United States District Court, W.D. Wisconsin
TRIAL PREPARATION ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
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.
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.
Motions in Limine (dkt. 112)
Plaintiff's Disciplinary History
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.
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
Plaintiff's Criminal Record
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.
Plaintiff's Witnesses' Criminal Record
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.
Plaintiff's Mental Health History
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.
Plaintiff's Witnesses' Mental Health History
seeks an order excluding the mental health histories of his
incarcerated witnesses as unduly prejudicial. Defendants do
not object. The motion is GRANTED.
Plaintiff's Prior lawsuits and Complaints about Prison
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).
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.
Plaintiff's Witnesses' Prior Lawsuits and Complaints
about Prison Conditions
seeks an order excluding evidence of other lawsuits filed by
his incarcerated witnesses. Defendants do not object, so the
motion is GRANTED.
Evidence of Melby's Investigation of October 29, 2013,
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.
Evidence of Melby's Investigation of Plaintiff's