Gidarisingh, Sonniel v. Bittelman, Travis et al

Filing 176

ORDER that plaintiff Sonniel R. Gidarisingh's motions in limine (dkt. # 122 ) are GRANTED IN PART AND DENIED IN PART, and RESERVED IN PART as described in this order. Defendants' motions in limine (dkt. # 131 ) are GRANTED IN PART, DENIED IN PART, and RESERVED IN PART as described in this order. Signed by District Judge William M. Conley on 8/04/2015. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SONNIEL R. GIDARISINGH,
Plaintiff,

OPINION AND ORDER

v.
12-cv-916-wmc
TRAVIS BITTELMAN, JASON
WITTERHOLT, BRIAN FRANSON,
and KELLY RICKEY,
Defendants.
In this 42 U.S.C. § 1983 action plaintiff Sonniel R. Gidarisingh asserts various
Eighth Amendment claims against defendants, all employees or former employees of the
Wisconsin Department of Corrections, employed at Columbia Correctional Institution
for the relevant time period of this action. This case is set for a jury trial commencing
August 10, 2015. In advance of trial and the final pretrial conference, the court issues
the following decisions on the parties’ respective motions in limine. (Dkt. ##122, 131.)
I.

Plaintiff’s Motions in Limine
A. Exclude details of criminal convictions
Plaintiff seeks an order excluding details of Gidarisingh and his witnesses’ criminal

convictions. While acknowledging that the fact of their convictions may be relevant to
either address jury bias during voir dire or for impeachment, plaintiff argues that the
admission of any details of the convictions would be unfairly prejudicial. Defendants do
no oppose the motion, though they maintain the right to ask Gidarisingh about the
number of felony convictions and a description by name (e.g., “murder” or “arson”)

under Federal Rule of Evidence 609.

Accordingly, the motion is GRANTED as

unopposed. Defendants are limited to asking plaintiff and plaintiff’s witnesses about the
number of their respective felony convictions within the last ten years or since release
from prison, whichever is later, and to name each felony conviction. In advance of trial,
defendants shall provide a list of each conviction by name for each witness plaintiff may
call. Failure to do so will result in their exclusion at trial. Plaintiff may also move for
exclusion at the final hearing on the morning of trial.
B. Exclude plaintiff’s prison disciplinary history
Plaintiff further seeks an order excluding his prison disciplinary history as
irrelevant under Federal Rule of Civil Procedure 402 and as unfairly prejudicial under
Rule 403. Defendants do not oppose this motion either except to maintain the right to
introduce evidence of prior discipline for lying under Federal Rule of Evidence 608,
which prohibits the admission of evidence of specific instances of misconduct unless
“probative of the character for truthfulness or untruthfulness of a witness.” Rule on this
motion is RESERVED pending specific examples of the disciplinary conduct for lying.
Defendants should be prepared to provide specific instances to the court for review at the
final pretrial conference. Failure to do so shall result in their exclusion at trial.
C. Exclude plaintiff’s psychiatric history
Plaintiff also seeks to exclude his psychiatric records from trial under Rules 402
and 403, while reserving the right to introduce evidence that he suffers from posttraumatic stress disorder in support of his claim for damages.

2

As to the latter

qualification, should plaintiff open the door by introducing evidence of his mental health
issues, defendants are free to offer his psychiatric records into evidence in response.
As to the broader exclusion, defendants oppose plaintiff’s motion because they
seek to introduce evidence of plaintiff’s mental health issues limited to “cognitive and
perception issues, including, but not limited to visual and auditory hallucinations and his
reactions thereto,” but agree to only use Gidarisingh’s deposition testimony and not refer
to any of his psychiatric records. (Defs.’ Opp’n (dkt. #145) 5.) Specifically, defendants
seek to introduce plaintiff’s deposition testimony in which he reported that he
“sometime[s] see[s] people attacking [him].” (Id. at 3.) Defendants contend that this
evidence is “highly relevant because it shows Mr. Gidarisingh has a history of
hallucination, including the sort of assault that he alleges happened” in this case. (Id. at
4.)
The court agrees with defendant that this deposition testimony is relevant, and
accordingly, this motion in limine is DENIED.

Defendants may ask Gidarisingh

questions about hallucinations / perception issues consistent with those questions asked
during his deposition and may introduce his deposition testimony for impeachment
purposes, if necessary.
D. Exclude plaintiff’s prior lawsuits and complaints about prison conditions
Plaintiff seeks an order excluding evidence of his prior lawsuits and complaints
about prison conditions.

Defendants do not oppose this motion.

motion is GRANTED as unopposed.

3

Accordingly, this

E. Exclude incident reports and affidavits based on incident reports1
Plaintiff seeks to exclude incident reports related to the incident on June 23,
2012, because the reports are hearsay and do not fall within the business record
exception. Defendants do not oppose the motion, agreeing not to introduce the reports
as trial exhibits, though seeking to use them to refresh recollections if required. This
motion will be GRANTED as unopposed.

While they may not be introduced as

evidence, defendants remain free to show the reports to witnesses for purposes of
refreshing recollection.
F. Exclude evidence of alleged refusals of medical appointments
Next, plaintiff seeks an order excluding notes in his medical records indicating
that he refused scheduled medical appointments after the June 23, 2012, incident, as well
as Kim Campbell’s testimony to that effect. Plaintiff’s basis for seeking to exclude this
evidence is hearsay -- both “the initial hearsay statement from an officer to medical staff
that Gidarisingh refused to be brought to a medical appointment and a second hearsay
statement when medical staff recorded that purported refusal in the medical records.”
(Pl.’s Mot. (dkt. #122) 8.) Defendants oppose this motion on the basis that plaintiff’s
refusal of medical appointments is relevant to whether he suffered an injury following the
June 23, 2012, incident.

Moreover, defendants contend that the statements are not

hearsay, because they are admissions of a party opponent under Federal Rule of Evidence
1

In plaintiff’s opposition to defendants’ motion in limine, plaintiff states that it
withdraws his motion with respect to the conduct report in which Bittelman charged
Gidarisingh with battery. (Pl.’s Opp’n (dkt. #154) 3.) That portion of his motion in
limine, therefore, is DENIED as moot.
4

801(d)(2)(A) and any statements in his medical record that he refused treatment are
admissible as records of regularly conducted activity under Federal Rule of Evidence
803(6). The court agrees and this motion is DENIED.
G. Exclude evidence of Casiana’s investigation of June 23, 2012, incident
Plaintiff also seeks an order excluding Captain Timothy Casiana’s investigation
into the June 23, 2012, incident, including notes or summaries of witness interviews, the
report summarizing Casiana’s findings, and Casiana’s conclusion that Gidarisingh’s
complaint was unfounded as either hearsay under Rule 802 or as unfairly prejudicial
under Rule 403.

Defendants object to this motion on limited grounds.

While

defendants do not seek to introduce the report or related documents, defendants may
seek testimony from Casiana about what plaintiff or his witnesses told him for purposes
of impeachment.

In particular, if plaintiff or any of his witnesses testify at trial

inconsistently from what they conveyed to Casiana, defendants claim the right to seek
testimony from Casiana as to what plaintiff told him as admissible under Rule
801(d)(2)(A) (statement of a party opponent) or as to what plaintiff’s witnesses told him
under Rule 613 (prior statement of witness). Moreover, defendants contend that the
report itself is admissible for impeachment purposes also under Rule 613(b), as long as
the witness is provided an opportunity to explain or deny the statement.
While the court agrees that Casiana may testify as to what Gidarisingh told him
under Rule 801(d)(2)(A), defendants fail to point to an exception of the hearsay rule to
allow Casiana’s testimony as to what other inmates -- plaintiff’s witnesses -- told him
during the course of his investigation. As for the investigation file and the report itself,
5

Gidarisingh’s statements in that file are similarly admissible if defendants can
demonstrate that the record (or portions of it) constitute records of regularly conducted
activity under Rule 803(6).

The fact that the investigation record or report may

constitute a record of regularly conducted activity does not, however, make Casiana’s
recording of what other inmates told him admissible, since those statements still
constitute hearsay. Accordingly, the motion is DENIED as to Casiana’s testimony as to
what Gidarisingh told him during the course of his investigation, RESERVED as to
Gidarisingh’s reported statements in the investigation record, and GRANTED both as to
the introduction of Casiana’s testimony as to what plaintiff’s witnesses told him during
the course of his investigation and as to any of their statements recorded in the
investigation record.2 Pursuant to Rule 613(a), defendants may nevertheless examine a
witness about that witness’s prior statement, provided a copy is provided to plaintiff’s
counsel in advance of trial.
H. Exclude details of Randy McCaa’s lawsuit against Bittelman
Plaintiff seeks an order excluding any evidence or testimony about the specifics of
witness Randy McCaa’s past lawsuit against Bittelman for an alleged assault and denial
of medical treatment. Plaintiff acknowledges that the fact of the lawsuit may be relevant,
but any details should be excluded as irrelevant and unfairly prejudicial to the jury’s view
of McCaa. Defendants do not oppose the motion to the extent that it allows them to

2

Similarly, if the investigation record contains signed, written statements from any of plaintiff’s
witnesses, then the court will consider whether those statements are admissible under Fed. R.
Evid. 613(b).

6

introduce the fact of the lawsuit, but no details about it unless McCaa opens the door by
denying it. The court understands plaintiff’s motion as simply seeking to exclude details
of the lawsuit, not the fact of the lawsuit. Accordingly, the motion is GRANTED as
unopposed.

Defendants may elicit testimony limited to the fact that McCaa filed a

lawsuit against Bittelman, but may not introduce any details as to the nature of that
lawsuit unless McCaa opens the door.
I. Permit plaintiff and prisoner witnesses to dress in street clothes and not
be shackled when jury is present
Plaintiff seeks an order that allows plaintiff and his witnesses to dress in street
clothes and not be shackled when the jury is present. Defendants do not object. This
motion is GRANTED with two caveats: (1) plaintiff and/or the witnesses must arrange
for street clothes; and (2) the court will revisit this decision if the United States Marshals
expresses any concern with either request.
J. Exclude prejudicial remarks about plaintiff’s counsel
Finally, plaintiff seeks an order excluding prejudicial remarks about plaintiff’s
counsel being from out of town, being members of a large law firm, or any statement
suggesting that they may have a financial interest in the case. Defendants do not object.
Accordingly, this motion is also GRANTED as unopposed. During voir dire, the court
will ask plaintiff’s counsel to introduce themselves and state the name of their law firm.

7

II.

Defendants’ Motions in Limine
A. Exclude defendants’ or any other DOC employees’ lawsuit history and
evidence of other prior acts involving excessive force, retaliation or
conditions of confinement claims
Defendants seek an order excluding evidence, testimony or argument of other

lawsuits involving any of the defendants or any other employee of the Department of
Corrections, as well as any evidence of prior acts of alleged excessive force, retaliation or
conditions of confinement claims. Plaintiff does not object to this motion, but reserves
his right to impeach with such evidence if a defendant were to testify on direct that he
has no prior inmate complaints or lawsuits. Accordingly, the motion is GRANTED as
unopposed unless defendants open the door to such evidence.
B. Exclude evidence of denial of medical treatment
Next, defendants seek an order excluding Gidarisingh’s claim of denial of medical
treatment before and after the June 23, 2012, incident, “except for the purpose of
detailing the factual allegations that lead to the alleged use of force incident on June 23,
2012 (e.g., Gidarisingh can testify that he was requesting medical treatment on June 23,
2012, but may not testify regarding allegations that he had not been receiving adequate
medical care in prison up to that point).” (Defs.’ Mot. (dkt. #131) 5-6.) Plaintiff does
not object to this motion either provided that Gidarisingh is allowed (1) to testify to his
argument with Bittelman leading up to the June 23, 2012, incident; and (2) to introduce
evidence of his requests for medical treatment in the period after the incident to the
extent relevant to determining his injuries.

Since neither of these provisions appears

inconsistent with defendants’ motion, it is GRANTED as unopposed.
8

Plaintiff may

testify to his exchange with Bittelman about his request for medical treatment leading up
to the June 23, 2012, incident. Plaintiff may also testify that he requested medical care
for injuries sustained after the incident, though plaintiff may not argue that he was
denied medical treatment.3

As appropriate, the court will also consider a proposed

curative instruction, clarifying that plaintiff is not entitled to recover based on denial of
medical treatment.
C. Exclude fact that no contraband was found on Gidarisingh and any
disciplinary report or actions imposed on Gidarisingh as result of July
23, 2012, incident
Defendants seek an order excluding any evidence regarding the fact that no
contraband was found on Gidarisingh during the June 23, 2012, strip search, as well as
any actions pursued against or discipline imposed on plaintiff because of the June 23,
2012, incident. Plaintiff opposes this motion in several respects. First, plaintiff’s counsel
intends to ask each defendant involved in the excessive force claim “to admit that, to the
best of their knowledge, Mr. Gidarisingh did not have any weapons or other contraband
at the time of the incident.” (Pl.’s Opp’n (dkt. #154) 2.) If each defendant offers an
admission, then plaintiff has no intent to elicit testimony about the results of the strip
search. Since the court is uncertain as to the relevance of any of this testimony, the
ruling on this portion of the motion is RESERVED until the final pretrial conference.
Plaintiff also opposes defendants’ request to exclude any disciplinary report or
actions if it covers Bittelman’s conduct report charging Gidarisingh with battery.
3

As explained above, defendants may also introduce evidence that Gidarisingh denied offers of
medical treatment after the June 23, 2012, incident. (See supra I.F.)

9

Plaintiff contends that the report and Bittelman’s testimony about the report is
“probative of both Officer Bittelman’s intent to retaliate against Mr. Gidarisingh for his
earlier threat to file a grievance and Officer Bittelman’s state of mind (hostile) at the time
he used force against Mr. Gidarisingh on June 23, 2012.” (Pl.’s Opp’n (dkt. #154) 4.)
The court agrees with plaintiff that Bittelman’s description of the events in the conduct
report is both relevant to his claims and admissible as a record of business and a
statement of a party opponent. Accordingly, this portion of the motion is DENIED.
Finally, as to the Casiana investigation, plaintiff agrees that the resulting conduct
report issued to Gidarisingh for lying about staff should be excluded. Plaintiff contends,
however, that if evidence of the investigation surrounding the June 23, 2012, incident
comes in, then plaintiff should be allowed to introduce evidence of the disciplinary
action, arguing that it bears on the reliability of the investigation as a whole and the
evidence derived from it. Since this court has earlier in this opinion ruled that both the
investigation file and report are inadmissible, except as to the introduction of
Gidarisingh’s purported statements about the incident (see supra I.G.), this portion of the
motion is also GRANTED as unopposed.
D. Exclude evidence of defendants prior workplace discipline
Defendants seek an order excluding: “(1) discipline that Travis Bittelman received
on or about 12/27/06 regarding a one-day suspension for failure to comply with
regulations, intimidating, interfering, harassment, (2) discipline that Michael Julson
received for forwarding an inappropriate email, (3) Maury Thrill’s discipline for
horseplay, (4) Raymond Millonig’s discipline for violating the DOC’s fraternization
10

policy, including and not limited to all testimony and documents related to the
investigation that lead to his termination, and including any direct questions specifically
related to Millonig’s truthfulness during that investigation.” (Defs.’ Mot. (dkt. #131)
7.)4
As for defendant Bittelman, plaintiff again represents that unless Bittelman opens
the door by testifying on direct to never being disciplined for workplace misconduct, he
will not introduce this or other disciplinary actions brought against Bittelman.

This

portion of the motion is, therefore, GRANTED unless Bittelman opens the door.
As for Officer Michael Julson -- who is not a party but rather a defense witness -plaintiff contends that the email for which Julson received a disciplinary action is
relevant, because its content is racist and, therefore, probative of his credibility as a
witness who observed Gidarisingh in an observation cell following the June 23, 2012,
incident. (Julson is white; Gidarisingh is black.) Ruling on this portion of the motion is
RESERVED pending argument at the final pretrial conference and possible review of the
disciplinary record and email at issue.
Plaintiff does not oppose defendants’ motion to exclude evidence that defense
witness Officer Maury Thrill was disciplined for horseplay. Accordingly, this part of the
motion is GRANTED as unopposed.

4

Defendants also state that the motion is not limited to those events, but absent specific
instances of misconduct, the court is not in a position to rule on admissibility. To the extent
other instances come up at trial, the court will allow defendants to raise an objection to their
admissibility, preferably in advance of that defendant taking the stand and outside the jury’s
presence.

11

Finally, plaintiff opposes defendants’ motion to exclude defendant Millonig’s
disciplinary record. Specifically, plaintiff represents that Millonig was fired in September
2012 for lying in an investigation conduct by the Department of Corrections, and that
this evidence is probative of Millonig’s character for truthfulness. The court agrees and
plaintiff may cross examine Millonig about this disciplinary action -- specifically, the
three instances in which he was found to have lied -- to assist the jury’s assessment of his
character for truthfulness under Rule 608(b)(1). Accordingly, this portion of the motion
is DENIED.
E. Allow testimony about plaintiff’s prior discipline history (if defendants’
earlier motions in limine not granted)
If the court does not grant defendants’ first motion -- seeking the exclusion of
defendants’ and other DOC employees’ lawsuits or prior acts of excessive force, failure to
protect or conditions of confinement claims -- or the fourth motion -- seeking exclusion
of prior workplace discipline -- then defendants seek an order allowing evidence and
testimony about “Gidarisingh’s prior discipline, including but not limited to discipline
related to Gidarisingh’s substantial history of violent and combative behavior while
incarcerated, Gidarisingh’s dispositions of guilt[] for lying and lying about staff, and
Gidarisingh’s committing offense of first degree intentional homicide.” (Defs.’ Mot. (dkt.
#131) 8.)

The court had already issued rulings on Gidarisingh’s prior disciplinary

history for lying about staff -- reserving on that motion pending defendants’ submission
of specific instances to determine whether they are probative of Gidarisingh’s character
for truthfulness or untruthfulness under Rule 608 -- and on Gidarisingh’s conviction for

12

murder -- granting the motion to exclude except as to testimony that Gidarisingh was
convicted of murder. (See supra I.A, I.B.)
All that remains, therefore, is defendants’ request to introduce evidence of
Gidarisingh’s history of violence. The court agrees with plaintiff that such evidence is
inadmissible as propensity evidence under Federal Rule of Evidence 404(a).5 To this
extent, defendants’ motion is DENIED.
F. Allow introduction of plaintiff and his witnesses’ criminal convictions
Defendants seek an order allowing defendants to present evidence of Gidarisingh
and plaintiff’s witnesses’ criminal convictions as permitted under Rule 609.

Plaintiff

does not oppose this motion provided that the convictions meet the requirements of Rule
609. For the reasons provided above (see supra I.A), this motion is GRANTED under the
same limitations to number and name of convictions.
G. Exclude evidence, testimony and argument about officers needing to
trust each other
Finally, defendants seek an order excluding evidence, testimony and argument
about corrections officers’ “needing to trust other corrections officers” and “rely[ing] on
other corrections officers for their personal safety, or for other reasons, while working in a
prison.” (Defs.’ Mot. (dkt. #131) 10.) Defendants contend that “[s]uch testimony and
argument is intended to imply that because officers need to trust and rely on each other

5

To the extent Bittelman seeks to testify about specific instances of violent behavior on the part
of Gidarisingh for which he had direct knowledge, the court will consider whether that evidence is
admissible to establish Bittelman’s state of mind leading up to the June 23, 2012, incident, but
only if proffered in advance outside the presence of the jury.

13

in the workplace, they would necessarily have a propensity to lie under oath to protect
one another.” (Id.) Plaintiff opposes the motion, arguing that evidence of witness loyalty
is relevant to determining credibility, and points to cases in support. (Pl.’s Opp’n (dkt.
#154) 13.) The court agrees with plaintiff that he is entitled to explore with defendants
and other witnesses any bias arising out of loyalty to one another. This evidence is
relevant and the probative value outweighs any unfair prejudice to defendants.
Accordingly, this motion is DENIED.

ORDER
IT IS ORDERED that:
1) Plaintiff Sonniel R. Gidarisingh’s motions in limine (dkt. #122) are
GRANTED IN PART, DENIED IN PART, and RESERVED IN PART as
described above.
2) Defendants’ motions in limine (dkt. #131) are GRANTED IN PART,
DENIED IN PART, and RESERVED IN PART as described above.
Entered this 4th day of August, 2015.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

14