Haze v. Kubicek et al

Filing 85

ORDER signed by Magistrate Judge Nancy Joseph on 4/14/2016 deferring ruling on 69 plaintiff's motion in limine number six; granting in part and denying in part 71 defendant's motion in limine number five; and denying 80 the defendant's request to dismiss or prevent the introduction of evidence on the equal protection claim. (cc: all counsel) (teb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DARRELL K. HAZE,
Plaintiff,
v.

Case No. 13-CV-1344

MARK KUBICEK,
Defendant.

ORDER ON MOTIONS IN LIMINE

In preparation for trial, the parties in the above-captioned case each filed numerous motions
in limine. (Docket # 69, 71.) Most of the motions were decided at the pretrial conference (Docket #
76), and an agreed-upon motion in limine was granted at the most recent status conference (Docket
# 82). Many of the remaining motions in limine were mooted by the parties’ agreement to not use
expert witnesses. (Docket # 83.) There are three outstanding motions in limine to be resolved: first,
plaintiff Darrell Haze’s motion in limine number six, concerning the use of deposition testimony from
other cases; second, defendant Officer Mark Kubicek’s motion in limine number five, which, at this
stage, concerns whether or not Haze may elicit testimony about the dismissal of the citation issued
during the events underlying this lawsuit; and third, Officer Kubicek’s objection to Haze’s proposed
jury instructions that effectively seeks to prevent Haze from presenting evidence of his equal
protection class-of-one claim. I will address each of these motions in turn.

Deposition Testimony
Haze filed a motion in limine seeking an order prohibiting the defense from cross-examining
him or otherwise presenting any evidence or testimony of depositions in other cases. (Docket # 69
at 3.) Haze argues that the evidence is collateral to the issues in this case and would be presented
solely for the purpose of contradiction. At the hearing, counsel for Kubicek stated that the relevant
portion of this deposition was a question to Haze about whether he had previously filed any other
lawsuits, to which Haze answered “no” even though he had indeed filed previous lawsuits. Counsel
indicated that he may want to ask Haze whether he has ever lied under oath. He further indicated
that he did not intend to bring up the issue directly but noted that it could become relevant depending
on how the testimony is developed. Haze’s attorney countered that not only did Haze later correct
his answer but also noted that in a prior lawsuit, another judge in this district found this evidence
collateral and therefore proscribed its use during trial. See Haze v. Marchant et al., Case No. 13-CV1448 (E.D. Wis) at Docket # 63.
As it stands, the attorneys were to confer once plaintiff’s counsel provided defense counsel
with the errata from the deposition transcript. Because there is a possibility that the issue has been
or will be resolved based on the transcript, I will withhold ruling on plaintiff’s motion in limine six
until I confer with the parties’ attorneys prior to trial.
Dismissal of Citation
Officer Kubicek seeks to prohibit the introduction of evidence about the municipal trial on
the citation for disorderly conduct issued to Haze. I have already ruled that anything said by the
municipal court judge during the course of the trial will not be introduced. Haze’s counsel stated that
he is willing to limit the information about the citation to the fact that it was dismissed. Therefore,

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the question remaining is whether the plaintiff should be permitted to introduce evidence that the
citation was dismissed.
After weighing the potential for prejudice of either excluding or admitting the fact that the
municipal citation was dismissed, I conclude that there is a greater risk of potential for prejudice to
the plaintiff if the evidence is not admitted. Jurors might improperly speculate about the outcome of
the municipal citation. Additionally, allowing that limited fact will not open the doors to collateral
issues not before the jury. As I indicated at the pretrial conference, the parties are prohibited from
eliciting testimony regarding the circumstances surrounding the dismissal (municipal judge’s inchambers conference) and the judge’s reasons and/or statements for dismissing the citation. I will
therefore allow the introduction of the limited fact of the dismissal of the citation. The defendant’s
motion in limine number five is therefore granted in part and denied in part.
Equal Protection Claim
Finally, in his objections to the plaintiff’s proposed jury instructions, Officer Kubicek argues
that Haze should not be able to proceed on his equal protection class-of-one claim. (Docket # 80 at
¶ 15.)
In equal protection class-of-one claims, the plaintiff is not suing as a member of a protected,
identifiable group (race or gender, for example). See Del Marcelle v. Brown County Corp., 680 F.3d 887,
895 (7th Cir. 2012). Instead, the plaintiff sues as an individual on the basis that a government official
or entity treated him, in simplest terms, unfairly without a good reason. See id. at 889. In Del Marcelle,
the Seventh Circuit noted that the law “concerning ‘class-of-one’ equal protection claims is in flux.”
Id. at 888. However, at the very least “the law is settled that a class-of-one plaintiff must show at least
intentionally discriminatory treatment lacking a rational basis.” Jordan v. Cockroft, 490 Fed. Appx.

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813, 815 (7th Cir. 2012) (citing Del Marcelle, 680 F.3d at 899, 913); see also Fares Pawn, LLC v. Indiana
Dept. of Financial Institutions, 755 F.3d 839, 845 (7th Cir. 2014) (“It is clear that a class-of-one plaintiff
must show (1) that he has been intentionally treated differently from other similarly situated, and (2)
that there is no rational basis for the difference in treatment.”) Though in Del Marcelle the court was
unable to reach a consensus on the issue of whether a plaintiff must allege and ultimately prove that
the government official(s) acted with “some kind of bad motive not grounded in their public duties,”
the Seventh Circuit has since found that even if a plaintiff presents facts that cast the official’s action
as “one taken out of animosity,” if a rational basis for the action can be found, “that will be the end
of the matter—animus or no.” Fares Pawn, 755 F.3d at 845 (internal quotations and citations
omitted). “The rational-basis requirement sets the legal bar low and simply requires a ‘rational
relationship between the disparity of treatment and some legitimate governmental purpose.’” D.B.
ex rel. Kurtis B. v. Kopp, 725 F3d 681, 686 (7th Cir. 2013) (quoting Srail v. Village of Lisle, Ill., 588 F.3d
950, 946 (7th Cir. 2009) (internal quotation marks omitted)).
Here, Haze alleges that Officer Kubicek treated him differently from similarly situated people,
that Officer Kubicek’s decisions to stop, detain, interrogate, and prosecute him were arbitrary and
irrational, and that there was no rational basis for the difference in treatment. (Am. Compl., Docket
# 30 at ¶¶ 51-54.) He alleges that Officer Kubicek singled him out because Officer Kubicek “did not
like him” and that he “continued to prosecute [him] in retaliation for [him] filing a complaint against
[Officer Kubicek] and other officers.” (Id. at ¶¶ 55, 57.)
Officer Kubicek moves to dismiss this claim on the ground that there is nothing to support
Haze’s assertion that Officer Kubicek did not like him. In other words, Officer Kubicek argues that
Haze has not sufficiently pled animus. But the Seventh Circuit’s more recent decisions have clarified

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the elements of equal protection class-of-one claims. It is sufficient for Haze to state a claim by
merely alleging that he was intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment, regardless of animosity. Fares Pawn, 755 F.3d
at 845. Haze’s amended complaint does that.
Additionally, whatever deficiencies in Haze’s statement of his claim, Officer Kubicek did not
file a motion to dismiss. Officer Kubicek challenges the claim in the form of an objection to a
proposed jury instruction. And although he filed a motion for summary judgment, he did not move
for summary judgment on Haze’s equal protection claim. Nor did he raise it in his previous motions
in limine. The first time that Officer Kubicek made the argument that the equal protection class-of-one
claim should be dismissed was in his objections to the plaintiff’s proposed jury instructions, which
were filed after the pretrial conference and before the most recent status conference. Officer Kubicek
has had multiple opportunities to move to have the claim dismissed (or move to have summary
judgment granted on it). Given the Seventh Circuit’s more recent statements of the elements of classof-one claims and the context in which the objection to the claim has been raised, I will not prevent
the plaintiff from introducing evidence on this claim.
Officer Kubicek, however, is not without recourse. Rule 50(a) of the Federal Rules of Civil
Procedure permits a party to move for judgment as a matter of law on a claim or defense before the
case is submitted to the jury. If at the close of evidence, Officer Kubicek continues to believe that
Haze has not met his burden on the equal protection class-of-one claim, he, like any other party, may
avail himself of Rule 50(a).

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ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that I will WITHHOLD RULING on
plaintiff’s motion in limine number six; defendant’s motion in limine number five is GRANTED IN
PART AND DENIED IN PART, to the extent that the plaintiff may introduce evidence of the fact
of dismissal of the citation; and the defendant’s request to dismiss or prevent the introduction of
evidence on the equal protection claim is DENIED.

Dated at Milwaukee, Wisconsin this 14th day of April, 2016.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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