Moore v. Lamas et al

Filing 187

MEMORANDUM (Order to follow as separate docket entry) re: Thomas Moore's motions in Limine (Doc. 181-4; Doc. 181-6). Signed by Chief Judge Matthew W. Brann on 11/18/2021. (jr)

Case 3:12-cv-00223-MWB Document 187 Filed 11/18/21 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS MOORE,

No. 3:12-CV-00223

Plaintiff,

(Chief Judge Brann)

v.
KENNY GRANLUND, et al.,
Defendants.
MEMORANDUM OPINION
NOVEMBER 18, 2021
Initiated in February 2012, former inmate Thomas Moore’s civil rights
lawsuit against several corrections officers is set to go to trial in eleven days.
Although Moore’s lawsuit initially alleged a sweeping, prison-wide conspiracy
involving nearly a dozen separate prison officials, the scope of the lawsuit has been
considerably narrowed. Now, all that remains are two counts concerning three
discrete incidents involving four defendants. Nevertheless, Moore persists in his
effort to litigate this as a conspiracy case. That is not permissible.
With his presentence memorandum, Moore filed two motions in limine
(which he labeled “Legal Memoranda”) asking the Court to deem admissible
evidence relevant only to the dismissed conspiracy charge. These motions are both
untimely and without merit. As such, Moore’s motions in limine are denied.

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I.

BACKGROUND
Thomas Moore, a former Pennsylvania state prisoner, filed this civil rights

complaint—which he later amended with assistance from counsel—alleging that
several corrections officers violated his rights during his incarceration at State
Correctional Institution Rockview (“SCI Rockview”).1 The Amended Complaint
includes four causes of action: Count I, Civil Rights Violation/Retaliation against
all individual Defendants; Count II, Civil Rights Violations against Defendant
Marirosa Lamas for failure to establish appropriate policies, practices, or customs,
and for sanctioning an alleged “cover up”; Count III, Assault and Battery against
Defendant Kenny Granlund; and Count IV, False Imprisonment and Conspiracy
against all Defendants.2
In a series of successive rulings starting in 2014, the Court narrowed the
scope of the lawsuit by dismissing certain counts and defendants from the case. On
February 7, 2014, the Court granted in part the Defendants’ motion for partial
dismissal.3 Relevant here, the Court granted “[t]he request for dismissal of the
claim[] of conspiracy,”4 explaining that “[t]here are no averments of fact in the
Amended Complaint that reasonably suggest the presence of an agreement or
concerted activity between the Defendants,” and, thus, Moore “has not adequately

1
2
3
4

Doc. 1; Doc. 28.
Doc. 28 at 7–9.
Doc. 39; Doc. 40.
Doc. 40 ¶ 4.
2

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alleged that [the incidents of constitutional misconduct] were the result of a
conspiracy.”5
On September 21, 2017, the Court adopted in part Magistrate Judge Karoline
Mehalchick’s Report and Recommendation that Moore’s Amended Complaint
should be dismissed with prejudice for failure to exhaust the remedies available
through the grievance process.6 The Court ruled that only claims related to the
following allegations were permitted to proceed:
(1) Defendant Granlund engaged in improper sexual contact with Moore
during the fall of 2010;
(2) Granlund physically assaulted Moore on December 6, 2010; and
(3) Defendants Edward Hall, Brock Perks, and Chad Fisher mopped
chemicals into Moore’s cell on February 19, 2011, which resulted in
Moore passing out and striking his head on the ground.7
The Court affirmed this ruling on September 26, 2018,8 and again on June 18,
2019.9
On March 18, 2020, the Court ruled on certain evidentiary motions filed by
the Defendants.10 Relevant here, the Court granted the Defendant’s motion “to
exclude any evidence related to an alleged settlement offer that Moore received
from an unidentified individual.”11 The Court explained that this evidence “is
5
6
7
8
9
10
11

Doc. 39 at 12–13.
Doc. 103; Doc. 104.
Doc. 103 at 64.
Doc. 114; Doc. 115.
Doc. 127; Doc. 128.
Doc. 146; Doc. 147.
Doc. 146 at 20.
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inadmissible for three reasons”: (1) “Fed. R. Evid. 408 provides that—with limited
exceptions not applicable here—evidence of a settlement offer or statements made
during negotiations are not admissible . . . to prove or disprove the validity or
amount of a disputed claim”; (2) “any testimony from Moore regarding what an
unidentified individual said outside of the courtroom or a hearing would constitute
inadmissible hearsay”; and (3) “such evidence would appear to be irrelevant”
because “[a]ssuming that a settlement offer was in fact extended, such an offer
proves nothing with regard to the claims against [the] Defendants.”12
After efforts at settlement failed, the Court issued a scheduling order on May
14, 2021, setting a date for trial and requiring the parties to file all motions in
limine by September 3, 2021.13 Consistent with the Court’s scheduling order, on
September 3, 2021, the Defendants filed a motion in limine to prohibit Moore from
introducing at trial any testimony or evidence regarding the alleged actions of a
corrections officer who is not, and never has been, a party to the case.14 The
Defendants argued that the evidence was relevant only to the conspiracy cause of
action the Court previously dismissed and has no probative value to the remaining
claims.15

12
13
14
15

Id. at 21 (internal quotation marks omitted).
Doc. 165.
Doc. 166.
Id.
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On November 3, 2021, the Court granted the Defendants’ motion in limine.16
The Court explained that the evidence was not admissible under Rule 404 because
(a) it was relevant only the Moore’s conspiracy claim, which has been dismissed;
and (b) “even were the Court to consider evidence of conspiracy relevant to a key
issue in the case,” whatever “probative value it may have is substantially
outweighed by the risk of confusing the issues and misleading the jury.”17 Further,
the Court held that “Rules 401 and 402 offer no basis for admissibility because this
evidence has little to no bearing on Moore’s credibility and a high likelihood of
confusing the issues, misleading the jury, and unduly prejudicing the
Defendants.”18
Two days later, on November 5, 2021, Moore filed his pretrial
memorandum,19 which included two attachments labeled “Legal Memorandum.”20
In the first “Legal Memorandum,” Moore asks the Court to “admit his testimony
and his contemporaneously created documentary evidence to prove other and
others’ acts in this case to [help] the jury understand the context and setting of the
claims against all remaining defendants.”21 In the second, Moore asks the Court to

16
17
18
19
20
21

Doc. 174; Doc. 175.
Doc. 174 at 12, 14.
Id. at 19.
Doc. 181.
Doc. 181-4; Doc. 181-6.
Doc. 181-4 at 8 (internal quotation marks omitted).
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“reconsider its Order of March 18, 2020 insofar as it ‘conditionally barred’ [him]
from presenting evidence of . . . an alleged settlement offer.”22
During the November 9, 2021 pretrial conference, Moore’s attorney insisted
that these “Legal Memoranda” were not motions in limine.23 Regardless, because
these filings request rulings on the admissibility of evidence prior to trial, the Court
believes it necessary to address the filings at this juncture. 
II.

ANALYSIS
A.

Motions in Limine

As a preliminary matter, the Court must first determine how to construe
Moore’s “Legal Memoranda.” At the pretrial conference, Moore’s counsel strongly
denied that these filings were motions in limine, presumably because he recognized
that the deadline for motions in limine was September 3, 202124—two months
before Moore filed the “memoranda.” But as these filings explicitly request a
ruling on the admissibility of certain evidence, they constitute motions in limine.
And, as such, they are untimely.
A motion in limine “is a device for obtaining rulings on the admissibility of
evidence prior to trial.”25 Typically, motions in limine are made “for the purpose of

22
23
24
25

Doc. 181-6 at 7.
Doc. 182.
See Doc. 165.
Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 667 (Pa.
Super. 2007) (citing Packel and Poulin, Pennsylvania Evidence, § 103.3 at 12) (internal
quotation marks omitted).
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prohibiting opposing counsel from mentioning the existence of, alluding to, or
offering evidence on matters so highly prejudicial to the moving party that a timely
motion to strike or an instruction by the court to the jury to disregard the offending
matter cannot overcome its prejudicial influence on the jurors’ minds.”26 However,
parties can also file motions in limine to admit certain evidence, thereby clarifying
in advance of trial the universe of admissible material and the scope of permissible
topics and lines of inquiry.27 When analyzing whether a filing constitutes a motion
in limine, courts consider the substance of the request; courts are not bound by the
form of the filing.28
Here, Moore’s first “Legal Memorandum” asks the Court to “admit his
testimony and his contemporaneously created documentary evidence to prove
‘other [acts]’”29—distinct from, and not directly related to, the three incidents at
issue in the trial—by “others, not now part of the case.”30 In the second

26
27

28

29
30

United States v. Davis, 208 F. Supp. 3d 628, 632 (M.D. Pa. 2016) (citing O’Rear v. Fruehauf
Corp., 554 F.2d 1304, 1306 (5th Cir. 1977)).
See, e.g., United States v. Singleton, 458 F. App’x. 169, 171–73 (3d Cir. 2012) (holding that
the District Court “did not abuse its discretion” in granting the government’s “pre-trial motion
in limine to admit certain evidence of other crimes, wrongs, or acts pursuant to Federal Rule
of Evidence 404(b)”); Tourtellote v. Eli Lilly and Co., 636 F. App’x. 831, 854–55 (3d Cir.
2016) (holding that the District Court did not abuse its discretion in denying plaintiff’s motion
in limine “to include evidence of [the defendant’s] conduct towards other employees”).
See Northwest Savings Bank and Financial Services v. NS First Street LLC, 2011 WL 6180874,
at *5 (M.D. Pa. Dec. 13, 2011) (Kane, J.) (holding that a “trial memorandum” filed by
defendants “nine days before trial” was “properly construed as a motion in limine” as it was
“devoted exclusively to a challenge to the testimony of Plaintiff’s expert”).
Doc. 181-4 at 8.
Id. at 2. Specifically, Moore references two individuals previously dismissed as defendants in
the case (Marirosa Lamas and Lynn Eaton), a corrections officer who testified at the
evidentiary hearing held by Magistrate Judge Mehalchick but who was never a named
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“Memorandum,” Moore asks the Court to “reconsider” its March 18, 2020 ruling
that any evidence related to an alleged settlement offer is barred from admission at
trial.31 Because the filings seek “rulings on the admissibility of evidence prior to
trial,”32 both constitute motions in limine; Moore’s arguments to the contrary are
belied by the substance of the filings.33
As Moore filed these motions in limine two months after the Court-ordered
deadline, the motions are untimely.34 The Court need not consider untimely
motions in limine, particularly where, as here, the movant “offer[s] no explanation
for the delay” and never requested “an extension of time to file a motion in
limine.”35 Nevertheless, the Court will address the merits of Moore’s motions to
provide clarity on what evidence the parties may introduce and the lines of inquiry
they may explore at trial.
B.

Rule 404

In his first motion in limine, Moore asks the Court to “admit his testimony
and his contemporaneously created documentary evidence to prove other and
others’ acts in this case to [help] the jury understand the context and setting of the

31
32
33
34
35

defendant (Gregory Dyke), and “others who worked at SCI Rockview who were never part of
the case.” Id.
Doc. 181-6 at 7.
Northeast Fence, 933 A.2d at 667.
See Northwest Savings, 2011 WL 6180874 at *5.
See Doc. 165.
Northwest Savings, 2011 WL 6180874 at *5 (“Because the deadline for motions in limine
passed over a month before Defendants filed their motion, the Court will strike the
memorandum as an untimely motion in limine.”).
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claims against all remaining defendants.”36 Moore asserts that “[t]his case has
always been about [his] futile attempts to obtain an investigation and redress for
his allegations of criminal sexual abuse,” and that the “other acts” evidence is
necessary “to prove that there was a ‘core cover-up conspiracy.’”37 But this
argument is flatly contradicted by this Court’s prior rulings.
First, the Court’s February 7, 2014 ruling dismissed Moore’s conspiracy
claim, explaining that “[t]here are no averments of fact in the Amended Complaint
that reasonably suggest the presence of an agreement or concerted activity between
the Defendants,” and, as such, Moore “has not adequately alleged that [the
instances of constitutional misconduct] were the result of a conspiracy.”38 The
Court’s September 21, 2017 decision further narrowed the scope of the case,
explaining that only three events remain at issue: Moore’s “claims of sexual abuse
by Defendant Granlund in the fall of 2010, physical abuse by Defendant Granlund
on December 6, 2010, and physical abuse by Defendants Hall, Perks, and Fisher on
February 19, 2011.”39 All other claims were “dismissed with prejudice.”40
Given these rulings, it is unclear why Moore still believes this is principally
a “cover-up conspiracy” case regarding a “wide reaching ‘plan’ at the prison” to
prevent Moore from “obtain[ing] an investigation and redress for his allegations of

36
37
38
39
40

Doc. 181-4 at 8 (internal quotation marks omitted).
Id. at 1, 6.
Doc. 39 at 12–13.
Doc. 103 at 64.
Id.
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criminal and sexual abuse.”41 It is not. As this Court has made clear, time and
again, the issues that remain are discrete—specifically, the jury must determine
whether Granlund sexually and physically abused Moore in 2010, and whether, in
February 2011, Hall, Perks, and Fisher mopped chemicals into Moore’s cell,
causing him to injure his head.42 That’s it.43 The Court will not permit Moore to
resuscitate at trial claims it dismissed several years ago.

41
42
43

Doc. 181-4 at 1–2, 6.
See Doc. 127; Doc. 146; Doc. 174.
At various points during the November 9, 2021 pretrial conference, Moore’s attorney
represented that the Honorable Richard P. Conaboy, my late colleague who previously
presided over this case, ruled that certain prison officials prevented any criminal or
administrative investigation into Moore’s initial grievance claims about Granlund’s alleged
sexual abuse, and that evidence of such efforts to stymie an investigation are relevant to the
remaining claims. See Doc. 181-4 at 1 (“The original defendants were present defendants and
the pertinent administrators at the prison, sued for their roles in a plan that successfully
thwarted any investigation, as held by Judge Conaboy in his various opinions.”). In his first
motion in limine, Moore claims that this constitutes the “law of the case.” Id. That is not true.
In his September 21, 2017 ruling, Judge Conaboy addressed the Defendants’ motion for
summary judgment based on Moore’s purported “fail[ure] to exhaust his available
administrative remedies.” Doc. 103 at 4. Judge Conaboy held that Defendants “satisfied their
burden of showing that [Moore] did not exhaust his claims through DC-ADM 804 regarding
any claim for which he received an Initial Review Response indicating that the grievance was
rejected or denied at the initial level.” Id. at 30. As such, Judge Conaboy ruled that Moore’s
“conditions of confinements claims” and claims of “inferred supervisory liability on the part
of Defendants Lamas and Eaton” are “properly dismissed.” Id. However, Judge Conaboy
explained that “this conclusion does not apply to grievances for which [Moore] did not receive
a denial upon initial review”—that is, Moore’s grievances regarding the alleged sexual and
physical abuse by Granlund and the chemical incident involving Hall, Perks, and Fisher. Id.
Judge Conaboy ruled that because Moore was not able to fully pursue his administrative
remedies as to these grievances, the related claims “go forward.” Id. at 31–64. Contrary to
Moore’s belief, this ruling did not establish that the case was principally about an attempt by
prison officials to thwart an investigation into Moore’s allegations of abuse. Likewise, it did
not establish that all evidence related to an alleged attempt to thwart an investigation was per
se admissible at trial. Instead, this ruling merely permitted Moore’s claims regarding the
alleged sexual and physical abuse by Granlund and chemical incident involving Hall, Perks,
and Fisher to proceed.
10

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Second, the Court already addressed—and rejected—the arguments Moore
presents here regarding the admissibility of certain “other acts” evidence under
Rule 404. In its November 3, 2021 memorandum opinion—issued two days before
Moore filed the motions in limine at issue here—the Court considered Moore’s
argument that evidence of an incident involving a separate corrections officer, who
is not and never has been a party in this case, was “admissible under Rule
404(b)(2) because it demonstrates that the Defendants’ actions were ‘part of a
common scheme’ designed ‘to motivate Moore not to pursue his claims.’”44 The
Court rejected this argument for two reasons: (1) “Because Moore’s conspiracy
claim has been dismissed, any evidence that Moore intends to introduce solely to
establish the conspiracy is irrelevant and therefore inadmissible”;45 and (2) “even
were the Court to consider evidence of conspiracy relevant to a key issue in the
case,” whatever “probative value it may have is substantially outweighed by the
risk of confusing the issues and misleading the jury.”46
Moore offers no explanation for why the Court should jettison its prior
ruling and permit Moore to explore a litany of extraneous events involving
individuals who are not parties to the case. Instead, Moore simply restates the

44
45
46

Doc. 174 at 8 (citing Doc. 168 at 6 n.6).
Id. at 12.
Id. at 12, 14.
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arguments he presented in opposition to the Defendants’ motion in limine.47 That is
insufficient.
Consistent with its ruling on November 3, 2021, the Court finds that
testimony and evidence concerning events distinct from and not directly related to
Granlund’s alleged sexual and physical misconduct in 2010 or the alleged February
2011 chemical incident are not admissible as “other acts” evidence under Rule 404.
These separate incidents—most of which involve only individuals who are not
parties to the case—are relevant only to dismissed claims.48 Further, admitting
such evidence would inevitably result in a “trial within a trial” that would “not
only consume a great deal of time but would distract the jury from the pertinent
issues in this case.”49
Moore’s first motion in limine is denied.

47

48

49

Compare Doc. 181-4 at 6 (“Although the scheme to [prevent an investigation into Moore’s
grievances claims] was widespread, if not universal at the prison, and different people took on
different roles as opportunities presented themselves, [Moore] does not attempt to prove a
‘conspiracy’ among all of them. Rather, he attempts to prove that there was a ‘core cover-up
conspiracy’—and that the remaining defendants did highly motivated things to further that
goal. That, it is submitted, supplies the motives behind their actions at issue in this trial.”) with
Doc. 168 at 6 n.6 (“[A]s to each remaining defendant, [Moore] submits that the acts of the
others in attempting to cover-up the claims here were part of a ‘common scheme.’ It is not a
more coincidence that all defendants’ acts at issue in the trial were attempting to ‘motivate’
[Moore] not to pursue his claims. . . . Rather than a formal ‘conspiracy’ it must—at the very
least—be shown to the jury to be a series of ‘parallel actions’ undertaken for the ‘same final
goal.’”).
See Rodriguez v. Thomas, 2018 WL 3141556, at *4 (M.D. Pa. June 27, 2018) (Rambo, J.)
(“[T]he court finds that the evidence regarding the claims previously dismissed in this case are
irrelevant to the issues on trial.”).
United States v. DeWald, 2019 WL 5310297, at *7 (M.D. Pa. Oct. 21, 2019).
12

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C.

Rule 408

In his second motion in limine, Moore asks the Court to “reconsider its
Order of March 18, 2020 insofar as it ‘conditionally barred’ [him] from presenting
evidence of . . . an alleged settlement offer.”50 But, as with his first motion in
limine, this motion has no merit.
Although not specifically recognized by the Federal Rules of Civil
Procedure, “a motion for reconsideration may be reviewed and considered under
either Federal Rule [of] Civil Procedure 59(e) or 60(b).”51 For such a motion to
succeed, the party seeking reconsideration must show at least one of the following
three grounds: (1) “an intervening change in the controlling law”; (2) “the
availability of new evidence that was not available when the court granted the
motion”; or (3) “the need to correct a clear error of law or fact or to prevent
manifest injustice.”52
The United States Court of Appeals for the Third Circuit explained that
“[t]he purpose of a motion for reconsideration is to correct manifest errors of law
or fact or to present newly discovered evidence.”53 As such, a reconsideration

50

51

52
53

Doc. 181-6 at 7. Specifically, Moore alleges “that someone came to his cell in solitary
confinement and offered him $20,000 to cease and desist with his complaints and request for
a criminal investigation of his sexual and physical abuse by defendant Granlund.” Id. at 2.
Gaballa v. Tanner, 2013 WL 2949350, at *1 (M.D. Pa. June 14, 2013); see also Jones v.
Pittsburgh Nat’l Corp., 899 F.2d 1350, 1352 (3d Cir. 1990) (motions for reconsideration are
functional equivalents of motions to alter or amend judgment under Fed. R. Civ. P. 59(e)).
Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir.
2010).
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
13

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motion “is not to be used as a means to reargue matters already argued and
disposed of by prior rulings or to put forward additional arguments which it could
have made [but] neglected to make before [the ruling at issue].”54 In short, the
reconsideration of a ruling is an extraordinary remedy and should be granted
sparingly.55
Moore neither alleges a change in the controlling law nor presents new
evidence not previously before the Court. Indeed, during the November 9, 2021
pretrial conference, Moore’s attorney acknowledged that he filed the motion for
reconsideration after rereading the Rule 408 and realizing that he could have (and
perhaps should have) raised arguments based on section (b) of that Rule prior to
the Court’s March 2020 ruling. Moore’s counsel does not claim that section (b)
was recently added to the Rule—it wasn’t.56 Instead, he acknowledges that he
simply was not familiar with that portion of the Rule. That is not a valid basis for
seeking reconsideration of a prior ruling.57
Regardless, Moore has not established that a reversal of this Court’s March
2020 ruling—barring from admission at trial any evidence related to an alleged
settlement offer—is necessary “to correct a clear error of law or fact or to prevent

54
55
56
57

Dodge v. Susquehanna University, 796 F. Supp. 829, 830 (M.D. Pa. 1992) (McLure, J.)
(internal quotation marks omitted).
Gaballa, 2013 WL 2949350 at *2.
Rule 408 was last amended in 2011. See Fed. R. Evid. 408 advisory committee’s notes (2011
Amendments).
See Dodge, 796 F. Supp. at 830.
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manifest injustice.”58 As the Court explained, “any testimony from Moore
regarding what an unidentified individual said outside of the courtroom or a
hearing would constitute inadmissible hearsay.”59 Moore again offers no argument
that such statements would be admissible under one of the exceptions to the
hearsay rule.60
Further, the Court held that any evidence of an alleged settlement offer
“would appear to be irrelevant.”61 The Court explained that “[a]ssuming that a
settlement offer was in fact extended, such an offer proves nothing about the
claims against the Defendants.”62
In response, Moore again ignores this Court’s prior rulings and attempts to
broaden the scope of the case beyond the discrete issues that remain. Moore asserts
that evidence of the alleged settlement offer is “admissible to prove [his] essential
contention in this case”:
[T]hat he raised complaints as to Granlund’s criminal sexual abuse
and sought a criminal investigation by the State Police and local
District Attorney over the long period before and after he was kept
virtually entirely incommunicado, in solitary confinement for over
eight months.63

58
59
60
61
62
63

Howard Hess, 602 F.3d at 251.
Doc. 146 at 21.
See id. as 21 n.87; see also Doc. 181-6.
Doc. 146 at 21.
Id.
Doc. 181-6 at 2.
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But, as explained, that’s not what this case is about—at least, not at this juncture.
The remaining counts concern only the alleged physical and sexual abuse by
Granlund and the 2011 chemical incident.64 The conspiracy claim was dismissed in
2014.65 There are no remaining claims through which Moore seeks redress for an
alleged scheme to prevent a criminal investigation. Any evidence offered solely to
prove the existence of such a scheme is therefore irrelevant and inadmissible.
Moore’s second motion in limine is denied.
D.

Additional Matters

During the November 9, 2021 pretrial conference, Moore’s attorney, Stuart
Niemtzow, Esquire, raised two additional issues that warrant brief consideration.
Specifically, the Court must address (1) the admissibility of certain “Moore-created
documents,” and (2) Mr. Niemtzow’s desire to refer to Moore at trial by his
recently discovered birth name, “Bobby Tom.”
1.

“Moore-Created Documents”

At the pretrial conference, Mr. Niemtzow presented the Court with a binder
containing a multitude of documents that he described as the “universe” of material
he intends to introduce as evidence at trial. Included in this binder are a large
collection of “Moore-created documents”—that is, grievance records and other
inmate requests Moore filed while serving his prison sentence at SCI Rockview. In

64
65

Doc. 103 at 64.
Doc. 39 at 12–13.
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the binder, these documents are not individually marked, separated, or tabulated.
Instead, they are simply filed behind a single tab without any further delineation.
That is unacceptable.
As detailed in this Court’s November 11, 2021 Scheduling Order, Moore
must provide the Court with an exhibit list, two physical sets of the exhibits
(contained in three-ring binders), and a copy of the exhibits on a USB flash drive.66
Each document that Moore intends to offer into evidence must be individually
identified in the exhibit list, tabulated in the three-ring binders, and saved on the
USB flash drive.67 The Scheduling Order also provides the required naming
convention for the electronic copies of the exhibits on the USB flash drive.68
If the parties can agree on the admissibility of certain exhibits, they must
docket with the Court in advance of trial a stipulation detailing which documents
they will accept into evidence without objection.69 All documents on which the
parties cannot reach agreement must be offered into evidence at trial and will be
admitted only if doing so accords with the Federal Rules of Evidence.
2.

“Bobby Tom”

In the proposed statement of uncontested facts attached to his pretrial
memorandum, Moore presented for the first time a curious fact about his identity:

66
67
68
69

Doc. 183 ¶ 5.
Id.
Id. ¶ 5(c).
Id. ¶ 8.
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“Plaintiff’s birth name is ‘Bobby Tom.’”70 It seems that Moore has long been
mistaken about the name given him at birth. At the pretrial conference, Mr.
Niemtzow informed the Court that at trial he intends to refer to Moore by his “real”
name—that is, Bobby Tom—and asked that the Defendants and the Court do so as
well.
The Court has no control over how Mr. Niemtzow chooses to introduce and
refer to his client at trial—that is a decision left to Moore and Mr. Niemtzow.
However, the Court is under no obligation to oblige Mr. Niemtzow’s request.
Moore initiated this lawsuit in February 2012 under the name “Thomas Moore.”71
Throughout the course of this litigation, Moore has consistently referred to himself
as “Thomas Moore.”72 The parties uniformly identify Moore as “Thomas Moore”
in their court filings.73 In all the relevant documentary evidence that the parties
intend to offer at trial, Moore is listed as “Thomas Moore.”74
The Court concludes that if it refers to Moore at trial by another name, it will
confuse the jury and distract from the issues in this case. As such, the Court will
refer to Moore at trial by the name under which he brought this lawsuit: Thomas
Moore.

70
71
72
73
74

Doc. 181-3 ¶ 58.
Doc. 1.
See, e.g., Doc. 83 (April 29, 2016 Exhaustion Hearing Tr.) 4:3–5:17.
See, e.g., Doc. 168.
See Doc. 177; Doc. 178-2.
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III.

CONCLUSION
This case is set to go trial on November 29, 2021—eleven days from the

date of this opinion. Although originally broad in scope, the case has been
narrowed to three discreet issues: (1) the alleged sexual assault by Granlund in the
fall of 2010; (2) the alleged physical assault by Granlund on December 6, 2010;
and (3) the alleged chemical incident on February 19, 2011 involving Hall, Perks,
and Fisher. To be admissible at trial, evidence must be relevant to at least one of
these three issues. Any evidence that Moore intends to introduce solely to establish
the existence of a broader conspiracy is irrelevant and therefore inadmissible. As
such, Moore’s motions in limine are denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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