Young v. Lacy et al

Filing 137

MEMORANDUM OPINION AND ORDER setting forth the reasons, as more fully set forth herein, for the rulings in the 136 Order entered on 3/31/2020 re: the granting in part and denying in part of plaintiff's 84 Motion in Limine, the denying of pla intiff's 86 Motion for Appointment of Counsel, 97 Renewed Motion for Appointment of Counsel, and 98 Motion for Summary Judgment; and the denying of defendant's 93 Motion for Summary Judgment, the granting of defendant's 99 Motion to Strike Affidavit, 108 Motion to Strike Plaintiff's Sur-Reply, 104 Omnibus Motion in Limine and 105 Motion in Limine. Signed by Senior Judge David A. Faber on 4/6/2020. (cc: counsel of record and any unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
LARRY ARNOLD YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-03633

T.A. LACY,
Defendant.
MEMORANDUM OPINION AND ORDER
On March 31, 2020, the court ruled on the following
motions:

plaintiff’s Motion in Limine, (ECF No. 84), Motion for

Appointment of Counsel and Renewed Motion for Appointment of
Counsel, (ECF Nos. 86 and 97), and Motion for Summary Judgment,
(ECF No. 98), and defendant’s Motion for Summary Judgment, (ECF
No. 93), Motion to Strike Affidavit, (ECF No. 99), Omnibus
Motion in Limine, (ECF No. 104), Motion in Limine, (ECF No.
105), and Motion to Strike Plaintiff’s Sur-Reply.
108.)
I.

(ECF No.

The reasons for these rulings follow.
General Factual and Procedural Background

On July 20, 2016, state authorities received a report that
plaintiff sexually assaulted a six-year-old female child.
Nos. 53-1, 53-2.)

(ECF

Plaintiff was arrested at a residence on July

22, 2016 and appeared for a preliminary hearing before a county
magistrate, who found probable cause that plaintiff committed
sexual assault in the first degree and sexual abuse in the first

degree.

(ECF Nos. 53-1, 53-2.)

A Mercer County, West Virginia

grand jury subsequently charged plaintiff with one count of
sexual assault in the first degree and two counts of sexual
abuse in the first degree.

(ECF No. 53-4.)

Plaintiff was

ultimately tried before a jury and acquitted of all charges on
March 15, 2018.

(ECF No. 55.)

While plaintiff’s criminal case was pending in state court,
plaintiff filed Case No. 1:17-cv-03633 in this court, naming as
defendants T.A. Lacy (“Lacy”), Aaron Young (“Young”), and Perry
Richmond (“Richmond”).

(ECF No. 1.)

In an amended complaint,

plaintiff asserted that Steven Sommers (“Sommers”), Lacy, and
Jeremy Farmer (“Farmer”) “illegally entered and searched . . .
the trailer” where plaintiff was found on July 22, 2016, and
arrested him without a warrant.

(ECF No. 33 at 2.)

Plaintiff

claimed that Lacy “illegally search[ed] [the trailer] after he
was asked to leave the premises.”

(Id. at 3.)

Plaintiff also

alleged that, in the course of the arrest, Lacy snuck behind
him, grabbed his left hand, twisted his arm behind his back, and
something “cracked” in plaintiff’s wrist.

(Id. at 2.)

Plaintiff claimed that he has “suffered constant pain in [his]
left wrist ever since that moment” and could not use his left
hand “without insulting the injury and suffering severely.”
(Id. at 3.)

Plaintiff further asserted that Richmond and Young

applied excessive force in removing him from the courtroom after
2

two of his criminal hearings.

(ECF Nos. 1 at 29-31, 13 at 3-22,

33, and 33-1 at 1-36.)
Defendants filed a motion for summary judgment and amended
motion for summary judgment accompanied by memoranda in support,
to which plaintiff filed a response.
and 55.)

(ECF Nos. 48, 49, 53, 54,

On May 11, 2018, Magistrate Judge Cheryl Eifert issued

Proposed Findings and Recommendations (“PF&R”), concluding that
plaintiff had raised genuine issues of fact with respect to his
Fourth Amendment claims of an illegal search and false arrest,
but failed to state valid claims of excessive force.
57.)

(ECF No.

Magistrate Judge Eifert recommended that defendants

Richmond and Young be dismissed from the case; that the
excessive force claim against Lacy be dismissed, and that
plaintiff be permitted to proceed on his claims against Lacy of
improper search and false arrest.

(Id.)

On September 28, 2018, this court adopted the findings and
recommendations in the PF&R, except this court found no factual
basis to support the false arrest claim.

(ECF No. 65.)

Consequently, the court dismissed defendants Richmond and Young
from the case, dismissed the false arrest and excessive force
claims against Lacy, and allowed plaintiff to proceed with his
Fourth Amendment illegal search claim against Lacy.

(Id.)

On October 17, 2018, plaintiff filed a Notice of Appeal
with the Fourth Circuit.

(ECF No. 70.)
3

The Fourth Circuit

dismissed the appeal on January 30, 2019 due to plaintiff’s
failure to prosecute.

(ECF No. 78.)

On April 18, 2019, the

Fourth Circuit reopened plaintiff’s appeal, noting that
plaintiff evidently did not receive critical filings in the
matter because the Clerk of the Fourth Circuit was not using the
correct mailing address.

(ECF No. 91.)

On June 13, 2019, this

court stayed plaintiff’s remaining claim pending completion of
plaintiff’s appeal.

(ECF No. 110.)

On August 26, 2019, the

Fourth Circuit denied the appeal on the ground that it lacked
jurisdiction over the matter, because this court had not issued
a final order, nor an appealable interlocutory or collateral
order.
II.

(ECF No. 111.)
The Motions at Issue
a. Plaintiff’s Motions for Appointment of Counsel

On August 15, 2017, plaintiff filed a motion for
appointment of counsel.

(ECF No. 12.)

denied that motion without prejudice.

Magistrate Judge Eifert
(ECF No. 20.)

On April

4, 2019, plaintiff filed a renewed motion for appointment of
counsel, asking the court to appoint counsel to represent him
because he is not trained in law and cannot afford counsel.
(ECF No. 86.)

Then on May 17, 2019, plaintiff again filed a

renewed motion for appointment of counsel, making the same
argument as above and adding that a trial date was approaching.
(ECF No. 97.)
4

b. Parties’ Motions for Summary Judgment
On May 1, 2019, defendant Lacy filed a motion for summary
judgment, arguing that plaintiff’s remaining unlawful entry and
search claim fails because defendant is entitled to qualified
immunity.

(ECF No. 94.)

Defendant argues that he is entitled

to qualified immunity because his entry into plaintiff’s trailer
occurred only after his partner, Detective Sommers, had already
entered the home.

He also asserts in an affidavit that he was

not in a position to be able to hear whether plaintiff responded
to Detective Sommers’ yells inside the home requesting entry,
and that at no time did plaintiff ever request or demand that
the officers leave the residence.
8.)

(ECF No. 93, Ex. 2 at ¶¶ 5-

Thus, defendant claims he entered the residence both to

protect Sommers and because he reasonably believed that Sommers
had plaintiff’s consent to enter.

Moreover, he contends that

even if his entry did violate the Fourth Amendment, it is not
clearly established that a subsequent entry in these
circumstances is unlawful.
Plaintiff filed a Response on May 17, 2019, 1 countering that
Sommers never yelled inside the residence requesting permission
The court notes that plaintiff’s Response (which included an
opposing motion for summary judgment) was filed out of time, and
that he never sought leave of the court to file out of time.
Plaintiff, in a later sur-reply, asserts that he had an
operation on May 5, 2019, which required him to be hospitalized
and reduced his ability to timely file a Response. (ECF No.
1

5

to enter, and that after learning the officers did not have a
search warrant, plaintiff asked the officers to leave the
residence.

(ECF No. 98 at ¶ 2.)

Additionally, plaintiff claims

that after he requested the officers leave, Lacy remained in the
residence and continued his search, and emerged from the
residence several minutes later carrying a rifle.
4, 10.)

(Id. at ¶¶ 2,

Plaintiff argues that he is entitled to summary

judgment on these grounds.

Plaintiff also directs the court’s

attention to the affidavits of Kevin and Brandon Harris, (ECF
Nos. 96-1 and 96-2), as support for his claims. 2
Defendant responds that plaintiff has presented no evidence
that creates a genuine issue of material fact on defendant’s
qualified immunity argument.

(ECF No. 100.)

Defendant contends

that his earlier argument for why qualified immunity applies

106.) He also asserts that he is pro se and thus the court
should grant him some leniency on procedural matters. (Id.)
The court concludes that while in the future plaintiff should
file a motion requesting permission to file out of time, for
good cause shown and in the interests of justice, the court will
consider plaintiff’s Response and his motion for summary
judgment to be timely filed. Cf. Torres v. Oakland Scavenger
Co., 487 U.S. 312, 316 (1988) (“[T]he rules of procedure should
be liberally construed [so] that ‘mere technicalities’ [do] not
stand in the way of consideration of a case on its merits.”).
Note that the above referenced sections of plaintiff’s surreply are not the subject of defendant’s motion to strike, (ECF
No. 108), discussed infra Part III.c.
The court addresses these affidavits in its consideration of
defendant’s motions to strike. See infra Part III.c.
2

6

holds firm, as once Sommers breached the entry of the residence,
Lacy’s entry became reasonable, and even if Lacy’s subsequent
entry into the residence constitutes a Fourth Amendment
violation, the law was not clearly established at the time that
an officer cannot follow his superior into a residence.
id.)

(See

Lastly, defendant argues that plaintiff’s motion for

summary judgment should not be granted because a genuine issue
of material fact remains as to whether the officers knocked
prior to entering the residence and whether their entry was
reasonable.

(Id.)

Plaintiff later filed a sur-reply, (ECF No. 106), which the
court will address in its consideration of defendant’s motions
to strike.

See infra Part III.c.

c. Defendant’s Motions to Strike
On May 22, 2019, defendant filed a motion to strike the
affidavits of Kevin and Brandon Harris, (ECF Nos. 96 and 96-1),
because the affidavits were deficient and improper.
99.)

(ECF No.

Specifically, defendant points out that the affidavits

were unnotarized, in violation of West Virginia Code §§ 39-4-15,
39-4-16, and do not establish they are made on personal
knowledge, in violation of Federal Rule of Civil Procedure
56(c)(4).

Plaintiff responded that the affidavits were proper

7

and the notary accidentally forgot to stamp the documents. 3

(ECF

No. 106.)
Defendant filed a second motion to strike on June 10, 2019,
seeking to strike plaintiff’s sur-reply portion of plaintiff’s
response to defendant’s reply, (ECF No. 106), because plaintiff
filed such sur-reply without leave of court, in violation of
Local Rule of Civil Procedure 7.1(a)(7).

(ECF No. 108.)

Plaintiff filed no response to this motion to strike.
d. Parties’ Motions in Limine
Plaintiff filed a motion in limine on March 27, 2019,
asking the court to issue orders preventing defendant from
presenting any evidence of plaintiff’s past criminal history and
preventing defendant from presenting any evidence of any past
lawsuits filed by plaintiff.

(ECF No. 84.)

Defendant responded to this motion, arguing that plaintiff
has not identified the criminal history or past lawsuits he is
seeking the court to exclude.

(ECF No. 89.)

Defendant lists

the criminal history and past lawsuits he presumes that
plaintiff is requesting exclusion of, including plaintiff’s 1989
conviction upon a guilty plea for continuing criminal enterprise
and the state court charges that were the inception of this

This portion of plaintiff’s filing is not the subject of
defendant’s motion to strike, (ECF No. 108), discussed infra
Part III.c.
3

8

civil case.

Defendant then states that while he does not

anticipate utilizing 404(b) evidence of plaintiff’s prior
conviction for continuing criminal enterprise, see Fed. R. Evid.
404, he does anticipate bringing up some of the underlying facts
of the sexual assault state court charges, as they form the
basis of this civil action.

He argues that the jury will likely

need to hear evidence as to why defendant was present at
plaintiff’s residence on July 22, 2016, which will necessarily
include the investigation of the allegations for which plaintiff
was arrested, tried, and acquitted.

As to plaintiff’s past

lawsuits, defendant argues that if plaintiff remains determined
to testify about physical injuries he allegedly sustained by
defendant Lacy and the previously dismissed defendants,
defendant should be permitted to question plaintiff regarding
the same.
Defendant then filed two motions in limine on June 4, 2019,
requesting that the court:

prevent plaintiff from making any

“golden rule” argument; sequester all witnesses; prevent any
discussion of insurance; prevent introduction of any formula for
general damages; prevent argument that plaintiff was forced to
go to trial or that the failure to settle was the fault of
defendant; prevent argument that defendant has delayed this case
proceeding to trial; prevent plaintiff from raising issues
outside the evidence in rebuttal closing argument; and prevent
9

testimony or evidence regarding dismissed claims or claims
against dismissed parties.

(ECF Nos. 104 and 105.)

Plaintiff

filed no response to these motions.
III. Analysis
a. Plaintiff’s Motions for Appointment of Counsel
There is no constitutional right to counsel in an action
brought under 42 U.S.C. § 1983.

See 28 U.S.C. § 1915(e)(1)

(2010); see also Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir.
1975).

Although the court has some discretion in assigning

counsel, the Fourth Circuit has clearly stated that motions for
the appointment of counsel in civil actions should be granted
“only in exceptional cases.”
(4th Cir. 1975).

Cook v. Bounds, 518 F.2d 779, 780

When determining whether a particular case

rises to that level, the court must consider the complexity of
the claims in dispute and the ability of the indigent party to
present them.

Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.

1984); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir.
1982) (“[N]o comprehensive definition of exceptional
circumstances is practical.

The existence of such circumstances

will turn on the quality of two basic factors-the type and
complexity of the case, and the abilities of the individuals
bringing it.”) (footnote omitted).
Plaintiff argues that he is not trained in law and cannot
afford counsel.

(See ECF Nos. 86 and 97.)
10

Unfortunately, these

grounds are not exceptional.

Many pro se litigants are unable

to find lawyers willing to represent them, and many lack funds
to hire counsel on an hourly basis.

Most pro se plaintiffs also

lack legal training and education.

These limitations do not, in

and of themselves, satisfy the “exceptional” standard to justify
the appointment of counsel.

See, e.g., Christian v. Hale, 2019

WL 7559789, at *1 (S.D.W. Va. June 27, 2019), report and
recommendation adopted, 2019 WL 3801549 (S.D.W. Va. Aug. 13,
2019) (declining to appoint counsel where plaintiff “is
indigent, cannot afford to hire counsel, and has limited
knowledge of the law”); Louis v. Martinez, 2010 WL 1484302, at
*1 (N.D.W. Va. Apr. 12, 2010) (declining to appoint counsel even
in circumstances where the plaintiff was incarcerated, housed in
the special housing unit, subjected to continuous lock down, and
had restricted access to the law library and no opportunity to
obtain legal assistance from fellow inmates).
Having reviewed plaintiff’s filings, the court finds
plaintiff to be capable of retaining counsel or presenting his
claims at this stage of the litigation.

While this case appears

to be headed to trial, which presents more complex issues for a
pro se plaintiff to deal with, plaintiff has simply presented no
circumstances that are close to exceptional.

Accordingly,

plaintiff’s motions for appointment of counsel were DENIED.

11

b. Parties’ Motions for Summary Judgment
In evaluating summary judgment motions, Rule 56(a) of the
Federal Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there is
no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”

A genuine issue of

material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in the light most
favorable to the non-moving party, a reasonable juror could
return a verdict for the non-movant.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing that there
is an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party meets its burden, then the non-movant must set
forth specific facts that would be admissible in evidence that
demonstrate the existence of a genuine issue of fact for trial.
Id. at 322-23.
The court found that genuine issues of material fact remain
as to both defendant’s and plaintiff’s motions for summary
judgment, and thus denies both motions.

As to plaintiff’s

motion, the genuine issues of material fact that remain are
whether the officers knocked or yelled prior to entering the
residence, and whether plaintiff ever gave or withdrew consent
12

for the officers to enter and search his residence.

While

plaintiff claims that the officers never knocked, that he never
gave consent for their entry, and that even if he consented at
some point he withdrew that consent when he asked them to leave,
defendant claims that the officers stopped at the open front
door and announced their presence by yelling for plaintiff, and
that plaintiff never requested or demanded that the officers
leave the residence.

A reasonable juror could find defendant’s

account more credible than plaintiff’s, which would then entitle
a verdict in defendant’s favor because no Fourth Amendment
violation would have occurred if plaintiff consented to the
officer’s entry and search.

See Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973) (“[A] premises search conducted pursuant to
valid consent cannot violate the Fourth Amendment.”).
Therefore, plaintiff’s motion for summary judgment was DENIED.
Regarding defendant’s motion for summary judgment, as an
initial matter, defendant is correct that he is entitled to
qualified immunity for his initial entry into the residence,
regardless of whether plaintiff consented to that entry.

“The

doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
13

Pearson

Fitzgerald, 457 U.S. 800, 818 (1982)).

“For a right to be

clearly established, ‘existing precedent must have placed the
statutory or constitutional question beyond debate.’”

White v.

Pauly, 137 S. Ct. 548, 551, (2017) (quoting Mullenix v. Luna,
136 S. Ct. 305, 308 (2015)).

Qualified immunity thus protects

law enforcement officers from “bad guesses in gray areas,” and
it ensures that they may be held personally liable only “for
transgressing bright lines.”
295, 298 (4th Cir. 1992).
two inquiries:

Maciarello v. Sumner, 973 F.2d

Qualified immunity analysis involves

(1) whether the plaintiff has established the

violation of a constitutional right; and (2) whether that right
was clearly established at the time of the alleged violation.
Pearson, 555 U.S. at 232.
Defendant is entitled to qualified immunity for his entry
into the residence because he followed Sommers into the
residence, not knowing that Sommers may not actually have had
consent to enter.

Even if plaintiff did not give consent for

Sommers to enter, Lacy’s subsequent entry would not violate the
Fourth Amendment because it was reasonable.

See Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006) (the ultimate
touchstone of the Fourth Amendment is “reasonableness”).

While

it is a basic principle of Fourth Amendment law that searches
inside a home without a warrant are presumptively unreasonable,
see, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004),
14

warrantless entry and searches conducted with consent do not
violate the Fourth Amendment.

See Schneckloth, 412 U.S. at 219.

It was reasonable for Lacy to assume that Sommers did have
consent to enter the residence – regardless of whether that
assumption was true – because Lacy was not in a position to hear
a response from plaintiff and because “[n]o settled Fourth
Amendment principle requires [an] officer to second-guess the
earlier steps already taken by his or her fellow officers.”
White, 137 S. Ct. at 552; see also Sargent v. City of Toledo
Police Dept., 150 F. App’x 470, 474 (6th Cir. 2005) (“no Fourth
Amendment violation occurs when an officer follows a partner
inside after the partner has already entered the home”).
Therefore, not only was defendant’s entry reasonable, and thus
did not violate the Fourth Amendment, but even in the
alternative that his entry did violate the Fourth Amendment, it
is not clearly established that defendant’s action violated
plaintiff’s constitutional rights.

Therefore, defendant is

entitled to qualified immunity for his entry into the residence.
Defendant’s motion for summary judgment must be denied,
however, because of the genuine issue of material fact of
whether plaintiff ever requested or demanded that the officers
leave the residence.

While his entry may be protected by

qualified immunity, both his remaining in the residence and
continuing to search the residence are not.
15

Although a search

conducted pursuant to valid consent cannot violate the Fourth
Amendment, the consenting party may limit the scope of that
search, and may at any moment retract his consent.

See Florida

v. Jimeno, 500 U.S. 248, 251–52 (1991) (“A suspect may of course
delimit as he chooses the scope of the search to which he
consents.”).

This rule of law is clearly established by the

Supreme Court’s statement in the Jimeno case.

See id.; see

also, e.g., United States v. Ortiz, 669 F.3d 439, 445 (4th Cir.
2012) (“[A]ny consent given is valid until it is withdrawn by
the defendant.”); Manzanares v. Higdon, 575 F.3d 1135, 1147
(10th Cir. 2009) (“[A]n objectively reasonable officer would
have known that Higdon's continued presence in the Manzanares
home became a seizure when Manzanares withdrew his consent”);
Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d
404, 426 (5th Cir. 2008) (“[I]t is clearly established that ‘[a]
consent which waives Fourth Amendment rights may be limited,
qualified, or withdrawn.’” (citations omitted)).
Here, there is a genuine issue of material fact regarding
whether plaintiff ever requested or demanded that the officers
leave the residence, and if so, whether defendant remained in
the residence following plaintiff’s withdrawal of consent.
Defendant claims that plaintiff never requested or demanded that
the officers leave the residence.

(ECF No. 93, Ex. 2 at ¶ 8.)

However, plaintiff asserts that he did.
16

(ECF No. 98 at ¶ 2.)

Plaintiff also repeats that assertion several times in his
deposition.

(ECF No. 93, Ex. 1 at pp. 59-60, 69, 72.)

Plaintiff further contends that after requesting the officers
leave, defendant remained in the residence.
70, 75-77.)

(Id., Ex. 1 at pp.

The signed, sworn, and notarized affidavits of

Brandon and Kevin Harris also state that Lacy walked down the
driveway minutes after plaintiff and the other officers had left
the residence. 4

(ECF Nos. 109 and 109-1.)

A reasonable juror

could find plaintiff’s and the Harris’s accounts more credible
than defendant’s, which would then entitle a verdict in
plaintiff’s favor because a clearly established Fourth Amendment
violation occurred if defendant remained in the residence and
continued to search following plaintiff’s withdrawal of consent.
Therefore, defendant’s motion for summary judgment was DENIED.
c. Defendant’s Motions to Strike
“The issue of admissibility of the affidavit is an
evidentiary question, procedural by nature, that is governed by
federal, rather than state law.”

Guarantee Tr. Life Ins. Co. v.

Wood, 631 F. Supp. 15, 22 n.1 (N.D. Ga. 1984) (citing Erie
Railroad Co. v. Thompkins, 304 U.S. 64 (1938) and Northwestern
Insurance Co. v. Corley, 503 F.2d 224 (7th Cir. 1974)).

Under

federal law, “[a]n affidavit or declaration used to support or
These are different affidavits than the affidavits by Brandon
and Kevin Harris that defendant moved to strike.
4

17

oppose a motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify
on the matters stated.”

Fed. R. Civ. P. 56(c)(4).

Following

the 2010 Amendment to Rule 56, a formal affidavit is no longer
required.

See Fed. R. Civ. P. 56 advisory committee’s note.

The affidavits of Kevin and Brandon Harris, (ECF Nos. 96
and 96-1), are improperly notarized because they do not include
a valid notary seal.

Thus, the court considered their

admissibility as unsworn declarations.

See Montgomery v. Ruxton

Health Care, IX, LLC, 2006 WL 3746145, at *2 (E.D. Va. Dec. 15,
2006) (“Section 1746 . . . allows federal courts to consider
‘affidavits’ that have not been notarized so long as they meet
other statutory requirements.”).

28 U.S.C. § 1746 allows a

written unsworn declaration to substitute for an affidavit, so
long as the unsworn declaration is subscribed in proper form as
true under penalty of perjury.

Fed. R. Civ. P. 56 advisory

committee’s note (citing 28 U.S.C. § 1746).

The declarations at

issue here are deficient because they contain no statement that
they were true declarations made under penalty of perjury.

See,

e.g., Thompson v. Clarke, 2020 WL 1124361, at *7 (W.D. Va. Mar.
6, 2020) (holding that because the affidavit was neither
notarized nor did it include any language that it was declared
under penalty of perjury, “it fails to satisfy even the basic
18

requirements for unsworn declarations under penalty of perjury
per 28 U.S.C. § 1746”); Trapaga v. Cent. States Joint Bd. Local
10, 2007 WL 1017855, at *5 (N.D. Ill. Mar. 30, 2007) (“[A] court
may not consider an unsworn declaration unless it subjects the
declarant to penalties of perjury”); United States v. Terrell
Cty., Georgia, 2006 WL 8445865, at *1 (M.D. Ga. July 12, 2006)
(“As the Affidavit was improperly notarized and does not
alternatively state that Defendant Bowens made his declaration
under penalty of perjury, as is permitted by 28 U.S.C. § 1746,
the same must be discarded.”)

Therefore, the affidavits of

Kevin and Brandon Harris, (ECF Nos. 96 and 96-1), are
inadmissible under 28 U.S.C. § 1746, and defendant’s motion to
strike these affidavits was GRANTED. 5
Defendant’s second motion to strike the sur-reply portion
of plaintiff’s response to defendant’s reply was also GRANTED.
Local Rule of Civil Procedure 7.1(a)(7) states that “[s]urreply
memoranda shall not be filed except by leave of court.”

This

court never granted plaintiff leave to file a sur-reply.
Therefore, the first portion of plaintiff’s “Response in
Opposition to Defendant’s Reply in Support for Summary
Judgment”, (ECF No. 106), is an improper sur-reply that was
filed without leave of this court and thus should be stricken.
The court makes no ruling on the validity of the new affidavits
of Kevin and Brandon Harris. (ECF Nos. 109 and 109-1.)
5

19

d. Parties’ Motions in Limine
A district court has the inherent authority to manage the
course of a trial.
(1984).

Luce v. United States, 469 U.S. 38, 41 n.4

The court may exercise this power by issuing an

evidentiary ruling in advance of trial.

Id.

Moreover, the

court can change its ruling at trial, “even if nothing
unexpected happens.”

Id. at 41.

Rulings in limine are

speculative in effect; essentially, they are advisory opinions.
As to plaintiff’s request that the court exclude any
evidence of any past lawsuits filed by plaintiff, the court
GRANTED this motion.

Plaintiff’s past lawsuits are irrelevant

to the issues and potential damages remaining in this case.
Fed. R. Evid. 401.

See

Whether defendant violated plaintiff’s

Fourth Amendment rights by remaining in plaintiff’s residence is
unaffected by any previous lawsuits filed by plaintiff or any
prior injuries plaintiff has suffered, as alleged in those prior
suits.

Cf. Rodrigue v. Wood Grp. PSN, Inc., 2016 WL 5390392, at

*4 (E.D. La. Sept. 27, 2016) (ruling that evidence of
plaintiff’s prior litigation is not relevant to the instant
action nor necessary to help determine proper damages for any
injuries caused by defendant’s actions).

Because the evidence

of plaintiff’s past lawsuits is not relevant, it is not
admissible.

See Fed. R. Evid. 401.

20

Plaintiff will thus

likewise be barred from introducing any evidence of past
lawsuits.
The court DENIED plaintiff’s motion requesting the court
prevent defendant from presenting any evidence of plaintiff’s
past criminal history.

Evidence of past crimes “is not

admissible to prove a person's character in order to show that
on a particular occasion the person acted in accordance with the
character.”

Fed. R. Evid. 404(b)(1).

However, it is admissible

if it is introduced for another purpose, id. 404(b)(2), and if
its probative value is not substantially outweighed by unfair
prejudice.

Id. 403.

Thus, evidence of plaintiff’s sexual

assault state court charges is not barred by Rule 404 because it
is introduced for the probative purpose of explaining to the
jury the basis for this civil case.
As to Rule 403’s balancing test, there is clear probative
value for the introduction of plaintiff’s state court charges
because without any mention of it, the jury would be confused
why defendant and other officers were present at plaintiff’s
residence on July 22, 2016.

However, there is a strong danger

of unfair prejudice to plaintiff from introducing the full
sexual abuse nature of plaintiff’s state court charges, which
persists even though plaintiff was acquitted of the charges.
See, e.g., United States v. Roux, 715 F.3d 1019, 1026 (7th Cir.
2013) (“testimony that the defendant has sexually abused
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children is highly prejudicial”); United States v. Davis, 624
F.3d 508, 512 (2d Cir. 2010) (“There can be no doubt that
admission of a prior conviction for child molestation carries a
high risk of prejudice.”).

There is very little additional

probative value acquired from introducing the sexual nature of
plaintiff’s charges, as the vast majority of the probative value
of explaining why the officers were present at plaintiff’s
residence can be gained by introducing only the limited fact
that the officers were present due to a criminal complaint
against plaintiff.

With such a limitation, the probative value

is no longer substantially outweighed by the danger of unfair
prejudice.

Therefore, the court DENIED plaintiff’s request to

bar all evidence of plaintiff’s state court sexual abuse
charges, but does impose a restriction that defendant shall not
introduce evidence of the sexual nature of the reason officers
were present at plaintiff’s residence.
Defendant’s requests can be resolved easily.

No party

shall engage in “golden rule” argument, as it is “universally
recognized as improper because it encourages the jury to depart
from neutrality and to decide the case on the basis of personal
interest and bias rather than on the evidence.”

United States

v. Susi, 378 F. App'x 277, 283 (4th Cir. 2010).

Second, all

witnesses at trial shall be excluded so that they cannot hear
other witnesses’ testimony, as is mandatory upon the request of
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a party.

Fed. R. Evid. 615.

Third, evidence of liability

insurance is inadmissible in this case, as there is no
controversy about proof of agency, ownership or control.
411.

Id.

Fourth, no formula for general damages shall be

introduced, as the law is well settled that general damages are
“intangibles” for which there is no exact measurement, Jimenez
v. Chrysler Corp., 74 F. Supp. 2d 548 (4th Cir. 1999), and that
actual injury must be proved in all constitutional violation
suits. 6

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306,

(1986) (“the abstract value of a constitutional right may not
form the basis for § 1983 damages”).

Fifth, plaintiff may not

argue he was forced to go to trial or that any failure to settle
was the fault of defendant or that defendant has delayed this
case from proceeding to trial, as these lines of argument are
not relevant and are prejudicial.

Fed R. Evid. 401, 403.

“The concept of actual injury at common law is a broad one, and
the Supreme Court has recognized that ‘compensatory damages may
include not only out-of-pocket loss and other monetary harms,
but also such injuries as impairment of reputation . . .
personal humiliation, and mental anguish and suffering.’ We
have recognized, in the § 1983 context, that a ‘plaintiff's
testimony, standing alone, can support an award of compensatory
damages for emotional distress based on a constitutional
violation.’ Such evidence must, however, ‘establish that the
plaintiff suffered demonstrable emotional distress, which must
be sufficiently articulated; neither conclusory statements that
the plaintiff suffered emotional distress nor the mere fact that
a constitutional violation occurred supports an award of
compensatory damages.’” Randall v. Prince George's Cty., Md.,
302 F.3d 188, 208 (4th Cir. 2002) (citations omitted).
6

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Sixth, plaintiff may not raise issues outside the evidence in
his rebuttal closing argument.

See, e.g., United States v.

Wilson, 135 F.3d 291, 298 (4th Cir. 1998) (“By going outside the
evidence, the prosecutor ‘violated a fundamental rule, known to
every lawyer, that argument is limited to the facts in
evidence.’” (quoting United States ex rel. Shaw v. De Robertis,
755 F.2d 1279, 1281 (7th Cir. 1985))).

And lastly, neither

party may present testimony or evidence regarding dismissed
claims or claims against dismissed parties, as introduction of
such evidence is not relevant and is likely to confuse the jury.
Fed R. Evid. 401, 403.

Therefore, for the above reasons, all of

defendant’s motions in limine were GRANTED.
IV.

Conclusion

For the foregoing reasons, plaintiff’s Motions for
Appointment of Counsel, (ECF Nos. 86 and 97), were DENIED;
plaintiff’s Motion for Summary Judgment, (ECF No. 98), was
DENIED; defendant’s Motion for Summary Judgment, (ECF No. 93),
was DENIED; defendant’s Motions to Strike, (ECF Nos. 99 and
108), were GRANTED; plaintiff’s Motion in Limine, (ECF No. 84),
was GRANTED in part and DENIED in part; and defendant’s Motions
in Limine, (ECF Nos. 104 and 105), were GRANTED.

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The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 6th day of April, 2020.
ENTER:
David A. Faber
Senior United States District Judge

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