Brown v. Gray

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Milous Brown,

Plaintiff, Case No. 2:19-cv-2425

V. Judge Michael H. Watson

David Gray, et al., Magistrate Judge Merz

Defendants.

OPINION AND ORDER

Trial in this matter is scheduled for July 31, 2023. Both parties have filed

motions in limine. ECF Nos. 110 & 111. For the following reasons, the Court

GRANTS IN PART AND DENIES IN PART each party’s motion in limine.

I. STANDARD OF REVIEW

“A ruling on a motion in limine is no more than a preliminary, or advisory,

opinion that falls entirely within the discretion of the district court.” United States

v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citation omitted). The advanced

ruling aids the parties “in formulating their trial strategy,” but a court “may change

its ruling on a motion in limine where sufficient facts have developed to warrant

the change.” /d. (citation omitted).

ll. ANALYSIS

A. Defendants’ Motion

1. Evidence Pertaining to Dismissed Claims

Defendants first move to exclude as irrelevant any evidence that relates to

claims that have been dismissed in this case. Specifically, Defendants move to

exclude any evidence relating to the following dismissed claims: (1) access to the

courts; (2) retaliation for visiting Mental Health Services; (3) any claim based on

respondeat superior; and (4) Eighth Amendment claims based on Plaintiff's

removal from Mental Health Services.

In support, Defendants argue that only Plaintiff's First Amendment

retaliation claims against McRobie and Ruiz remain. Moreover, Defendants

construe the Sixth Circuit opinion in this case as finding that there are no more

than three categories of facts relevant to those claims: (A) facts about Plaintiff's

inquiries into his legal mail and attempt to seek help from Captain Howell:

(B) facts about Plaintiff's transfer to administrative segregation and then to an

allegedly worse cell; and (C) facts about the motivation for that transfer.

Everything else, Defendants assert, is irrelevant.

Plaintiff concedes that he may not argue the merits of his dismissed claims

at trial. Nonetheless, he asserts, there exists evidence relevant to those

dismissed claims that is a/so relevant to his First Amendment retaliation claims.

He therefore argues that it would be improper to exclude such evidence given its

dual relevance.

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Evidence that “has any tendency to make a fact more or less probable

than it would be without the evidence; and. . . is of consequence in determining

the action” is relevant. Fed. R. Evid. 401. Generally, relevant evidence is

admissible, and irrelevant evidence is inadmissible. Fed. R. Evid. 402. But,

even relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

As a preliminary matter, and as all parties agree, Plaintiff may not argue at

trial the merits of his dismissed claims. But, a piece of evidence may be relevant

to more than one claim. And, to the extent evidence which would have

supported a dismissed claim also supports a remaining claim, such evidence is

relevant and admissible subject to a Rule 403 balancing test. E.g., Irvin v. City of

Shaker Heights, No. 1:06CV1779, 2012 WL 13028095, at *5 (N.D. Ohio May 17,

2012) (“[T]he parties may not reference claims that were previously disposed of

.... However, to the extent that there are facts that relate to a claim that was

dismissed and a claim that is still pending in this act, those facts and evidence

are admissible.”). The question is thus whether any evidence relevant to the

dismissed claims in this case is also relevant to the remaining claims.

Plaintiff argues that evidence regarding Captain Howell’s motivation for

placing Plaintiff in administrative segregation, evidence about Plaintiff's attempt

to access the courts through the prison mail system, and evidence about

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Plaintiff's visits to Mental Health Services is relevant to his pending First

Amendment retaliation claims. As to the first category, Plaintiff specifically states

that he will not argue Captain Howell is liable under respondeat superior and

instead will argue only that Captain Howell’s motivation may shed light on

whether, inter alia, McRobie and/or Ruiz “made retaliatory misrepresentations of

[Plaintiff's] behavior in order to induce Captain Howell’s actions.” Mot. at 3, ECF

No. 116. Second, Plaintiff argues that it is important to show that he was

attempting to access the courts through the prison mail system—even though his

access to the courts claim was dismissed—because that is the protected activity

underpinning his retaliation claims. Third, Plaintiff argues it is important to

introduce evidence that he visited Mental Health Services after his encounter

with McRobie and Ruiz, and was seized there by McRobie, because it is

circumstantial evidence of McRobie’s retaliatory motive.

The Court cannot say at this juncture that the above evidence is irrelevant

to Plaintiff's remaining claims or that, if relevant, it should be excluded under

Rule 403. As to the first category, evidence about Plaintiff's interaction with

Captain Howell is certainly relevant as the Sixth Circuit stated that Captain

Howell’s decisions may have been “set[] in motion,” Brown v. Gray, No. 21-3386,

2022 WL 961246, at *4 (6th Cir. Mar. 28, 2022), by McRobie and Ruiz out of a

desire to retaliate against Plaintiff for either asking them about his legal mail or

seeing Captain Howell about the same.

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Similarly, evidence in the second category might be relevant. That Plaintiff

was asking McRobie and Ruiz about legal mail is relevant not because it

supports a nonexistent access-to-the-courts claim but because it proves Plaintiff

was engaged in a protected activity. On the other hand, if the parties stipulate

that Plaintiff was engaged in protected activity, testimony about the same may be

unnecessary or cumulative. In any event, certainly the evidence need not

concern the specifics of that legal mail or the underlying lawsuit to which it

related.

The relevance of evidence in the third category—concerning Plaintiff's

visits to Mental Health Services—is less clear. On one hand, it is helpful to

understand the sequence of events and how Plaintiff was ultimately placed in

administrative segregation/transferred to a different housing unit, and it could—

depending on the facts—shed light on McRobie’s motivation. On the other hand,

there is no viable claim at this juncture that Plaintiff suffered First Amendment

retaliation for visiting Mental Health Services. And, as addressed below,

Plaintiff's mental and emotional distress is irrelevant to damages. Nonetheless,

because McRobie’s actions during the seizure may shed light on his motivation,

the Court cannot preclude it at this juncture. Such evidence will entail informing

the jury that Plaintiff went to Mental Health Services, where he was seized by

McRobie. It may also include details about the seizure itself, including anything

McRobie may have said. However, Plaintiff is cautioned that the Court

preliminarily finds that the evidence about his visit to Mental Health Services is

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relevant to only whether McRobie and Ruiz retaliated against him for asking

about his legal mail or for seeking help from Captain Howell. Consistent with the

below, Plaintiff is given very limited leeway.

In sum, Plaintiff's response brief demonstrates that Plaintiff has no intent to

argue his dismissed claims before the jury and will limit the introduction of

evidence to only that which is also relevant to the remaining claims. Accordingly,

and consistent with this Opinion and Order, Defendants’ motion is DENIED.

2. Evidence of Emotional Damages

Defendants also argue that, pursuant to 42 U.S.C. § 1997e(e), Plaintiff is

prohibited from bringing a federal suit for mental or emotional injuries because he

has not made a prior showing of a physical injury or a commission of a sexual

act. Thus, Defendants argue, Plaintiff should be precluded from admitting at trial

any evidence concerning mental or emotional damages.

Plaintiff contends § 1997(e)(e) does not prohibit him from asserting his

First Amendment retaliation claims, which allege a constitutional—not a mental

or emotional—injury. He asserts that Sixth Circuit law allows him to pursue

nominal and punitive damages for the constitutional injury, notwithstanding his

failure to allege a physical injury. In any event, Plaintiff argues that, even if his

mental and emotional distress is irrelevant to damages, his “relationship with

mental health” is pertinent to Defendants’ motive and to whether the placement in

administrative segregation and change of housing amount to adverse actions.

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Resp. 5, ECF No. 116. As it is relevant for those purposes, he contends, it

should be admitted.

Defendants are correct on several points but ultimately cannot prevail in

their quest to exclude a// evidence of emotional and mental distress. If Plaintiff

establishes First Amendment retaliation, he may recover compensatory and

punitive damages for the violation of his First Amendment rights, even without a

showing of physical injury.' King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015).

This is because a constitutional injury is “distinct from mental and emotional

injuries,” so § 1997e(e) does not bar compensatory or punitive damages for a

constitutional injury. /d. at 213.

Still, before Plaintiff can recover compensatory damages in this case, he

must first prove that the retaliation caused an “actual injury” distinct from mental

or emotional distress and distinct from any abstract value inherent in the right to

freedom of speech.” See id. Because the “actual injury’ must be distinct from

mental or emotional distress, evidence of said distress is irrelevant to

compensatory damages. Even Plaintiff appears to concede this.

He may also be able to recover nominal damages. Small v. Brock, 963 F.3d 539 (6th

Cir. 2020) (“There is widespread agreement among our sister circuits that § 1997e(e)

allows prisoners alleging non-physical injury to still pursue claims for nominal damages

? If Plaintiff can establish an actual injury, he may be entitled to presumed damages as

the measure of compensatory damages. “When it is difficult to quantify precisely the

damages caused by [an] injury, presumed damages may be awarded, but the award

must focus on the real injury sustained and not on either the abstract value of the

constitutional right at issue, . . . or the importance of the right in our system of

government....” /d. at 214 (cleaned up).

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Moreover, the Court fails at this juncture to see how Plaintiff's mental

health is related to Defendants’ motive. As noted above, at issue in this case is

whether Defendants retaliated against Plaintiff for inquiring about his legal mail or

for seeking help from Captain Howell—not whether they retaliated against him for

visiting Mental Health Services. The relevance of Plaintiffs mental health to

Defendants’ motive is, thus, not clear.

Finally, whether Plaintiff's placement in administrative segregation or his

re-housing to a less desirable placement amount to adverse actions under the

law is not at issue. Rather, if Plaintiff proves at trial that both of those things

happened, they were—as a matter of law—adverse actions. Brown v. Gray, No.

21-3386, 2022 WL 961246, at *5 (6th Cir. Mar. 28, 2022) (“Hill and Thaddeus-X

clearly established that placing a prisoner in administrative segregation and

transferring him to a less desirable housing area are adverse actions.” (citations

omitted)). In other words, although Plaintiff must convince a jury that he was

placed in administrative segregation and was transferred to a less desirable

housing area, he need not convince a jury that those actions would deter a

person of ordinary firmness from exercising their First Amendment rights. The

effect those actions had on his mental health is thus irrelevant to this prong of his

retaliation case.

Despite the above conclusions, evidence of Plaintiff's mental health is

relevant insofar as it explains why Plaintiff left McRobie and Ruiz and went to

Mental Health Services, where he was eventually seized. Accordingly, the Court

Case No. 2:19-cv-2425 Page 8 of 16

preliminarily rules that Defendants’ motion is GRANTED IN PART AND DENIED

IN PART. Plaintiff may testify that he went to Mental Health Services after the

pertinent interactions with McRobie and Ruiz, in order to explain his whereabouts

when he was seized. His leeway is limited; one or two questions should suffice.

Counsel may not argue emotional distress in relation to damages.

B. Plaintiff's Motion

1. The Nature of Plaintiff's Convictions

Plaintiff moves to prohibit Defendants from introducing evidence

concerning the nature of his convictions (gross sexual imposition) and the fact

that he is required to register as a child sex offender. Plaintiff argues that,

although the fact of conviction is relevant to impeachment under Federal Rule of

Civil Procedure 609(a), the nature of the crimes is unduly prejudicial and should

therefore be excluded under Rule 403. Instead, Plaintiff argues, Defendants

should be limited to admitting only the fact that Plaintiff was convicted of three

felonies and is serving a fifteen-year sentence of imprisonment.

Defendants argue that evidence of Plaintiff's crimes of conviction will be

offered for impeachment purposes and as substantive evidence. Because they

intend to offer it as substantive evidence, they argue it should not be excluded.

The Court considers the evidence’s impeachment value first. Because the

convictions: (1) satisfy the timing requirement of Federal Rule of Evidence 609;

(2) were for felonies punishable by more than one year in prison; and (3) are

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being offered in a civil case, evidence of the same “must” be admitted “subject to

Rule 403” if Plaintiff testifies at trial. Fed. R. Evid. 609(a).

Rule 403 would permit exclusion of the convictions “if [their] probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Albeit in the context of criminal trials, the Sixth

Circuit has directed judges to consider the following factors when determining

whether to admit prior convictions: (1) the impeachment value of the prior crime;

(2) the point in time of the conviction and the witness’ subsequent history; (3) the

similarity between the past crime and the charged crime; (4) the importance of

the defendant’s testimony; (5) the centrality of the credibility issue. United States

v. Moore, 917 F.2d 215, 234 (6th Cir. 1990) (citations omitted).

Again, Plaintiff does not move to exclude all evidence of the prior

convictions but rather moves to exclude only evidence about the name or nature

of the convictions, details about the underlying crimes, and the fact that he is

required to register as a child sex offender. The Moore factors, as modified to fit

this analysis, weigh against admitting evidence concerning the nature of the

crimes for solely impeachment purposes. The nature of the crimes (gross sexual

imposition)—although deplorable—is not particularly indicative of one’s tendency

for truthfulness. The first factor thus weighs against admission. Plaintiff was

convicted more than twelve years ago, and the Court lacks information about his

tendency for truthfulness during his period of incarceration, so the second factor

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weighs against admission. The third factor is neutral as this is a civil case.

Plaintiff's testimony is key to proving his case, and his credibility will therefore be

central to this case. The fourth and fifth factors therefore weigh in favor of

admitting the fact of conviction, as it is probative for impeachment. But it is plain

that the nature of Plaintiffs crimes of conviction is extremely prejudicial, and the

Court finds that admitting it at trial would risk unfair prejudice. There is simply too

great a risk that the jury would base its decision on an impermissible purpose

after it learns the nature of his crimes of conviction.

Thus, the Court would ordinarily be inclined to grant Plaintiff's motion and

permit Defendants to admit only the fact that Plaintiff was convicted of three

felonies in 2011 and 2012, respectively, and the fact that he was sentenced to

fifteen years’ imprisonment for those crimes. Cf. United States v. Kemp, 546

F.3d 759, 764 (6th Cir. 2008) (“[T]he prejudicial effect of the convictions’ names

[taking indecent liberties with a minor] was significant.”).

But Defendants argue they must introduce the evidence to explain motive

—which is a central substantive issue in this case. The substantive relevance of

the evidence certainly changes the calculus.

Still, the Court has grave concerns about Defendants’ argument.

Defendants’ response brief does not technically state that any witnesses will

testify that Plaintiffs crimes of conviction were the motivating factor in anyone’s

decision. Rather, Defendants’ brief speaks in general terms about “inmates” and

says the crimes “can be” a factor in how officials “including” Captain Howell

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exercise discretion as to housing placements. Resp. 3-4, ECF No. 118. To the

extent Defendants wish to elicit evidence about considerations that officials

typically consider, they can certainly do so through generalities rather than

discussing the nature of Plaintiff's specific convictions.

Still, if Defendants have evidence that Plaintiffs specific crimes of

conviction were, in fact, the motivating factors for the pertinent adverse actions,

then such evidence is paramount to Defendants’ case. In other words, Plaintiff

cannot argue that actions were motivated by retaliation for exercising his First

Amendment rights while prohibiting Defendants from explaining that the actions

were truly motivated by Plaintiff's crimes of conviction. To that end, it is not lost

on the Court that this is a civil case. Unlike in a criminal case, where a defendant

may feel the need to testify to protect his liberty, a plaintiff chooses to file a civil

suit. Such a choice has consequences. Although the Court takes every possible

measure to ensure the jury renders a fair verdict, a plaintiff who invokes the

Court’s jurisdiction must play by the rules of evidence, even when unfavorable.

Thus, this aspect of Plaintiff's motion is therefore DENIED. But the Court

cautions Defendants that they are not permitted to discuss Plaintiff's crimes of

conviction when they elicit general testimony about the types of factors typically

considered during an analysis of whether to place an inmate in administrative

segregation or in determining where to house the inmate after a period of

segregation. Defendants might be permitted to introduce evidence of Plaintiff's

crimes of conviction through testimony that a particular decisionmaker actually

Case No. 2:19-cv-2425 Page 12 of 16

was motivated by Plaintiff's crime of conviction to take an adverse action. Before

doing so, Defendants are instructed to proffer the evidence outside the presence

of the jury and obtain a final ruling by the Court. Plaintiff and Defendants shall

craft a joint, proposed limiting instruction to be read to the jury in the event such

evidence is admitted.

2. Permission for Witnesses to Testify Via Videoconference

Next, Plaintiff moves the Court to permit five of his witnesses to testify via

videoconference. He argues that two of the witnesses, Tylor Trago and Joseph

Lucas, are presently incarcerated, and three others, Ryan David Clark, Michael

Rizzo, and Tara Clune, may not voluntarily travel to Columbus. He contends that

remote testimony would be logistically easier and more cost effective for the

incarcerated witnesses. Moreover, the three non-incarcerated witnesses live in

eastern Ohio, and Plaintiff lacks the financial means to compel their attendance

through subpoena.° Permitting remote testimony of all witnesses, he contends,

would reduce the cost of compelling their testimony by reducing mileage fees.

Defendants do not oppose permitting the incarcerated individuals from

testifying from their place of incarceration but do oppose permitting the non-

incarcerated individuals to testify via videoconference. Specifically, Defendants

argue that the transportation of incarcerated witnesses to the courthouse would

create security concerns that justify permitting their live testimony to proceed via

3 Witnesses are owed a $40 per day attendance fee, including travel time, plus mileage.

28 U.S.C. § 1821.

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videoconference from a controlled location (prison). But, Defendants argue there

are no security concerns that would justify permitting the non-inmate witnesses to

testify remotely, especially given that no details were proposed for such

testimony.

The Federal Rules of Civil Procedure require witness testimony at trial to

be taken “in open court” unless a statute or certain rules provide otherwise. Fed.

R. Civ. P. 43(a). Nonetheless, “[flor good cause in compelling circumstances

and with appropriate safeguards, the court may permit testimony in open court by

contemporaneous transmission from a different location.” /d.

Because the parties agree, and to ameliorate the logistical and security

concerns inherent in transporting prisoners, Plaintiffs motion is GRANTED with

respect to Tylor Trago and Joseph Lucas. They may be permitted to testify via

videoconference from their respective places of incarceration. Plaintiff's counsel

and Defendants’ counsel shall work together and with the places of incarceration

to ensure the testimony occurs in an appropriate setting and under appropriate

supervision. To the extent there is any cost associated with remote testimony,

Plaintiff shall bear it.

Plaintiffs motion is DENIED with respect to the non-inmate witnesses.

Plaintiff's counsel provided no proposed details for any such remote testimony,

and the Court is not convinced there would be an acceptable facility or format for

conducting supervised remote testimony for those individuals. Furthermore, the

parties, the Court, and jurors benefit from live testimony from which the jury may

Case No. 2:19-cv-2425 Page 14 of 16

more easily make credibility determinations, and the Court has an interest in

minimizing the disruptions that so often accompany reliance on technology.

Plaintiff's request to offer Mr. Trago’s and Mr. Lucas’s testimony via

affidavit under Federal Rule of Evidence 807 is DENIED. The inability to

accommodate the witnesses’ schedules to arrange remote testimony is an

insufficient basis to permit the hearsay evidence under Rule 807. Moreover, the

affidavits do not contain a sufficient guarantee of trustworthiness, and

Defendants have a strong interest in being able to cross examine these

witnesses, who are not unavailable. Similarly, the jury has a strong interest in

observing live testimony and witness demeanor.

Although Plaintiff is responsible for paying the costs associated with

securing witness testimony, if Plaintiff's counsel is willing to front the same, the

Court will seek reimbursement for counsel, in a total amount not to exceed

$1,000, from the Attorney Admission Fund. Approval of the Court's request for

reimbursement is not guaranteed, however.

This aspect of Plaintiff's motion is thus GRANTED IN PART AND DENIED

IN PART. After considering the Court’s ruling, Plaintiff shall file a notice on the

docket indicating whether he wishes to pursue remote testimony for the

incarcerated witnesses or whether he would like the Court to issue a writ for their

physical presence at trial.

Case No. 2:19-cv-2425 Page 15 of 16

lil. CONCLUSION

The Court's preliminary rulings on the parties’ motions are set forth above.

IT IS SO ORDERED. ! . J, df hh Lin

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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