Davis, James v. Meisner, Michael et al

Filing 148

ORDER that Defendants' Motions in Limine (dkt. 125 ) are GRANTED, in part and DENIEDwithout prejudice in part.(2) Plaintiff James Davis's Motions in Limine (dkts. 112 , 124 , 134 ) are GRANTED inpart and DENIED in part. Signed by Magistrate Judge Stephen L. Crocker on 10/12/2017. (Attachments: # 1 Draft Voir Dire, # 2 Draft Introductory Jury Instructions, # 3 Draft Closing Instructions, # 4 Draft Deliberation Instructions, # 5 Draft Special Verdict) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES JERMAINE DAVIS,
TRIAL PREPARATION ORDER
Plaintiff,
v.

15-cv-268-slc

MICHAEL MEISNER, et al.,
Defendants.

The court is holding the final pretrial conference this coming Monday, October 16, 2017,
at 12:30 p.m., with jury selection and trial to follow at 1:00 p.m. In this order I am addressing
scheduling issues, ruling on the motions in limine and attaching the court’s draft void dire, jury
instructions and special verdict form for discussion at the final pretrial conference.

Trial Scheduling Issues
The reason for the late start with jury selection on Monday is because Judge Conley is
using the jury pool to pick a jury in a criminal case. That voir dire will take all morning, maybe
longer. In this lawsuit, I am sensitive to the DOC’s staffing and transportation concerns, which
means that I am not going to make WCI bring witness Robert Gant back on Tuesday. If we are
pressed for time on Monday afternoon–I do not intend to keep the jury past 5:30 p.m. at the
latest on their first day–then I will require Davis to present Gant’s testimony before Davis
presents his own testimony, with the court explaining to the jury what we are doing and why.
The parties should be prepared for this possibility.

Plaintiff’s Motions in Limine (dkt. 112)
1.

Plaintiff’s Disciplinary History
Davis seeks an order excluding his disciplinary history except for the conduct reports at

issue in this case: CR #2211295, CR #2211367, CR #2386845, CR #2386861, CR
#2412602, CR #2236750. Defendants do not object to plaintiff’s motion see dkt. 140, but they
view this as a two way street and therefore object to Davis’s introduction of the additional
conduct reports for other purposes. Plaintiff’s motion is GRANTED in every respect, which
means the court agrees with the defendants’ observation.

2.

Plaintiff’s Witnesses
Davis seeks an order excluding prison disciplinary histories of his incarcerated witnesses,

Quenton Thompson, Richard Arnold, Hipolito Claudio Jr., Nikko Krohn, Curtis Daniels, and
Robert Gant. Defendants object on the basis that they would like to be able to introduce
evidence of their conduct report histories for impeachment purposes. I will RESERVE a final
ruling for each witness pending a proffer from the defendants as to the details of any
impeachment with disciplinary reports.

3.

Plaintiff’s Criminal Record
Davis seeks an order excluding any details of his criminal record, with the exception of

the fact of his conviction in Case No. 2013C3040. I have not been able to locate Case No.
2013C3040, but Davis likely meant Case No. 2013CM000763, the only criminal conviction
related to this lawsuit. Defendants do not object. The motion is GRANTED.

2

4.

Plaintiff’s Witnesses’ Criminal Record
Acknowledging that Rule 609 allows impeachment with the fact of a conviction, Davis

seeks an order excluding details behind the criminal convictions of his incarcerated witnesses.
Defendants do not object. The motion is GRANTED.

5.

Plaintiff’s Mental Health History
Davis seeks an order excluding his mental health history from trial as unduly prejudicial.

Defendants object because Davis’s excessive force claim arises from an incident of self-harm that
resulted in the challenged cell extraction. Defendants ask to be able to submit evidence about
the circumstances surrounding the use of force. Defendants further point out that Davis is
seeking to admit other evidence of his mental health. Based on what currently is in the court
record, I agree with defendants that Davis’s mental health history is relevant to at least one of
his claims. Accordingly, Davis’s motion is DENIED in principle, with the details of what
information is fair game at trial to be decided at trial. The court expects both sides to proffer
to the court what evidence it intends to offer before introducing it in the jury’s presence.

6.

Plaintiff’s Witnesses’ Mental Health History
Davis seeks an order excluding the mental health histories of his incarcerated witnesses

as unduly prejudicial. Defendants do not object. The motion is GRANTED.

3

7.

Plaintiff’s Prior lawsuits and Complaints about Prison Conditions
Davis seeks an order excluding evidence of his prior lawsuits and complaints about prison

conditions as unduly prejudicial. Defendants object because they would like to submit evidence
of the court’s order in Davis v. Gee, Case No. 14-cv-617-wmc, 2017 WL 2880869 (W.D. Wis.
July 6, 2017), in which the court held that no reasonable jury could agree with Davis’s argument
that there was a conspiracy to falsify records related to his claim in that lawsuit. Specifically,
defendants would like to submit this finding as evidence of Davis’s propensity for truthfulness.
See dkt. 140 at 3-4. Federal Rule of Evidence 608(b) permits a party to inquire into “specific
instances” of a witness’s conduct for impeachment purposes where there is a good faith belief
that the witness was not truthful. United States v. Abair, 746 F.3d 260, 264-65 (7th Cir. 2014).
In the Gee opinion that defendants wish to use, the court did not find that Davis was
lying when he argued that defendants falsified his records; what Judge Conley found was that
no reasonable juror could agree with Davis because he had failed to provide any evidence in
support of his falsification theory beyond his and three other inmates’ statements. See Davis,
Case No. 14-cv-617-wmc, dkt. 92, at 10-11. Judge Conley found that Davis’s allegations were
“based on little more than speculation, which is insufficient to manufacture a genuine issue of
fact at summary judgment.” Id. Maybe Judge Conley was sugar-coating his view that Davis was
lying in order to keep his lawsuit afloat, but that would be speculation on my part. Gee does
not meet Rule 608(b)’s standard. Davis’s motion to exclude is GRANTED.

4

8.

Plaintiff’s Witnesses’ Prior Lawsuits and Complaints about Prison Conditions
Davis seeks an order excluding evidence of other lawsuits filed by his incarcerated

witnesses. Defendants do not object, so the motion is GRANTED.

9.

Evidence of Melby’s Investigation of October 29, 2013, Incident
Davis seeks an order excluding any evidence related to Melby’s investigation of the

October 29, 2013, incident. Defendants do not object, so the motion is GRANTED.

10.

Evidence of Melby’s Investigation of Plaintiff’s Complaints Against Ashton’s
Conduct Reports
For the same reasons, Davis seeks an order excluding evidence related to Melby’s

investigation into Davis’s allegations that Ashton was filing retaliatory conduct reports.
Defendants do not object, so the motion is GRANTED.

11.

Evidence of Actions or Decision Regarding Plaintiff’s Sixteen Complaints Filed
Against Ashton
Davis seeks an order excluding any actions or decisions regarding the sixteen complaints

that Davis filed against Ashton. Specifically, he seeks exclusion of evidence of how DOC
employees within the Inmate Complaint Review System (ICRS) concluded that his offender
complaints about Ashton lacked merit.
Davis claims that such evidence is inadmissible hearsay and unduly prejudicial.
Defendants respond that the evidence is not hearsay because it would be offered to show that
Ashton had no motive to retaliate against him because the complaints did not adversely affect

5

her. Because Ashton’s motivation in issuing Davis conduct reports is the key to his retaliation
claim, this evidence is highly relevant. The only prejudice attendant to this is that it is favorable
to Ashton’s defense and unfavorable to Davis’s retaliation claim. The motion is DENIED.

12.

Incident Reports and Affidavits Related to October 29, 2013, Incident
Davis seeks an order excluding incident reports related to the October 29, 2013, incident

to prevent prejudice. Defendants do not object, but ask to be able to use the incident reports to
refresh witness recollection as needed. As the reports and affidavits would not be admitted into
evidence, the motion is GRANTED.

13.

Exclude Witnesses From Courtroom
Davis seeks an order excluding the defendants and their witnesses from the courtroom

so they cannot hear other witness testimony. The defendants are entitled to be present for the
entire trial if they choose, see Fed. R. Evid. 615(a) so I will not exclude any of them. Pursuant
to Rule 615, Davis’s request as to non-defendant witnesses is granted with this exception: Isaac
Hart is simply an authentication witness rather than an event witness. The orderly presentation
of testimony militates toward allowing Hart to be present in court during the trial. See Rule
615(c). In sum, the motion is GRANTED IN PART and DENIED IN PART.

14.

Permit Plaintiff and Incarcerated Witnesses to Dress in Street Clothes and not be
Shackled
I will permit Davis to dress in street clothes for trial, provided that he has access to them.

This is Davis’s responsibility alone, not the court’s and not DOC’s. Plaintiffs who are in custody

6

routinely appear at jury trials in this court in their prison uniforms; this does not create unfair
prejudice because the juries are well aware of the plaintiffs’ incarceration. If, however, an inmate
plaintiff has access to street clothes and asks to wear them, then the court will honor that request
so that the plaintiff may present himself as neutrally as possible during trial. As for Davis’s
incarcerated witnesses, the court will not require DOC or the U.S. BOP to clothe their inmates
in civilian clothes for their testimony in this lawsuit. The jury will know they are in custody,
each witness’s testimony will be relatively brief, and none of them is actually a party in this
lawsuit.
Regarding shackles, the court will not allow DOC to shackle Davis when he is in the
presence of the jury. This court does not allow the jury to see any party or witness in visible
restraints. This is a court-wide policy with which the Attorney General’s Office and DOC are
familiar. If DOC deems it necessary for security purposes, it may request permission that its
inmates wear an electronic stun band or belt under their clothing while in the courtroom. If this
is not possible and if shackles are absolutely necessary for a particular witness, then defendants’
attorneys must promptly alert the court so that we can drape the witness stand accordingly.

15.

Observation Log of March 20, 2014, and March 21, 2014
Davis seeks an order allowing him to introduce the March 20, 2014, and March 21,

2014, observation logs. In support, he asks to testify about how, on those dates, Ashton told him
that he would be criminally charged and that if he hadn’t been snitching her out she never would
have written false conduct reports against him.

7

Defendants object because the information in the log is not within the time frame of this
lawsuit; regardless, the entries constitutes inadmissible hearsay. Evidence of Ashton’s statements
after she issued the conduct reports is relevant if in fact those statements reveal Ashton’s state
of mind at the time she issued the reports, but that’s not the actual dispute here. It appears that
Davis wants to submit the logs to show that Ashton signed in on those days, which could
corroborate Davis’s recollection of the dates. If Ashton personally signed in, then her own
entries are not hearsay, see Fed. R. Evid. 801(d)(2). If she didn’t personally sign the logs, then
Davis is going to have to come up with a different theory of admissibility. This motion is
RESERVED.

16.

The Michael Meisner July 17, 2013, Memorandum
Davis seeks an order permitting him to admit a July 17, 2013, memorandum from

Michael Meisner. Defendants do not object to admission of the memorandum.
Davis also wants to tell the jury that the day after this memorandum was sent out, Davis
made a verbal complaint about Ashton to Lt. Morrison, who did not write the memo and who
is not a defendant in this case. Davis may testify to the unadorned fact that he made a verbal
complaint. That’s a verbal act, not a statement. Based on what the court knows at this juncture,
Davis may not testify about what he said because that’s an out-of-court statement offered for
its truth, but this could change.
Because this is a recurring theme in other motions in limine, both sides should
understand that the court will not prohibit Davis from testifying about what he was thinking
and feeling, as long as this is relevant to the claims and defendants in this case. As part of his

8

narrative, Davis also may testify about what he claims to have said to other people and what
they said to him, so long as we all are clear on the purpose for which the jury may consider each
such statement, which means that sometimes the court will provide limiting instructions that
might include telling the jury that they cannot consider a statement for its truth, but rather for
some other purpose. It will be up to both sides to flag these issues for the court so that we can
address them in a timely manner so that we can keep the trial moving at an acceptable pace.
Subject to this understanding, the motion is GRANTED IN PART AND DENIED IN PART,
subject to reconsideration.

17.

Plaintiff Correspondence with the Warden and Deputy Warden
Davis seeks an order permitting him to present evidence of his correspondence with the

warden and deputy warden regarding his complaints about Ashton. As with the preceding
motion, filing complaints about Ashton with the warden and deputy warden corresponded with
the warden is a set of acts. Acts are not hearsay. The contents of these communications is not
admissible unless the court determines that they are admissible under the rules of evidence.
Defendants state that they don’t have these communications, so they cannot respond to them;
it is Davis’s responsibility to provide copies of these documents to defendants attorneys ASAP
and in any event, not later than the final pretrial conference. This motion is GRANTED IN
PART AND DENIED IN PART, without prejudice to reconsideration.

9

18.

Psychiatrist Gary Maeier Report from July 25, 2013, Appointment
Davis seeks an order permitting him to admit evidence of what he reported to psychiatrist

Gary Maier with respect to the events leading up to Ashton issuing Davis CR #2211295. This
evidence constitutes hearsay and Davis has not explained the basis for the court to admit it, or
why it is relevant evidence in this case against these defendants on these claims. The motion is
DENIED without prejudice to reconsideration.

19.

Dr. Buhr Placement/Review document from October 31, 2013
Davis seeks an order permitting him to admit evidence of what he reported to Dr. Buhr

and how Dr. Buhr documented his concerns. It appears that some or all of the evidence Davis
would like to admit with respect to his interaction with Dr. Buhr is hearsay, but as with the
previous motion, I am willing to discuss this issue outside the jury’s presence to get a better sense
of why it is relevant and whether it should be admitted. The motion is DENIED without
prejudice to reconsideration.

20.

Plaintiff’s July 19, 2013, Transfer Request submitted to Security Director Weber
Davis seeks an order permitting him to admit evidence of his July 19, 2013, transfer

request that he submitted after Ashton filed her first conduct report (CR #2211295) against
him. Defendants object because the correspondence is hearsay, Weber is not a defendant in this
lawsuit, and Davis did not provide defendants with copies of any correspondence with Weber.
Davis has not argued that any hearsay exception applies, and it is not readily apparent that one
applies. The fact that Davis filed a transfer request is admissible. The content of the request

10

is not admissible, at least not for the truth of the matters asserted in it. This motion is
GRANTED IN PART AND DENIED IN PART, without prejudice to reconsideration.

21.

Plaintiff’s July 31, 2013, Transfer Request submitted to Melby
Davis seeks an order permitting him to admit evidence of his July 31, 2013, transfer

request. Defendants object, again, on the basis that the correspondence is hearsay, Melby is not
a defendant, and Davis has not provided defendants with copies of the correspondence. As just
discussed in #20, this motion is GRANTED IN PART AND DENIED IN PART, without
prejudice to reconsideration.

22.

Conduct Report #2211294 and Questions and Answers from Morrison and
Ashton
Davis seeks an order admitting evidence related to Conduct Report #2211294 because

he claims that he complained about Ashton to Morrison during his defense. However, this
conduct report is not one of the conduct reports that Davis claims is retaliatory, and he has
already requested exclusion of other conduct reports from the evidence. The motion is DENIED.

Plaintiff’s Motion Regarding Richard Arnold Deposition Transcript (dkt. 134)
Davis seeks an order admitting the deposition transcript of Richard Arnold. Defendants
have not opposed the motion, so it is GRANTED.

11

Plaintiff’s Addendum Motion in Limine (dkt. 124)
1.

Exclude Morrison Investigation of Request for Special Placement Related to
Ashton
Davis seeks to exclude Morrison’s investigation of Davis’s request for separation from

Ashton.

Defendants respond that they do not intend to offer this evidence. However,

defendants warn that if Davis opens the door with his own evidence or his questions to the
defendants, then they will seek to provide testimony about the no-contact order issued in
Columbia County Case No. 2013CM000763, which was the basis for the special placement
between Ashton and Davis. The motion GRANTED, subject to reconsideration based on what
happens at trial.

2.

Plaintiff Testimony at Disciplinary Hearing of Inmate Herman Brown that Ashton
Witnessed.
Davis seeks to introduce his own testimony about an incident that he witnessed between

Ashton and another inmate, Herman Brown. Davis claims that he testified at Brown’s
disciplinary hearing about the incident, and that during his testimony he complained about
Ashton, and that Ashton was present. Davis would like to use this evidence to impeach Ashton
because she claims that she does not know about his complaints.
The fact that Ashton may have heard Davis’s complaints about her might be admissible,
but it depends on when this happened. If it occurred after Ashton issued Davis the conduct
reports, then it is irrelevant. Further, depending on what Ashton might say when she testifies at
trial, this may be cumulative. Absent more information about who knew what and when they

12

knew it, I am not inclined to allow in testimony offered at another inmate’s disciplinary hearing.
The motion is DENIED without prejudice to reconsideration.

13

Defendants’ Motions in Limine (dkt. 125)
Davis has not specifically objected to defendants’ motions in limine, but I will address
each of them separately for the sake of clarity heading into trial.

1.

Offender Complaints and Conduct Reports
Defendants seek an order excluding evidence that offender complaints (other than CCI

#13307, CCI #14276, CCI #14904, CCI# 15809, CCI# 17167, CCI# 17254, CCI #18363,
CCI #19879) resulted in retaliatory action. Conversely, they seek an order excluding evidence
that conduct reports (other than CR #2211295, CR #2386845, CR #2386861, CR #2412602,
CR #2236750), were issued in retaliation. Davis has not objected, so the motion is GRANTED.

2.

Plaintiff’s Previous Convictions
Defendants seek an order related to Davis’s criminal convictions from Columbia County

Case 2013CM000763, in which Davis was convicted of Lewd, Lascivious Behavior-Exposure,
in violation of Wis. Stat. § 944.20(1)(b), based on his behavior against Ashton on August 17,
2013; and Disorderly Conduct, in violation of Wis. Stat. § 947.01(1), based on his behavior
against Ashton on June 23, 2013. Defendants explain that in 2013CM000763, Davis had been
charged in a six-count criminal complaint. (See dkt. 69-10) Davis pled no contest to Counts 1
and 5, which respectively charged him with Lewd, Lascivious Behavior-Exposure related to the
August 17, incident; and Disorderly Conduct related to the June 23 incident. The August 17,
2013, incident resulted in CR #2211367, which is one of the conduct reports that Davis claims
Ashton issued with a retaliatory motive. Therefore, they argue that Davis cannot challenge CR

14

#2211367 by claiming that Ashton was lying or claiming that he never exposed himself to her
because that would undermine the validity of his conviction.
Defendants ask the court to take four specific actions: (1) permit them to introduce
evidence of Davis’s conviction; (2) instruct the jury that they must accept as true that Ashton
was the victim of Davis’s conduct on June 23 and August 17, 2013; (3) prevent Davis or any
witness from arguing that he did not engage in conduct against Ashton on June 23 or August 17,
2013; and (4) permit defendants to read the paragraphs of the criminal complaint in
2013CM000763 related to Davis’s conduct on June 23 and August 17, 2013. Defendants are
entitled to some of this relief, but not necessarily all of it.
Pursuant to Heck v. Humphry, Davis cannot recover damages under § 1983 for an
allegedly unlawful conviction without proving “that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.” 512 U.S. 477, 486-87 (1994). “By pleading no contest, a defendant impliedly admits
all allegations in the indictment. In this way, a no contest plea is indistinguishable from a guilty
plea, in that it forecloses any opportunity to contest any alleged antecedent constitutional
deprivation.” Gomez v. Berge, 434 F.3d 940, 942 (7th Cir. 2006). Here, however, Davis does not
deny that he pled no contest with respect to these convictions, and he has not submitted any
evidence suggesting that his convictions have been overturned or questioned in any manner. If
he starts down this path at trial, then the court will remedy any factual or legal error that Davis
might present to the jury.

15

Apart from this, these incidents and Davis’s plea are fair game at trial for both sides, up
to a point. If Davis wants to claim that the conduct report was issued for retaliatory purposes
but he does not contest the factual bases of the report, that’s not forbidden by Heck. Going in
the other direction, defendants are free to cross-examine Davis with his sworn factual admissions
regarding CR #2211367 to impeach his credibility if he denies the factual basis for the other,
similar conduct reports that Ashton tagged him with. Whether defendants may admit the fact
of Davis’s conviction requires further consideration. The convictions are misdemeanors, so Fed.
R. Evid. 609 does not automatically allow the actual convictions into evidence. Is this a Rule
403 or 404(b) question? The parties should be prepared to amplify their positions at the final
pretrial conference. For now, the motion is GRANTED IN PART AND DENIED IN PART
without prejudice to further consideration.

3.

State Law Claim Against Nurse Philip Kerch
Defendants seek an order excluding Davis from submitting evidence in support of a

negligence claim against Kerch because Davis did not submit a notice of claim as to this
defendant, as required by Wis. Stat. § 893.82. An exception to the notice of claim requirement
would be a medical malpractice claim, Wis. Stat. § 893.82(5m). However, Kerch is a nurse, and
Wisconsin law does not permit a plaintiff to sue a nurse employed by the state for medical
malpractice. Patients Comp. Fund v. Luterhan Hosp. - La Crosse, Inc., 216 Wis. 2d 49, 573 N.W.2d
572, 575 (Ct. App. 1997). Accordingly, the motion is GRANTED. Davis may not pursue a state
law negligence claim against Kerch.

16

4.

Wisconsin Department of Corrections Lawsuits
Defendants seek an order excluding any argument, questions, testimony, or evidence

related to lawsuits, complaints, or newspaper articles related or referring to the Wisconsin
Department of Corrections or to these defendants personally. I agree that such evidence is
inadmissible on a number of bases: it probably would be hearsay, it would be improper
propensity evidence under F.R. Ev. 404(b)(1), and any arguable relevance would be substantially
outweighed by unfair prejudice to defendants, confusion of the issues and misleading the jury,
pursuant to Rule 403. The motion is GRANTED.

5.

Evidence Related to Physical Injury
Defendants seek an order excluding argument, questions, testimony, or evidence

regarding the causation of any physical injury, permanence, future care and treatment or future
pain and suffering. It’s not clear that Davis intends to offer any such evidence other than
perhaps before/after testimony. Anything beyond that be improper under governing state law:
in Wisconsin, a damages award for a permanent or future injury must be supported by the
opinion of a medical expert based upon a medical certainty or probability. Ballard v. Lumbermens
Mut. Cas. Co., 148 N.W.2d 65, 70, 33 Wis. 2d 601 (1967). The same is true as to evidence
about future pain and suffering. Casimere v. Herman, 28 Wis. 2d 437, 440, 137 N.W.2d 73
(1965). The motion is GRANTED.

17

6.

Damages for Retaliation Claim
Defendants seek an order limiting Davis’s damages recovery for his retaliation claim to

$1 because he has not alleged any physical injury resulting from Ashton’s allegedly retaliatory
conduct reports. Under 42 U.S.C. § 1997e(e), if a prisoner suffers no physical injury,
compensatory damages are limited to nominal damages of one dollar. The motion is GRANTED.

7.

Defendants’ objection to Davis’s Pretrial Disclosures
Finally, while not a filed as a separate motion, defendants object that Davis failed to file

a witness and exhibit list as required under the Pretrial Conference Order and Federal Rule of
Civil Procedure 26. Indeed, the deadline for Davis to file his witness and exhibit list was
September 22, 2017. (Order, dkt. 98, at 1.) Therefore, defendants object to Davis calling any
witnesses other than the witnesses for whom the court issued writs, or introducing any exhibits
beyond those included in defendants’ exhibit list and identified in Davis’s motion in limine. I
agree that this is fair: Davis has been representing himself ably and did not seek an extension on
the deadline to file Rule 26 disclosures. If Davis wants to call any of the defendants in his own
case, I will not forbid it, but hewing to this court’s standard policy, I would allow defendants’
attorneys to ask all of their questions at that time if they wished so that these defendants would
only have to testify once.
Accordingly, absent a showing of good cause, I will sustain defendants’ objection to any
witnesses or exhibit Davis seeks to admit that have not previously been disclosed through his
writs and motions in limine.

18

ORDER
IT IS ORDERED that:
(1) Defendants’ Motions in Limine (dkt. 125) are GRANTED, in part and DENIED
without prejudice in part, as set forth above.
(2) Plaintiff James Davis’s Motions in Limine (dkts. 112, 124, 134) are GRANTED in
part and DENIED in part as set forth above.

Entered this 12th day of October, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

19