# Diggins v. Faulkner County Detention Center

> District Court, E.D. Arkansas · May 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10006673

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** May 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

MICHAEL JAMES DIGGINS, II PLAINTIFF

v. Case No. 4:19-cv-000942-KGB-PSH

FAULKNER COUNTY
DETENTION CENTER, Unit 2, et al. DEFENDANTS

ORDER

Before the Court are the motion in limine of defendant Thad Kilpatrick, the motion in
limine of plaintiff Michael James Diggins, II, and Mr. Diggins’s request for judicial notice (Dkt.
Nos. 69; 71; 76). The Court conducted a pretrial conference with counsel and the parties on May
9, 2022, at which certain additional matters were raised. For the reasons set forth below, the Court
grants, in part, and denies, in part, Mr. Kilpatrick’s motion in limine, grants Mr. Diggins’s motion
in limine, and takes under advisement Mr. Diggins’s request for judicial notice.
I. Mr. Kilpatrick’s Motion In Limine
A. Faulkner County’s Use Of Force Or Restraint Policies
Mr. Kilpatrick moves in limine to exclude evidence of Faulkner County’s use of force
and/or restraint policies. The Court entered an Order dismissing claims against separate
defendants Faulkner County Sheriff’s Office and Faulkner County Detention Center for failure to
state a claim upon which relief may be granted on January 19, 2021 (Dkt. No. 39). Mr. Kilpatrick
asserts that, because all claims against the Faulkner County defendants have been dismissed, the
introduction of Faulkner County’s policies are irrelevant and will only serve to confuse the jury
(Dkt. No. 70, at 1-2 (citing Fed. R. Evid. 402, 403)). Mr. Kilpatrick also points out that a violation
of a departmental policy is not a constitutional violation and does not support a § 1983 claim (Dkt.
No. 70, at 1 (citing Delaney v. Ashcraft, Case No. 05-6045, 2007 WL 1322146, at *11 (W.D. Ark.
May 4, 2007), aff'd, 295 F. App’x 115 (8th Cir. 2008) (citing, e.g. Neal v. St. Louis County Board
of Police Commissioners 217 F.3d 955, 959 (8th Cir. 2000)).
The Court denies the motion. The Court concludes that the policy is helpful to
understanding what is a reasonable use of force for an officer at Faulkner County Detention Center.
B. Other Force Incidents

Mr. Kilpatrick moves in limine to exclude other uses of pepper spray by Mr. Kilpatrick
asserting that they are not relevant to any claim or defense in this case because it is not “of
consequence in determining the action” under Federal Rule of Evidence 401(a). Mr. Kilpatrick
contends that Mr. Diggins’s claim of excessive force arises out of the May 28, 2018, incident and
must rise or fall on its own merits without reference to other unrelated force incidents, which are
irrelevant and inadmissible under Federal Rule of Evidence 402. Mr. Kilpatrick argues that, if the
Court finds that the other force incidents involving Mr. Kilpatrick are relevant, they should be
excluded as inadmissible under Federal Rule of Evidence 403 because their probative value is
substantially outweighed by a danger of unfair prejudice “because the jury might be misled into

drawing the unfair inference that he is violent, prone to getting into altercation with inmates or
otherwise posses some other negative characteristic.” (Dkt. No. 70, at 2-3). Additionally, Mr.
Kilpatrick contends the evidence is not admissible to demonstrate that, because Mr. Kilpatrick was
involved in unrelated force incidents at the Faulkner County Detention Center, he is violent, prone
to get into altercations with inmates, or otherwise helps prove he used “excessive force” in this
particular case under Federal Rule of Evidence 404(b) (Id., at 3).
The Court grants Mr. Kilpatrick’s motion in limine to exclude other uses of pepper spray
by Mr. Kilpatrick. On the limited record before the Court, the fact that Mr. Kilpatrick may have
used pepper spray in other situations is not relevant to his use of pepper spray in this instance, and
the evidence is inadmissible. See Fed. R. Evid. 401, 402, 403, 404(b). All parties, their counsel,
and witnesses are directed to refrain from making any mention through interrogation, voir dire
examination, opening statement, arguments, or otherwise, either directly or indirectly, concerning
these matters without first approaching the bench and obtaining a ruling from the Court outside
the presence of all prospective jurors and the jurors ultimately selected to try this case. Further,

all counsel are required to communicate this Court’s rulings to their clients and witnesses who may
be called to testify in this matter.
C. Previously Dismissed Claims And Defendants
Mr. Kilpatrick moves in limine to exclude Mr. Diggins from referring to, commenting on,
examining witnesses regarding, or suggesting to the jury in any way that Mr. Diggins was denied
adequate medical care or that any other defendant, including Faulkner County, was liable for the
alleged use of excessive force. The Court entered an Order dismissing claims against separate
defendants Faulkner County Sheriff’s Office and Faulkner County Detention Center for failure to
state a claim upon which relief may be granted on January 19, 2021, and the Court entered an

Order granting Mr. Kilpatrick’s motion for summary judgment with respect to Mr. Diggins’s
denial of adequate medical care claims against Mr. Kilpatrick and all claims asserted against Mr.
Kilpatrick in his official capacity on July 19, 2021 (Dkt. Nos. 39; 51).
The Court grants Mr. Kilpatrick’s motion in limine. All parties, their counsel, and
witnesses are directed to refrain from making any mention through interrogation, voir dire
examination, opening statement, arguments, or otherwise, either directly or indirectly, concerning
these matters without first approaching the bench and obtaining a ruling from the Court outside
the presence of all prospective jurors and the jurors ultimately selected to try this case. Further,
all counsel are required to communicate this Court’s rulings to their clients and witnesses who may
be called to testify in this matter.
D. References To Undocumented Injuries And Self-Diagnoses
Mr. Kilpatrick moves in limine to exclude testimony or evidence of any injuries other than
those for which he has provided medical documentation (Dkt. No. 70, at 4). Mr. Kilpatrick asserts

that any testimony by Mr. Diggins offering an undocumented self-diagnosis is inadmissible
hearsay and lacks foundation (Id.). Following the incident at issue in this case, Mr. Diggins was
seen by three medical care providers: Conway Regional Health Systems, Baker Eye Institute, and
Magie Eye Associates (Id.). Mr. Kilpatrick contends that Mr. Diggins will refer to alleged injuries
in front of the jury that are not documented by admissible evidence or supported by medical expert
testimony, specifically that Mr. Diggins suffers from eye amblyopia (“lazy eye”) (Id.). Mr.
Kilpatrick asserts that Mr. Diggins has not presented medical records or expert testimony
diagnosing him with amblyopia and should not be allowed to testify to a self-diagnosis (Id. (citing
Alberson v. Norris, 458 F.3d 762, 765-66 (8th Cir. 2006); Robinson v. Hager, 292 F.3d 560, 564

(8th Cir. 2002)).
In Alberson v. Norris, the Eighth Circuit Court of Appeals concluded that to state a claim
of inadequate medical treatment for § 1983 purposes a prisoner who suffered a stroke after prison
officials failed to provide him with blood pressure medication must provide expert medical
testimony to prove causation because a stroke is a sophisticated injury which could be caused by
numerous factors other than lack of medication. 458 F.3d at 766. Similarly, in Robinson v. Hager,
the Eighth Circuit Court of Appeals concluded that, when an injury is sophisticated, proof of
causation generally must be established by expert testimony. 292 F.3d at 564. Mr. Kilpatrick
maintains that Mr. Diggins has no “verified proof” that the pepper spray caused him medical
problems including amblyopia in order for him to testify to that at trial (Id., at 5).
Proof of injuries in this case is relevant for damages, not to a claim of inadequate medical
treatment. Further, Federal Rule of Evidence 803(3) and 803(4) provide exceptions to the rule
against hearsay that relate to then-existing mental, emotional, or physical condition and statements

made for medical diagnosis or treatment. At this stage of the litigation, the Court denies the
motion. Mr. Kilpatrick may object at trial to testimony that is not being offered to establish
damages.
E. References To Settlement Conference
At the pretrial conference, counsel for Mr. Kilpatrick moved to exclude references to the
discussions the parties had at the settlement conference held with United States Magistrate Judge
Patricia S. Harris. Counsel for Mr. Diggins did not object. All parties, their counsel, and witnesses
are directed to refrain from making any mention through interrogation, voir dire examination,
opening statement, arguments, or otherwise, either directly or indirectly, concerning these matters

without first approaching the bench and obtaining a ruling from the Court outside the presence of
all prospective jurors and the jurors ultimately selected to try this case. Further, all counsel are
required to communicate this Court’s rulings to their clients and witnesses who may be called to
testify in this matter.
F. Video
At the pretrial conference, counsel for Mr. Kilpatrick moved to exclude any reference to
the absence of a video of the incident at issue in this case. Counsel for Mr. Diggins indicated that
he believes that he is entitled to question Faulkner County Detention Center officials about the fact
that there is typically video available of these types of incidents but that a video is not available
for this incident. The Court denies Mr. Kilpatrick’s motion to exclude reference to the lack of a
video. Mr. Diggins’s counsel may question a witness about the lack of a video but should approach
the bench to seek further guidance from the Court before attributing to Mr. Kilpatrick the
nonexistence of the video.
G. Discovery Requests

During the pretrial conference, counsel for Mr. Kilpatrick stated that it was recently served
with discovery requests from Mr. Diggins involving a case before Chief United States District
Judge D.P. Marshal in which Officer Kilpatrick was a dismissed defendant. Mr. Kilpatrick seeks
to have any mention to the discovery requests and his failure to respond to requests excluded. The
Court grants the motion and further excludes any reference to Officer Kilpatrick being a defendant
in the other case, as there is no basis that the facts of the other case are substantially similar to this
case and as the Court understands Officer Kilpatrick was dismissed as a party prior to trial in the
other case. See Fed. R. Evid. 401, 402, 403, 404(b).
II. Mr. Diggins’s Motion In Limine

Mr. Diggins moves in limine to exclude reference, introduction and use of his criminal
history for violation of a domestic no contact order (Dkt. No. 71, ¶ 1). Mr. Diggins asserts that
he does not have a conviction that meets the requirements of Federal Rule of Evidence 609(a) and
that the prejudicial effect of any criminal history outweighs the probative value under Federal Rule
of Evidence 403 (Id., ¶ 3).
Mr. Kilpatrick responds that he intends to impeach Mr. Diggins with his felony convictions
and crimes of dishonesty from the last ten years, but he does not anticipate raising Mr. Diggins’s
violation of a court order that did not result in a criminal conviction.1 Mr. Kilpatrick asserts that
Federal Rule of Evidence 609 requires that felony convictions and incarcerations for convictions
that occurred in the last ten years “must” be permitted where the convicted party is giving
testimony in a civil case like the one at issue here (Dkt. No. 73, at 1). Mr. Kilpatrick points out
that mandatory admissibility is subject only to Federal Rule of Evidence 403 (Id.). Mr. Kilpatrick

maintains that Mr. Diggins has not come forward with a convincing argument that his felony
conviction would create any more prejudice than any other felony convictions or that his
convictions are more prejudicial than probative, and any implied argument that his convictions do
not contain an element of dishonesty is immaterial as a matter of law (Id., at 1-2). Finally, Mr.
Kilpatrick points out that the Court may use a jury instruction to limit the consideration of Mr.
Diggins’s felony convictions to the issue of credibility (Id., at 2).
Federal Rule of Evidence 609(a) provides:
(a) In General. The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant . . .

Fed. R. Evid. 609.
For the reasons stated in open Court on the record in this matter, Mr. Diggins has
established pursuant to Federal Rule of Evidence 403 that the probative value of his felony
conviction is substantially outweighed by considerations under Rule 403. Mr. Diggins’s prior

1 Counsel for Mr. Kilpatrick states that it will alert the Court, outside the hearing of the
jury, if counsel intends to raise the issue of Mr. Diggins’s violation of the court order. The Court
orders counsel for Mr. Kilpatrick to do so prior to eliciting any testimony, offering any evidence,
or making any argument regarding this matter before potential jurors or jurors seated to try this
case.
felony conviction was the result of a no contest plea, the circumstances of which were discussed
by the Court at the pretrial hearing. The Court grants Mr. Diggins’s motion in limine (Dkt. No.
71).
HiIl. Motion For Ruling On Judicial Notice
Mr. Diggins requests the Court take judicial notice under Federal Rule of Evidence 201 of
the following facts: Mr. Diggins was released on May 30, 2018, by the Circuit Court of Faulkner
County, Arkansas(Dkt. No. 76). The Court takes this motion under advisement.
It is so ordered this the 9th day of May, 2022.

Hust A. Pal
Kristine G. Baker
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10006673. Public record. Not legal advice.