GREEN v. BURKHART et al

Filing 208

MEMORANDUM ORDER granting in part and denying in part 187 Motion in Limine; granting in part and denying in part 189 Motion in Limine. The Parties shall file a revised Joint Exhibit List on ECF in accordance with these rulings, and Defendants shall deliver copies of the exhibits in three (3) binders (one each for the Court, Court Reporter, and the Jury) to Chambers by Wednesday, July 12, 2017 at 12:00 PM (noon). Signed by Judge Arthur J. Schwab on 7/5/2017. (eet)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TYRONE GREEN,
Plaintiff,

1:14cv0159
ELECTRONICALLY FILED

v.
RAYMOND BURKHART,
JOHN HAGGERTY, JOHN GILARA,
DANIEL PACK, JOHN CHILES, and
SERGEANT CHERNOSKY,
Defendants.

MEMORANUM ORDER RE: DEFENDANTS’
MOTIONS IN LIMINE CONCERNING PLAINTIFF’S TRIAL EXHIBITS AND
AMENDED TRIAL WITNESS LIST (DOC. NOS. 187 AND 189)
Pending before the Court are Defendants’ Motion in Limine Concerning Plaintiff’s Trial
Exhibits, doc. no. 187, and Defendants’ Motion in Limine Concerning Plaintiff’s Amended Trial
Witness List, doc. no. 189. The Court has considered Defendants’ Motions, responses provided
by the Plaintiff at the Pretrial Conference on June 29, 2017 at 9:00 AM, and the oral arguments
of the Parties.
I. Plaintiff’s Trial Exhibits
Defendants object to two categories of exhibits: “(1) those exhibits dealing with claims
that have already been dismissed from this case; and (2) those exhibits dealing with alleged
spoliation of documents.” Doc. No. 187. The Court finds that the following exhibits or portions
of exhibits concern claims that have previously been dismissed from this lawsuit, and
Defendants’ objections to these documents will be sustained because the exhibits are irrelevant
to the claims and issues remaining in this lawsuit:



Exhibit 2, which concerns the previously dismissed claim that Plaintiff was not seen
quickly enough by the Program Review Committee (PRC) (see Doc. No. 127);



Pages 10-16 of Exhibit 3, concerning the PRC;



Exhibit 4, which concerns the previously dismissed claim that Plaintiff was denied a
promotional transfer (see Doc. No. 171); and



Exhibit 5, which concerns the previously dismissed claim regarding copies of Plaintiff’s
legal materials being allegedly destroyed (see Doc. No. 171).
Defendants’ objection to Exhibit 6 page 27 is overruled. Defendants claim that this

document is only relevant to the previously dismissed claim regarding Plaintiff’s placement in
the restricted housing unit in February 2014. However, the document is a “Legal Mail Tracking
Sheet” and nothing about the document ties it to that particular claim.
Defendants also object to Plaintiff’s Exhibit 0 - - which is several documents related to
Plaintiff’s request for spoliation sanctions concerning a box of his legal materials that went
missing. The Court has previously found that all of Plaintiff’s requests for spoliation sanctions
have been either denied or adequately addressed by previous court orders during the lengthy
litigation of this case. See Doc. Nos. 200, 182, and 163. Accordingly, the Court finds that these
exhibits are irrelevant and sustains Defendants’ objection.
The Parties shall file a revised Joint Exhibit List on ECF in accordance with these rulings,
and Defendants shall deliver copies of the exhibits in three (3) binders (one each for the Court,
Court Reporter, and the Jury) to Chambers by Wednesday, July 12 at 12:00 PM (noon).
II. Plaintiff’s Amended Trial Witness List
Plaintiff has set forth an Amended Witness List which includes 27 proposed trial
witnesses in addition to the six (6) Defendants, but very little information regarding the expected

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testimony of each witness. Defendants object to 24 of the proposed witnesses. At the June 29,
2017 pretrial conference, the Court worked through the proposed testimony of, and the
objections to, each witness with the Parties and makes the following rulings:
1. Major Ennis
Plaintiff proposes calling Major Ennis to testify about Plaintiff’s grievance
regarding the alleged delayed return of a loaner television to him. In Defendants’
Motion, they state that Ennis is mentioned in the response to Plaintiff’s grievance,
i.e., “when confirmation was received from Major Ennis of your loaner approval,
Lt. Haggerty called you up . . .[.]” Doc. No. 189. The Court finds that Major
Ennis’s testimony regarding Plaintiff’s approval to have a loaner television and
the subsequent events that resulted in the “withholding [of] a loaner TV for two
months” as Defendants describe, id., is relevant to Plaintiff’s claim of retaliation.
Defendants’ objection to this witness is OVERRULED.
2. Capt. Mohrey
Plaintiff proposes calling Capt. Mohrey to testify about his investigation of a
grievance regarding a pair of Plaintiff’s boots that were confiscated. The Court
agrees with Defendants that this testimony would be cumulative to other
evidence. Defendants’ objection to this witness is SUSTAINED.
3. Officer Sible
Plaintiff proposes calling Officer Sible to testify about grievances concerning his
lost property. In at least one grievance response, Sible describes how he and
Defendant Gilara handled the inventory of Plaintiff’s property. The Court finds

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that this testimony is relevant to Plaintiff’s claims and OVERRULES Defendants’
objection to this witness.
4. Officer Gotto
Plaintiff did not include Officer Gotto on his Amended Witness List, however, he
stated at the June 29th pretrial conference that this was an oversight and that
Officer Gotto can provide testimony relevant to his claim that his loaner television
was withheld for more than two months in retaliation against him for filing
grievances and lawsuits. The Court OVERRULES Defendants’ objection to this
witness.
5. Supt. Overmyer
Plaintiff proposes calling Supt. Overmyer to testify about his grievances and his
denial of promotional transfer claim, which has been dismissed. See Doc. No.
171. Supt. Overmyer has no direct personal knowledge regarding the facts related
to the grievances (or claims in this lawsuit), and his testimony would be
inadmissible hearsay. Defendants’ objection to this witness is SUSTAINED.
6. Ian Gustafson - - no objection to this witness
7. Dorina Varner
Plaintiff also proposes calling Dorina Varner to testify about his grievances.
Similar to Supt. Overmyer, Varner has no direct personal knowledge regarding
the facts related to the grievances and her testimony would be inadmissible
hearsay. Defendants’ objection to this witness is SUSTAINED.

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8. Corrections Officer Dyne
Plaintiff proposes calling Officer Dyne to testify about his eyeglasses that were
allegedly destroyed. A response to Plaintiff’s grievance regarding his eyeglasses
indicates that Dyne “picked up Plaintiff’s eyeglasses after the assault and turned
them into the control bubble, so they could be turned in to the Security Office.”
Doc. No. 189. The Court finds that Dyne’s testimony concerning what happened
to Plaintiff’s eyeglasses is potentially relevant; however, Dyne can offer no more
than that she transported the eyeglasses from the location of the assault to the
control bubble. This information is already contained in the documentary
evidence that will be admitted at trial. Further, Defense Counsel agreed to
stipulate that Dyne picked up the eyeglasses and turned them into the control
bubble. Accordingly, this witness’s testimony would be cumulative and
unnecessary and the objection will be SUSTAINED.
9. Corrections Officer Moore
Plaintiff proposes calling Officer Moore to testify about his allegedly destroyed
eyeglasses and because he was one of the officers who responded to the assault of
Plaintiff by other inmates. Defendants argue that Moore did not pick up
Plaintiff’s eyeglasses, and that he responded to the assault after Defendant
Chernosky - - who is the Defendant in Plaintiff’s failure to intervene claim.
Accordingly, the Court finds that Moore’s testimony would be irrelevant to
establish whether or not Defendant Chernosky responded to the assault in a
reasonable manner. The objection to this witness is SUSTAINED.

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10. Corrections Officer Ry Bell
Plaintiff also proposes calling Officer Bell to testify about Chernosky’s response
to the assault by other inmates. Similar to Moore, Officer Bell responded to the
assault after Defendant Chernosky - - who is the Defendant in Plaintiff’s failure to
intervene claim. Accordingly, the Court finds that Bell’s testimony would be
irrelevant to establish whether or not Defendant Chernosky responded to the
assault in a reasonable manner. Bell’s proposed testimony concerning Plaintiff’s
“escort to medical and RHU” is irrelevant as that claim was dismissed. Plaintiff
argued that the grievance responses state that Defendant Chernosky searched the
inmates that assaulted Plaintiff, but that the video shows that Bell and Officer
Thornton searched the inmates. The video will be shown at trial. Further,
Defense Counsel does not object to the use of the reports, included in Plaintiff’s
Exhibit 1, by Plaintiff at trial. Accordingly, the objection to this witness is
SUSTAINED as his testimony about these events and reports would be
cumulative.
11. Corrections Officer Thornton
Plaintiff also proposes calling Officer Thornton to testify about Chernosky’s
response to the assault by other inmates. Similar to Moore and Bell, Officer
Thornton responded to the assault after Defendant Chernosky - - who is the
Defendant in Plaintiff’s failure to intervene claim. Accordingly, for the same
reasons stated above, the objection to this witness is SUSTAINED.

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12. Major Conrad
Plaintiff proposes calling Major Conrad to testify about his investigation of one of
Plaintiff’s grievances regarding his destroyed property. Conrad’s testimony
would be inadmissible hearsay and therefore the objection to this witness is
SUSTAINED.
13. Kim Smith
Plaintiff proposes calling Kim Smith to testify about Plaintiff’s medical treatment
after the assault by other inmates, a claim that was already dismissed. See Doc.
No. 127. Plaintiff agreed that such testimony would be irrelevant to the claims
remaining in this lawsuit and therefore the objection to this witness is
SUSTAINED.
14. Capt. Hacherl
Plaintiff proposes calling Capt. Hacherl to testify about inconsistent statements
made by Defendants that contradict statements in grievance reports authored by
Capt. Hacherl. The Court finds that this testimony is potentially relevant to
Plaintiff’s claims and OVERRULES the objection to this witness.
15. Capt. Mongelluzzo
Plaintiff proposes calling Capt. Mongelluzzo to testify about his dismissed claim
that legal materials were lost after being sent to the law library. See Doc. No.
171. Plaintiff agrees that such testimony would be irrelevant to the claims
remaining in this lawsuit and therefore the objection to this witness is
SUSTAINED.

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16. T.D. Heffernan
Plaintiff proposes calling T.D. Heffernan to testify about his dismissed claim that
legal materials were lost after being sent to the law library. See Doc. No. 171.
Such testimony would be irrelevant to the claims remaining in this lawsuit and
therefore the objection to this witness is SUSTAINED.
17. Counselor G. Miller - - no objection to this witness
18. Dr. Rodney Bingham
Plaintiff proposes calling this witness to testify about medical treatment he
received following an assault. However, Defendants object and state that this
physician provided medical treatment to Plaintiff following a different alleged
assault that occurred on 7/17/14, which is not part of this lawsuit. Dr. Bingham
would not have testimony relevant to Plaintiff’s injuries that occurred during the
May 2014 assault at issue in this lawsuit. Accordingly, Defendants’ objection to
this witness is SUSTAINED.
19. Corey Spencer (inmate) - - no objection to this witness
20. No witness named in Amended Witness List
21. Attorney Bret Grote (expert)
Plaintiff proposes calling Attorney Bret Grote as an expert witness to testify about
general prison conditions. However, Plaintiff has failed to submit an expert report
or to otherwise comply with the Federal Rules of Civil Procedure pertaining to
expert witness testimony. Further, Plaintiff has not established that Attorney
Grote can offer any testimony regarding the specific retaliation, failure to protect,

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and failure to intervene claims at issue. Accordingly, Defendants’ objection to
this witness is SUSTAINED.
22. Andre Jacobs (expert)
Plaintiff also proposes calling another inmate, Andre Jacobs, as an expert witness
regarding damages. However, Plaintiff has failed to submit an expert report or to
otherwise comply with the Federal Rules of Civil Procedure pertaining to expert
witness testimony. The Court notes that Mr. Jacobs recently litigated his own
case in the Western District of Pennsylvania, 2:08cv470. This experience,
however, is not enough to qualify Mr. Jacobs as an expert witness on damages
issues. Further, Plaintiff has not established that Mr. Jacobs can offer any
testimony regarding the specific retaliation, failure to protect, and failure to
intervene claims at issue. Accordingly, Defendants’ objection to this witness is
SUSTAINED.
23. Inmate Population Management Officer
Plaintiff requests the Inmate Population Management Officer to bring records of
all inmates transferred at various times over the past several years to show “how
transfers [are] done in the DOC.” Plaintiff agrees that this testimony is irrelevant
after the dismissal of his denial of promotional transfer claim. Defendants’
objection to this witness is SUSTAINED.
24. Michael Bell
Plaintiff proposes calling Michael Bell, and identifies him as a Chief Grievance
Officer. Plaintiff argues that it will be important for him to establish, to the jury,
how a grievance gets to final review before a lawsuit. However, the grievance

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process is no longer at issue in Plaintiff’s case. Issues concerning exhaustion of
administrative remedies have all been decided. See e.g. Doc. No. 171.
Defendants’ objection to this witness is SUSTAINED.
25. Sergeant Dickey
Plaintiff agrees that Sergeant Dickey’s testimony would be irrelevant to the
claims that remain in this lawsuit. Defendants’ objection to this witness is
SUSTAINED.
26. Unit Manager Lopez
Plaintiff agrees that Unit Manager Lopez’s testimony would be irrelevant to the
claims that remain in this lawsuit. Defendant’s objection to this witness is
SUSTAINED.
27. Sergeant Smead
Plaintiff agrees that Sergeant Snead’s testimony would be irrelevant to the claims
that remain in this lawsuit. Defendant’s objection to this witness is SUSTAINED.
Defendants’ objection to this witness is SUSTAINED.
28. Officer Watterson
Plaintiff agrees that Officer Watterson’s testimony would be irrelevant to the
claims that remain in this lawsuit. Defendants’ objection to this witness is
SUSTAINED.
29. Corrections Officer Gillespie
Although Officer Gillespie was not on Plaintiff’s Amended Witness List, Plaintiff
raised him as a potential witness at the pretrial conference. He proffers that
Gillespie was one of the first officers to respond to the May 2014 assault, prior to

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Defendant Chernosky, and that he has made statements that contradict Counselor
Miller’s statements regarding that event. Defendants object that Gillespie’s
testimony would be cumulative. The Court finds that Officer Gillespie’s
testimony is relevant to Plaintiff’s failure to intervene claim and OVERRULES
Defendants’ objection.
Accordingly, Plaintiff’s fifteen (15) trial witnesses will be:


Defendant Burkhart



Defendant Pack



Defendant Haggerty



Defendant Gilara



Defendant Chiles



Defendant Chernosky



Major Ennis



Officer Sible



Officer Gotto



Ian Gustafson



Capt. Hacherl



Counselor Miller



Corey Spencer



Officer Gillespie



Plaintiff Tyrone Green

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All witnesses shall testify live, in Courtroom 7C; video-conferencing shall not be
permitted. The Court is mindful of travel and scheduling needs for these witnesses and will
permit witnesses to be called out-of-order to minimize to minimize those concerns.
SO ORDERED, this 5th day of July, 2017,
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:
All ECF Registered Counsel of Record
TYRONE GREEN
EP-4593
SCI SOMERSET
10745 ROUTE 18
ALBION, PA 16475
PRO SE

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