Allen, Raequon v. Mahoney, David et al
Filing
129
ORDER granting in part and denying in part defendant's 122 combined motions in limine. Signed by District Judge William M. Conley on 2/4/2019. (DPM),(ps) Modified on 2/5/2019 (nln).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RAEQUON DEWRELL ALLEN,
Plaintiff,
OPINION AND ORDER
v.
16-cv-410-wmc
ALEXA RICHARDSON,
Defendant.
Pro se plaintiff Raequon Dewrell Allen is proceeding to trial on February 14, 2019,
against Deputy Alexa Richardson on his excessive force claim arising out of an incident
during his confinement at the Dane County Jail in Madison, Wisconsin, in January 2016.
At the final telephonic pretrial conference on February 1 at 10:00 a.m., this court addressed
defendant Richardson’s motions in limine (dkt. #122) as follows. 1
I. MIL No. 1: Preclude Evidence of Insurance
Richardson seeks to exclude any evidence suggesting that she may have insurance
covering plaintiff’s claim, including prohibiting plaintiff from asking potential jurors about
any connection they may have to insurance or insurance companies. (Dkt. #122 at 2-3.)
Under Rule 411, “[e]vidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise wrongfully.” Fed.
Plaintiff Allen filed no motions in limine on his own and a belated response to Richardson’s
motions, which was received after the telephonic final pretrial conference. (Dkt. #128.) Plaintiff’s
opposition argues that defendant’s requests seek to: (1) “minimize” plaintiff’s judgment;
(2) “overload the courts with matters that are irrelevant at this stage of litigation”; and (3) challenge
relevant, admissible evidence. (Id. at 1-2 (capitalization altered).) He requests that the court
“dismiss the defendant[’]s motions in limine, proposed jury instructions, proposed special verdict,
and proposed voir dire.” (Id. at 2.) These objections are mostly baseless and the court declines to
“dismiss” defendant’s submissions.
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R. Evid. 411.
While the rule allows the admission of evidence for other purposes,
defendant is correct that none appear relevant here. Accordingly, defendant’s MIL No. 1
is GRANTED. Further, as the court explained during the final pretrial conference, the
court -- not individual parties or counsel -- asks the questions during voir dire and those
questions are laid out in the court’s proposed voir dire, with follow-up questions to
individual jurors also posed by the court, even if prompted by a party’s concern.
II. MIL No. 2: Preclude Evidence of Indemnification
Defendant similarly seeks to preclude plaintiff from addressing any right to
indemnification at trial. (Dkt. #122 at 3.) For the same reasons that plaintiff will be
precluded from presenting evidence of insurance, he will be precluded from presenting
evidence of indemnification. Defendant also seeks to prevent plaintiff from arguing that
the jury should “send a message” to Dane County or the Sheriff’s Department with its
verdict because punishment is not a legitimate basis for a damages award. (Id. at 3-4.)
However, if the jury determines that defendant’s conduct was malicious or in reckless
disregard of plaintiff’s rights, it may choose to award punitive damages, which are designed
to punish and make an example of the defendant. 2 (See Proposed Damages Instructions at
2.) As such, plaintiff may argue that the jury should “send a message,” but only in his
closing argument in the damages phase of trail and if the court permits him to seek punitive
Defendant contends that Allen is precluded from recovering punitive damages “as a matter of
law,” citing City of Newport v. Fact Concerts, 453 U.S. 247, 271 (1981), however Fact Concerts only
held that a municipality is immune from punitive damages under § 1983. Indeed, defendant later
acknowledges that “[p]unitive damages are recoverable in Section 1983 actions where [an
individual] defendant had a reckless or callous disregard to the federally protected rights of others.”
(Dkt. #122 at 16 (internal citations omitted).)
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damages. Accordingly, defendant’s MIL No. 2 is GRANTED IN PART and DENIED IN
PART.
III. MIL No. 3: Preclude Settlement Offers or Negotiations
Richardson next seeks to preclude evidence of any settlement offers or negotiations
between the parties. (Dkt. #122 at 4.) As defendant notes, Rule 408 prohibits the
admission of offers of and negotiations to compromise for purposes of “prov[ing] or
disprov[ing] the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed. R. Evid. 408. Since the court is unaware
of any permissible use of evidence of potential settlement in this case, defendant’s MIL
No. 3 is GRANTED.
IV. MIL No. 4: Preclude Reference to Other Claims
Defendant further seeks to preclude reference to “any other claims, lawsuits, or
proceedings brought against Richardson, Dane County, the Sheriff’s Department or any
other County official or employee” under Federal Rule of Evidence 403, because those
other proceedings are irrelevant, prejudicial, and confusing to the jury. (Dkt. #122 at 45.) As a general proposition, defendant is correct that the probative value of this type of
evidence is “substantially outweighed” by the risk of undue prejudice, confusing the issues,
wasting time and possibly misleading the jury.
defendant’s MIL No. 4 is GRANTED.
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See Fed. R. Evid. 403.
Accordingly,
V. MIL No. 5: Preclude Evidence of Other Use of Force Incidents
Relatedly, Richardson seeks to preclude reference to or evidence of “adverse or
publicized events involving law enforcement, including, but not limited to, ‘police
shootings,’ ‘excessive force,’ ‘abuse of authority,’ police misconduct’ or ‘blue walls of
silence.’” (Dkt. #122 at 5.) Just like in MIL No. 4, defendant is correct that the probative
value of these unrelated incidents is “substantially outweighed” by the risk of unfair
prejudice, confusion of the issues, wasted time, and a possibly misled jury. See Fed. R.
Evid. 403. Accordingly, defendant’s MIL No. 5 is GRANTED except by general allusion
in closing argument should plaintiff be allowed to seek punitive damages.
VI. MIL No. 6: Prohibit Plaintiff from Asking the Jury to Sympathize with Him
Richardson seeks to prevent the plaintiff from asking the jury to “place themselves
in [his] shoes” or to “consider how much money they would pay to avoid the pain and
suffering he alleges” because doing so would “improperly personalize[] this case for the
jury.”
(Dkt. #122 at 6-7.)
This so-called “Golden Rule” is a standard evidentiary
prohibition and will be enforced here as well. Moreover, defendant’s concern that the jury
would improperly sympathize with the plaintiff is addressed by the court’s instructions.
(See Closing Instructions at 1 (“[Y]ou should consider only the evidence that has been
received at this trial.
Do not concern yourselves with whether your answers will be
favorable to one side or another . . . .”); Damages Instructions at 1 (“There is no exact
standard for setting the damages to be awarded on account of pain and suffering. You are
to determine an amount that will fairly compensate the plaintiff for the injury he has
sustained.”); id. at 2 (explaining that punitive damages “should not reflect bias, prejudice,
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or sympathy toward any party”).) Accordingly, defendant’s MIL No. 6 is GRANTED.
VII.
MIL No. 7: Admit Evidence of Prior Convictions
In this motion, Richardson provides notice of her intent to rely on evidence of
plaintiff’s prior criminal convictions, as well as the prior convictions of “another witness,
Frazier.” (Dkt. #122 at 7.) Neither party intends to call Frazier as a witness. Accordingly,
that portion of defendant’s motion is DENIED AS MOOT.
Federal Rule of Evidence 609 governs the admission of evidence of criminal
convictions used for impeachment of “a witness’s character for truthfulness”: evidence of
a felony conviction “must be admitted, subject to Rule 403, in a civil case” if the conviction
or release from confinement for the conviction occurred less than 10 years before. Fed. R.
Evid. 609(a)(1)(A), 609(b). Defendant notes that plaintiff has felony convictions within
the past ten years for: (1) being a party to a crime for operating a vehicle without consent,
(2) battery by a prisoner, (3) aggravated battery with a dangerous weapon with a repeater
modifier, and (4) interference with commerce by threat or violence and use of a firearm
during a violent crime. (Dkt. #122 at 7, 9.) Defendant further argues that the Rule 403
balancing favors admissibility because: (1) the jury’s assessment of Allen’s credibility will
be of “utmost importance” in deciding what happened to this case; (2) evidence of Allen’s
convictions presents “no danger” of jury confusion or arousing jury emotions; and
(3) “Allen’s prior convictions involve conduct that raises a question whether he was truly
emotionally damaged by the incident at issue or whether any such injury or emotional
distress arises from” other occurrences. (Id. at 9.)
The third contention is dubious, and the second is flat wrong. So the real question
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is whether the likely prejudice here outweighs the relevance to assessing the plaintiff’s
credibility.
If plaintiff takes the stand, defense counsel may impeach plaintiff’s character for
truthfulness by asking the following questions:
1) “On November 18, 2013, you were convicted of being a party to a crime of
driving or operating a vehicle without consent, true?”
2) “On April 10, 2014, you were convicted of battery, true?”
3) “On April 25, 2016, you were convicted of another battery, true?”
4) On November 26, 2017, you were convicted of interference with commerce by
threats or violence, true?”
Unless plaintiff answers “no,” defendant will not inquire further or be allowed to introduce
other evidence related to these convictions. Moreover, the jury will be admonished that it
may consider these convictions only for purposes of assessing defendant’s character for
truthfulness, but not for propensity. Accordingly, defendant’s MIL No. 7 is GRANTED IN
PART and DENIED IN PART.
VIII. MIL No. 8: Preclude References to Future Harm
Richardson seeks to prevent plaintiff from presenting evidence or argument that the
incident here resulted in permanent or future physical or mental harm without expert
testimony supporting that assertion. (Dkt. #122 at 12-14.) Richardson also seeks to
preclude “attempts by Allen to testify to the effect that he has been diagnosed with any
particular condition because of this incident or has permanent injuries (physical or mental)
because of this incident.” (Id. at 13.)
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Defendant is correct that plaintiff requires expert testimony to establish causation
and the permanence of any injury because such conclusions are outside a layperson’s
expertise. See Goffman v. Gross, 59 F.3d 668, 672 (7th Cir. 1995) (explaining that “the
medical effects of secondhand smoke are not within the ken of the ordinary person, so
these inmates’ lay testimony by itself cannot establish the showing of medical causation
necessary to sustain [plaintiff’s] claim”).
Allen is also precluded from parroting any
diagnosis that he may have received from a doctor or psychologist, because that would be
rank hearsay. If Allen has any medical records that set forth a formal opinion or diagnosis,
the court would at least consider its possible admissibility.
Further, as Richardson
recognizes, Allen “may testify about his own perception of his physical and mental health
before and after the incident,” provided it is not counted as an expert opinion. (Dkt. #122
at 14.) Finally, should plaintiff claim psychological harm, this may open the door to
defendant introducing causation evidence relating to other incidents.
Accordingly,
defendant’s MIL No. 8 is GRANTED IN PART and DENIED IN PART.
IX. MIL No. 9: Preclude References to Discovery Issues
Richardson also seeks to preclude evidence or argument about discovery disputes
because they are “in no way probative of the issue to be resolved in this case.” (Id. at 15.)
Mainly, defendant seeks to prevent plaintiff from testifying or arguing about the Dane
County Jail’s failure to preserve the video of the incident at issue here. (Id.) The court has
already denied plaintiff’s requests for sanctions, as well as his request to reconsider the
court’s denial of sanctions for this failure. (See dkt. #103 at 1-5.) The court stands by its
earlier decisions and sees no basis for this dispute to be put before the jury. Rather, the
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court foresees jury confusion and wasted time if any discovery disputes were presented to
the jury. At the same time, plaintiff may argue that the Dane County Jail’s policy of
retaining videos of incidents for relatively short periods of time prevented greater certainty
as to what actually occurred. Likewise, both parties may note that the lack of video
evidence was not their fault. Accordingly, defendant’s MIL No. 9 is GRANTED.
X. MIL No. 10: Preclude Evidence of Emotional Distress
Next, defendant seeks to preclude plaintiff from pursuing compensatory damages
for emotional distress, arguing that his general claim of such distress is insufficient because
he: (1) failed to seek medical treatment; (2) refused to answer questions about his alleged
distress and treatment during his deposition; and (3) provides no evidence of treatment
for post-traumatic stress or emotional distress in his medical records. (Dkt. #122 at 1516.) As defendant previously recognized, however, a plaintiff can testify about his own
perceived mental and physical health before and after the incident.
(See id. at 14.)
Accordingly, these arguments go to the weight of plaintiff’s evidence, not its admissibility,
and defendant’s MIL No. 10 is DENIED.
XI. MIL No. 11: Prohibit Allen’s Claim for Punitive Damages
Finally, Richardson seeks to prevent Allen from pursuing punitive damages, arguing
that there is simply no evidence to support such a claim. (Id. at 16-18.) To recover punitive
damages, plaintiff must show that defendant acted with “evil motive or intent” or with
“reckless or callous indifference” to his constitutional rights. Smith v. Wade, 461 U.S. 30
(1983). If the jury believes Allen’s version of events -- that order had been restored and
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he was not resisting when Richardson repeatedly punched him in the back --it could also
find that Richardson acted with a malicious intent to injure Allen or in reckless or callous
indifference to his rights. Accordingly, defendant’s MIL No. 11 is DENIED.
ORDER
IT IS ORDERED that defendant’s combined motions in limine (dkt. #122) is
GRANTED IN PART and DENIED IN PART, as set forth above.
Entered this 4th day of February, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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