Free Motion in Limine - District Court of Arizona - Arizona

Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants Corrections Corporation of America and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. Defendants Corrections Corporation of America ("CCA") and Warden Stolc hereby request this Court issue an Order to preclude the introduction of evidence regarding a dissimilar 1999 incident involving the alleged fondling of a female inmate pursuant to Fed. R. Evid. 401, 402, 403 and 404(b). I. BACKGROUND Plaintiff alleges that on November 28, 2001, while housed overnight at CCA's Central Arizona Detention Center, she was raped by male inmates while being housed in a shower cell in the facility's Receiving and Discharge Unit. Plaintiff alleges that she was housed in the shower cell with several other male detainees, who were restrained, and who watched while she was raped by the worker inmates. Defendants dispute that the alleged rape occurred since male and female inmates are never housed together in the same cell, the shower cell at issue could not fit all the male inmates Plaintiff alleges were in there with her, the shower cell is within ten feet and direct NO. CIV 03-2343 PHX-DGC DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PRIOR 1999 ALLEGATION OF FONDLING INCIDENT (Oral Argument Requested)

Case 2:03-cv-02343-DGC

Document 144

Filed 01/04/2006

Page 1 of 4

sight of R&D officers and worker inmates are directly supervised by officers if working in R&D. II. ARGUMENT Defendants anticipate that at trial, Plaintiff will offer evidence regarding a 1999 incident in which a female detainee alleged that a male inmate entered her cell and fondled her. This Court should exclude evidence regarding the 1999 incident under Fed. R. Evid. 401, 402, 403 and 404(b) because of the remoteness in time of the prior incident, the lack of similarities between the two incidents and lack of evidence of an ongoing pattern of male-female sexual assaults.1 First, the 1999 and 2001 incidents are remote in time. Two years passed between the 1999 incident and Plaintiff's allegations of rape. There is no evidence of any intervening allegations of female inmate sexual assault incidents. Second, the 1999 and 2001 incidents are dissimilar. The 1999 incident involved a female detainee housed in a large female holding cell (not an isolation shower cell) who claimed that a male medical unit employee (later determined to be an inmate) entered her unlocked cell and fondled her breast. The female inmate reported the incident immediately and the offending male inmate admitted to having contact with the female. The female inmate did not allege that she was housed with male inmates, did not allege that she was raped and most importantly, was not housed where Plaintiff was, in an isolation cell within feet and direct sight of the Intake Desk and the R&D officers. Rather, the female inmate was housed in one of the large holding cells around the corner from the intake area. In addition, it was determined that medical personnel, rather than correctional officers, were to blame for failing to lock the holding cell door after examining Plaintiff,

See 1999 Investigation, Incident and Disciplinary Reports regarding Inmate Martin Dean attached hereto as Exhibit 1. 2 Case 2:03-cv-02343-DGC Document 144 Filed 01/04/2006 Page 2 of 4

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permitting the male inmate's access to Plaintiff. Finally, Plaintiff is without any evidence of an ongoing pattern of male inmate rape of female inmates to causally connect the 1999 and 2001 incidents. Especially where policies were in place both before and after the 1999 incident to keep male and female inmates separate. As set forth above, because of the remoteness in time, dissimilarities of the incidents and lack of evidence of an ongoing pattern of misconduct by CCA, the 1999 incident has "no tendency to make the existence of any fact that is of consequence" to the determination as to whether: (1) Plaintiff was raped in 2001; and (2) Defendants were negligent in failing to prevent the alleged rape, "more probable or less probable that it would be without the evidence." Fed. R. Evid. 401, 402.

Moreover, the 1999 incident is prejudicial under Fed. R. Evid. 403 because it will only serve to confuse the issues, mislead the jury as to Defendants' conduct in 2001, and prejudice Defendants as the jury may inappropriately conclude that because an fondling incident involving a male and female incident occurred in 1999, Plaintiff must have been raped in 2001. Finally, the 1999 incident is inadmissible under Fed. R. Evid. 404(b) as it is being offered only to show conduct in conformity - that Defendants failed to supervise a female inmate in 1999, and so they must have done the same in 2001. Evidence of other wrongs to show conduct in conformity is prohibited by Fed. R. Evid. 404(b). III. CONCLUSION For the foregoing reasons, Defendants request this Court exclude at trial, all evidence, inference, or argument concerning the 1999 incident involving the fondling of a female inmate. //// ////

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DATED this 4th day of January, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc Original of the foregoing e-filed with the Court and a copy e-served this 4th day of January 2006, to

Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 5970 Silver Springs Suite 700 El Paso, Texas 79912 Attorneys for Plaintiff Cheryl Allred s/Francine Gatto

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