Opinion
No. 92 Civ. 9309 (NRB).
January 22, 1996
Abady Beldock Levine Hoffman, New York City, for plaintiff.
Ann L. Moscow Assistant Corporation Counsel, New York City, for defendants.
MEMORANDUM AND ORDER
This is a civil rights action arising under 42 U.S.C. § 1983 42 U.S.C. 1983 against certain corrections officers alleging the unlawful use of force against a prison inmate. Plaintiff additionally alleges state law claims of assault, battery, and negligent and intentional infliction of emotional distress. Plaintiff also asserted a Monell claim, but has agreed to bifurcate the action against the municipal defendant pursuant to Fed.R.Civ.P. 42(b).
Currently before this Court is plaintiff's in limine motion seeking an order directing defendants to produce additional information relating to three use of force/disciplinary records furnished pursuant to our December 22, 1995 order. Plaintiff contends that the events described in the reports are admissible pursuant to Rule 404(b) of the Federal Rules of Evidence. Defendants maintain that the evidence plaintiff seeks is inadmissible character evidence and that any probative value it may offer is substantially outweighed by the potential for undue prejudice. Further, defendants claim that plaintiff's request is untimely.
For the reasons set forth below, plaintiff's motion is denied.
BACKGROUND
This action arises out of two incidents in which plaintiff claims he was beaten by several corrections officers. The first incident allegedly occurred on January 2, 1992 and involved, among others, Stephen Nico, a corrections officer. The second allegedly occurred on June 26, 1992 and involved, among others, Royal Miller, a corrections officer. As a result of these episodes, plaintiff claims he suffered physical and emotional injuries.
This action was filed on December 28, 1992. Discovery closed in the summer of 1995. In April and May of 1994, plaintiff requested production of all documents relating to any complaints, disciplinary records, charges, or proceedings against the individual defendants involving allegations of misconduct or excessive use of force against an inmate, whether substantiated or unsubstantiated. Defendants responded by producing only documents relating to substantiated uses of force prior to the dates alleged in the complaint. On October 23, 1995, defendants reiterated their initial request. Thus, while there appears to be some merit to the defendants' argument of untimeliness, given that our involvement in the case was so recent, we were reluctant to resolve this potentially significant issue on purely procedural grounds. Accordingly, we requested in camera submission of the documents in order to determine whether they were discoverable on the merits. After carefully reviewing the documents supplied by the defendants, on December 22, 1995 we ordered the production of certain records relating to eight incidents involving allegations of uses of force and other misconduct. Our order gave defendants the option of redacting the names of those officers not defendants in this case and subjected the documents to the terms and conditions of a protective order, filed August 3, 1994. In addition, the order clearly stated that it was not a ruling on the admissibility of the documents.
Plaintiff now seeks additional information relating to three of the sets of records produced pursuant to our December 22, 1995 order. Specifically, plaintiff seeks information redacted from the records in order to identify and locate witnesses to incidents not alleged in the complaint.
DISCUSSION
I. LEGAL STANDARD
Parties may seek discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. Fed R Civ P 26(b)(1). Under this standard, the material sought need not be admissible at trial but must be reasonably calculated to lead to the discovery of admissible evidence. Id. As plaintiff's motion seeks to compel discovery of similar and bad act evidence, we must make a determination under Federal Rule of Evidence 404(b) in order to determine whether the information sought is reasonably calculated to lead to the discovery of admissible evidence.
Rule 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . .
Fed.R.Evid. 404(b). This Circuit is committed to the "inclusionary" approach to the admission of other act evidence under Fed.R.Evid. 404(b). See United States v. Muniz, 60 F.3d 65, 68 (2d Cir. 1995) (citation omitted); Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 345 (2d Cir. 1994); In re Air Disaster at Lockerbie Scotland on 12-21-88, 37 F.3d 804, 823 (2d Cir. 1994) (stating that evidence of prior misconduct is admissible for any relevant purpose), cert. denied, 115 S.Ct. 934 (1995). Such an approach does not allow for admission of evidence of other crimes, wrongs, or acts "merely to prove that a person had a propensity to commit the act at issue." United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir. 1992); Berkovich v. Hicks, 922 F.2d 101 8, 1022 (2d Cir. 1991)
. Rather, it contemplates the admission of evidence of other bad acts, regardless of whether they occurred prior or subsequent to the incidents at issue in the case, if they are relevant to an actual issue in the case, see United States v. Pitre, 960 F.2d at 1118, and satisfy the probative-prejudice balancing test of Fed.R.Evid. 403,FN1 United States v. Everett, 825 F.2d 658 (2d Cir. 1987), cert. denied, 484 U.S. 1069 (1988); United States v. Figuera, 618 F.2d 934, 939 (2d Cir. 1980). "The strength of the evidence establishing the similar act is one of the factors the court may consider when conducting the Rule 403 balancing." United States v. Huddleston, 485 U.S. 681, 689 n. 6 (1988).
The court has broad discretion in determining admissibility under Rule 404(b). United States v. Brennan, 798 F.2d 581 (2d Cir. 1986). Similar act evidence will be admitted only if there is sufficient evidence to support a finding by a jury that the defendant committed the similar act. See Huddleston v. United States, 485 U.S. 681. Where a defendant's intent is at issue, evidence of prior acts may be admissible to prove that intent. See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987). Yet, a plaintiff in an excessive force case may not offer extrinsic evidence to prove that a defendant had a "`sadistic,' `malicious,' `aggravated state of mind.'" Berkovich, 922 F.2d 1018, 1022 (finding that such a proffer "amounts to no more than a veiled attempt to do what Rule 404(b) expressly prohibits — introducing evidence of bad acts to show the defendant's propensity to commit such acts"). But see Eng v. Scully, 146 F.R.D. 74, 80 (S.D.N.Y. 1993) (finding that plaintiff in excessive force case could prove by other instances that a defendant acted maliciously and sadistically). He may, however, offer evidence of other acts to show a pattern of conduct if those other acts share "`unusual characteristics' with the act charged or represent a `unique scheme.'" Berkovich, 922 F.2d at 1022 (citing United States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978)).
B. PLAINTIFF'S MOTION
Plaintiff states in his submissions that he intends to introduce information regarding three separate events involving two of the individual defendants. The first two incidents involve Miller and the third involves Nico.
1. Miller Incidents
Plaintiff seeks further discovery on incidents involving Miller that occurred on October 2, 1991 and April 6, 1991. In the October incident, Miller was suspended from duty after a superior officer alleged that he had utilized unnecessary physical force upon an inmate, despite the fact that the inmate called the incident a "minor disagreement." (See Inmate Statement, B/C# 441-90-30480, Oct. 3, 1991.) In the April incident, Miller was involved in a fracas with an inmate over an order to clean vats in the prison's kitchen. A Department of Corrections' (DOC) investigation into that incident found that Miller's use of force was necessary to protect himself. In both incidents, the evidence shows that Miller made reference to "five," a slang term for challenging someone to a fistfight. Plaintiff argues that evidence concerning these incidents is admissible pursuant to Rule 404(b) under two theories: (1) motive and intent; and (2) plan. (See Letter from Jonathan S. Abady, Jan. 17, 1996, at 3).
While plaintiff alleges an apparent modus operandi with regard to both of the incidents for which he seeks discovery — i.e. Miller's offer to "give the inmate `five,'" or assault the inmate, (Letter from Jonathan S. Abady, Jan. 17, 1996, at 3) — he fails to draw particular links to the events that are the subject of the complaint. Rather, he posits the general assertion that all the incidents involve similar issues because they all allegedly entail the use of excessive force by a group of officers who present "pretextual" reasons for and falsify reports concerning that force. (Letter from Jonathan S. Abady, Jan. 11, 1996, at 6.) From this, plaintiff avers that Miller's motive and intent was the same for all the incidents. (See Letter from Jonathan S. Abady, Jan 17, 1996, at 3.) However, plaintiff offers no evidence explaining how the October and April incidents actually bear on Miller's intent during the events alleged in the complaint, or to put it another way, he fails to explain how evidence concerning the prior incidents would enable a jury to decide a disputed issue in the trial on a permissible basis. Moreover, the similarities plaintiff claims between the three incidents are the factual predicates seemingly found in every case where excessive force is alleged — they evince no particular plan, scheme or similarity connecting them to the particular conduct alleged in the complaint. As a result, we are unconvinced of the incidents' relevance to those alleged in the complaint under a motive, intent, or plan theory, but instead believe they can only be used for the improper purpose of attempting to prove Miller's propensity to engage in unlawful uses of force against inmates. See Hynes v. LaBoy, 887 F. Supp. 618, 628-29 (S.D.N.Y. 1995) (excluding records of prior conduct because "[such records] are inadmissible for the purposes of showing that [a party] was a violent person and, therefore, must have been the aggressor who precipitated the assault.")
Even if we were to find that the April and October incidents were relevant to an issue in the case, we would find that they failed Rule 403's balancing test. They are removed eight and fourteen months respectively from the event in which the complaint alleges Miller participated. Such temporal dislocation severely limits the probative value the incidents offer. Similarly, the facts that Miller was found not to have used excessive force during the April incident and that the inmate involved in the October incident did not complain of excessive force lower the probative value of evidence relating to the incidents. See Berkovich v. Hicks, 922 F.2d at 1022 (stating that a defendant's exoneration from past charges levied against him "lessens significantly" their probative value). Given these factors, we find that testimony regarding these incidents would unfairly prejudice the jury by introducing evidence of prior allegations of misconduct, but provide little, if any, probative value.
2. Nico Incident
Plaintiff also seeks further discovery with regard to an incident involving Nico's use of force against an inmate on March 11, 1993. Due to his statements following the incident, DOCS charged Nico with various administrative violations, the gravamen of which alleged that he filed a report that omitted a use of force which took place against an inmate after the inmate allegedly was found to possess a razor blade. Plaintiff characterizes the March 11, 1993 event as a "retaliatory assault" similar to the one alleged in the complaint, but DOC's reports indicate that the inmate provoked the assault. Once again, plaintiff argues that evidence concerning these incidents is admissible pursuant to Rule 404(b) under two theories: (1) motive and intent and (2) pattern. (Letter from Jonathan S. Abady, Jan. 11, 1996, at 6.)
Other than alleging that this incident and the one alleged in the complaint both involved unprovoked attacks and were motivated by a "desire to retaliate," (Letter from Jonathan S. Abady, Jan. 11, 1996, at 2), plaintiff makes no connection between the two incidents. As a result, it is difficult to discern how Nico's behavior during the March incident pertains to his intent or motive during the events alleged in the complaint. Indeed, we believe it does not. Similarly, plaintiff's contention that evidence concerning the March incident manifests a pattern of retaliatory assaults fails because there is no allegation that the March incident shares unusual characteristics or represents a unique scheme with the act charged in the complaint.
Even if we were to find that the March incident bears on Nico's intent or motive during the events alleged in the complaint, or that it demonstrated a pattern of behavior, we would find that it fails Rule 403's balancing test. First, it occurred 14 months after the incident Nico is alleged to have participated in involving plaintiff. Second, the facts of the March incident involve a fight following the search of an inmate. Such a search is not even intimated in the complaint. Moreover, DOC's reports suggest that Nico's use of force was justified during the March incident. Thus, we find that evidence concerning the March incident would serve only to confuse the jury and enlarge the trial beyond the confines of material relevant to the issues at bar.
CONCLUSION
For the above reasons, we find that the information plaintiff seeks pursuant to its motion is irrelevant and not likely to lead to relevant evidence. Accordingly, plaintiff's motion is denied.
IT IS SO ORDERED.