Herrera v. Texas Department of Criminal Justice
ORDER GRANTING 202 Motion in Limine. Signed by Judge David Ezra. (rf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
J. AGUILAR, Individually; and
J. GUZMAN, Individually,
CV. NO. SA-10-CV-00569-DAE
ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE
Plaintiff David Herrera (“Plaintiff”) brings this suit pursuant to the
Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging a deprivation of his rights
under the Eighth Amendment to the United States Constitution stemming from
events that took place on January 3, 2010, while in the custody of the Texas
Department of Criminal Justice (“TDCJ”) Dolph Briscoe Unit. Plaintiff alleges
that TDCJ Officers Jose Aguilar and Jose Guzman (collectively “Defendants”)
assaulted Plaintiff, causing a broken eye-socket, nose, and cheek-bone, and loss of
consciousness. Plaintiff’s excessive force claim has survived dispositive motions,
and a jury trial is scheduled to commence on September 30, 2013.
On September 23, 2013, the Court heard argument regarding
Defendants’ Motion in Limine to limit any reference to disciplinary actions taken
against Defendants as a result of the incidents forming the basis of this lawsuit.
(Dkt. # 202.) Although Plaintiff did not file a response, Plaintiff’s counsel was
present at the hearing. For the reasons outlined below, the Court GRANTS
Defendants’ Motion in Limine.
Neither this Court, nor counsel, has been able to find any Fifth Circuit
case law discussing the admissibility of disciplinary action evidence against
defendants in a civil suit for excessive force. Several other circuit courts, however,
have deemed disciplinary action evidence inadmissible for a host of reasons, each
of which will be discussed in turn.
Federal Rule of Evidence 401
Evidence is relevant when it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.” Fed. R. Evid. 401. To be
relevant, the evidence must “advance the inquiry.” 1 J. Weinstein & M. Berger,
Weinstein’s Federal Evidence § 401.04[b].
In Thompson v. City of Chicago, the Seventh Circuit found that a
violation of the Chicago Police Department’s General Orders “would have failed to
advance the inquiry” into whether an officer violated the plaintiff’s Fourth
Amendment rights by using excessive force. 472 F.3d 444, 453 (7th Cir. 2006).
The court acknowledged that the General Orders may give police administration a
framework to evaluate officer conduct and job performance, but the Orders “shed
no light on what may or may not be considered ‘objectively reasonable’ under the
Fourth Amendment given the infinite set of disparate circumstances which officers
might encounter.” Id. at 454. Accordingly, the Seventh Circuit held that “the
violation of police regulations or even a state law is completely immaterial as to
the question of whether a violation of the federal constitution has been
As in Thompson, any evidence of Defendants’ administrative
sanctions or disciplinary proceeding would not “advance the inquiry” regarding
whether Defendants violated Plaintiff’s Eighth Amendment rights. To state an
Eighth Amendment excessive force claim, a plaintiff must show that force was
applied not “in a good faith effort to maintain or restore discipline,” but rather
“maliciously and sadistically to cause harm.” Rankin v. Klevenhagen, 5 F.3d 103,
107 (5th Cir. 1993) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)).
Evidence of Defendants’ administrative reprimand by TDCJ does not inform the
jury whether Defendants inflicted malicious or sadistic harm on Plaintiff. The
administrative guidelines used to reprimand correctional officers may be well
above—or even below—the threshold inquiry for an Eighth Amendment excessive
At the hearing, Plaintiff’s counsel argued that Thompson is inapposite
because Thompson addresses the admissibility of administrative sanctions in the
Fourth Amendment context—not the Eighth Amendment. Plaintiff cited Mays v.
Springborn, 575 F.3d 643, 650 (7th Cir. 2009) (“[A]lthough violation of the
prison’s rule against public searches was not, by itself, a violation of the
constitution, it was relevant evidence on which the jury could have relied to
conclude that the searches were done with an intent to harass.”) and Maus v.
Greening, No. 09-CV-42, 2012 WL 4903326 (E.D. Wisc. Oct. 15, 2012)
(distinguishing Thompson because that case involved the Fourth Amendment and
holding that “[i]n the Eighth Amendment context, the Seventh Circuit has held that
the knowing violation of prison rules—although not dispositive—is relevant
evidence” (citing Mays, 575 F.3d at 650)). Relying on these two cases, Plaintiff
urges that evidence of the prison correctional guards’ administrative sanctions is
thus relevant for his Eighth Amendment cause of action.
This Court is not persuaded. Precluding evidence under the Fourth
Amendment, while admitting the evidence under the Eighth Amendment, is a
distinction without a difference. Although a § 1983 Fourth Amendment cause of
action asks whether the actor’s use of force was reasonable and an Eighth
Amendment cause of action asks whether the use of force was used maliciously
and sadistically, both actions share an overarching element: whether the use of
force was excessive in violation of a plaintiff’s constitutional rights.
Additionally, even though this Court acknowledges that Mays and
Maus hold such evidence permissible, the Court finds neither case is binding
precedent and contrary federal case law precluding such evidence is more
persuasive. See Delker v. Blaker, No. 09-CV-710, 2012 WL 726415, *6–8 (W.D.
Pa. Mar. 1, 2012) (explaining that any discipline received by the correctional
officers is of “limited probative value” because the relevant Eighth Amendment
inquiry was for the jury—not some other adjudicative body—to determine whether
the officers acted in a manner that comported with their training); Mathews v. Carr,
1:10-cv-633-SEB-DKL, 2011 WL 6016646, at *4 (S.D. Ind. Dec. 2, 2011)
(“[W]hether or not DOC or CMS policies were violated is not material to whether
or not Dr. Carr violated Mathews’ Eighth Amendment rights.”); Titus v. Carter,
07-CV-614-MJR, 2011 WL 798908, at *1–2 (S.D. Ill. Fed. 24, 2011) (relying on
Thompson to preclude evidence of IDOC regulations for purposes of establishing
the Eighth Amendment violation itself).
Federal Rule of Evidence 403
Rule 403 requires exclusion of relevant evidence if “its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury.” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d
867, 882 (5th Cir. 2013) (quoting Fed. R. Evid. 403).
The Ninth Circuit considered whether a disciplinary proceeding
against a police officer was admissible in a plaintiff’s § 1983 claim in Maddox v.
City of Los Angeles, 792 F.2d 1408 (1986). The court first found that admitting
any disciplinary proceeding had little probative value because the trier of fact was
privy to other evidence to determine the reasonableness of the officer’s conduct.
Id. at 1417. More importantly, the court held that the prejudicial effect was
“arguably great” because “[t]he jury might have inferred that Officer Harris was
guilty of wrongdoing merely because the Police Department conducted
disciplinary proceedings,” or “[t]he jury might have given unfair or undue weight
to this evidence or they might have been confused as to the relevance of this
evidence.” Id. at 1417–18.
A similar conclusion was reached in Tanberg v. Sholtis, 401 F.3d
1151 (10th Cir. 2005). There, a plaintiff wished to proffer evidence that an officer
violated police standard operating procedure and that the Albuquerque Police
Department attempted to discipline the officer for the violation. Id. at 1164. But
the Tenth Circuit held that the similarity of the police rules to the objective
“reasonableness” standard under state and federal law would cause jury confusion.
Id. at 1165. In fact, such evidence would “tempt” the jury to conclude that if the
officer’s actions violated the police procedures, and the police procedures were
similar to the federal “reasonableness” standard, then the officer must have
violated the federal requirement. Id.
Maddox and Tanberg effectively capture the significant danger of
unfair prejudice if evidence of Defendants’ disciplinary proceedings is admitted
and the minimal probative value that the evidence holds. The jury may infer that
Defendants are guilty of excessive force merely because TDCJ conducted a
disciplinary hearing—a highly prejudicial outcome that Rule 403 was designed to
guard against. As Defendants submit, the “best case scenario is that the jury
recognizes this evidence as irrelevant and ignores it.” (Dkt. # 202 at 5.) But this
best case scenario is unlikely given the “temptation” to equate an administrative
sanction for excessive force with a constitutional violation for excessive force.
Furthermore, the disciplinary report itself demonstrates the danger of
unfair prejudice. (Dkt. # 210, Pl’s. Ex. 3; see also Dkt. # 49, Ex. 1 at 11.) The
report summarizes: “Use of force was required due to threat of harm to staff but
was excessive in gaining control of offender. [I]n addition there were procedural
errors in the escort of the offender participant to the medical examination and
housing.” (Id.) The report does not explain why the force was required other than
vaguely referring to a threat of harm to the staff, 1 nor does it provide any
clarification as to why the subsequent force to gain control was excessive. This
lack of detail is precisely the reason that a danger of unfair prejudice exists.
Federal Rule of Evidence 407
Last, Rule 407 bars evidence of any disciplinary proceedings against
Defendants. Rule 407 provides in relevant part: “When, after an event, measures
are taken which, if taken previously, would have made the event less likely to
occur, evidence of the subsequent measures is not admissible to prove negligence
or culpable conduct in connection with the event.”
In Specht v. Jensen, the Tenth Circuit held that a press release
summarizing the results of the City’s investigation of the incidents giving rise to
the lawsuit was inadmissible under Rule 407. 863 F.2d 700, 701–02 (10th Cir.
1988). The release stated that the officers involved exercised poor judgment and
that appropriate disciplinary action would be taken. Id. at 701. Because the
release set forth the remedial measures taken by the City to prevent the recurrence
of poor judgment, the release was within the ambit of Rule 407’s prohibition. Id.
Here, TDCJ purportedly sought to discipline Defendant Guzman to
reform his future behavior and instruct other correctional officers on the
appropriate conduct under similar circumstances. Because the disciplinary
Plaintiff’s counsel contends that there was no justified use of force,
yet this report clearly concludes otherwise.
proceeding was, at least in part, remedial in nature, Rule 407 precludes its
For the foregoing reasons, this Court GRANTS Defendants’ Motion
IT IS SO ORDERED.
DATED: San Antonio, Texas, September 24, 2013.
David Alan Ezra
Senior United States Distict Judge
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