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Atkinson v. Mackinnon

United States District Court, W.D. Wisconsin

July 29, 2016



          BARBARA B. CRABB, District Judge.

         Pro se plaintiff Christopher Scott Atkinson is proceeding on the following claims: (1) defendants Joseph Warnke and Crystal Schwersenska removed plaintiff from his prison job at the Federal Correctional Institution in Oxford, Wisconsin because plaintiff is a Muslim, in violation of his rights under the free exercise and establishment clauses of the First Amendment, the equal protection component of the Fifth Amendment and the Religious Freedom Restoration Act; (2) defendant Felipa Mackinnon retaliated against plaintiff, in violation of his right to free speech, because he complained about defendants Warnke’s and Schwersenska’s alleged mistreatment. Defendants’ position is that plaintiff lost his job because he attempted to steal items from the food services department.

         Trial is scheduled for August 1, 2016. This opinion addresses defendants’ motions in limine. Dkt. #132. (Plaintiff did not file any motions in limine.)


         A. Motions to Allow Evidence of Past Convictions

         Defendants ask the court to admit three sets of plaintiff’s prior convictions: (1) 2007 convictions for felon in possession of a firearm and felon in possession of ammunition; (2) a 1992 conviction for armed robbery; and (3) a 1981 conviction for armed robbery.

         Under Fed.R.Evid. 609, the general rule is that evidence of felony convictions is admissible for the purpose of impeaching a witness’s credibility. However, if it has been more than 10 years since the witness was convicted or released (whichever is later), then the burden shifts to the proponent of the evidence to show that conviction’s probative value substantially outweighs its prejudicial effect.

         It is undisputed that plaintiff is serving the sentence for his 2007 conviction, so the general rule applies to that conviction. Because plaintiff identifies no reason for not admitting evidence of that conviction, I will grant this aspect of defendants’ motion. Defendants will be limited to revealing "the title, date, and disposition of the offense." United States v. Lewis, 641 F.3d 773, 783 (7th Cir. 2011). I am denying defendants’ related request to introduce certified copies of the judgments because those documents could contain information other than the title, date and disposition of the offense.

         With respect to plaintiff’s 1992 and 1981 armed robbery convictions, defendants admit that it has been more than 10 years since plaintiff was convicted and released for those crimes. Defendants argue that the convictions should be admitted because this case involves an alleged theft, but this is an admission that defendants seek to use the prior convictions, not to impeach plaintiff’s credibility, but to show that plaintiff has a propensity for stealing. That is not permitted under the Federal Rules of Evidence. Fed.R.Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.”). Further, because those convictions are so old, I conclude that the probative value of the convictions does not outweigh the unfair prejudice to plaintiff. Accordingly, I am denying defendants’ motion as to the 1981 and 1992 convictions.

         Defendants filed a related motion to admit prior felony convictions of any other prisoner witnesses, but I am denying this motion as unnecessary because no other incarcerated witnesses will be testifying.

         B. Motions Regarding Prison Regulations

         Defendants ask the court to rule as a matter of law that plaintiff is misinterpreting certain regulations of the Bureau of Prisons. I am denying the two motions related to this topic. To the extent that the meaning of a regulation is relevant to a claim or defense in this case, defendants are free to submit as evidence copies of those regulations. And if defendants believe that plaintiff has misinterpreted any of those regulations, they are free to impeach him with the text of the regulations or provide testimony of their own understanding (again to the extent these issues are relevant to the case). However, the key issue in this case is not whether plaintiff or defendants have the “correct” interpretation of a prison rule, but whether defendants discriminated against plaintiff in applying those rules.

         Defendants cite no authority for the view that they are entitled to the court’s interpretation of what is essentially a factual dispute.

         C. Motion to Exclude ...

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