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Allgood v. Hert

United States District Court, E.D. Wisconsin

June 7, 2019

JAMONTE ALLGOOD, Plaintiff,
v.
CO SGT. HERT, CO WEYCKER, CO PEOTTER, LT. CUSHING, CO DENIAL, and CO YANG, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Pro se plaintiff Jamonte Allgood is proceeding on claims that defendants used excessive force against him or failed to intervene to prevent the use of excessive force in violation of the Eighth Amendment on July 22, 2017, while he was incarcerated at Green Bay Correctional Institution. Trial is scheduled to begin June 24, 2019 at the federal courthouse in Green Bay, Wisconsin. In advance of the final pretrial conference scheduled for June 11, the court issues the following opinion and order addressing the parties' motions in limine and other outstanding motions.

         OPINION

         I. DEFENDANTS' OMNIBUS MOTION IN LIMINE (Dkt. #124)

         MIL No. 1: Exclude any argument, questions, testimony or evidence relating or referring to other legal proceedings involving defendants.

         Defendants move to preclude evidence or argument that they have been involved in other legal proceedings or sued by other inmates as improper, irrelevant and unfairly prejudicial under Federal Rules of Evidence 401, 403, and 404(b). This motion will be granted. Even without the parties explaining what specific evidence might be at issue, it is difficult to see how other lawsuits against defendants would have probative value that outweighs the potential for unfair prejudice. Other lawsuits involving defendants have no obvious relevance to whether defendants used excessive force against plaintiff or failed to intervene to prevent excessive force during the July 22, 2017, incident. In particular, under Rule 404(b), other alleged bad acts by defendants would be inadmissible to show that they had a propensity to behave in a certain way. Barring, a proffer at the June 11 Final Pretrial Conference of some undisclosed relevance, MIL No. 1 will be granted.

         MIL No. 2: Excluding any argument, questions, testimony or evidence relating or referring to other lawsuits against the Department of Corrections or its current or former employees.

         Defendants move to preclude evidence or argument regarding lawsuits involving the DOC or its current and former employees as irrelevant and prejudicial under Federal Rule of Evidence 403 and improper evidence of prior acts under Rule 404. This motion will be granted for the same reasons as MIL No. 1 will be granted. Other lawsuits against DOC or other DOC employees are irrelevant, prejudicial and improper propensity evidence.

         MIL No. 3: Excluding any argument, questions, testimony or evidence relating or referring to “missing” sections of the video recording of the July 22, 2017 incident or spoliation of a video recording of the July 22, 2017 incident.

         Plaintiff has argued repeatedly during this case that there was, at one time, a video recording of the time he was in the law library on July 22, 2017, through the time he was returned to his cell on that date. Plaintiff maintains that the portion of the video (showing defendants' use of excessive force against him) was destroyed. Defendants now seek to preclude plaintiff from arguing that: (1) any video footage was destroyed; or (2) there ever was additional footage beyond what is seen on the video submitted as defendants' trial exhibit 504.

         In fact, defendants represent no such video ever existed that recorded the alleged incident outside of the library, nor at the time defendants actually used force against plaintiff, because that force was not planned. Instead, defendants represent that only after the officers attempted to control plaintiff was a video camera obtained, and the recording of the force incident began. According to defendants, that video recording then continued until plaintiff calmed down and received medical attention.

         Given the plausibility of defendants' explanation and lack of any evidence to the contrary, defendants' motion will be granted. In particular, plaintiff has submitted no evidence to support his claim that there was a video placed and taking pictures of the library area, much less that any video footage has been withheld or destroyed. In contrast, defendants have submitted a declaration from defendant Daniel Cushing, explaining that there is no video footage of the initial use of force against plaintiff. because the force was unplanned. Only after defendants had used force to gain control of plaintiff did an officer arrive on the scene with a handheld camera to document the incident. (Dkt. #105 at ¶ 6.)

         Moreover, the actual footage submitted by defendants comports with defendants' explanation of when the video recording started. The footage is clearly being recorded by someone holding a handheld camera who is walking quickly down the hall and toward the location where plaintiff and several officers had their interaction. By the time the person holding the camera arrives at the location of the group, at about four seconds into the video, plaintiff is already on the ground, hand-cuffed, and wearing a spit-mask. In other words, the footage shows that the person recording the incident did not arrive at the scene until sometime after defendants used force to restrain plaintiff.

         To the extent that plaintiff contends that there is separate video footage of the incident, either captured on a stationary security camera or by another person, he has provided no evidentiary support. Thus, although plaintiff may genuinely believe that defendants or some other prison personnel destroyed relevant video footage, his own suspicions are not enough to permit him to argue to the jury that defendants destroyed video footage to cover up their excessive force. Accordingly, absent a contrary evidentiary proffer at the Final Pretrial Conference, I ...


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