Starmel v. Tompkin

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

KENDU P. STARMEL,

Plaintiff,

vs. 9:20-CV-00089

(MAD/DJS)

SGT. TOMPKIN, TERRY JAMES, Corrections

Officer, and BENJAMIN LOCKLIN, Corrections

Officer,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

SIVIN, MILLER & ROCHE LLP EDWARD SIVIN, ESQ.

20 Vesey Street GLENN D. MILLER, ESQ.

Suite 1400 CLYDE RASTETTER, ESQ.

New York, New York 10007 DAVID ROCHE, ESQ.

Attorneys for Plaintiff

NEW YORK STATE ATTORNEY STACEY A. HAMILTON, AAG

GENERAL MATTHEW GALLAGHER, AAG

The Capitol

Albany, New York 12224

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On January 27, 2020, Plaintiff Kendu P. Starmel commenced this action pursuant to 42

U.S.C. § 1983 ("Section 1983"), alleging violations of his Eighth and Fourteenth Amendment

rights while he was incarcerated at Clinton Correctional Facility. See Dkt. No. 1. After a so-

ordered stipulation on July 27, 2021, the only remaining claims in the matter are Plaintiff's Eighth

Amendment excessive force and failure to intervene claims against Defendants Sergeant Tompkin

("Tompkin"), Corrections Officer Terry James ("James"), and Corrections Officer Benjamin

Locklin ("Locklin"). See Dkt. No. 26.

Trial is scheduled to commence on October 13, 2022. Currently before the Court are the

parties' motions in limine. See Dkt. Nos. 43, 51. Plaintiff seeks to preclude Defendants from (1)

submitting any evidence relating to his 1995 felony convictions for criminal possession of a

weapon and criminal possession of a controlled substance; (2) asserting the affirmative defense of

qualified immunity; and (3) making any references to a specific Defendant who was dismissed as

part of the July 27, 2021 stipulation. See Dkt. No. 43. Defendants seek (1) permission to

introduce into evidence the names, dates, and sentences imposed for Plaintiff's 1995 felony

convictions; (2) permission to introduce into evidence Plaintiff's disciplinary history while

incarcerated; and (3) the preclusion of any evidence relating to the claims that were dismissed as

part of the July 27, 2021 stipulation. See Dkt. No. 51.

For the reasons set forth below, both motions are granted in part, denied in part, and

reserved in part.

II. DISCUSSION

A. Legal Standards

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on

the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469

U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l Union Fire

Ins. Co. of Pittsburgh v. L.E. Myers Co., 937 F. Supp. 276, 283 (S.D.N.Y. 1996). "Evidence

should be excluded on a motion in limine only when the evidence is clearly inadmissible on all

potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001).

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"[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is

placed in the appropriate factual context." Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536

(E.D.N.Y. 2011) (citing Nat'l Union Fire Ins. Co., 937 F. Supp. at 287). Further, a district court's

ruling on a motion in limine is preliminary and "subject to change when the case unfolds." Luce,

469 U.S. at 41. The moving party bears the burden of establishing that evidence is inadmissible

for any purpose and so properly excluded on a motion in limine. See United States v. Pugh, 162

F. Supp. 3d 97, 101 (E.D.N.Y. 2016).

B. Plaintiff's Prior Felony Convictions

Defendants argue that they should be allowed to impeach Plaintiff with the names, dates,

and sentences imposed for each of his prior felony convictions because the probative value of

these convictions is not substantially outweighed by the prejudice to Plaintiff. See Dkt. No. 51 at

3-6. In opposition, Plaintiff argues that, under Rule 609(b) of the Federal Rules of Evidence,

Defendants should be prohibited from introducing evidence concerning his 1995 felony

convictions because "the probative value, if any, of those remote convictions does not

substantially outweigh the prejudicial effect that would result from the jury learning of these prior

convictions." Dkt. No. 43 at 2. Plaintiff does not oppose Defendant' motion insofar as it relates

to the names, dates, and sentences imposed for convictions that occurred in December 2001. See

Dkt. No. 56 at 1.

Federal Rule of Evidence 609(a)(1) provides that, for the purpose of attacking the

credibility of a witness, evidence that the witness has been convicted of a crime "punishable by

death or by imprisonment for more than one year ... must be admitted, subject to Rule 403, in a

civil case." In other words, a district court must admit the "name of a conviction, its date, and the

sentence imposed unless the district court determines that the probative value of that evidence 'is

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substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.'" United States v. Estrada, 430 F.3d 606, 620-21 (2d Cir. 2005) (quoting

Fed. R. Evid. 403). However, where over ten years have passed since the witness's past felony

conviction or release from confinement for it, whichever is later, Rule 609(b) provides that the

conviction is admissible only if "its probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect; and ... the proponent gives an

adverse party reasonable written notice of the intent to use it so that the party has a fair

opportunity to contest its use."

In balancing probative value against prejudicial effect under Rule 609, courts examine:

"(1) the impeachment value of the prior crime, (2) the remoteness of the prior conviction, (3) the

similarity between the past crime and the conduct at issue, and (4) the importance of the

credibility of the witness." Daniels v. Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997) (citations

omitted). "Although all of these factors are relevant, 'prime among them is the first factor, i.e.,

whether the crime, by its nature, is probative of a lack of veracity.'" United States v. Brown, 606

F. Supp. 2d 306, 312 (E.D.N.Y. 2009) (quoting United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.

1977)) (alterations omitted). The district court has "wide discretion to impose limitations on the

cross-examination of witnesses," see United States v. Flaharty, 295 F.3d 182, 191 (2d Cir. 2002),

which includes the discretion to "exclude the nature or statutory name of the offense, ... [or] the

length of the sentence when its probative value is outweighed by its prejudicial effect," see

Brown, 606 F. Supp. 2d at 312.

"Rule 609(a)(1) presumes that all felonies are at least somewhat probative of a witness's

propensity to testify truthfully," although "all Rule 609(a)(1) felonies are not equally probative of

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credibility." Estrada, 430 F.3d at 618. Violent crimes such as murder, conspiracy, robbery, and

weapons possession are generally not particularly probative as to honesty or veracity. See id. at

617-18 (noting that convictions for violent or assaultive crimes generally do not relate to

credibility). However, "crimes requiring planning or preparation bear more strongly on veracity

than violence alone suggests because planning indicates deliberate and injurious violations of

basic standards rather than impulse or anger, and usually it involves some element of deceiving

the victim." Id. at 618 (internal quotation omitted).

Plaintiff's 1995 felony convictions were for possession of a weapon and possession of a

controlled substance. See Dkt. No. 43 at 1. Plaintiff was released from confinement for those

convictions in 1999. See id. Therefore, those felony convictions are presumptively inadmissible

under Rule 609(b), except that they may be admitted if the Court finds that their probative value

substantially outweighs the prejudicial effect. The Court does not find so here. Although

Plaintiff's credibility is undoubtedly central to this case and these convictions do not appear

especially similar to the conduct at issue, these convictions are also extremely remote—Plaintiff

was released approximately twenty-three years ago—and, most significantly, neither possession

of a weapon nor possession of a controlled substance are probative as to Plaintiff's honesty or

veracity. See Simpson v. Butt, No. 9:18-CV-97, 2019 WL 3975465, *2 (N.D.N.Y. Aug. 22, 2019)

("[C]riminal possession of a weapon [is] not particularly probative as to honesty or veracity"); Ali

v. Police Officer William Connick, No. 11-CV-5297, 2016 WL 3080799, *3 (E.D.N.Y. May 31,

2016) ("[C]onvictions of ... drug possession rank 'low on the impeachment value scale'")

(quotation omitted).

Accordingly, the portion of Plaintiff's motion seeking to preclude evidence concerning his

1995 felony convictions is granted. Defendants' motion to admit the names, dates, and sentences

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imposed for each of Plaintiff's prior felony convictions is denied to the extent it concerns

Plaintiff's 1995 felony convictions, and granted to the extent it concerns Plaintiff's 2001 felony

conviction.1

C. Plaintiff's Disciplinary Record

Defendants argue that they should be allowed to impeach Plaintiff with evidence of his

disciplinary history while incarcerated because such evidence "demonstrate[s] Plaintiff's

disregard for law and order and his propensity for deception." Dkt. No. 51 at 6. Defendants also

argue that Plaintiff's disciplinary history is relevant to any damages Plaintiff is claiming to have

suffered from the underlying incident because those injuries could have occurred as a result of

"other interactions plaintiff had with DOCCS personnel during his period of incarceration." Dkt.

No. 57 at 2. Plaintiff opposes any attempt to introduce his disciplinary history under Rule 404(b),

with the exception of a July 6, 2016 incident, which Plaintiff intends to discuss as part of his

direct case. See Dkt. No. 58 at 1.

Rule 404(b) of the Federal Rules of Evidence provides that "[e]vidence of any other

crime, wrong, or 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." Thus, "Federal Rule of

Evidence 404(b) prohibits the introduction of character evidence to show that an individual has a

certain predisposition, and acted consistently with such predisposition during the event in

question." Lombardo v. Stone, No. 99 CIV. 4603, 2002 WL 113913, *3 (S.D.N.Y. Jan. 29, 2002).

"In particular, disciplinary records of a state ward plaintiff, e.g., a prison inmate or psychiatric

1 Plaintiff's motion raises the issue of Defendants seeking to impeach his witnesses with

their prior criminal convictions, but does not specifically move to preclude anything. See Dkt.

No. 43 at 2. Defendants did not address this issue in their motion or in response to Plaintiff's

motion. Accordingly, the Court reserves on this issue.

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patient, are almost always inadmissible." Id. However, "[t]his evidence may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b).

Defendants' attempt to introduce Plaintiff's disciplinary history in order to "demonstrate

Plaintiff's disregard for law and order," Dkt. No. 51 at 6, is not an appropriate use of this evidence

under Rule 404(b), as Defendants plainly seek to use it "to prove [Plaintiff's] character in order to

show that on a particular occasion [Plaintiff] acted in accordance with [that] character." Fed. R.

Evid. 404(b). However, to the extent Defendants wish to show Plaintiff's "propensity for

deception," Dkt. No. 51 at 6, a court may, on cross examination, allow "specific instances of a

witness's conduct ... to be inquired into if they are probative of the [witnesses'] character for

truthfulness or untruthfulness." Fed. R. Evid. 608(b).2 Although Defendants provide a list of

Plaintiff's disciplinary history, see Dkt. No. 52, they do not specifically call out any incidents as

probative of Plaintiff's character for truthfulness or untruthfulness. Accordingly, the Court will

reserve decision on this issue until Defendants make an offer of proof specifically identifying

what disciplinary incidents they wish to inquire into under Rule 608(b) and precisely how those

incidents are probative of truthfulness. The Court preliminarily notes that many of these

incidents—such as those involving violent conduct, disobeying a direct order, or creating a

disturbance—do not appear to be probative of Plaintiff's character for truthfulness. See Estrada,

430 F.3d at 617-18 (noting that convictions for violent or assaultive crimes generally do not relate

to credibility).

With respect to Defendants' contention that Plaintiff's disciplinary history is relevant to

2 The Court notes that extrinsic evidence, such as the disciplinary records themselves,

would not be admissible under Rule 608(b). See Brown v. Cornell, No. 9:17-CV-01036, 2021

WL 2711511, *2 (N.D.N.Y. July 1, 2021) (citing Fed. R. Evid. 608(b)).

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establishing possible causes of Plaintiff's claimed injuries unrelated to the underlying incident, the

Court agrees with Defendants that such evidence could theoretically be both relevant and

admissible. See Brewer v. Jones, 222 Fed. Appx. 69, 70 (2d Cir. 2007) (holding that evidence

from a previous lawsuit filed by the plaintiff was relevant and not unduly prejudicial where that

evidence established "a possible cause of [the plaintiff's] injury unrelated to the acts of the

defendant"); see also Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529 (E.D.N.Y. 2011).

However, such evidence must be "scrupulously confined ... to the purpose for which it was

admitted." Brewer, 222 Fed. Appx. at 71. Here, if Defendants identify specific evidence from

one of Plaintiff's disciplinary hearings that tends to establish that Plaintiff's claimed injuries may

not have been the result of the underlying incident, then the Court is inclined to find that such

evidence would be admissible for the limited purpose of establishing alternative causes of

Plaintiff's alleged injuries. Defendants may not, however, attempt to find such evidence by cross-

examining Plaintiff on the details of each of his twenty-one disciplinary incidents in front of the

jury.

Finally, Plaintiff states that he does not oppose that portion of Defendants' motion that was

related to a July 6, 2016 disciplinary incident3 because he intends to introduce evidence relating to

that incident as part of his direct case. See Dkt. No. 58 at 1. In opposition, Defendants argue that

Plaintiff should be precluded from doing so because "the July 2016 incident has no relevance

whatsoever to [Defendants] liability, or lack thereof." Dkt. No. 57 at 2. In response, Plaintiff

broadly states that the July 6 incident was relevant to his direct case because it (1) was the reason

he was in a Special Housing Unit at the time of the underlying incident and (2) tends to establish

3 As a result of the July 6, 2016 disciplinary incident, Plaintiff was administratively

charged and found guilty of assaulting an officer at Collins Correctional Facility. See Dkt. No. 58

at 1.

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that Defendants' use of force was not for any legitimate penological purpose, but instead to punish

Plaintiff for allegedly assaulting one of their fellow officers. See id. However, the relevance and

necessity of the July 6 incident to Plaintiff's direct case is not clear to the Court at this juncture.

Particularly, the July 6 incident occurred at a different correctional facility seven months earlier

than the underlying incident and did not involve any of the Defendants in this action. Therefore,

as was done with Defendants above, the Court will reserve decision on the admissibility of the

July 6 disciplinary incident until Plaintiff makes an offer of proof as to precisely why evidence

related to that incident is necessary to establish his direct case or tends to establish that the

underlying use of force was to punish Plaintiff.

Accordingly, the Court reserves decision on this portion of the parties' motions.

D. Qualified Immunity

Plaintiff's argue that Defendants should be foreclosed from presenting a qualified

immunity defense at trial because "such a defense is not available to a defendant charged with a

use of excessive force in violation of the Eighth Amendment." Dkt. No. 43 at 3.4 Plaintiff is

incorrect. "It is well settled that a defendant may be entitled to qualified immunity even where he

has used excessive force." Henry v. Dinelle, 929 F. Supp. 2d 107, 123 (N.D.N.Y. 2013)

(collecting cases), aff'd, 557 Fed. Appx. 20 (2d Cir. 2014). Whether qualified immunity is

available to Defendants depends on facts that will be presented at trial.

Accordingly, this portion of Plaintiff's is denied as premature.

E. Claims and Parties Dismissed under the July 27, 2021 Stipulation

4 Although Defendants do not indicate that they have any opposition to this argument,

qualified immunity is mentioned in both their proposed jury instructions, see Dkt. No. 46 at 22,

and the parties' joint pretrial stipulation, see Dkt. No. 37 at 2 (stating that "[w]hether the doctrine

of qualified immunity precludes [P]laintiff's claims against the [D]efendant[s]," is an "issue[ ] of

law to be considered and applied by the Court") (capitalization omitted).

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Plaintiff seeks to preclude any references at trial to "Mech Restr," a misidentified

Defendant that was dismissed from the action as part of the July 27, 2021 stipulation. See Dkt.

No. 43 at 4-5. Defendants’ submissions do not indicate any opposition to this request. Instead,

Defendants seek to preclude the introduction of evidence at trial relating to any of the claims

dismissed as part of the July 27, 2021 stipulation. See Dkt. No. 51 at 7-8. Plaintiff does not

oppose this portion of Defendants’ motion. See Dkt. No. 56 at 1.

Accordingly, the portion of Plaintiff's motion seeking to preclude any references at trial to

"Mech Restr" is granted. The portion of Defendants' motion seeking to preclude the introduction

of evidence at trial relating to dismissed claims is also granted.

IH. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Plaintiff's motion in /imine (Dkt. No. 43) is GRANTED in part, DENIED

in part, and RESERVED in part; and the Court further

ORDERS that Defendants’ motion in /imine (Dkt. No. 51) is GRANTED in part,

DENIED in part, and RESERVED in part; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED. .

Dated: October 11, 2022 J) toe PL ft

Albany, New York mat oes pets

U.S. District Judge

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