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Davis v. Meisner

United States District Court, W.D. Wisconsin

October 12, 2017

JAMES JERMAINE DAVIS, Plaintiff,
v.
MICHAEL MEISNER, et al., Defendants.

          TRIAL PREPARATION ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE.

         The court is holding the final pretrial conference this coming Monday, October 16, 2017, at 12:30 p.m., with jury selection and trial to follow at 1:00 p.m. In this order I am addressing scheduling issues, ruling on the motions in limine and attaching the court's draft void dire, jury instructions and special verdict form for discussion at the final pretrial conference.

         Trial Scheduling Issues

         The reason for the late start with jury selection on Monday is because Judge Conley is using the jury pool to pick a jury in a criminal case. That voir dire will take all morning, maybe longer. In this lawsuit, I am sensitive to the DOC's staffing and transportation concerns, which means that I am not going to make WCI bring witness Robert Gant back on Tuesday. If we are pressed for time on Monday afternoon-I do not intend to keep the jury past 5:30 p.m. at the latest on their first day-then I will require Davis to present Gant's testimony before Davis presents his own testimony, with the court explaining to the jury what we are doing and why. The parties should be prepared for this possibility.

         Plaintiff's Motions in Limine (dkt. 112)

         1. Plaintiff's Disciplinary History

         Davis seeks an order excluding his disciplinary history except for the conduct reports at issue in this case: CR #2211295, CR #2211367, CR #2386845, CR #2386861, CR #2412602, CR #2236750. Defendants do not object to plaintiff's motion see dkt. 140, but they view this as a two way street and therefore object to Davis's introduction of the additional conduct reports for other purposes. Plaintiff's motion is GRANTED in every respect, which means the court agrees with the defendants' observation.

         2. Plaintiff's Witnesses

         Davis seeks an order excluding prison disciplinary histories of his incarcerated witnesses, Quenton Thompson, Richard Arnold, Hipolito Claudio Jr., Nikko Krohn, Curtis Daniels, and Robert Gant. Defendants object on the basis that they would like to be able to introduce evidence of their conduct report histories for impeachment purposes. I will RESERVE a final ruling for each witness pending a proffer from the defendants as to the details of any impeachment with disciplinary reports.

         3. Plaintiff's Criminal Record

         Davis seeks an order excluding any details of his criminal record, with the exception of the fact of his conviction in Case No. 2013C3040. I have not been able to locate Case No. 2013C3040, but Davis likely meant Case No. 2013CM000763, the only criminal conviction related to this lawsuit. Defendants do not object. The motion is GRANTED.

         4. Plaintiff's Witnesses' Criminal Record

         Acknowledging that Rule 609 allows impeachment with the fact of a conviction, Davis seeks an order excluding details behind the criminal convictions of his incarcerated witnesses. Defendants do not object. The motion is GRANTED.

         5. Plaintiff's Mental Health History

         Davis seeks an order excluding his mental health history from trial as unduly prejudicial. Defendants object because Davis's excessive force claim arises from an incident of self-harm that resulted in the challenged cell extraction. Defendants ask to be able to submit evidence about the circumstances surrounding the use of force. Defendants further point out that Davis is seeking to admit other evidence of his mental health. Based on what currently is in the court record, I agree with defendants that Davis's mental health history is relevant to at least one of his claims. Accordingly, Davis's motion is DENIED in principle, with the details of what information is fair game at trial to be decided at trial. The court expects both sides to proffer to the court what evidence it intends to offer before introducing it in the jury's presence.

         6. Plaintiff's Witnesses' Mental Health History

         Davis seeks an order excluding the mental health histories of his incarcerated witnesses as unduly prejudicial. Defendants do not object. The motion is GRANTED.

         7. Plaintiff's Prior lawsuits and Complaints about Prison Conditions

         Davis seeks an order excluding evidence of his prior lawsuits and complaints about prison conditions as unduly prejudicial. Defendants object because they would like to submit evidence of the court's order in Davis v. Gee, Case No. 14-cv-617-wmc, 2017 WL 2880869 (W.D. Wis. July 6, 2017), in which the court held that no reasonable jury could agree with Davis's argument that there was a conspiracy to falsify records related to his claim in that lawsuit. Specifically, defendants would like to submit this finding as evidence of Davis's propensity for truthfulness. See dkt. 140 at 3-4. Federal Rule of Evidence 608(b) permits a party to inquire into “specific instances” of a witness's conduct for impeachment purposes where there is a good faith belief that the witness was not truthful. United States v. Abair, 746 F.3d 260, 264-65 (7th Cir. 2014).

         In the Gee opinion that defendants wish to use, the court did not find that Davis was lying when he argued that defendants falsified his records; what Judge Conley found was that no reasonable juror could agree with Davis because he had failed to provide any evidence in support of his falsification theory beyond his and three other inmates' statements. See Davis, Case No. 14-cv-617-wmc, dkt. 92, at 10-11. Judge Conley found that Davis's allegations were “based on little more than speculation, which is insufficient to manufacture a genuine issue of fact at summary judgment.” Id. Maybe Judge Conley was sugar-coating his view that Davis was lying in order to keep his lawsuit afloat, but that would be speculation on my part. Gee does not meet Rule 608(b)'s standard. Davis's motion to exclude is GRANTED.

         8. Plaintiff's Witnesses' Prior Lawsuits and Complaints about Prison Conditions

         Davis seeks an order excluding evidence of other lawsuits filed by his incarcerated witnesses. Defendants do not object, so the motion is GRANTED.

         9. Evidence of Melby's Investigation of October 29, 2013, Incident

         Davis seeks an order excluding any evidence related to Melby's investigation of the October 29, 2013, incident. Defendants do not object, so the motion is GRANTED.

         10. Evidence of Melby's Investigation of Plaintiff's Complaints ...


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