Hamlin, Christopher v. Holmes et al

Filing 94

ORDER granting 78 Motion in Limine; deferring ruling on 87 Motion in Limine; granting 88 Motion in Limine. Signed by District Judge James D. Peterson on 3/10/15. (Attachments: # 1 Draft Voir Dire, # 2 Draft introductory instructions, # 3 Draft post-trial instructions, # 4 Draft verdict) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTOPHER HAMLIN,
Plaintiff,

ORDER

v.

13-cv-202-jdp

JASON WENZEL, MATTHEW BURNS,
SCOTT ROSS, ANTHONY LO BIANCO,
and DEREK SCHOUTEN,
Defendants.
In this case brought under 42 U.S.C. § 1983, plaintiff Christopher Hamlin is
proceeding on claims that prison officials at the Waupun Correctional Institution subjected
him to an unlawful strip search on January 1, 2013. Trial is set for March 16, 2015, with the
final pretrial conference scheduled for Thursday, March 12.
Currently before the court are the parties’ motions in limine. The purpose of this
order is to provide preliminary rulings on the motions in limine. I will take limited argument
on these motions at the final pretrial conference.
Attached to this order are nearly final drafts of the voir dire questions, introductory
and post-trial jury instructions, and verdict.

DEFENDANTS’ MOTIONS
Defendants have filed three motions in limine (all contained in Dkt. 78):
1.

Defendants’ motion to exclude lawsuit history and newspaper articles
Defendants seek to exclude testimony or argument concerning (1) the lawsuit history

of any defendant or other DOC employee; and (2) newspaper articles about alleged
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wrongdoing by DOC employees (I understand defendants to be referring to a specific series
of articles about alleged abuse of prisoners at the Waupun Correctional Institution, see
http://wisconsinwatch.org/2014/07/waupun-guard-named-repeatedly-in-abuse-complaints/).
Defendants do not explain how specific lawsuits or articles relate to the individual defendants
in this case, but at any rate, plaintiff did not respond to this particular motion.
Even without the parties explaining what specific pieces of evidence might be at issue,
it is difficult to see how other lawsuits or newspaper articles would have probative value
outweighing the potential for prejudice. This motion is GRANTED.

2.

Defendants’ motion to exclude acts before the strip search, and

3.

Defendants’ motion to exclude issue regarding decision to conduct strip search
Both of these motions relate to the scope of plaintiff’s strip-search claims. In screening

plaintiff’s complaint, the court had allowed plaintiff to proceed on an excessive force claim
regarding plaintiff’s escort to segregation and a claim regarding the strip search. The excessive
force claim was dismissed on exhaustion grounds. See Dkt. 35.
In their MIL No. 2, defendants seek an order “precluding testimony or argument
claiming that any acts on January 1, 2013—other than the alleged improper conduct during
the strip search—were acts of excessive force.” In their MIL No. 3, defendants state,
“Provided that Motion # 2 is granted, defendants move the court to clarify the only issue
remaining for trial and exclude any argument that the decision to conduct a strip search was
erroneous.”

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Although these two issues are interrelated, it makes more sense to ascertain the precise
scope of plaintiff’s claims before deciding what evidence regarding allegedly excessive force
leading up to the search should be allowed, so I will address MIL No. 3 first.
As a starting point, a strip search violates the Eighth Amendment when it is
conducted in a harassing manner with the intent to humiliate and inflict psychological pain
rather than for legitimate prison purposes. Dkt. 10, at 8.
Defendants recognize that there are two aspects to the strip search claim: (1) the
decision to perform a strip search (or more precisely in this case, whether to perform a visualonly search in which the prisoner takes off his own clothes and manipulates his own genitals,
etc. versus a search where prison staff takes off a prisoner’s clothes and manipulates the
prisoner’s body); and (2) whether the strip search was performed in an inappropriate way.
Judge Crabb’s screening order focused on the first aspect:
Plaintiff alleges that defendants Wenzel, Ross, Burns and Lobianco did
not give him an opportunity to consent to a “regular” strip search before
performing a “staff-assisted” search, which I interpret to mean a visual
inspection instead of a manual one. In some circumstances failure to allow a
prisoner to comply with a visual inspection before conducting a manual
inspection could constitute an unreasonable strip search if there was no
legitimate penological reason for proceeding directly to the more intrusive
manual inspection. Vasquez v. Raemisch, 480 F. Supp. 2d 1120, 1131-32 (W.D.
Wis. 2007) (granting leave to proceed on manual strip search where officers
did not give plaintiff opportunity to consent to visual search and no allegations
indicate legitimate reason preventing visual inspection). In other
circumstances, it may not be reasonable to allow a prisoner to comply first,
such as when a prisoner has been restrained for legitimate penological reasons
and could not assist staff in performing a visual search. Edwards v. Thurmer, 08CV-352-BBC, 2008 WL 2953974 (W.D. Wis. July 29, 2008) (denying leave
to proceed where prisoner who had been trying to cut himself with razor was
restrained with waist, hand and leg restraints and cuffed to a steel door).
In this case, plaintiff had been restrained but, as discussed above, it is
not clear from plaintiff’s allegations whether there was any good reason for the
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restraint. It may turn out that the officers had good reason for handcuffing
plaintiff in the first place; if so, then a subsequent manual strip search for
placement in segregation is not improper. However, there is still some room to
doubt whether plaintiff should have been handcuffed, and the benefit of that
doubt must go to plaintiff at this very early stage. Therefore, plaintiff may
proceed on his theory that defendants Wenzel, Burns and Lobianco performed
an illegal search by failing to allow him a chance to assist with a visual
inspection.
Dkt. 10, at 8-9. At summary judgment, it became clearer that plaintiff was alleging both (1)
that the decision to perform a manual search violated the Constitution and (2) that
Lo Bianco touched him inappropriately during the search. At that time, defendants did not
argue that the scope of the screening order excluded the second theory. Rather, they
conceded that plaintiff’s story created a dispute of material fact.
In their MIL No. 3, defendants argue that because the excessive force claim was
dismissed, “there is no longer a question of whether there was any legitimate penological
reason for deciding to conduct a strip search” and that “the grant of summary judgment to
defendants on that claim would be toothless.”
The real question about the first theory is “Was there a penological reason to perform
a staff-assisted search rather than a visual one?” If the court had ruled in defendants’ favor on
the substance of the excessive force claim, that could be used to argue that whatever rationale
defendants had to use force on plaintiff was also a reason to perform the staff-assisted search.
But the court did not rule on the substance of the excessive force claim; it was dismissed for
failure to exhaust. So based solely on the arguments contained in defendants’ MIL, there is
no reason to grant the motion.
However, the parties go on to argue further. In plaintiff’s own MIL No. 2 (an MIL
that is not substantively about the visual search versus manual search issue), he argues, “To
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some extent, Hamlin’s conduct immediately preceding the strip search will be at issue,
because Hamlin will argue that he should have been afforded the opportunity to participate
in a visual strip search as opposed to a staff assisted strip search.” Dkt. 88, at 2. Defendants
respond to this argument by stating that “it is [their] position that there is no longer a
question of whether there was any legitimate penological reason for deciding to conduct a
strip search,” citing the summary judgment opinion:
Because a reasonable jury believing plaintiff’s version of events could conclude
that defendant Lo Bianco did not have a legitimate penological reason to
conduct the manual strip search in the manner he did, defendants’ motion for
summary judgment must be denied with regard to defendant Lo Bianco.
Dkt. 92, at 2 (quoting Dkt. 60, at 8) (emphasis added by defendants). I am not persuaded by
this argument because the cited language from the summary judgment order was not
intended to foreclose the argument about the visual versus manual search issue. Rather, the
summary judgment order reflected that the parties’ briefing made it crystal clear that there
was a disputed issue of material fact about the conduct of the search itself. Defendants
conceded that if plaintiff’s story was believed by the jury, it would have to find in plaintiff’s
favor. The aspect of the claim regarding the decision to perform a staff-assisted search in the
first place continues to be a part of the case and plaintiff should be allowed to present
evidence and argument about it.
Defendants add, “To permit argument regarding the decision to conduct a strip
search, as opposed to a manual search, would involve a mini-trial on whether there was
proper restraint rather than excessive force prior to the strip search.” Dkt. 92, at 2-3. This is
really more of a prudential argument about why the court should not allow discussion of the
visual versus manual search issue and is closely related to the arguments defendants bring
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with regard to their MIL No. 2. Defendants argue that “it is clear that [plaintiff] intends to
argue that the events leading up to the strip search constituted excessive force. Hamlin argues
that those events are relevant to the mindset of the officers when they conducted the strip
search at issue on this case. But those arguments would impermissibly revive [the] excessive
force claim that was dismissed at the summary judgment stage.”
This is partially correct—plaintiff indeed argues that the events taking place during his
escort are relevant to defendants’ mindset during the strip search, but this does not mean
that the excessive force claim is being revived. Defendants’ actions during the escort 1 are
relevant to both the excessive force and the strip search claims. As plaintiff put it, “The
attitude and mindset of the defendants are central to this case, because the plaintiff must
prove that the defendants acted in a harassing manner intended to humiliate and inflict
psychological pain.” Therefore, I will DENY defendants’ motions in limine regarding this
issue, subject to hearing from counsel at the final pretrial conference.
This means that the parties will be allowed to present evidence and argument
explaining why defendant Wenzel 2 thought it was appropriate to perform a manual search
rather than a visual one. Presumably, that evidence will touch on plaintiff’s possession of
contraband and the question whether plaintiff was compliant with staff during the escort.
Defendants’ concern about confusing the jury will be addressed by an instruction explaining
that plaintiff’s claims are limited to (1) Wenzel’s decision to perform a manual search; (2)

1

It appears to be undisputed at this point that only defendants Wenzel and Schouten were
present for both the escort and the strip search.
2

From the summary judgment materials, I understand defendants to be saying that
defendant Wenzel authorized the “staff-assisted” strip search.
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the manner in which Lo Bianco’s manual search was performed; and (3) if plaintiff’s
Constitutional rights were violated by Wenzel or Lo Bianco, whether any of the other
defendants could have intervened. The parties are encouraged to propose language for that
instruction.

PLAINTIFF’S MOTIONS
Plaintiff has filed two motions in limine (Dkt. 87 and 88):
1.

Plaintiff’s motion to appear in civilian clothing without visible shackles
Although this lawsuit concerns events at the Waupun Correctional Institution,

plaintiff is currently a federal prisoner. Plaintiff asks to (1) appear in civilian clothing without
any visible shackles; (2) if further security is necessary, have plaintiff’s legs shackled but kept
out of the view of the jury; and (3) if he is shackled, that he be transported to and from the
witness stand outside the presence of the jury. Defendants defer to the court.
The court’s default position is that an incarcerated plaintiff would appear with civilian
clothes and without any shackles, so unless there was a security-based reason to do so I would
grant the motion. I will consult with the Marshals Service before making final ruling on this
motion.

2.

Plaintiff’s motion to exclude criminal history and current status as federal
inmate
According to plaintiff and my review of CCAP, plaintiff has two state of Wisconsin

felony convictions for burglary (Dodge County Case No. 06CF271 and Jefferson County
Case No. 06CF517). Plaintiff’s probation was revoked in those cases after he was arrested for
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possession of a pipe bomb. That arrest led to a conviction for possession of an unregistered
firearm (which can be triggered by possession of a pipe bomb) in this court. He received a
sentence of 84 months. See No. 09-cr-120-bbc.
Plaintiff seeks to exclude any reference to his criminal history or his current status as
an inmate in federal prison. In briefing this motion, plaintiff discusses Fed. R. Evid. 609, and
also ends up trying to frame the case as containing questions about whether he should have
been given a visual strip search and more generally, his and defendants’ conduct immediately
before the search. Rather than explain whether they even plan to impeach plaintiff under
Rule 609, defendants jump to a discussion regarding whether plaintiff should be allowed to
discuss excessive force or the visual versus manual strip search issue. Plaintiff’s motion is
GRANTED, because his status as a person convicted of a serious crime will be apparent from
the facts of this case. Any further information would be unduly prejudicial.
Entered March 10, 2015,
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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