Lamb v. Crites et al
Filing
95
Opinion and Order granting in part and denying in part Plaintiff's Motions in Limine re 88 .(Signed by Magistrate Judge Brian L Owsley) Parties notified.(amireles, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MICHAEL TED LAMB
TDCJ-CID #790214
v.
RICHARD CRITES, ET AL.
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C.A. NO. C-11-027
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTIONS IN LIMINE
This is a civil rights action filed by a prisoner pursuant to 42 U.S.C. § 1983. Pending are
Plaintiff’s motions in limine. (D.E. 88). Plaintiff seeks a ruling on thirteen different matters in
advance of trial. Defendants have filed a response in opposition. (D.E. 91). For the reasons that
follow, Plaintiff’s motions in limine are GRANTED in part and DENIED in part.
I. LEGAL STANDARDS FOR MOTIONS IN LIMINE
The Fifth Circuit has observed that “[m]otions in limine are frequently made in the
abstract and in anticipation of some hypothetical circumstance that may not develop at trial.”
Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980). Evidence should not be excluded in
limine unless it is clearly inadmissible on all potential grounds. Hawthorne Partners v. AT&T
Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (citing Luce v. United States, 469 U.S. 38,
41 n.4 (1984)). Evidentiary rulings, especially those addressing broad classes of evidence,
should often be deferred until trial so that questions of foundation, relevancy and potential
prejudice can be resolved in the proper context. Sperberg v. Goodyear Tire & Rubber Co., 519
F.2d 708, 712 (6th Cir. 1975); see also Starling v. Union Pac. R.R. Co., 203 F.R.D. 468, 482 (D.
Kan. 2001) (“it is the better practice to wait until trial to rule on objections when admissibility
substantially depends upon what facts may be developed there.”) (citations omitted). “Denial of
a motion in limine does not necessarily mean that all evidence contemplated by the motion will
be admitted at trial. Denial merely means that without the context of trial, the court is unable to
determine whether the evidence in question should be excluded.” Hawthorne Partners, 813 F.
Supp. at 1401.
II. RULINGS ON PLAINTIFF’S MOTIONS IN LIMINE
Plaintiff requests the Court to prohibit Defendants from introducing the following matters
into evidence:
1.
Any statement that mentions or divulges, directly or indirectly, the underlying
offense(s) for which the Plaintiff or any of the Plaintiff’s witnesses have been
incarcerated, as the effect of this is merely to prejudice the jury against the Plaintiff.
Fed. R. Evid. 402-404.
Defendants oppose this motion on the basis that evidence of Plaintiff’s and his witnesses’
underlying offenses is admissible for purposes of impeachment. Fed. R. Evid. 607-09.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. However, Rule 609(a)
permits the admission of convictions as evidence in limited circumstances “to attack[] a
witness’s character for truthfulness.” Fed. R. Evid. 609(a). Moreover, Rule 608(b) allows for
the use of specific instances of conduct not resulting in a conviction on cross-examination under
different circumstances. Fed. R. Evid. 608(b).
While Rule 404(b) prohibits admitting evidence of prior acts to prove character, “in order
to show that on a particular occasion the person acted in accordance with the character,”
evidence of other acts may be used for certain purposes, e.g., proving intent, motive, plan,
knowledge, identity, opportunity, or lack of mistake. Fed. R. Evid. 404(b); see also Lamar v.
Steele, 693 F.2d 559, 561 (5th Cir. 1983) (addressing admission to show plan or motive). These
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rules cannot be applied except in the context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,
Plaintiff’s motion in limine is DENIED without prejudice subject to raising objections at trial.
2.
Any comment on, reference to, or suggestion of any alleged misconduct of Plaintiff
that is not the basis of this lawsuit. Fed. R. Evid. 402-404.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-404. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. However, Rule 609(a)
permits the admission of convictions as evidence in limited circumstances “to attack[] a
witness’s character for truthfulness.” Fed. R. Evid. 609(a). Moreover, Rule 608(b) allows for
the use of specific instances of conduct not resulting in a conviction on cross-examination under
different circumstances. Fed. R. Evid. 608(b).
While Rule 404(b) prohibits admitting evidence of prior acts to prove character, “in order
to show that on a particular occasion the person acted in accordance with the character,”
evidence of other acts may be used for certain purposes, e.g., proving intent, motive, plan,
knowledge, identity, opportunity, or lack of mistake. Fed. R. Evid. 404(b); see also Lamar, 693
F.2d at 561. These rules cannot be applied except in the context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,
Plaintiff’s motion in limine is DENIED without prejudice subject to raising objections at trial.
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3.
Any comment on, reference to, or suggestion of any previous or subsequent
disciplinary actions taken against Plaintiff for incidents that are not the basis of this
lawsuit. Fed. R. Evid. 402-404.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. However, Rule 608(b)
allows for the use of specific instances of conduct not resulting in a conviction on crossexamination under certain circumstances to attack or support a witness’s character for
truthfulness. Fed. R. Evid. 608(b).
While Rule 404(b) prohibits admitting evidence of prior acts to prove character, “in order
to show that on a particular occasion the person acted in accordance with the character,”
evidence of other acts may be used for certain purposes, e.g., proving intent, motive, plan,
knowledge, identity, opportunity, or lack of mistake. Fed. R. Evid. 404(b); see also Lamar, 693
F.2d at 561. The admissibility of evidence of prior disciplinary proceedings will therefore
depend on the context and purpose of its introduction.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,
Plaintiff’s motion in limine is DENIED without prejudice subject to raising objections at trial.
4.
Any comment on, reference to, or suggestion of any grievances filed by Plaintiff that
are not the basis of this lawsuit. Fed. R. Evid. 402-404.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. However, Rule 608(b)
allows for the use of specific instances of conduct not resulting in a conviction on crossexamination under certain circumstances to attack or support a witness’s character for
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truthfulness. Fed. R. Evid. 608(b). Rule 404(b) prohibits admitting evidence of prior acts to
prove Plaintiff’s character, “in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b). However, evidence of prior acts may be
used for other purposes, e.g., proving intent, motive, plan, or lack of mistake. See id.; see also
Lamar, 693 F.2d at 561. The admissibility of such evidence will therefore depend on the context
and purpose of its introduction.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,
Plaintiff’s motion in limine is DENIED without prejudice.
5.
Any comment on the failure of the Plaintiff to call witnesses who are subject to
subpoena and available to any party in this case or any witness who produce any
documents. Fed. R. Evid. 402-403.
In federal trials, one party may not complain that the other failed to call a witness equally
available to both. United States v. Virgen-Moreno, 265 F.3d 276, 291 (5th Cir. 2001) (citation
omitted); Nichols v. Scott, 69 F.3d 1255, 1284 (5th Cir. 1995) (citation omitted); see also Fifth
Circuit Pattern Jury Instruction: Civil § 2.9 (2006) (“(Name of Witness) ______ was available to
both sides. Thus [the plaintiff] [the defendant] cannot complain that (Witness) was not called to
testify, because (Party) could have called (Witness).”). However, a witness is not equally
available merely because either party could compel his or her presence. United States v. MMR
Corp., 907 F.2d 489, 501-02 (5th Cir. 1990) (citation omitted). Other factors, including
relationship to the parties, may place such a witness particularly under one side’s control. See
Nichols, 69 F.3d at 1284 (citation omitted).
In federal courts, the uncalled witness rule allows a factfinder to draw a negative
inference from a party’s failure to call a witness only when that witness is “peculiarly within his
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power.” Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir. 1990) (per curiam)
(citing Graves v. United States, 150 U.S. 118, 121 (1893)); Streber v. Comm’r of Internal
Revenue, 138 F.3d 216, 221-22 (5th Cir. 1998). In Herbert, the Fifth Circuit explained that “we
conclude that the uncalled-witness rule has no place in federal trials conducted under the Federal
Rules of Evidence and the Federal Rules of Civil Procedure.” 911 F.2d at 1047. However, the
Herbert court noted that “the rule has so frequently been either applied or referred to in dicta in
this circuit since, as well as before, the adoption of the Federal Rules of Evidence, that it might
be considered the law of the circuit.” Id. at 1048-49.
Plaintiff’s request lacks any context, including the control of any specific witness.
Therefore, Plaintiff’s motion in limine is DENIED without prejudice.
6.
Any statement either referring to the filing of a dispositive motion, its contents, or
the ruling of the Court on any item contained therein. Fed. R. Evid. 403.
The fact that Defendants filed a dispositive motion cannot be relevant because it does not
tend to make any material fact more or less probable. Fed. R. Evid. 401. Accordingly,
Plaintiff’s motion in limine is GRANTED. See Niver v. Travelers Indem. Co. Of Ill ., 433 F.
Supp. 2d 968, 998-99 (N.D. Iowa 2006).
7.
Any testimony or argument regarding conclusions, speculation and/or lay opinions
as to the general character and reputation of the Plaintiff, and/or any of the
witnesses the Plaintiff may call to testify on his behalf. Fed. R. Evid. 402-404.
Defendants oppose this motion on the basis that Plaintiff’s witnesses, including
Defendants and Darlene Barfoot, should be allowed to testify as to their opinions and
perceptions regarding the incident as well as the day-to-day operations at the McConnell Unit
that form the basis of the action. (D.E. 91, at 2). Defendants contend that opinion testimony
regarding Ms. Barfoot’s interaction with Defendants and Plaintiff on the day of the incident is
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helpful to determine Plaintiff’s appearance and demeanor as well as Defendants’ mental state.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible, nor is unfairly prejudicial or misleading
evidence. Fed. R. Evid. 402, 403. Rule 404(a) provides that evidence of a person’s character or
a trait of character is not admissible for the purpose of proving action in conformity therewith.
However, Rule 608(a) provides that opinion and reputation evidence may be used to attack or
support a witness’ truthfulness under certain circumstances. See also Fed. R. Evid. 405(a). The
Federal Rules of Evidence require that opinion testimony by a lay witness be rationally based on
the witness’ perception and not based on scientific, technical or other specialized knowledge.
Fed. R. Evid. 701; see also United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997). These
rules cannot be applied except in the context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,
Plaintiff’s motion in limine is DENIED without prejudice subject to raising objections at trial.
8.
Any comment on, reference to, or comparison of this case to or any other incident
involving alleged violations of prisoners’ rights, other than the incident involved in
this lawsuit. Such evidence has no probative value and serves only to inflame the
jury. Any benefit from such evidence is substantially outweighed by the danger of
unfair prejudice. Fed. R. Evid. 402-404.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. Evidence of other acts
may be used for certain purposes, e.g., proving intent, motive, plan, or lack of mistake. Fed. R.
Evid. 404(b); see also Lamar, 693 F.2d at 561. These rules cannot be applied except in the
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context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Therefore, his
motion in limine is DENIED without prejudice.
9.
Any reference to actions of Defendants other than those relating to the incident and
complaint forming the basis of Plaintiff’s claim in the instant lawsuit. Fed. R. Evid.
402-403.
The Federal Rules of Evidence govern the admissibility of evidence generally. See Fed.
R. Evid. 401-04. Irrelevant evidence is not admissible. Fed. R. Evid. 402. Similarly, unfairly
prejudicial or misleading evidence is not admissible. Fed. R. Evid. 403. Evidence of other acts
may be used for certain purposes, e.g., proving intent, motive, plan, or lack of mistake. Fed. R.
Evid. 404(b); see also Lamar, 693 F.2d at 561. These rules cannot be applied except in the
context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Therefore, his
motion in limine is DENIED without prejudice.
10.
Any comment regarding the amount of resources, money, investigators, experts, etc.
that were used by the Office of the Attorney General in the defense of this case or
any other case regarding the defense of alleged prisoners’ rights violations. Fed. R.
Evid. 402-403.
Statements regarding Defendants’ expenditure of resources in this case cannot be
relevant because they do not tend to make any material fact more or less probable. See Fed. R.
Evid. 401. Accordingly, Plaintiff’s motion in limine is GRANTED.
11.
Any testimony, reference to, or comment on settlement negotiations or other actions
the parties may have undertaken to resolve this case prior to trial, as such evidence
has no probative value. Fed. R. Evid. 402-404.
Rule 408 of the Federal Rules of Evidence prohibits the admission of evidence that an
attempt to settle was made, as well as “conduct or statements made during compromise
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negotiations about the claim,” for the purpose of establishing liability, the amount of the claim,
or for impeachment purposes. Fed. R. Evid. 408(a). However, such evidence may be introduced
for other purposes. Fed. R. Evid. 408(b); see also Basha v. Mitsubishi Motor Credit of Am.,
Inc., 336 F.3d 451, 454 n.4 (5th Cir. 2003) (discussing other reasons for admission).
Plaintiff’s request is devoid of any specific context. Accordingly, his motion in limine is
DENIED without prejudice.
12.
Any statement either (a) referring to the filing of this motion, its contents, or the
ruling of the Court on any item contained within it; or (b) any reference that the
Plaintiff has moved the Court to exclude certain matters, or that this Court has
excluded proof on particular matters.
The fact that evidence has been excluded cannot be relevant because it does not tend to
make any material fact more or less probable. Fed. R. Evid. 401. For this reason, Plaintiff’s
motion in limine is GRANTED. See Niver, 433 F. Supp. 2d at 998-99.
13.
Any documents, studies, materials, investigations, statements or other records, not
previously produced to Plaintiff prior to trial.
This Court is vested with broad discretion to preserve the integrity and purpose of the
pretrial scheduling order. Barrett v. Atlantic Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996).
The Federal Rules of Civil Procedure provide a list of potential sanctions for failing to comply
with a scheduling order. Fed. R. Civ. P. 37(b)(2); accord Barrett, 95 F.3d at 380.
There is no reason to rule on this issue until presented in the context of the actual trial. In
fashioning a sanction, a trial “court should impose only that sanction which is the least severe
way to effect compliance with the court’s discovery orders.” United States v. Garrett, 238 F.3d
293, 298 (5th Cir. 2000) (citation omitted). The Fifth Circuit has explained that “[i]n exercising
its discretion in considering the imposition of sanctions for discovery violations, a district court
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should consider the following factors: (1) the reasons why the disclosure was not made; (2) the
amount of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a
continuance of trial; and (4) any other relevant circumstances.” United States v. Garza, 448 F.3d
299-300 (5th Cir. 2006) (citations omitted). Moreover, it may be proper to allow the jury to
draw a negative inference from the fact that evidence was not produced. See King v. Ill. Cent.
R.R., 337 F.3d 550, 556 (5th Cir. 2003) (citation omitted); Caparatta v. Entergy Corp., 168 F.3d
754, 756 (5th Cir. 1999). Accordingly, Plaintiff's motion in limine is DENIED without
prejudice.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motions in limine, (D.E. 88), are DENIED in part
and GRANTED in part.
ORDERED this 18th day of December 2012.
____________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE
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