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. NO. CIV 03-2343 PHX-DGC DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF CCA'S POST - INCIDENT INVESTIGATION OF THE ALLEGED RAPE (Oral Argument Requested)

Defendants Corrections Corporation of America ("CCA") and Warden Stolc hereby request this Court to issue an Order in Limine to preclude the introduction of reports, incident reports or testimony regarding the after-incident investigation of Plaintiff's rape allegations pursuant to Fed. R. Evid. 401, 402, 403 and 407. 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. Defendants dispute that the alleged rape occurred. There is no dispute that Plaintiff did not notify any CCA personnel that the alleged rape had occurred. Defendants did not receive information that Plaintiff was claiming she was raped until March 7, 2002. At that time, the U.S. Marshals Service notified CCA officials that in her underlying criminal matter, Plaintiff was

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alleging she was raped. The Marshals asked that CCA conduct an investigation and report back by the next day. CADC's investigator, John Mills, concluded that during her stay, Plaintiff was housed in the medical unit, on isolation status, and had not been housed with male inmates. In conjunction with his investigation, Mills authored a report to Warden Bruno Stolc.1 In addition, and with the filing of this lawsuit, Mills obtained incident reports from correctional officers who had contact with Plaintiff during her overnight stay at CADC.2 II. ARGUMENT Defendants anticipate that at trial, Plaintiff will offer evidence regarding the investigation conducted by John Mills on March 7-8, 2002, and further interviews by CCA employees who may have had contact with Plaintiff during her overnight stay were conducted after Plaintiff filed suit. This Court should exclude evidence regarding CCA's after-incident investigation of Plaintiff's allegations as irrelevant and prejudicial under Fed. R. Evid. 401, 402 and 403, and as constituting a subsequent remedial measure under Fed. R. Evid. 407. First, Mills' investigation report and employee incident statements have "no tendency to make the existence of any fact that is of consequence" to the determination as to whether: (1) Plaintiff was raped; 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. In short, what CCA did after the

alleged rape and in response to the rape allegations has no relevance as to whether CCA acted negligently to cause the alleged rape to occur. Therefore the post-incident

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Memorandum from John Mills to Bruno Stolc attached hereto as Exhibit 1. Employee Incident Reports attached hereto as Exhibit 2. 2

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investigation evidence is irrelevant. Next, even if relevant, such evidence should be excluded under Fed. R. Evid. 403. The only purpose of offering evidence of

Defendants' response to Plaintiff's rape allegations is to criticize the investigation performed, in order to inappropriately argue that Defendants did not care whether Plaintiff was harmed in the first place, and therefore must have permitted the rape to occur. The result of which is confusion of the issues and misleading the jury. The admission of such evidence for purposes of proving that Defendants' post-incident investigation is somehow related to Defendants' conduct prior to the alleged rape will prejudice Defendants. This is especially so where the Court has previously granted summary judgment on Plaintiff's punitive damages claim. See Order dated 8/30/05. Finally, Fed. R. Evid. 407 excludes evidence of measures taken after the harm alleged, taken to prevent such harm from occurring again, in order to prove negligence. The 9 th Circuit has ruled that exclusion of police department internal affairs investigations was appropriate because such post-incident action constituted a remedial measure.3 Here, CCA's post-incident investigation of Plaintiff's rape

allegations investigation should likewise be excluded from evidence. Additionally, the jury could wrongfully infer responsibility upon Defendants based upon the jury's view of whether or not the post-incident investigation was sufficient. Therefore, all evidence of the investigation should be excluded. II. CONCLUSION

See Maddox, 792 F2d at 1417. See also Specht v Jenson, 863 F2d 700 (10th Cir. 1988) (press release summarizing results of city's internal investigation of the event in question was properly excluded under Rule 407.) 3 Case 2:03-cv-02343-DGC Document 142 Filed 01/04/2006 Page 3 of 4

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For the foregoing reasons, Defendants request this Court exclude at trial, all evidence, inference, or argument concerning Defendants' post-incident investigation of Plaintiff's rape allegations. 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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