Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Romain v. Governor's Office of Homeland Security

United States District Court, M.D. Louisiana

June 6, 2017

JOSEPH ST. ROMAIN, JR.
v.
GOVERNOR'S OFFICE OF HOMELAND SECURITY AND EMERGENCY PREPAREDNESS,

          RULING

          SHELLY D. DICK, UNITED STATES DISTRICT COURT JUDGE

         The following pretrial evidentiary Motions are before the Court: Plaintiff's Motion in Limine;[1]

         Defendants Sherriff Jason Ard and Major Jim Brown's Motion in Limine to Exclude Evidence or Testimony of Claims That Have Been Dismissed;[2]

         Defendants Sherriff Jason Ard and Major Jim Brown's Motion in Limine to Exclude Any Evidence of Disciplinary Action Taken Against Major Jim Brown;[3]

         Defendants Sherriff Jason Ard and Major Jim Brown's Motion in Limine to Exclude Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Lost Wages;[4] and Defendants Sherriff Jason Ard and Major Jim Brown's Motion in Limine to Exclude Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Medical Expenses.[5]

         The background facts are set out in this Courts prior Rulings.[6] The Court will address each Motion seriatim.

         I. PLAINTIFF'S MOTION IN LIMINE (Rec. Doc. 58)

         Plaintiff moves to exclude the following evidence:

. Arrests and incident reports by law enforcement prior to the October 3, 2013 arrest which is the subject matter of this litigation;[7]
. Arrests and incident reports by law enforcement after the October 3, 2013 arrest;[8]
. Plaintiffs Nolo Contendere plea regarding the October 3, 2013 arrest which is the subject matter of this litigation (Defendant's Exhibit DD);
. Evidence and testimony not disclosed or produced by Sheriff Ard; and . Evidence and testimony not disclosed or produced by Major Jim Brown.

         A. Arrests and Incidents Reports before the October 3, 2013 Arrest

         Plaintiff moves to exclude evidence of law enforcement actions involving the Plaintiff which arose prior to the subject arrest date of October 3, 2013 on the grounds of relevance[9], hearsay[10] and impermissible character evidence[11]. Defendants' counter that the evidence is relevant to the Plaintiff's claim for damages, is not evidence offered for the truth of the matter asserted and, thus, not hearsay, or alternatively the documents are public records and, thus, are an exception to the rule against hearsay, and the evidence is probative of a material issue other than character.

         The Plaintiff's FRE 401/403 relevance and undue prejudice objection is referred to the time of trial. As to the Plaintiff's motion for exclusion on the grounds that the evidence constitutes impermissible character evidence, FRE 404(b)(1) provides that “[e]vidence 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.” However, other acts or evidence may be admissible “for another purpose”. FRE 404(b)(2). The other purposes identified in the rule are illustrative not exclusive.[12] In this case, the Defendants argue that the Plaintiff's prior acts are admissible to rebut or defend his damages claim. A two part inquiry is required. “First, it must be determined that the [other acts] evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice”.[13]

         The parties referred to exhibits identified on the Joint Pretrial Order however failed to provide the Court with the evidence sought to be excluded. The Court declines to scour the record in an effort to locate the subject exhibits in the chance that they were offered in support or opposition to a prior Motion. Without the exhibits made the subject of the Motion, the Court is unable to make the two part inquiry required. Hence, the Motion to exclude arrests and incidents reports pre-dating October 3, 2013, pursuant to FRE 404, is denied without prejudice to re-urging at the time of trial.

         Finally, Plaintiff objects on the grounds of hearsay. As out of court statements, reports of prior incidents and arrests are hearsay unless not offered for the truth or fall under a hearsay exception. The Defendants' argument that the prior law enforcement incident reports and arrest records are ‘not offered for the truth of the matter asserted' lacks persuasiveness. However, the records fall within the FRE 803(8) public records exception. Rule 803(8) covers “a record or statement of a public office” offered in a civil action “if it sets out . . . factual findings from a legally authorized investigation” unless the opponent shows that “the sources of information or other circumstances indicate a lack of trustworthiness”. FRE 803(8(A)(iii).

         Opinions and conclusions, as well as facts, are covered by [the] Rule.[14] A plain reading of the rule, and Fifth Circuit guidance, direct that the subject reports are “presumed not to be excluded under the hearsay rule unless there are indications of untrustworthiness.”[15] Plaintiff has failed to make the requisite showing that the reports lack trustworthiness. Accordingly, the Plaintiff's motion to exclude as hearsay is denied without prejudice to re-urging the objection at the time of trial.

         B. Arrests and Incident Reports after the October 3, 2013 Arrest

         Plaintiff moves to exclude evidence of law enforcement actions involving the Plaintiff which arose after the subject arrest date of October 3, 2013 on the grounds of relevance[16] and inadmissible character evidence[17].

         Three subsequent incidents are at issue: 1) November 19, 2013 arrest in the 21stJDC for Violation of a Protective Order[18] and Stalking[19] and 2) a December 2014 arrest in Avoyelles parish and a March 2015 conviction following a plea of guilty to the charge of simple battery.[20] Plaintiff moves to exclude the 2 subsequent arrests and simple battery conviction[21] on the grounds that the evidence is impermissible character evidence prohibited under FRE 608 and 609. Plaintiff asserts, and the Defendants do not dispute, that the March 2015 conviction was “set aside” pursuant to a Louisiana procedural mechanism codified in Louisiana's Code of Criminal Procedure, Article 894B. Hence, Plaintiff urges exclusion pursuant to FRE 609(c), which provides that evidence of a conviction “subject to a pardon, annulment, certificate of rehabilitation or other equivalent procedure based on a finding that the person has been rehabilitated” is not admissible to attack credibility of the witness.

         Federal Rule of Evidence 608(b) provides that “[e]xcept for a criminal conviction under Rule 609 extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness.” FRE 609 permits admission of prior convictions for crimes punishable by death or more than one year in prison or for crimes, regardless of punishment, involving dishonesty or false statements as an element of the crime.

         The Defendants concede that they will not offer the subject evidence as evidence of the Plaintiff's character for truthfulness. However, Defendants urge that the evidence is probative of “the veracity of [the Plaintiff's] alleged damages.” The Court is unpersuaded that a subsequent arrest for violation of a protective order and stalking is probative on the issue of the Plaintiff's damages. The evidence of the November 19, 2013 arrest in the 21st JDC shall be excluded and the Plaintiff's Motion in Limine as to the November 2013 arrest is GRANTED.

         As to the March 2015 conviction for simple battery, in view of the strict prohibitions against extrinsic evidence to attack character[22] and against admitting convictions which have been procedurally set aside on findings of rehabilitation, [23] the Court finds the prejudicial effect outweighs the probative value of the evidence. The evidence of the December 2014 arrest in Avoyelles Parish and March 2015 of simple battery shall be excluded and the Plaintiff's Motion in Limine as to this evidence is GRANTED.

         The Defendants fail to persuade the Court that the evidence of Plaintiff's November 19, 2013 arrest in the 21st JDC for Violation of a Protective Order and Stalking, which remains unprosecuted, is probative on the issue of damages. In any event the prejudice outweighs any marginal probative value. Plaintiff's Motion in Limine as to this evidence is GRANTED.

         C. Plaintiff's Nolo Contendere plea regarding the October 3, 2013 arrest which is the subject matter of this litigation

         Moving for exclusion of his nolo contender plea[24] to the charge that is the subject of this case, Plaintiff relies on FRE 410 which provides that a plea of nolo contender is not admissible “against the defendant who made the plea” in a civil of criminal matter. The Plaintiff in this civil case was the “defendant who made the plea”. By the plain reading of FRE 410 the plea is thus inadmissible in this civil case.

         Defendants rely on a 1988 Sixth Circuit case[25] and collateral estoppel principals enunciated in Heck v Humphrey[26] in opposition to the Plaintiff's Motion to exclude his nolo contendere plea. Inter alia, the Plaintiff asserts §1983 claims against Sherriff Ard, in his official capacity, and Major Jim Brown for wrongful arrest, illegal search, and use of excessive force in connection with an arrest for violation of a protective order, to which charge the Plaintiff entered a plea of nolo contendere. The Walker[27] case is cited for the proposition that FRE 410 is not an absolute bar against the admission of nolo contendere pleas, particularly when the pleader brings a subsequent § 1983 claim for false arrest. Importantly, in Walker, the issue arose in the context of the assertion of the qualified immunity defense by the civil defendants. The Sixth Circuit held that “[nolo contendere pleas] made by defendants and the finding of guilt and imposition of fines by [the] court estop plaintiffs from now asserting [claims for wrongful arrest] in federal court.”[28] The Court went on to conclude its reliance on the nolo plea as the basis for estoppel was not prohibited by FRE 410 because “the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea for estoppel purposes is not ‘against the defendant' within the meaning of Fed.R.Evid. 410.”[29]

         As noted by the Third Circuit, “the logic of Walker seems to flow from the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), where the Court held that, when a § 1983 claim amounts to a collateral attack on a criminal conviction, the conviction or sentence must be reversed, or invalidated by other means, before a court can entertain the claim.”[30] As noted by the Defendants, the Fifth Circuit has not addressed the FRE 410's prohibition of the use of nolo contender pleas as evidence in subsequent civil actions claiming wrongful arrest.

         In the context of false or wrongful arrest claims, there is a tension between the plain language of FRE 410 and Heck v. Humphrey[31] estoppel principals. Heck bars §1983 false arrest claims where a finding of civil liability would implicate the underlying conviction, but whether Heck estoppel applies to an excessive use of force claim requires further analysis. In order for Heck to preclude the Plaintiff's §1983 excessive force claim, a civil judgment in the Plaintiff's favor on this claim would have to imply invalidity of the Plaintiff's conviction for violation of a Protective Order.[32] It does not. Hence, in this case, as to the excessive force claim, there is no tension between FRE 410 and the rationale underlying Heck estoppel.

         This is an evidentiary motion, not a Motion to Dismiss the false arrest claims under the Heck doctrine. In the Court's view, reliance on Heck to oppose a motion in limine to exclude evidence of a nolo contendere under FRE 410 is misplaced and untimely. While the nolo contendere plea may be relevant to a Motion to Dismiss the wrongful arrest claims pursuant to Heck, no such Motion is before the Court and the deadlines for bringing same have lapsed. The nolo contendere plea is inadmissible as to the excessive use of force claim under a plain reading of FRE 410 and shall, thus, be excluded at trial. The Plaintiff's Motion in Limine to exclude evidence of the nolo contendere plea is GRANTED.

         D. Evidence and Testimony not disclosed or produced by Sheriff Ard

         Plaintiff moves to exclude all evidence and testimony from Sherriff Ard for the reason that he allegedly “failed to submit Initial Disclosures and failed and/or refused to answer Plaintiff's four (4) sets of discovery requests.”[33]

         Plaintiff initially named the Livingston Parish Sheriff's Office as a Defendant and, on September 14, 2015, Sherriff Ard was substituted for LPSO.[34] Sherriff Ard was named in his official capacity only.[35] The only claim remaining against Sherriff Ard is for vicarious liability for actions of Major Brown. Defendants aptly note that disclosures and discovery responses made by Major Brown “also apply on behalf of Sheriff Ard, as the two defendants are essentially defending the same claims arising out of the same facts.”[36]

         Although Plaintiff did not file a Motion to Compel, Plaintiff moves to exclude all evidence, both documentary and testimonial, from Sherriff Ard for failure to make initial disclosures and for failure to respond to the written discovery. Specifically, Plaintiff urges exclusion of evidence because Ard failed to respond to four sets of written discovery and failed to make initial disclosures when he was added as a Defendant. The Court will address each alleged discovery violation and whether an exclusionary sanction is warranted under the facts and circumstances of each.

         1. Plaintiff's [First] Interrogatories and Requests for Production of Documents to the Defendants dated April, 2015[37]

         Sherriff Ard was not a Defendant at the time of this written discovery. The discovery was answered by co-defendant Major Brown. Sherriff Ard was under no obligation to answer discovery propounded to another Defendant. Plaintiff's Motion to exclude evidence called for in this discovery is DENIED.

         2. Plaintiff's Second Set of Interrogatories and Requests for Production of Documents dated July 2, 2015[38]

         These discovery requests were propounded to Major Jim Brown. Again, Sherriff Ard was under no obligation to answer discovery propounded to another Defendant.

         Plaintiff's Motion to exclude evidence called for in this discovery is DENIED.

         3. Plaintiff's Second (sic) Set of Interrogatories and Requests for Production of Documents dated October, 2015[39]

         Ard admits that he did not respond to the October, 2015 discovery requests, but he argues that exclusion of evidence is inappropriate owing to the Plaintiff's failure to comply with the certification requirement of Fed. R. Civ. Proc. 37. Rule 37(d)(1)(B) provides, that “A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Notably, Plaintiff did not file a Motion to Compel discovery. Plaintiff offered no evidence that he attempted to amicably resolve the discovery dispute.[40] Given these circumstances, and the fact that the only potential grounds for liability of Ard is vicarious, the Court finds that the Plaintiff is not unduly prejudiced by Ard's failure to respond to the October, 2015 discovery. Plaintiff's Motion to exclude evidence called for in this discovery is DENIED.

         4. Plaintiff's [Fourth] Interrogatories and Requests for Production of Documents dated December 3, 2015[41]

         Sheriff Ard admits that he did not respond to the December 3, 2015 discovery, but he avers that he was not legally required to respond to this discovery because it was untimely propounded under this Court's local rules. Specifically, the December 3, 2015 discovery was propounded eight days before the discovery cut off.[42] Local Rule 26(d)(2) provides, that “[w]ritten discovery is not timely unless the response to that discovery would be due before the discovery deadline. The responding party has no obligation to respond and object to written discovery if the response and objection would not be due until after the discovery deadline.” In light of this Local Rule, the Court finds that a sanction of exclusion of evidence is unduly harsh. Plaintiff's Motion to exclude evidence called for in this discovery is DENIED.

         E. Evidence and testimony not disclosed or produced by Major Brown

         Defendants identify a video of the plaintiff as Exhibit JJ in the Parties' Joint Pretrial Order. Plaintiff moves to exclude the video for the failure of the Defendants to produce it in response to Plaintiff's Request for Production, propounded on August 20, 2015 which called production of:

[A]ny and all audio and/or video recordings depicting the Plaintiff and/or containing statements of the Plaintiff in your possession.[43]
Defendants responded as follows:
Defendant objects to this request as overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to the extent Request for Production No. 2 seeks privileged work product prepared in anticipation of litigation. Subject to and without waiving the foregoing objections, defendant states that the only recordings of plaintiff in his possession are those that were previously ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.