George Benn v. The City Of New York , et al

Filing 193

ORDER granting 182 Motion in Limine. The Clerk of the Court is respectfully directed to (1) close the motion at Dkt. No. 182, (2) terminate the City of New York, Det. Felix Cruz, Det. Gerard Dimuro and C.O. Sandra Murray as Defendants in this action, and (3) amend the case caption to George Benn v. Delroy Morrison, et al. So Ordered. (Signed by Judge Loretta A. Preska on 1/13/2022) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEORGE BENN,
Plaintiff,

No. 18 Civ. 722 (LAP)

-against-

ORDER

DELROY MORRISON, ET AL.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
On January 13, 2022, the parties appeared for the final
pre-trial conference and for oral argument on the motions in
limine (“MIL”) (dkt. nos. 182-184).

For the reasons stated on

the record at the hearing:
•

MIL point 1, which seeks to remove the City of New
York from the case caption, to preclude Plaintiff from
referring to defense counsel as “City Attorneys,” and
to preclude Plaintiff from presenting any evidence or
arguments concerning indemnification, is GRANTED on
consent.

•

MIL point 2, which seeks to preclude Plaintiff from
mentioning that the City of New York, Gerard Dimuro,
and Felix Cruz were previously defendants in this
matter and to remove Gerard Dimuro and Felix Cruz from
the case caption, is GRANTED on consent.

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•

MIL point 3, which seeks to preclude Plaintiff from
mentioning that Sandra Murray was named as a defendant
and to remove her name from the case caption, is
GRANTED on consent.

•

MIL point 4, which seeks to preclude Plaintiff from
eliciting evidence of Defendants’ disciplinary
histories, complaints about Defendants, and lawsuits
against Defendants; and MIL point 7, which seeks to
preclude Plaintiff from mentioning unrelated
allegations of misconduct against any Defendant or
non-party correction officer, including matters
subject to media coverage; are DENIED, subject to the
requirement that counsel make a proffer in advance
outside the presence of the jury before introducing
prior bad acts evidence or using phrases subject to
media coverage such as “black lives matter.”

•

MIL point 5, which seeks to preclude Plaintiff from
requesting a specific dollar amount from the jury, is
GRANTED.

•

MIL point 6, which seeks to preclude Plaintiff from
introducing evidence and making arguments that relate
solely to claims that have been dismissed, is GRANTED
on consent.

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•

MIL point 8, which seeks to preclude Plaintiff from
referring to or offering any evidence of the New York
City Department of Correction’s investigation into the
incident underlying Plaintiff’s remaining claims; and
MIL point 13, which seeks to preclude Plaintiff from
using statement summaries contained in the
investigation report into the incident underlying
Plaintiff’s remaining claims; are GRANTED.

Counsel

should not mention the investigation or the
investigation’s findings nor should counsel use any
summaries of statements contained in the investigation
report as impeachment material.

To the extent counsel

wishes to impeach, counsel should use the written use
of force statements, which are in the record and
which—unlike the summaries in the investigation
report--have been subscribed to by Defendants.
•

MIL point 9, which seeks to preclude Plaintiff from
mentioning Department of Correction policies or
directives, is DENIED, subject to the requirement that
counsel make a proffer in advance outside the presence
of the jury before referencing DOC policy.

•

MIL point 10, which seeks to preclude Plaintiff from
testifying about how long he was incarcerated, is
GRANTED on consent.
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•

MIL point 11, which seeks to preclude Plaintiff from
testifying that he was denied medical treatment or
that medical treatment was delayed, is GRANTED.

•

MIL point 12, which seeks to preclude Plaintiff from
testifying that he suffered economic injuries as a
result of the use of force incident, is GRANTED.

•

MIL point 14, which seeks to preclude Plaintiff from
eliciting testimony from any witness that he or she
met with Defendants’ attorneys in preparing for trial,
is GRANTED on consent.

•

MIL point 15, which seeks to preclude Plaintiff from
testifying or arguing that Defendants should not have
extracted Plaintiff from his cell, is DENIED.

Counsel

may propose a curative instruction.
•

MIL point 16, which seeks to preclude Plaintiff from
testifying that he sustained injuries to his wrists or
ankles and from offering any evidence of such
injuries, is DENIED.

Defendants may take a one-hour

deposition of Plaintiff in advance of trial focused on
the issue of alleged injuries to his wrists and ankles
caused by the alleged excessive use of force incident
at issue here.

Counsel may renew the motion following

the deposition.

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•

MIL point 17, which seeks to preclude Plaintiff from
introducing Exhibit 7 (a Correctional Health Services
record from February 20, 2015) is GRANTED.

•

MIL point 18, which seeks to preclude Plaintiff from
testifying or arguing that the incident at issue
aggravated a preexisting depressive disorder, is
GRANTED.

Counsel shall not elicit testimony from

Plaintiff beyond the alleged “garden variety”
emotional distress suffered as a result of the alleged
excessive use of force at issue here.

Counsel is

admonished not to elicit testimony from Plaintiff
about emotional distress attributable to his arrest,
incarceration, or other incidents on which partial
summary judgment has been granted.
The Court also heard oral argument on certain of
Defendants’ objections to Plaintiff’s proposed trial exhibits
(dkt. no. 185 at 6-7).

For the reasons stated on the record at

the hearing:
•

Exhibit 3, a Correctional Health Services record, is
withdrawn by Plaintiff based on this Court’s rulings
on the motions in limine.

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•

Exhibit 7, a Correctional Health Services record, is
stricken as inadmissible based on this Court’s ruling
on MIL point 17.

•

Exhibit 9, a Department of Corrections investigation
report, is stricken as inadmissible based on this
Court’s rulings on MIL points 8 and 13.

•

The objections to Exhibits 4 and 5--both Correctional
Health Services records--are reserved pending the
deposition that may be taken pursuant to the Court’s
ruling on MIL point 16.

With respect to pre-trial logistics, the Court instructs
the parties as follows:
•

Counsel shall confer and jointly submit the trial
exhibits, deposition transcripts and any other
materials (a) in digital format, on a thumbdrive, in
duplicate and (b) in paper format (notwithstanding
video exhibits), in triplicate.

•

Counsel shall confer and coordinate with the Court’s
Audio-Visual Department and, if necessary, Chambers on
any preparations required for the presentation of
evidence or witnesses to the jury.

The Clerk of the Court is respectfully directed to
(1) close the motion at Dkt. No. 182, (2) terminate the City of

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New York, Det. Felix Cruz, Det. Gerard Dimuro and C.O. Sandra
Murray as Defendants in this action, and (3) amend the case
caption to George Benn v. Delroy Morrison, et al.
SO ORDERED.
Dated:

January 13, 2022
New York, New York
______________________________
LORETTA A. PRESKA
Senior United States District Judge

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