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Barlow v. Riley

United States District Court, Seventh Circuit

May 24, 2013

EARL BARLOW, JR., Plaintiff,
v.
OFFICER RILEY, Defendant.

ORDER

DAVID G. BERNTHAL, Magistrate Judge.

Plaintiff Earl Barlow, Jr. brings an excessive force claim under 42 U.S.C. ยง 1983 against Defendant Nicholas Riley, a correctional officer at Jerome Combs Detention Center (JCDC) in Kankakee, Illinois, alleging that Defendant, during an incident in which inmates at JCDC refused to lock up after receiving their meal trays, kneed Plaintiff hard in the back while cuffing him, causing Plaintiff to suffer intense lower back pain. Before the Court are various Motions in Limine, filed in anticipation of the trial set to begin May 28, 2013. For the reasons explained below, Defendant's Motion in Limine #7 Seeking to Introduce Evidence of Plaintiff's Felony Convictions (#64) is GRANTED IN PART and DENIED IN PART; and Plaintiff's Motions in Limine (#65) are GRANTED IN PART and DENIED IN PART.

I. Discussion

In his Motions in Limine (#65), Plaintiff seeks to bar the following evidence: his prior felony convictions, as well as the felony convictions of his witnesses Elton Pendleton and Aaron Thomas; the cause of a prior injury to Plaintiff's right shoulder; discipline Plaintiff received at Jerome Combs Detention Center (JCDC) for incidents unrelated to this case; the number of times Plaintiff has been housed at JCDC; and Plaintiff's sale of his prescription pain medication.

A. Felony Convictions

The Court addresses together Defendant's Motion in Limine (#7) Seeking to Introduce Evidence of Plaintiff's Felony Convictions (#64) and Plaintiff's arguments that the Court should exclude evidence of his own felony convictions and those of his witnesses. Plaintiff has been convicted of five felonies: in 1993, second degree murder; in 1996, aggravated battery of an individual over sixty years old;[1] in 2004, aggravated battery; in 2007, aggravated battery; and in 2012, violation of an order of protection. Plaintiff's witness Pendleton was convicted of drug-related felonies in 1990, 1997, and 2008; criminal sexual assault in 2000; and violating the sexual offender registry in 2005; and Thomas was convicted of residential burglary in 2006 and attempted burglary in 2012.[2]

Defendant argues that the felony convictions of Plaintiff and his witnesses constitute proper impeachment evidence under Federal Rule of Evidence 609, and that the standard application of Rule 609 in the Seventh Circuit is to admit the name, date, and disposition of the felony conviction. Plaintiff counters that convictions admissible under Rule 609 are, nevertheless, subject to the balancing test of Rule 403. Plaintiff urges the Court to bar the felony convictions of Plaintiff and his witnesses as unduly prejudicial and likely to inflame the passions of the jury.

Federal Rule of Evidence 609 instructs courts in civil cases to admit, subject to Rule 403, a witness's prior felony convictions as impeachment evidence. See FED. R. EVID. 609(a)(1)(A). The Seventh Circuit has indicated that, generally, trial courts should admit "the particular felony charged, the date, and the disposition of a prior conviction for impeachment purposes." See, e.g., United States v. Smith, 454 F.3d 707, 716 (7th Cir. 2006). Nevertheless, trial courts enjoy broad discretion in determining the admissibility of such evidence, and the Seventh Circuit has approved the practice of "sanitizing" a prior felony offense, in which the trial court, where the nature of the felony is particularly prejudicial, permits the jury to hear only that a witness has been convicted of a felony. See, e.g., Schmude v. Tricam Indus., Inc., 556 F.3d 624, 627 (7th Cir. 2009); see also Stanbridge v. Mitchell, No. 10-CV-3008, 2012 WL 1853483, at *2 (C.D. Ill. May 21, 2012) (barring evidence of nature of crime); Anderson v. City of Chicago, No. 09 C 2311, 2010 WL 4928875, at *3 (N.D. Ill. Nov. 30, 2010) (same).

Here, Plaintiff fails to establish that any unfair prejudice would arise from admitting the nature, date, and disposition of the prior felonies of Plaintiff's witnesses. Plaintiff argues that the nature of the witnesses' crimes "would simply inflame the passions of the jury against the Plaintiff and would not legitimately reflect on their capacity for truthfulness." (#65-1.) However, it is not for this Court to question the wisdom of Rule 609, which makes clear that prior felony convictions are relevant to a witness's character for truthfulness. Accordingly, for witnesses Pendleton and Thomas, defense counsel may introduce evidence of the nature, date, and disposition of their felonies. It is not clear when Pendleton was released from confinement for his felony convictions, but it appears likely that he was released from confinement for some of his earlier offenses more than ten years ago. Therefore, under Rule 609(b), the Court holds that Defendant may refer only to those felonies for which Pendleton was convicted or released from confinement in the last ten years.

Nevertheless, the Court agrees with Plaintiff that the danger of unfair prejudice arising from the nature of his crimes-all violent, aggravated offenses-substantially outweighs any probative value of the nature of his crimes for Plaintiff's credibility. There is a substantial risk that the jury could assume that, in conformity with Plaintiff's history of violent crime, Plaintiff behaved aggressively in the incident at JCDC at issue in this case, or simply decide that, even if Defendant did use excessive force, Plaintiff does not deserve relief because he is a recidivist violent offender. Therefore, the only evidence Defendant may introduce regarding Plaintiff's criminal history is that Plaintiff has prior felony convictions. The parties may wish to provide a stipulation to this effect.

B. Cause of the Prior Injury to Plaintiff's Shoulder

The parties agree that Plaintiff's previous injury to his right shoulder is relevant to this case, as Plaintiff maintains his injury affected how he reacted when Defendant attempted to cuff him. However, the parties disagree as to whether the cause of Plaintiff's injury is relevant. Plaintiff injured himself in 1990 when he "was drinking and fell off an overpass." Plaintiff's Dep. at 108:8 (#70-1). Plaintiff also testified in his deposition, however, that he claimed he jumped off the overpass in a suicide attempt in order to obtain disability benefits. Id. at 108:13-20.

Plaintiff contends that the cause of his injury is irrelevant, but Defendant maintains that Plaintiff's statements regarding his fall from the overpass are relevant to Plaintiff's credibility. Defendant argues that he should be permitted to cross-examine Plaintiff about his misrepresentation regarding the fall from the overpass, as a particular instance of conduct reflecting Plaintiff's character for truthfulness under Rule 608(b). The Court agrees with Defendant that Plaintiff's admission that he lied about his fall from the overpass in order to obtain disability benefits is probative of untruthfulness. See FED. R. EVID. 608(b); Young v. James Green Mgmt., Inc., 327 F.3d 616, 627 (7th Cir. 2003). Thus, ...


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