire questions and joint
proposed jury instructions by December 5, 2018.
These submissions must comply with this
Court's Individual Rules and Practices.
The final pretrial conference is ADJOURNED to December 13, 2018, at 11:00 a.m.
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The Clerk of Court is directed to terminate the motions at ECF Nos. 92 and 93, and to
amend the caption of this case to remove Officer Nicholas Lane.
SO ORDERED.
Dated: New York, New York
October 19, 2018
(~rn.WrY£
KIMBA M. WOOD
United States District Judge
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