Huff v. Jackson et al

Filing 80

OPINION GRANTING IN PART AND DENYING IN PART 72 Motion in Limine.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(mserpa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CHESTER LOWE HUFF
TDCJ-CID #582855
v.
WARDEN NORRIS JACKSON

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C.A. NO. C-11-149

OPINION 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. 72). Plaintiff seeks a ruling on nine different matters in
advance of trial. Defendant did not file any opposition to this motion. For the reasons that
follow, this motion is 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 Defendant from introducing the following matters
into evidence:
1.

Any statements or documents which detail Plaintiff’s or any witness’s criminal
history. While the conviction that was the basis for Plaintiff’s or a witness’s most
recent incarceration may be specified, the details of the crime or any prior
convictions should not be discussed with or presented to the jury. Fed. R. Evid. 402404; see also Fed. R. Evid. 609(a)(1)(A).
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 rules cannot be applied except in the context of specific evidence.
Plaintiff’s request is overly broad and devoid of any specific context. Accordingly,

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Plaintiff’s motion in limine is DENIED without prejudice subject to raising objections at trial.
2.

Any evidence requested by Plaintiff in discovery but not produced by Defendant.
Specifically, but not in limitation, any witness statements or documents, or portions
thereof, withheld from Respondent during the discovery process. Fed. R. Civ. P.
37(c); Fed. R. Evid. 612-613, 801-802.
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
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.

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3.

The testimony of any witness who was not disclosed or named by Defendant during
the discovery process as a person with knowledge or as a possible witness. Fed. R.
Civ. P. 37(c)(1).
This Court is vested with broad discretion to preserve the integrity and purpose of the

pretrial scheduling order. Barrett, 95 F.3d at 380. 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.” Garrett, 238 F.3d at 298. The Fifth
Circuit has explained that “[i]n exercising its discretion in considering the imposition of
sanctions for discovery violations, a district court 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.” Garza, 448 F.3d at 299-300. Moreover, it may be proper to allow the jury to
draw a negative inference from the fact that evidence was not produced. See King, 337 F.3d at
556; Caparatta, 168 F.3d at 756. Accordingly, Plaintiff's motion in limine is DENIED without
prejudice.
4.

Any statements or documents regarding Plaintiff’s or a witness’s disciplinary
record while incarcerated, other than disciplinary events that occurred while
Plaintiff or the witnesses were in administrative segregation or that resulted in
Plaintiff or the witnesses initially being placed in administrative segregation during
the relevant period. Fed. R. Civ. P. [sic] 402.
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

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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.
5.

Any reference or argument about the failure to call any person as a witness to
testify in the present action, or to make reference to, comment on, or speculate
before the jury about the substance of what the testimony of any absent witnesses
would be. Fed. R. Evid. 402.
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

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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
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
court also 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. However, to the extent
Plaintiff seeks to prohibit Defendant from mentioning the anticipated testimony of an absent
witness, Plaintiff’s motion in limine is GRANTED.
6.

Any attempt to elicit testimony from Plaintiff about communications with his
attorneys. Fed. R. Evid. 502.
Not all communications with counsel are privileged. The attorney-client privilege

applies to confidential communications made for the purposes of securing legal advice. United
States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994). The party asserting the attorney-client
privilege bears the burden of proving it. United States v. Newell, 315 F.3d 510, 525 (5th Cir.
2002); United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985). “Blanket claims of
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privilege are disfavored.” Nguyen v. Excel Corp., 197 F.3d 200, 206 n.16 (5th Cir. 1999)
(citations omitted). Furthermore, the privilege can be waived. See, e.g., Willy v. Administrative
Review Bd., 423 F.3d 483, 497 (5th Cir. 2005); Newell, 315 F.3d at 525-26.
Plaintiff may assert the privilege at trial regarding a specific communication.
Accordingly, plaintiff’s motion in limine is DENIED without prejudice.
7.

Any comment from Defendant’s attorney regarding his personal opinion about the
credibility of any witness or the truth or falsity of any testimony or statement. Fed.
R. Evid. 402-403.
It is improper for an attorney to express his own opinion about the credibility of a

witness. See, e.g., United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978) (citations omitted).
Accordingly, Plaintiff’s motion in limine is GRANTED.
8.

Any reading or reference to comments or statements of attorneys, other than
questions to witnesses, contained in any deposition taken in this case. Fed. R. Evid.
402-404.
The Federal Rules of Evidence govern relevance, as well as the admissibility of hearsay

evidence, and of evidence that may unfairly prejudice Plaintiff. See Fed. R. Evid. 402-04,
803-05, 807. These rules need to be applied in the context of a specific statement to determine
whether a hearsay statement is being made and whether an exception exists. Any such attempt to
introduce hearsay evidence must be evaluated pursuant to those rules based on Plaintiff’s timely
objection. Accordingly, Plaintiff’s motion in limine is DENIED without prejudice.
9.

Referring to the filing of this motion in limine or to any ruling by the Court in
response to this motion. Fed. R. Evid. 402-403.
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 v. Travelers Indem. Co. Of Ill ., 433 F. Supp. 2d 968,
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998-99 (N.D. Iowa 2006).
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motions in limine, (D.E. 72), are DENIED in part
and GRANTED in part.
ORDERED this 2nd day of January 2013.

____________________________________
BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE

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