Free Motion in Limine - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-KLM MITCHELL GARRAWAY Plaintiff, v. KENNETH LINCOLN, LEE RITTENMEYER, and MARK ROBLES, Defendants.

DEFENDANTS' MOTION IN LIMINE

Defendants, by their undersigned counsel, hereby submit this motion in limine to exclude evidence relating to the following: 1. The so-called "Cowboys" who were non-party Bureau of Prison employees

at the United States Penitentiary, Florence, prior to the time of the incident at issue here, including any reference or implication that any of the Defendants or Bureau of Prison witnesses were "Cowboys" or that they committed alleged acts of prisoner abuse. 2. Any complaints lodged against or disciplinary action taken against

Lieutenant Rittenmeyer regarding any incidents involving other inmates. 3. The fact that Mr. Garraway was placed and remained in ambulatory

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restraints after the incident in Lieutenant Rittenmeyer's office until February 14, 2003, including any incidents that occurred allegedly as a result of Mr. Garraway being placed in those restraints (as alleged in Claims One and Three of the Complaint), and any reference to the alleged falsification of documents relating to Plaintiff's placement in ambulatory restraints. Pursuant to Local Rule 7.1A, counsel for Defendants conferred with counsel for Plaintiff on these issues on a number of occasions both in phone and in person, and also tendered a proposed stipulation to counsel regarding these issues. During a meeting among counsel on September 7, 2007, Plaintiff's counsel stated they would not stipulate to these issues and therefore Defendants file this motion. FACTUAL BACKGROUND This case is set for a three-day jury trial commencing September 17, 2007. The Court has set a final trial preparation conference for September 14, 2007, at 4:30 p.m. The incident at issue in this case occurred in the Special Housing Unit of the United States Penitentiary in Florence, Colorado ("USP") on February 12, 2003. Plaintiff claims that Defendants violated his Eighth Amendment rights when they allegedly assaulted him. A. The "Cowboys." During depositions in this case, Plaintiff's counsel asked a number of questions regarding the so-called "Cowboys"­ a term that was used to refer to a group former

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Bureau of Prisons ("BOP") employees at the USP in the mid- to late-1990s that committed abuses against inmates. Counsel has also asked the Court to take judicial notice of the existence of the "Cowboys" in a proposed jury instruction. The "Cowboys" were investigated for a number of alleged crimes, resulting in the indictment of seven individuals in 2000 on various charges, three years before the incident at issue here. See United States v. LaVallee, et al., Criminal Action No. 00-cr-481. See also United States v. LaVallee, 439 F.3d 670 (10th Cir. 2006). Three of those Defendants were convicted and four were acquitted in a trial held in 2003. There is no evidence at all to suggest that any of the Defendants or defense witnesses were "Cowboys." In fact, Defendant Robles did not even start working for the BOP until 2000, the year that these individuals were indicted. (Robles Depo. at 5:2-4 (Ex. A hereto).) There is no evidence here that either Defendant Rittenmeyer or Lincoln or any defense witness was a member of the "Cowboys." B. Other Incidents Involving Lieutenant Rittenmeyer. It is also anticipated that Plaintiff will seek to offer evidence of complaints by other inmates about or disciplinary action taken against Defendant Rittenmeyer, who was a Lieutenant in the USP Special Housing Unit. On other occasions, not involving Plaintiff Garraway, Defendant Rittenmeyer's judgment was questioned by his superiors after complaints by inmates. For example, in one incident, Mr. Rittenmeyer placed an inmate outdoors in the

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cold for a short time and in another incident he placed an inmate in an outside recreation cage when the temperature was cold. Mr. Rittenmeyer received five-day and two-day suspensions for these incidents. Another incident involved allegations by an inmate who claimed that Mr. Rittenmeyer used restraints excessively, directed that staff assault him, and closed a food slot on his hand. The charges of physical abuse were not sustained but Mr. Rittenmeyer was found to have acted unprofessionally and was given a seven-day suspension. Inmate Garraway filed a complaint against Lieutenant Rittenmeyer regarding the incident at issue here. At the same time, two other inmates also filed complaints. These three complaints were investigated together by BOP's Office of Internal Affairs. The allegation of unprofessional misconduct was not sustained. Plaintiff's Trial Exhibit 7 refers to these two incidents involving inmates other than Mr. Garraway as well as Mr. Garraway's complaint. C. The Use of Restraints on Plaintiff After the Incident at Issue. In addition to the alleged assault that will be heard by the jury in this case, Plaintiff's Complaint alleged that his constitutional rights were violated when he was placed in and remained in ambulatory restraints from February 12 through February 14, 2003. (Doc. 8, Claims One and Three.) Specifically, Plaintiff claimed that, despite the fact these restraints are specifically designed to allow an inmate to be ambulatory and thus to allow an inmate to eat, drink, sleep wash, walk around a cell, and void, the restraints

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did not allow him to defecate or pray, in violation of his Eighth Amendment rights. The Court granted summary judgment on this claim in an order dated September 26, 2006. (Doc. 147.) Thus, the only claim to be tried in this case is whether the Defendants violated Plaintiff's constitutional rights by allegedly assaulting him on February 12, 2003. ARGUMENT While Defendants acknowledge that this Court disfavors motions in limine, given the serious prejudicial nature of this evidence and the fact that the parties have not been able to reach an agreement to exclude it, Defendants respectfully request that the Court grant this motion. A. The Court Should Exclude Any Evidence About or Reference to the "Cowboys." As noted above, in depositions in this case, Plaintiff's counsel repeatedly asked witnesses questions about the "Cowboys," even though that alleged criminal conduct by non-parties occurred years prior to the incident at issue here. Plaintiff's counsel would not agree to a stipulation barring any reference to the "Cowboys" at the trial in this matter and therefore Defendants request that the Court order that any such evidence be excluded. Pursuant to Fed. R. Evid. 401, relevant evidence is evidence that has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid.

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401. Even if evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of, inter alia, unfair prejudice, misleading the jury, confusion of the issues or undue delay. Fed. R. Evid. 403; see also Coletti v. Cudd Pressure Control, 165 F.3d 767, 776-77 (10th Cir. 1999). Fed. R. Evid. 404(b) precludes evidence of other acts to prove a person acted in conformity therewith. Here, admission of evidence of criminal conduct by non-parties would prejudice Defendants in the eyes of the jury, confuse the issues, and invite speculation on matters that are wholly collateral. Each of these Defendants is being sued individually in this case­neither the United States nor the BOP remains a Defendant here. There is no evidence that any Defendant was a "Cowboy" and none was charged in connection with the criminal investigation into those activities. Presumably, Plaintiff wants to parade evidence regarding the"Cowboys" before the jury in hopes that the jury will become prejudiced against Defendants because they work at the same institution where the "Cowboys" did or will infer that Defendants acted as the "Cowboys" did. Further, the proffered evidence is precisely the type of evidence that Fed. R. Evid. 404(b) was designed to preclude. The grounds for exclusion under that rule are even greater here, where the prior bad acts were undertaken by non-parties. Still further, any reference to the "Cowboys" would necessitate a mini-trial to demonstrate that Defendants were not members of the Cowboys and were not involved in the alleged activities. See In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1256 (E.D.N.Y. 1985) ("The

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waste-of-time ground for exclusion [under Rule 403] is particularly persuasive when detailed rebuttal testimony would be necessary to establish that the proffered evidence lacks probative worth."), aff'd, 818 F.2d 187 (2d Cir. 1987); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268-69 (7th Cir. 1988) (quoting id.). Because this evidence is irrelevant and would be highly prejudicial, it should be excluded at trial. B. The Court Should Exclude Any Evidence About or Reference to Other Incidents Involving Lieutenant Rittenmeyer. Evidence regarding other incidents involving Defendant Rittenmeyer should be excluded for several reasons. First, evidence related to other incidents involving Mr. Rittenmeyer is irrelevant under Fed. R. Evid. 402. Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 940 (10th Cir. 1994) (only relevant evidence admissible). The evidence does not relate to Plaintiff's claims in this case that Defendants assaulted him. Instead, it involves other claims by other inmates that he committed different alleged improper acts against them. Cf. Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (in products liability case, holding that trial court properly applied substantial similarity rule and excluded evidence of complaint involving same product where complaint involved injuries caused by defect other than that alleged by plaintiff). Second, any probative value of this evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury" under Fed. R. Evid. 403. See Stump v. Gates, 211 F.3d 527, 534 (10th Cir. 2000) ("Rule 403 limits the

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use of relevant evidence that has an undue tendency to suggest the jury make a decision on an improper basis, commonly, though not necessarily, an emotional one." (internal quotation omitted)). Introduction of evidence on these issues could have no other purpose than to unfairly prejudice the jury against Mr. Rittenmeyer and the other Defendants. It would also confuse the jury with respect to the issue they are to decide here­whether Defendants violated Mr. Garraway's constitutional rights in this case. More importantly, as explained below, it would lead to mini-trials on whether the charges made against Mr. Rittenmeyer were supported or not. Third, the substance of any complaint by another inmate is hearsay. Plaintiff has not listed any inmate, other than himself, who has filed a complaint against Mr. Rittenmeyer as a witness. Thus, if evidence of other complaints is admitted, Defendants will not have an opportunity to cross-examine the complaining inmate about the basis of his complaint. Nor will Defendants be able to undermine the credibility of the complaining inmate through cross-examination. Finally, this evidence is inadmissible under Fed. R. Evid. 404(b) as evidence of a wrong act offered "to prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b); Wilson v. Muckala, 303 F.3d 1207, 1217 (10th Cir. 2002) ("Evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person in order to show action in conformity with character."). "If offered for a proper purpose under Rule 404(b), the evidence of prior bad acts is admissible only

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if (1) it is relevant under Fed. R. Evid. 401; (2) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice under Fed. R. Evid. 403; and (3) the district court, upon request, instructs the jury to consider the evidence only for the purpose for which it was admitted." Wilson, 303 F.3d at 217. Even if Mr. Rittenmeyer were disciplined or had a committed a violation of Bureau of Prison rules, this fact would not be admissible to prove that he acted to violate Plaintiff's constitutional rights in this case. Cf. United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006) (in criminal context, uncharged acts admissible on issues of motive, intent, or knowledge if "similar to the charged crime and sufficiently close in time" (internal quotation omitted)); United States v. Nichols, 374 F.3d 959, 966 (10th Cir. 2004) (in criminal context, "other act" evidence is intrinsic to the crime charged when one of three criteria are met: (1) when "both acts are part of a single criminal episode"; (2) when "the evidence of the other act and the evidence of the crime charged are inextricably intertwined"; or (3) when the other acts are "necessary preliminaries to the crime charged" (internal quotation omitted)), vacated by 543 U.S. 1113 (2005), reinstated by 410 F.3d 1186 (10th Cir. 2005). These rules are intended to ensure that only relevant and probative evidence is considered by a jury. For example, in suits against prison officials, if it were not for Rule 404(b), a plaintiff could parade into court every inmate whoever harbored a grievance or complaint against a particular Defendant, a scenario that would create a serious prejudice and unfairness. Practically speaking, if Mr. Garraway is allowed to put on evidence of

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Mr. Rittenmeyer's prior disciplinary actions, Defendants would need to call additional witnesses and to provide evidence to rebut each of these allegations by other inmates. This would transform the trial into several mini-trials to determine whether the alleged conduct in fact occurred, and, if so, whether it was done with intent or simple carelessness. Permitting evidence of unrelated incidents poses a serious risk that the jury would be confused or misled by the evidence and give it improper weight. That is precisely the rationale behind Rule 404(b)'s proscription against the admission of such evidence. Fed. R. Evid. 404(b), note to subdivision b. Whether or not Mr. Rittenmeyer exercised poor judgment or violated a BOP policy is not probative of whether he and the other Defendants assaulted Inmate Garraway. The rules of evidence do not permit a jury to draw an inference that Mr. Rittenmeyer acted in a certain way he did based on his prior conduct. The allegations Mr. Garraway makes in this case must stand or fall on evidence that is relevant to them and not which is merely tangential in nature. Any evidence about these other issues should be excluded and information about other incidents should be redacted from Plaintiff's Trial Exhibit 7. C. Any Evidence Regarding Plaintiff's Claims That He Remained In Ambulatory Restraints Until February 14, 2003 Should be Excluded. Evidence regarding Plaintiff's claims that he was improperly placed in ambulatory restraints until February 14, 2003, and was unable to pray or defecate during that time should be excluded for similar reasons as those set forth above. First, it is not relevant

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because it relates to Plaintiff's claim that has been dismissed, and has no relevance to Plaintiff's only remaining claim in this case that Defendants assaulted him. Second, admission of this evidence would be unduly prejudicial. Presumably, Plaintiff intends to introduce evidence that he allegedly was not able to defecate or pray for two days in order to gain sympathy from the jury. The prejudicial effect of this evidence is outweighed by its probative value because this evidence has no probative value with respect to the remaining claim­i.e., that the Defendants allegedly assaulted Plaintiff. Further, the Defendants who were involved in those alleged actions regarding the ambulatory restraints have similarly been dismissed by this Court, and thus Plaintiff essentially seeks to prejudice the remaining Defendants with the actions of those non-parties. Third, the introduction of such evidence would result in another mini-trial as to whether Plaintiff's claims are in fact true. Defendants would have to introduce the testimony of the Bureau of Prison employees who checked on Plaintiff every 15 minutes while he was in ambulatory restraints to have each of them testify that Plaintiff was able to defecate and pray. Such testimony would waste time and confuse the jury because it has no relevance to the remaining claim that the jury is to decide. Because this evidence is not relevant, is unduly prejudicial, and would confuse the jury and waste time, it should be excluded. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court grant their motion in limine.

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DATED this 14th day of September, 2007.

TROY A. EID U.S. Attorney

s/ Amy L. Padden Mark S. Pestal Amy L. Padden Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0408 E-mail: [email protected] E-mail: [email protected] Counsel for Defendants

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 14, 2007, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name Ben Brieschke (by hand) Attorney-Advisor Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226

s/ Amy L. Padden United States Attorney's Office

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