Gidarisingh, Sonniel v. Bittelman, Travis et al

Filing 182

IT IS ORDERED that:1) Plaintiff's motion in limine to exclude plaintiff's prior disciplinary history is GRANTED.2) Plaintiff's motion to exclude Casiana's investigation report is GRANTED IN PART AND DENIED IN PART consistent with this opinion.3) Upon reconsideration, plaintiff's motion to exclude notes in Gidarisingh's medical record indicating that he refused scheduled medical appointments after the June 23, 2012, incident is GRANTED.4) Defendants' motion in limine to exclude any evidence regarding that fact that no contraband was found on Gidarisingh during the June 23, 2012, strip search is GRANTED, unless plaintiff makes a proper showing at sidebar that defendants have opened the door to su ch evidence.5) Defendants' motion in limine to exclude the fact that Julson received a disciplinary action for forwarding a racist email is GRANTED.6) By end of day Thursday, August 6, 2015, the parties shall file briefs on whether plainti ff alleged and was granted leave to proceed on (a) a First Amendment retaliation claim against defendant Bittelman premised on the alleged false conduct report; and (b) an excessive force claim (as distinct from a failure to protect claim) against de fendant Franson.7) Also by end of day Thursday, August, 6, 2015, defendants shall submit a brief describing their support for the position that the PLRA requires a showing of physical injury for compensatory damages for a conditions of confinement claim. Plaintiff's response is due by end of day Friday, August 7, 2015. Signed by District Judge William M. Conley on 8/06/2015. (nln),(ps)

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

v.

Plaintiff,

OPINION AND ORDER
12-cv-916-wmc

TRAVIS BITTELMAN, JASON
WITTERHOLT, BRIAN FRANSON,
and KELLY RICKEY,
Defendants.
The court held a final pretrial conference on August 4, 2015, at which the parties
were represented by counsel and plaintiff Sonniel R. Gidarisingh appeared via telephone.
During the conference, the court made certain rulings on the record which are
memorialized below. In addition, this order addresses three motions in limine on which
the court either reserved ruling or stated that it would be open to reconsidering after
reviewing additional, relevant decisions cited by the parties during the conference.
I.

Casiana’s Investigation
The court heard oral argument on plaintiff’s motion in limine to exclude Officer

Casiana’s report of his investigation of June 23, 2012, incident.

At the hearing,

defendants argued that the statements of witnesses, in particular Madden’s statement to
Casiana, are admissible for impeachment purposes as prior inconsistent statements under
Federal Rule of Evidence 613. To constitute a prior statement, however, a witness must
either have made or adopted it. Here, Casiana wrote down the statement and defendants
offer no evidence that a witness later adopted it. So, assuming a witness testifies that the

relevant portions of the investigation report do not reflect what he told Casiana, then
those portions of the report do not constitute a “statement” by the witness under Rule
613. See generally 28 Charles Alan Wright & Victor J. Gold, Federal Practice and Procedure
§ 6203 at p.566 & n.9 (2nd ed. 2012) (Rule 613 applies only to evidence of a witness’s
own statement and not to evidence of another person’s statement). On this issue, the
Seventh Circuit’s decision in United States v. Schoenborn, 4 F.3d 1424 (7th Cir. 1993),
relied on by plaintiff, is directly on point. In considering whether an FBI agent’s report
purporting to contain what the witness told the agent would be admissible under Rule
613(b), the court concluded that the report was not admissible for purposes of
impeachment because the FBI’s “report did not constitute a statement made by
Coleman.” Id. at 1427-29 & n.3 (citing United States v. Almonte, 956 F.2d 27, 29 (2d Cir.
1992) (“[I]n the absence of endorsement by the witness, a third party’s notes of a
witness’s statement may not be admitted as a prior inconsistent statement unless they are
a verbatim transcript of the witness’s own words.”)); see also United States v. Adames, 56
F.3d 737, 744 (7th Cir. 1995) (affirming district court’s exclusion of FBI agent’s report
since witness “testified he did not adopt the statement, did not write it and could not say
that what was in it was everything he had told the agents”).
This still leaves whether Casiana can testify to statements made by Madden and
the other third-party witnesses during his investigation.

Unlike Casiana’s testimony

about what plaintiff Gidarisingh told him, which is admissible under Federal Rule of
Evidence 801(d)(2) as an admission by a party opponent, Casiana’s testimony about
what plaintiff’s other witnesses told him does not fit within the non- hearsay exception
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for a declarant-witness’s prior statement because the witness’s statement to Casiana was
not “given under penalty of perjury at a trial, hearing, or other proceeding or in a
deposition.” Fed. R. Evid. 801(d)(1)(A). Still, Casiana’s testimony could be offered to
show an inconsistent statement, rather than to prove the truth of the matter asserted. If
in response to a question from defendants’ counsel, for example, Madden were to deny
making the statement reported by Casiana, then that portion of Casiana’s report is not
admissible under Rule 613.

However, defendants may then impeach Madden with

Casiana’s testimony as to what Madden told him during the investigation, not for the
truth of the matter asserted but to impeach.

If necessary, the court will provide a

curative instruction, explaining to the jury that his testimony should only be considered
in assessing Madden’s credibility and not for the truth of what Madden purportedly told
Casiana. Accordingly, plaintiff’s motion to exclude evidence of Casiana’s investigation
will be GRANTED IN PART AND DENIED IN PART as reflected above.

II.

Gidarisingh’s Medical Records
Plaintiff also sought reconsideration of the court’s ruling as to the admissibility of

a nurse’s notations in his medical records that an officer reported Gidarisingh refused a
medical appointment because it contains another layer of hearsay not covered by the
medical diagnosis or treatment or regularly conducted activity exceptions under Rule
803(4) and (6), respectively. In support, plaintiff cites Romano v. Howarth, 998 F.2d 101
(2d Cir. 1993), in which the Second Circuit considered whether “the officer’s statement
to the nurse and the nurse’s record of that statement are hearsay and can only be
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admitted as exceptions to the hearsay rule.” Id. at 108. While the court reasoned that
the nurse’s business duty ensures the accuracy of her notes, “it is no guarantee at all of
the accuracy of the information supplied by the officer.” Id. (citing Fed. R. Evid. 803(6),
advisory committee’s note (“If, however, the supplier of the information does not act in
the regular course, an essential link is broken.”)). As such, the court concluded that
“[b]ecause the Progress Notes contain this additional level of hearsay, another link in the
hearsay chain is necessary to usher into evidence the officer’s statement to the nurse.” Id.
Not only is the issue here on all fours with that presented in Romano, the court finds the
Second Circuit’s reasoning persuasive. Unlike the case where Gidarisingh is available to
testify in response to a witness’s denial of an attributed statement, the court also
understands that “the officer” to whom Gidarisingh’s statement was reportedly made
cannot be identified, much less called to testify.

Without a basis to impeach

Gidarisingh’s anticipated denial that he made such a statement, there is also no basis to
introduce the statement in cross-examination of the plaintiff in anticipation of later
impeachment. Accordingly, upon reconsideration, plaintiff’s motion to exclude notes in
or impeach based on Gidarisingh’s medical record indicating that he refused scheduled
medical appointments after the June 23, 2012, incident is GRANTED.

III.

Julson’s Disciplinary History
The court previously reserved on defendants’ motion to exclude evidence and

testimony about Julson’s prior disciplinary history, pending review of a more legible copy
of an allegedly racist email that served as the basis for his 2012 discipline. Having now
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reviewed a clearer copy submitted by defendants, the court agrees that there is ample
reason to credit the conclusion reached by the disciplinary committee to discipline Julson
for forwarding a racist email. However, the fact that Julson was disciplined for racist
conduct is not enough to allow this disciplinary conduct into evidence here. In support
of its admission, plaintiff points to Federal Rule of Evidence 608(b), which provides that
the court “may on cross examination allow [specific instances of conduct] to be inquired
into if they are probative of the character for truthfulness or untruthfulness of . . . the
witness.” However offensive the email string may be, it does not fit within the parameter
of cases allowing specific instances of conduct to demonstrate untruthfulness. Federal
Practice and Procedure § 6118 at nn.56-103 (citing examples of specific conduct ranging
from insurance fraud, to lying on a tax return to faking the factual basis of an insanity
defense); see also Martin v. Jones, No. 09 C 1690, 2013 WL 3754017, at * (N.D. Ill. July
16, 2013) (allowing introduction of witness’s disciplinary conduct for making false
statements but barring evidence of discipline for making racially derogatory remarks,
finding such evidence would confuse the jury and prolong the trial unnecessarily).
At best, Julson’s racist beliefs may be evidence of an underlying motive to lie, but
that is too tangential to an assessment of his character for untruthfulness.

Even if

admissible for this limited purpose, the prejudicial impact of this conduct outweighs any
probative value as to Julson’s character for untruthfulness. See United States v. Abair, 746
F.3d 260, 263-64 (7th Cir. 2014) (“Because ‘the possibilities of abuse are substantial,’
however, the conduct must be sufficiently relevant to truthfulness before it can be the
subject of cross-examination. Fed. R. Evid. 608(b) Advisory Committee Note for 1972.
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What questions are allowed remains subject to the overriding protection of Rule 403.”
(quotation marks and citation omitted)). Accordingly, defendants’ motion to exclude
evidence of Julson’s disciplinary conduct is GRANTED.

ORDER
IT IS ORDERED that:
1) Plaintiff’s motion in limine to exclude plaintiff’s prior disciplinary history is
GRANTED.
2) Plaintiff’s motion to exclude Casiana’s investigation report is GRANTED IN
PART AND DENIED IN PART consistent with the above opinion.
3) Upon reconsideration, plaintiff’s exclude notes in Gidarisingh’s medical record
indicating that he refused scheduled medical appointments after the June 23,
2012, incident is GRANTED.
4) Defendants’ motion in limine to exclude any evidence regarding that fact that
no contraband was found on Gidarisingh during the June 23, 2012, strip
search is GRANTED, unless plaintiff makes a proper showing at sidebar that
defendants have opened the door to such evidence.
5) Defendants’ motion in limine to exclude the fact that Julson received a
disciplinary action for forwarding a racist email is GRANTED.
6) By end of day Thursday, August 6, 2015, the parties shall file briefs on
whether plaintiff alleged and was granted leave to proceed on (a) a First
Amendment retaliation claim against defendant Bittelman premised on the
alleged false conduct report; and (b) an excessive force claim (as distinct from a
failure to protect claim) against defendant Franson.
7) Also by end of day Thursday, August, 6, 2015, defendants shall submit a brief
describing their support for the position that the PLRA requires a showing of
physical injury for compensatory damages for a conditions of confinement
claim. Plaintiff’s response is due by end of day Friday, August 7, 2015.

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Entered this 6th day of August, 2015.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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