Young v. Lacy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

LARRY ARNOLD YOUNG,

Plaintiff,

v. CIVIL ACTION NO. 1:17-03633

T.A. LACY,

Defendant.

MEMORANDUM OPINION AND ORDER

On March 31, 2020, the court ruled on the following

motions: plaintiff’s Motion in Limine, (ECF No. 84), Motion for

Appointment of Counsel and Renewed Motion for Appointment of

Counsel, (ECF Nos. 86 and 97), and Motion for Summary Judgment,

(ECF No. 98), and defendant’s Motion for Summary Judgment, (ECF

No. 93), Motion to Strike Affidavit, (ECF No. 99), Omnibus

Motion in Limine, (ECF No. 104), Motion in Limine, (ECF No.

105), and Motion to Strike Plaintiff’s Sur-Reply. (ECF No.

108.) The reasons for these rulings follow.

I. General Factual and Procedural Background

On July 20, 2016, state authorities received a report that

plaintiff sexually assaulted a six-year-old female child. (ECF

Nos. 53-1, 53-2.) Plaintiff was arrested at a residence on July

22, 2016 and appeared for a preliminary hearing before a county

magistrate, who found probable cause that plaintiff committed

sexual assault in the first degree and sexual abuse in the first

degree. (ECF Nos. 53-1, 53-2.) A Mercer County, West Virginia

grand jury subsequently charged plaintiff with one count of

sexual assault in the first degree and two counts of sexual

abuse in the first degree. (ECF No. 53-4.) Plaintiff was

ultimately tried before a jury and acquitted of all charges on

March 15, 2018. (ECF No. 55.)

While plaintiff’s criminal case was pending in state court,

plaintiff filed Case No. 1:17-cv-03633 in this court, naming as

defendants T.A. Lacy (“Lacy”), Aaron Young (“Young”), and Perry

Richmond (“Richmond”). (ECF No. 1.) In an amended complaint,

plaintiff asserted that Steven Sommers (“Sommers”), Lacy, and

Jeremy Farmer (“Farmer”) “illegally entered and searched . . .

the trailer” where plaintiff was found on July 22, 2016, and

arrested him without a warrant. (ECF No. 33 at 2.) Plaintiff

claimed that Lacy “illegally search[ed] [the trailer] after he

was asked to leave the premises.” (Id. at 3.) Plaintiff also

alleged that, in the course of the arrest, Lacy snuck behind

him, grabbed his left hand, twisted his arm behind his back, and

something “cracked” in plaintiff’s wrist. (Id. at 2.)

Plaintiff claimed that he has “suffered constant pain in [his]

left wrist ever since that moment” and could not use his left

hand “without insulting the injury and suffering severely.”

(Id. at 3.) Plaintiff further asserted that Richmond and Young

applied excessive force in removing him from the courtroom after

two of his criminal hearings. (ECF Nos. 1 at 29-31, 13 at 3-22,

33, and 33-1 at 1-36.)

Defendants filed a motion for summary judgment and amended

motion for summary judgment accompanied by memoranda in support,

to which plaintiff filed a response. (ECF Nos. 48, 49, 53, 54,

and 55.) On May 11, 2018, Magistrate Judge Cheryl Eifert issued

Proposed Findings and Recommendations (“PF&R”), concluding that

plaintiff had raised genuine issues of fact with respect to his

Fourth Amendment claims of an illegal search and false arrest,

but failed to state valid claims of excessive force. (ECF No.

57.) Magistrate Judge Eifert recommended that defendants

Richmond and Young be dismissed from the case; that the

excessive force claim against Lacy be dismissed, and that

plaintiff be permitted to proceed on his claims against Lacy of

improper search and false arrest. (Id.)

On September 28, 2018, this court adopted the findings and

recommendations in the PF&R, except this court found no factual

basis to support the false arrest claim. (ECF No. 65.)

Consequently, the court dismissed defendants Richmond and Young

from the case, dismissed the false arrest and excessive force

claims against Lacy, and allowed plaintiff to proceed with his

Fourth Amendment illegal search claim against Lacy. (Id.)

On October 17, 2018, plaintiff filed a Notice of Appeal

with the Fourth Circuit. (ECF No. 70.) The Fourth Circuit

dismissed the appeal on January 30, 2019 due to plaintiff’s

failure to prosecute. (ECF No. 78.) On April 18, 2019, the

Fourth Circuit reopened plaintiff’s appeal, noting that

plaintiff evidently did not receive critical filings in the

matter because the Clerk of the Fourth Circuit was not using the

correct mailing address. (ECF No. 91.) On June 13, 2019, this

court stayed plaintiff’s remaining claim pending completion of

plaintiff’s appeal. (ECF No. 110.) On August 26, 2019, the

Fourth Circuit denied the appeal on the ground that it lacked

jurisdiction over the matter, because this court had not issued

a final order, nor an appealable interlocutory or collateral

order. (ECF No. 111.)

II. The Motions at Issue

a. Plaintiff’s Motions for Appointment of Counsel

On August 15, 2017, plaintiff filed a motion for

appointment of counsel. (ECF No. 12.) Magistrate Judge Eifert

denied that motion without prejudice. (ECF No. 20.) On April

4, 2019, plaintiff filed a renewed motion for appointment of

counsel, asking the court to appoint counsel to represent him

because he is not trained in law and cannot afford counsel.

(ECF No. 86.) Then on May 17, 2019, plaintiff again filed a

renewed motion for appointment of counsel, making the same

argument as above and adding that a trial date was approaching.

(ECF No. 97.)

b. Parties’ Motions for Summary Judgment

On May 1, 2019, defendant Lacy filed a motion for summary

judgment, arguing that plaintiff’s remaining unlawful entry and

search claim fails because defendant is entitled to qualified

immunity. (ECF No. 94.) Defendant argues that he is entitled

to qualified immunity because his entry into plaintiff’s trailer

occurred only after his partner, Detective Sommers, had already

entered the home. He also asserts in an affidavit that he was

not in a position to be able to hear whether plaintiff responded

to Detective Sommers’ yells inside the home requesting entry,

and that at no time did plaintiff ever request or demand that

the officers leave the residence. (ECF No. 93, Ex. 2 at ¶¶ 5-

8.) Thus, defendant claims he entered the residence both to

protect Sommers and because he reasonably believed that Sommers

had plaintiff’s consent to enter. Moreover, he contends that

even if his entry did violate the Fourth Amendment, it is not

clearly established that a subsequent entry in these

circumstances is unlawful.

Plaintiff filed a Response on May 17, 2019,1 countering that

Sommers never yelled inside the residence requesting permission

1 The court notes that plaintiff’s Response (which included an

opposing motion for summary judgment) was filed out of time, and

that he never sought leave of the court to file out of time.

Plaintiff, in a later sur-reply, asserts that he had an

operation on May 5, 2019, which required him to be hospitalized

and reduced his ability to timely file a Response. (ECF No.

to enter, and that after learning the officers did not have a

search warrant, plaintiff asked the officers to leave the

residence. (ECF No. 98 at ¶ 2.) Additionally, plaintiff claims

that after he requested the officers leave, Lacy remained in the

residence and continued his search, and emerged from the

residence several minutes later carrying a rifle. (Id. at ¶¶ 2,

4, 10.) Plaintiff argues that he is entitled to summary

judgment on these grounds. Plaintiff also directs the court’s

attention to the affidavits of Kevin and Brandon Harris, (ECF

Nos. 96-1 and 96-2), as support for his claims.2

Defendant responds that plaintiff has presented no evidence

that creates a genuine issue of material fact on defendant’s

qualified immunity argument. (ECF No. 100.) Defendant contends

that his earlier argument for why qualified immunity applies

106.) He also asserts that he is pro se and thus the court

should grant him some leniency on procedural matters. (Id.)

The court concludes that while in the future plaintiff should

file a motion requesting permission to file out of time, for

good cause shown and in the interests of justice, the court will

consider plaintiff’s Response and his motion for summary

judgment to be timely filed. Cf. Torres v. Oakland Scavenger

Co., 487 U.S. 312, 316 (1988) (“[T]he rules of procedure should

be liberally construed [so] that ‘mere technicalities’ [do] not

stand in the way of consideration of a case on its merits.”).

Note that the above referenced sections of plaintiff’s sur-

reply are not the subject of defendant’s motion to strike, (ECF

No. 108), discussed infra Part III.c.

2 The court addresses these affidavits in its consideration of

defendant’s motions to strike. See infra Part III.c.

holds firm, as once Sommers breached the entry of the residence,

Lacy’s entry became reasonable, and even if Lacy’s subsequent

entry into the residence constitutes a Fourth Amendment

violation, the law was not clearly established at the time that

an officer cannot follow his superior into a residence. (See

id.) Lastly, defendant argues that plaintiff’s motion for

summary judgment should not be granted because a genuine issue

of material fact remains as to whether the officers knocked

prior to entering the residence and whether their entry was

reasonable. (Id.)

Plaintiff later filed a sur-reply, (ECF No. 106), which the

court will address in its consideration of defendant’s motions

to strike. See infra Part III.c.

c. Defendant’s Motions to Strike

On May 22, 2019, defendant filed a motion to strike the

affidavits of Kevin and Brandon Harris, (ECF Nos. 96 and 96-1),

because the affidavits were deficient and improper. (ECF No.

99.) Specifically, defendant points out that the affidavits

were unnotarized, in violation of West Virginia Code §§ 39-4-15,

39-4-16, and do not establish they are made on personal

knowledge, in violation of Federal Rule of Civil Procedure

56(c)(4). Plaintiff responded that the affidavits were proper

and the notary accidentally forgot to stamp the documents.3 (ECF

No. 106.)

Defendant filed a second motion to strike on June 10, 2019,

seeking to strike plaintiff’s sur-reply portion of plaintiff’s

response to defendant’s reply, (ECF No. 106), because plaintiff

filed such sur-reply without leave of court, in violation of

Local Rule of Civil Procedure 7.1(a)(7). (ECF No. 108.)

Plaintiff filed no response to this motion to strike.

d. Parties’ Motions in Limine

Plaintiff filed a motion in limine on March 27, 2019,

asking the court to issue orders preventing defendant from

presenting any evidence of plaintiff’s past criminal history and

preventing defendant from presenting any evidence of any past

lawsuits filed by plaintiff. (ECF No. 84.)

Defendant responded to this motion, arguing that plaintiff

has not identified the criminal history or past lawsuits he is

seeking the court to exclude. (ECF No. 89.) Defendant lists

the criminal history and past lawsuits he presumes that

plaintiff is requesting exclusion of, including plaintiff’s 1989

conviction upon a guilty plea for continuing criminal enterprise

and the state court charges that were the inception of this

3 This portion of plaintiff’s filing is not the subject of

defendant’s motion to strike, (ECF No. 108), discussed infra

Part III.c.

civil case. Defendant then states that while he does not

anticipate utilizing 404(b) evidence of plaintiff’s prior

conviction for continuing criminal enterprise, see Fed. R. Evid.

404, he does anticipate bringing up some of the underlying facts

of the sexual assault state court charges, as they form the

basis of this civil action. He argues that the jury will likely

need to hear evidence as to why defendant was present at

plaintiff’s residence on July 22, 2016, which will necessarily

include the investigation of the allegations for which plaintiff

was arrested, tried, and acquitted. As to plaintiff’s past

lawsuits, defendant argues that if plaintiff remains determined

to testify about physical injuries he allegedly sustained by

defendant Lacy and the previously dismissed defendants,

defendant should be permitted to question plaintiff regarding

the same.

Defendant then filed two motions in limine on June 4, 2019,

requesting that the court: prevent plaintiff from making any

“golden rule” argument; sequester all witnesses; prevent any

discussion of insurance; prevent introduction of any formula for

general damages; prevent argument that plaintiff was forced to

go to trial or that the failure to settle was the fault of

defendant; prevent argument that defendant has delayed this case

proceeding to trial; prevent plaintiff from raising issues

outside the evidence in rebuttal closing argument; and prevent

testimony or evidence regarding dismissed claims or claims

against dismissed parties. (ECF Nos. 104 and 105.) Plaintiff

filed no response to these motions.

III. Analysis

a. Plaintiff’s Motions for Appointment of Counsel

There is no constitutional right to counsel in an action

brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1915(e)(1)

(2010); see also Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir.

1975). Although the court has some discretion in assigning

counsel, the Fourth Circuit has clearly stated that motions for

the appointment of counsel in civil actions should be granted

“only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780

(4th Cir. 1975). When determining whether a particular case

rises to that level, the court must consider the complexity of

the claims in dispute and the ability of the indigent party to

present them. Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.

1984); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir.

1982) (“[N]o comprehensive definition of exceptional

circumstances is practical. The existence of such circumstances

will turn on the quality of two basic factors-the type and

complexity of the case, and the abilities of the individuals

bringing it.”) (footnote omitted).

Plaintiff argues that he is not trained in law and cannot

afford counsel. (See ECF Nos. 86 and 97.) Unfortunately, these

grounds are not exceptional. Many pro se litigants are unable

to find lawyers willing to represent them, and many lack funds

to hire counsel on an hourly basis. Most pro se plaintiffs also

lack legal training and education. These limitations do not, in

and of themselves, satisfy the “exceptional” standard to justify

the appointment of counsel. See, e.g., Christian v. Hale, 2019

WL 7559789, at *1 (S.D.W. Va. June 27, 2019), report and

recommendation adopted, 2019 WL 3801549 (S.D.W. Va. Aug. 13,

2019) (declining to appoint counsel where plaintiff “is

indigent, cannot afford to hire counsel, and has limited

knowledge of the law”); Louis v. Martinez, 2010 WL 1484302, at

*1 (N.D.W. Va. Apr. 12, 2010) (declining to appoint counsel even

in circumstances where the plaintiff was incarcerated, housed in

the special housing unit, subjected to continuous lock down, and

had restricted access to the law library and no opportunity to

obtain legal assistance from fellow inmates).

Having reviewed plaintiff’s filings, the court finds

plaintiff to be capable of retaining counsel or presenting his

claims at this stage of the litigation. While this case appears

to be headed to trial, which presents more complex issues for a

pro se plaintiff to deal with, plaintiff has simply presented no

circumstances that are close to exceptional. Accordingly,

plaintiff’s motions for appointment of counsel were DENIED.

b. Parties’ Motions for Summary Judgment

In evaluating summary judgment motions, Rule 56(a) of the

Federal Rules of Civil Procedure provides that “[t]he court

shall grant summary judgment if the movant shows that there is

no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” A genuine issue of

material fact exists if, in viewing the record and all

reasonable inferences drawn therefrom in the light most

favorable to the non-moving party, a reasonable juror could

return a verdict for the non-movant. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing that there

is an absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the

moving party meets its burden, then the non-movant must set

forth specific facts that would be admissible in evidence that

demonstrate the existence of a genuine issue of fact for trial.

Id. at 322-23.

The court found that genuine issues of material fact remain

as to both defendant’s and plaintiff’s motions for summary

judgment, and thus denies both motions. As to plaintiff’s

motion, the genuine issues of material fact that remain are

whether the officers knocked or yelled prior to entering the

residence, and whether plaintiff ever gave or withdrew consent

for the officers to enter and search his residence. While

plaintiff claims that the officers never knocked, that he never

gave consent for their entry, and that even if he consented at

some point he withdrew that consent when he asked them to leave,

defendant claims that the officers stopped at the open front

door and announced their presence by yelling for plaintiff, and

that plaintiff never requested or demanded that the officers

leave the residence. A reasonable juror could find defendant’s

account more credible than plaintiff’s, which would then entitle

a verdict in defendant’s favor because no Fourth Amendment

violation would have occurred if plaintiff consented to the

officer’s entry and search. See Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973) (“[A] premises search conducted pursuant to

valid consent cannot violate the Fourth Amendment.”).

Therefore, plaintiff’s motion for summary judgment was DENIED.

Regarding defendant’s motion for summary judgment, as an

initial matter, defendant is correct that he is entitled to

qualified immunity for his initial entry into the residence,

regardless of whether plaintiff consented to that entry. “The

doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “For a right to be

clearly established, ‘existing precedent must have placed the

statutory or constitutional question beyond debate.’” White v.

Pauly, 137 S. Ct. 548, 551, (2017) (quoting Mullenix v. Luna,

136 S. Ct. 305, 308 (2015)). Qualified immunity thus protects

law enforcement officers from “bad guesses in gray areas,” and

it ensures that they may be held personally liable only “for

transgressing bright lines.” Maciarello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992). Qualified immunity analysis involves

two inquiries: (1) whether the plaintiff has established the

violation of a constitutional right; and (2) whether that right

was clearly established at the time of the alleged violation.

Pearson, 555 U.S. at 232.

Defendant is entitled to qualified immunity for his entry

into the residence because he followed Sommers into the

residence, not knowing that Sommers may not actually have had

consent to enter. Even if plaintiff did not give consent for

Sommers to enter, Lacy’s subsequent entry would not violate the

Fourth Amendment because it was reasonable. See Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006) (the ultimate

touchstone of the Fourth Amendment is “reasonableness”). While

it is a basic principle of Fourth Amendment law that searches

inside a home without a warrant are presumptively unreasonable,

see, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004),

warrantless entry and searches conducted with consent do not

violate the Fourth Amendment. See Schneckloth, 412 U.S. at 219.

It was reasonable for Lacy to assume that Sommers did have

consent to enter the residence – regardless of whether that

assumption was true – because Lacy was not in a position to hear

a response from plaintiff and because “[n]o settled Fourth

Amendment principle requires [an] officer to second-guess the

earlier steps already taken by his or her fellow officers.”

White, 137 S. Ct. at 552; see also Sargent v. City of Toledo

Police Dept., 150 F. App’x 470, 474 (6th Cir. 2005) (“no Fourth

Amendment violation occurs when an officer follows a partner

inside after the partner has already entered the home”).

Therefore, not only was defendant’s entry reasonable, and thus

did not violate the Fourth Amendment, but even in the

alternative that his entry did violate the Fourth Amendment, it

is not clearly established that defendant’s action violated

plaintiff’s constitutional rights. Therefore, defendant is

entitled to qualified immunity for his entry into the residence.

Defendant’s motion for summary judgment must be denied,

however, because of the genuine issue of material fact of

whether plaintiff ever requested or demanded that the officers

leave the residence. While his entry may be protected by

qualified immunity, both his remaining in the residence and

continuing to search the residence are not. Although a search

conducted pursuant to valid consent cannot violate the Fourth

Amendment, the consenting party may limit the scope of that

search, and may at any moment retract his consent. See Florida

v. Jimeno, 500 U.S. 248, 251–52 (1991) (“A suspect may of course

delimit as he chooses the scope of the search to which he

consents.”). This rule of law is clearly established by the

Supreme Court’s statement in the Jimeno case. See id.; see

also, e.g., United States v. Ortiz, 669 F.3d 439, 445 (4th Cir.

2012) (“[A]ny consent given is valid until it is withdrawn by

the defendant.”); Manzanares v. Higdon, 575 F.3d 1135, 1147

(10th Cir. 2009) (“[A]n objectively reasonable officer would

have known that Higdon's continued presence in the Manzanares

home became a seizure when Manzanares withdrew his consent”);

Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d

404, 426 (5th Cir. 2008) (“[I]t is clearly established that ‘[a]

consent which waives Fourth Amendment rights may be limited,

qualified, or withdrawn.’” (citations omitted)).

Here, there is a genuine issue of material fact regarding

whether plaintiff ever requested or demanded that the officers

leave the residence, and if so, whether defendant remained in

the residence following plaintiff’s withdrawal of consent.

Defendant claims that plaintiff never requested or demanded that

the officers leave the residence. (ECF No. 93, Ex. 2 at ¶ 8.)

However, plaintiff asserts that he did. (ECF No. 98 at ¶ 2.)

Plaintiff also repeats that assertion several times in his

deposition. (ECF No. 93, Ex. 1 at pp. 59-60, 69, 72.)

Plaintiff further contends that after requesting the officers

leave, defendant remained in the residence. (Id., Ex. 1 at pp.

70, 75-77.) The signed, sworn, and notarized affidavits of

Brandon and Kevin Harris also state that Lacy walked down the

driveway minutes after plaintiff and the other officers had left

the residence.4 (ECF Nos. 109 and 109-1.) A reasonable juror

could find plaintiff’s and the Harris’s accounts more credible

than defendant’s, which would then entitle a verdict in

plaintiff’s favor because a clearly established Fourth Amendment

violation occurred if defendant remained in the residence and

continued to search following plaintiff’s withdrawal of consent.

Therefore, defendant’s motion for summary judgment was DENIED.

c. Defendant’s Motions to Strike

“The issue of admissibility of the affidavit is an

evidentiary question, procedural by nature, that is governed by

federal, rather than state law.” Guarantee Tr. Life Ins. Co. v.

Wood, 631 F. Supp. 15, 22 n.1 (N.D. Ga. 1984) (citing Erie

Railroad Co. v. Thompkins, 304 U.S. 64 (1938) and Northwestern

Insurance Co. v. Corley, 503 F.2d 224 (7th Cir. 1974)). Under

federal law, “[a]n affidavit or declaration used to support or

4 These are different affidavits than the affidavits by Brandon

and Kevin Harris that defendant moved to strike.

oppose a motion [for summary judgment] must be made on personal

knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify

on the matters stated.” Fed. R. Civ. P. 56(c)(4). Following

the 2010 Amendment to Rule 56, a formal affidavit is no longer

required. See Fed. R. Civ. P. 56 advisory committee’s note.

The affidavits of Kevin and Brandon Harris, (ECF Nos. 96

and 96-1), are improperly notarized because they do not include

a valid notary seal. Thus, the court considered their

admissibility as unsworn declarations. See Montgomery v. Ruxton

Health Care, IX, LLC, 2006 WL 3746145, at *2 (E.D. Va. Dec. 15,

2006) (“Section 1746 . . . allows federal courts to consider

‘affidavits’ that have not been notarized so long as they meet

other statutory requirements.”). 28 U.S.C. § 1746 allows a

written unsworn declaration to substitute for an affidavit, so

long as the unsworn declaration is subscribed in proper form as

true under penalty of perjury. Fed. R. Civ. P. 56 advisory

committee’s note (citing 28 U.S.C. § 1746). The declarations at

issue here are deficient because they contain no statement that

they were true declarations made under penalty of perjury. See,

e.g., Thompson v. Clarke, 2020 WL 1124361, at *7 (W.D. Va. Mar.

6, 2020) (holding that because the affidavit was neither

notarized nor did it include any language that it was declared

under penalty of perjury, “it fails to satisfy even the basic

requirements for unsworn declarations under penalty of perjury

per 28 U.S.C. § 1746”); Trapaga v. Cent. States Joint Bd. Local

10, 2007 WL 1017855, at *5 (N.D. Ill. Mar. 30, 2007) (“[A] court

may not consider an unsworn declaration unless it subjects the

declarant to penalties of perjury”); United States v. Terrell

Cty., Georgia, 2006 WL 8445865, at *1 (M.D. Ga. July 12, 2006)

(“As the Affidavit was improperly notarized and does not

alternatively state that Defendant Bowens made his declaration

under penalty of perjury, as is permitted by 28 U.S.C. § 1746,

the same must be discarded.”) Therefore, the affidavits of

Kevin and Brandon Harris, (ECF Nos. 96 and 96-1), are

inadmissible under 28 U.S.C. § 1746, and defendant’s motion to

strike these affidavits was GRANTED.5

Defendant’s second motion to strike the sur-reply portion

of plaintiff’s response to defendant’s reply was also GRANTED.

Local Rule of Civil Procedure 7.1(a)(7) states that “[s]urreply

memoranda shall not be filed except by leave of court.” This

court never granted plaintiff leave to file a sur-reply.

Therefore, the first portion of plaintiff’s “Response in

Opposition to Defendant’s Reply in Support for Summary

Judgment”, (ECF No. 106), is an improper sur-reply that was

filed without leave of this court and thus should be stricken.

5 The court makes no ruling on the validity of the new affidavits

of Kevin and Brandon Harris. (ECF Nos. 109 and 109-1.)

d. Parties’ Motions in Limine

A district court has the inherent authority to manage the

course of a trial. Luce v. United States, 469 U.S. 38, 41 n.4

(1984). The court may exercise this power by issuing an

evidentiary ruling in advance of trial. Id. Moreover, the

court can change its ruling at trial, “even if nothing

unexpected happens.” Id. at 41. Rulings in limine are

speculative in effect; essentially, they are advisory opinions.

As to plaintiff’s request that the court exclude any

evidence of any past lawsuits filed by plaintiff, the court

GRANTED this motion. Plaintiff’s past lawsuits are irrelevant

to the issues and potential damages remaining in this case. See

Fed. R. Evid. 401. Whether defendant violated plaintiff’s

Fourth Amendment rights by remaining in plaintiff’s residence is

unaffected by any previous lawsuits filed by plaintiff or any

prior injuries plaintiff has suffered, as alleged in those prior

suits. Cf. Rodrigue v. Wood Grp. PSN, Inc., 2016 WL 5390392, at

*4 (E.D. La. Sept. 27, 2016) (ruling that evidence of

plaintiff’s prior litigation is not relevant to the instant

action nor necessary to help determine proper damages for any

injuries caused by defendant’s actions). Because the evidence

of plaintiff’s past lawsuits is not relevant, it is not

admissible. See Fed. R. Evid. 401. Plaintiff will thus

likewise be barred from introducing any evidence of past

lawsuits.

The court DENIED plaintiff’s motion requesting the court

prevent defendant from presenting any evidence of plaintiff’s

past criminal history. Evidence of past crimes “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.” Fed. R. Evid. 404(b)(1). However, it is admissible

if it is introduced for another purpose, id. 404(b)(2), and if

its probative value is not substantially outweighed by unfair

prejudice. Id. 403. Thus, evidence of plaintiff’s sexual

assault state court charges is not barred by Rule 404 because it

is introduced for the probative purpose of explaining to the

jury the basis for this civil case.

As to Rule 403’s balancing test, there is clear probative

value for the introduction of plaintiff’s state court charges

because without any mention of it, the jury would be confused

why defendant and other officers were present at plaintiff’s

residence on July 22, 2016. However, there is a strong danger

of unfair prejudice to plaintiff from introducing the full

sexual abuse nature of plaintiff’s state court charges, which

persists even though plaintiff was acquitted of the charges.

See, e.g., United States v. Roux, 715 F.3d 1019, 1026 (7th Cir.

2013) (“testimony that the defendant has sexually abused

children is highly prejudicial”); United States v. Davis, 624

F.3d 508, 512 (2d Cir. 2010) (“There can be no doubt that

admission of a prior conviction for child molestation carries a

high risk of prejudice.”). There is very little additional

probative value acquired from introducing the sexual nature of

plaintiff’s charges, as the vast majority of the probative value

of explaining why the officers were present at plaintiff’s

residence can be gained by introducing only the limited fact

that the officers were present due to a criminal complaint

against plaintiff. With such a limitation, the probative value

is no longer substantially outweighed by the danger of unfair

prejudice. Therefore, the court DENIED plaintiff’s request to

bar all evidence of plaintiff’s state court sexual abuse

charges, but does impose a restriction that defendant shall not

introduce evidence of the sexual nature of the reason officers

were present at plaintiff’s residence.

Defendant’s requests can be resolved easily. No party

shall engage in “golden rule” argument, as it is “universally

recognized as improper because it encourages the jury to depart

from neutrality and to decide the case on the basis of personal

interest and bias rather than on the evidence.” United States

v. Susi, 378 F. App'x 277, 283 (4th Cir. 2010). Second, all

witnesses at trial shall be excluded so that they cannot hear

other witnesses’ testimony, as is mandatory upon the request of

a party. Fed. R. Evid. 615. Third, evidence of liability

insurance is inadmissible in this case, as there is no

controversy about proof of agency, ownership or control. Id.

411. Fourth, no formula for general damages shall be

introduced, as the law is well settled that general damages are

“intangibles” for which there is no exact measurement, Jimenez

v. Chrysler Corp., 74 F. Supp. 2d 548 (4th Cir. 1999), and that

actual injury must be proved in all constitutional violation

suits.6 Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306,

(1986) (“the abstract value of a constitutional right may not

form the basis for § 1983 damages”). Fifth, plaintiff may not

argue he was forced to go to trial or that any failure to settle

was the fault of defendant or that defendant has delayed this

case from proceeding to trial, as these lines of argument are

not relevant and are prejudicial. Fed R. Evid. 401, 403.

6 “The concept of actual injury at common law is a broad one, and

the Supreme Court has recognized that ‘compensatory damages may

include not only out-of-pocket loss and other monetary harms,

but also such injuries as impairment of reputation . . .

personal humiliation, and mental anguish and suffering.’ We

have recognized, in the § 1983 context, that a ‘plaintiff's

testimony, standing alone, can support an award of compensatory

damages for emotional distress based on a constitutional

violation.’ Such evidence must, however, ‘establish that the

plaintiff suffered demonstrable emotional distress, which must

be sufficiently articulated; neither conclusory statements that

the plaintiff suffered emotional distress nor the mere fact that

a constitutional violation occurred supports an award of

compensatory damages.’” Randall v. Prince George's Cty., Md.,

302 F.3d 188, 208 (4th Cir. 2002) (citations omitted).

Sixth, plaintiff may not raise issues outside the evidence in

his rebuttal closing argument. See, e.g., United States v.

Wilson, 135 F.3d 291, 298 (4th Cir. 1998) (“By going outside the

evidence, the prosecutor ‘violated a fundamental rule, known to

every lawyer, that argument is limited to the facts in

evidence.’” (quoting United States ex rel. Shaw v. De Robertis,

755 F.2d 1279, 1281 (7th Cir. 1985))). And lastly, neither

party may present testimony or evidence regarding dismissed

claims or claims against dismissed parties, as introduction of

such evidence is not relevant and is likely to confuse the jury.

Fed R. Evid. 401, 403. Therefore, for the above reasons, all of

defendant’s motions in limine were GRANTED.

IV. Conclusion

For the foregoing reasons, plaintiff’s Motions for

Appointment of Counsel, (ECF Nos. 86 and 97), were DENIED;

plaintiff’s Motion for Summary Judgment, (ECF No. 98), was

DENIED; defendant’s Motion for Summary Judgment, (ECF No. 93),

was DENIED; defendant’s Motions to Strike, (ECF Nos. 99 and

108), were GRANTED; plaintiff’s Motion in Limine, (ECF No. 84),

was GRANTED in part and DENIED in part; and defendant’s Motions

in Limine, (ECF Nos. 104 and 105), were GRANTED.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record.

IT IS SO ORDERED this 6th day of April, 2020.

ENTER:

David A. Faber

Senior United States District Judge

25