Wilson v. Hill
Filing
185
OPINION AND ORDER granting in part and denying in part 166 Motion in Limine Signed by Magistrate Judge Norah McCann King on 12/07/12. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAWRENCE E. WILSON,
Plaintiff,
vs.
Civil Action 2:08-CV-552
Magistrate Judge King
LEON HILL,
Defendant.
OPINION AND ORDER
This matter is before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiff
Lawrence E. Wilson’s Motion in Limine (“Plaintiff’s Motion in
Limine”), Doc. No. 166.
Limine.
Defendant opposes Plaintiff’s Motion in
Defendant Leon Hill’s Response in Opposition to Plaintiff’s
Motion in Limine (“Defendant’s Response”), Doc. No. 173.
has filed a reply.
Plaintiff
Plaintiff Lawrence E. Wilson’s Reply in Further
Support of his Motion in Limine, Doc. NO. 176.
For the reasons that
follow, Plaintiff’s Motion in Limine is GRANTED in part and DENIED in
part.
I.
Standard
The purpose of a motion in limine is to ensure the evenhanded and
expeditious management of trials by eliminating evidence that is
clearly inadmissible.
See Ind. Ins. Co. v. General Elec. Co., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran Child
& Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)).
A court should
exclude evidence on a motion in limine only when that evidence is
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determined to be clearly inadmissible on all potential grounds.
Id.
When a court is unable to determine whether or not certain evidence is
clearly inadmissible, evidentiary rulings should be deferred until
trial so that questions of foundation, relevancy and potential
prejudice can be resolved in the proper context.
Id.
Whether or not
to grant a motion in limine falls within the sound discretion of the
trial court.
Branham v. Thomas Cooley Law Sch., 689 F.3d 558, 560
(6th Cir. 2012) (citing United States. v. Talley, 194 F.3d 758, 765
(6th Cir. 1999)).
III. Discussion
This is an action instituted under the provisions of 42 U.S.C. §
1983, in which plaintiff, a state prisoner, alleges that defendant, a
corrections officer at the Pickaway Correctional Institution (“PCI”),
used excessive force against him in violation of the Eighth Amendment
to the United States Constitution.
begin on January 28, 2013.
Trial by jury is scheduled to
Doc. No. 155.
Plaintiff now seeks to
exclude several categories of evidence; each will be discussed in
turn.
A. Plaintiff’s prior conviction
Plaintiff’s Motion in Limine requests an order “directing
defendant and his counsel to not make any statements, arguments, to
not question any witness, and to not seek to introduce any evidence
relating to [plaintiff’s] underlying criminal conviction.”
Plaintiff’s Motion in Limine, pp. 2-3.
Plaintiff was convicted of one
count of rape in violation of R.C. § 2907.023.
Id. at p. 4.
Defendant opposes Plaintiff’s Motion in Limine on the basis that
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plaintiff’s prior conviction is admissible under Rule 609(a) of the
Federal Rules of Evidence to attack plaintiff’s credibility.
Defendant’s Response, pp. 1-2.
Defendant argues that “[c]redibility
is a central issue in the case” because plaintiff has “provided no
credible evidence of his excessive force claims.”
Response, p. 2.
Defendant’s
Defendant cites to plaintiff’s April 24, 2009 parole
hearing, see id. at p. 3, and a “factual finding rendered by the
Second Appellate District,” see Defendant Leon Hill’s Motion for
Reconsideration, Doc. No. 174, pp. 3-4,1 in an attempt to demonstrate
plaintiff’s “lack of veracity” through detailed descriptions of the
facts underlying the offense.
Rule 609 of the Federal Rules of Evidence provides in part:
(a) In General. The following rules apply to attacking a
witness's character for truthfulness by evidence of a
criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than one
year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case.
. . .
Fed. R. Evid. 609.
Plaintiff’s felony rape conviction, for which he
remains incarcerated, is therefore admissible for purposes of
attacking plaintiff’s credibility unless that evidence is deemed
inadmissible under Fed. R. Evid. 403.
That rule provides that a
“court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue
1
Defendant Leon Hill’s Motion for Reconsideration, Doc. No. 174,
specifically references Plaintiff’s Motion in Limine and the admissibility of
plaintiff’s prior conviction under Rule 609(a).
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delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403.
The Court agrees that plaintiff’s rape conviction is relevant to
the issue of plaintiff’s credibility, which is a highly contested
issue in this action.
Defendant will therefore be permitted to
introduce into evidence the fact that plaintiff was convicted of rape.
Defendant also proposes to introduce evidence of the facts and
details of that offense.
That information, however, is not relevant
to plaintiff’s credibility and yet carries the risk that a jury
hearing such inflammatory evidence will be unduly influenced by such
evidence in its consideration of the issues presented in the case.
Under these circumstances, the Court concludes that the probative
value of detailed descriptions of the facts underlying plaintiff’s
rape conviction, if any, is outweighed by the unfair prejudice that
such evidence is likely to present.
The Court will therefore not
permit defendant to introduce into evidence the details of the facts
underlying plaintiff’s rape conviction.
B.
Previously undisclosed witnesses and exhibits
Plaintiff’s Motion in Limine seeks to preclude defendant from
offering any witness or exhibit not disclosed during the discovery
period.
Plaintiff’s Motion in Limine, p. 8.
Under Rule 26(a)(3) of
the Federal Rule of Civil Procedure, a party must produce, inter alia,
the names of witnesses whom that party may present at trial, and must
separately identify those witnesses whom that party expects to present
and those whom that party may call only if the need arises.
Civ. P. 26(a)(3).
Fed. R.
Moreover, a party must supplement its Rule 26(a)
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disclosures and other discovery responses
R. Civ. P. 25(e).
“in a timely manner.”
Fed.
Failure to comply with Rule 26(a) or (e) may result
in an order precluding the admission of evidence at trial “unless the
failure was substantially justified or is harmless.”
37(c)(1).
Fed. R. Civ. P.
However, “’where a judge has determined that testimony is
otherwise admissible, the mere fact that the party seeking its
introduction has not fully complied with pretrial orders does not
mandate its exclusion.’”
Taylor v. Teco Barge Line, Inc., 517 F.3d
372, 379 (6th Cir. 2008) (quoting Miller v. Am. President Lines, Ltd.,
989 F.2d 1450, 1466 (6th Cir. 1993)).
In the case presently before the Court, plaintiff seeks to
preclude evidence that was allegedly not disclosed by defendant prior
to the close of discovery.
Plaintiff’s Motion in Limine, p. 8.
Discovery closed on June 1, 2011, Order, Doc. No. 103, and witness and
exhibit lists were due by October 15, 2012, Order, Doc. No. 155.2
Defendant has not yet filed a witness and exhibit list. Nevertheless,
the Court is unwilling to exclude evidence without first understanding
the evidence and witnesses that defendant actually intends to offer,
as well as his reason for any failure to comply with the orders of
this Court and the Rules of Civil Procedure.
Defendant is therefore ORDERED to file a witness and exhibit list
by December 17, 2013.
To this extent, Plaintiff’s Motion in Limine is
DENIED without prejudice to renewal following defendant’s filing.
C.
Adverse inference instruction
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Defendant mistakenly represents that witness and exhibit lists are due
on December 17, 2012. Defendant’s Response, p. 4. In fact, the joint final
pretrial order and the parties’ proposed jury instructions are due on that
date. Order, Doc. No. 155.
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Plaintiff’s Motion in Limine seeks an adverse inference
instruction due to spoliation of evidence.
Plaintiff argues that
defendant failed to produce the notes allegedly taken by Mohammad
Yakubu, the institutional inspector for PCI in 2008, of inmate
interviews conducted during an investigation of plaintiff’s grievance.
Plaintiff’s Motion in Limine, pp. 8-10.
According to plaintiff,
defendant was under a duty to preserve the interview notes because the
interviews occurred after this action was filed.
Plaintiff argues
that defendant’s failure to produce the notes warrants an adverse
inference instruction “that the jury is permitted to infer that Mr.
Yakubu’s interview notes support Mr. Wilson’s claim of excessive
force.”
Id.
“The term ‘spoliation’ includes the destruction of evidence or
the failure to preserve property for another's use as evidence in
pending or reasonably foreseeable litigation.”
Jones v. Staubli Motor
Sports Div. of Staubli Am. Corp., No. 2:09-CV-1120, 2012 U.S. Dist.
LEXIS 133650, at *18-19 (S.D. Ohio Sept. 19, 2012) (quoting OwnerOperator Indep. Drivers Ass'n v. Comerica Bank, 860 F.Supp.2d 519
(S.D. Ohio)).
A district court is vested with the broad discretion to
craft proper sanctions for spoliation.
650, 651-52 (6th Cir. 2009).
Adkins v. Wolever, 554 F.3d
To justify an adverse inference
instruction based on the spoliation of evidence, plaintiff, as the
moving party, must establish that: “(1) the party having control over
the evidence had a duty to preserve it; (2) the evidence was destroyed
with a culpable state of mind; and (3) the destroyed evidence was
relevant to the party's claim or defense.”
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Jennings v. Bradley, 419
F. App’x 594, 599 (6th Cir. 2011) (citing Beaven v. U.S. Dep’t of
Justice, 622 F.3d 540, 553 (6th Cir. 2010).
In the case presently before the Court, plaintiff argues that,
while investigating plaintiff’s grievance, Mr. Yakubu took notes
during inmate interviews, that the notes should be in plaintiff’s
inmate file, and that defendant failed to produce the notes during
discovery.
Plaintiff’s Motion in Limine, p. 10.
Mr. Yakubu’s deposition testimony provides that, while
investigating plaintiff’s grievance in 2008, he took notes of his
interviews of inmates.
p. 57.
Deposition of Mohammad Yakubu, Doc. No. 112-1,
Mr. Yakubu also testified that, in 2008, it was his normal
practice to scan his notes into an electronic system and open an
electronic file for the inmate.
Id. at 56.
would also have been maintained for a period.
Hard copies of notes
Id.
Mr. Yakubu did not
know whether his notes existed at the time of his deposition and, if
so, where they would have been kept.
Id.
Plaintiff has not established that the named defendant was
obligated to, but failed to, place a litigation hold on any records of
the Ohio Department of Rehabilitation and Correction or that the named
defendant even had control over the documents generated during the
course of Mr. Yakubu’s investigation.
In short, plaintiff has not
established that defendant may properly be charged with the failure to
produce those documents, even assuming that such documents ever
existed.
Plaintiff is therefore not entitled to an adverse inference and,
as it relates to this request, Plaintiff’s Motion in Limine is DENIED.
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D. Settlement negotiations
Plaintiff also requests an order, pursuant to Federal Rule of
Evidence 408(a), “excluding all evidence of settlement negotiations
between the parties.”
Plaintiff’s Motion in Limine, pp. 10-11.
Defendant does not oppose the exclusion of evidence related to
settlement discussions.
Defendant’s Response, p. 4.
Plaintiff’s
Motion in Limine is therefore GRANTED as unopposed in this regard.
E. Twenty-four hour notice
Finally, plaintiff seeks an order, pursuant to Federal Rule of
Evidence 611(a), directing the parties to provide 24 hours notice
before calling any witness.
Plaintiff’s Motion in Limine, p. 11.
Plaintiff has not articulated a reason for his request and the Court
perceives no justification for the request.
Plaintiff’s request for
24 hour notice before calling any witness is therefore DENIED.
WHEREUPON, Plaintiff’s Motion in Limine, Doc. No. 166, is GRANTED
in part and DENIED in part.
Defendant may introduce evidence of the
fact of plaintiff’s prior rape conviction for purposes of impeachment,
but may not introduce evidence relating to the underlying facts and
details of the offense.
Defendant is ORDERED to file a witness and
exhibit list by December 17, 2013.
To the extent that Plaintiff’s
Motion in Limine relates to defendant’s alleged failure to disclose
witnesses and exhibits during the discovery completion period,
that
motion is DENIED without prejudice to renewal following defendant’s
filing.
To the extent that Plaintiff’s Motion in Limine seeks an
adverse inference instruction, the motion is DENIED.
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To the extent
that Plaintiff’s Motion in Limine seeks to exclude evidence of
settlement negotiations between the parties, the motion is GRANTED as
unopposed.
Finally, to the extent that Plaintiff’s Motion in Limine
asks that the parties be required to provide 24 hour notice of that
party’s witnesses, the motion is DENIED.
s/ Norah McCann King______
Norah McCann King
United States Magistrate Judge
December 7, 2012
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