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Gerald Keehn v. C/O Lucas; C/O Chipikitas; C/O Elstner; Former Superintendent

January 30, 2012


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly


Plaintiff Gerald Keehn has filed a Motion in Limine to Preclude Defendants from Introducing any Evidence or Testimony at Trial Related to an Asserted Consent Defense (the "Motion in Limine"). [ECF No. 54]. The Motion in Limine relates to Plaintiff's alleged consent to an assault with an Electronic Body Immobilization Device ("EBID"). Defendants have filed responses in opposition to the Motion in Limine, contending that the evidence at issue is directly relevant to their defense to Plaintiff's action. [ECF Nos. 56, 57]. For the reasons set forth below, Plaintiff's Motion in Limine is granted and the parties are directed that evidence of alleged consent to the EBID assault is not admissible at trial.


Plaintiff filed suit alleging, inter alia, violations of his Eighth Amendment rights under 42 U.S.C. § 1983, for the excessive use of force in an incident that Defendants have admittedly characterized as an "ill-considered experiment," "innocent horseplay," and "an ill-advised misadventure." [ECF No. 57, p.6; ECF No. 56, pp. 7, 10]. Plaintiff alleges that on August 20, 2007, he was incarcerated in Administrative Custody ("AC") status in the L-Unit, C-Pod, Restricted Housing Unit ("RHU") at the State Correctional Institution in Fayette County, Pennsylvania ("SCI-Fayette"). He was assigned to AC at his own request because a confrontation with other inmates in the prison's general population left him in fear for his well-being. At the time, Defendants Lucas, Chipikitis and Elstner were Pennsylvania Department of Corrections ("DOC") corrections officers assigned to Plaintiff's housing unit.

About a month prior to the incident, Plaintiff became a block worker for J-Block, performing work seven days per week under the supervision of corrections officers. [ECF No. 38 Ex. 5 at 11]. He spent most of each day out of his cell performing duties including cleaning, packing essentials for other inmates, and handling request slips and grievances. [Id. at 10, 11, 12]. Plaintiff alleges that two days prior to the events at issue, he asked Defendant Elstner if he could borrow a television, because the one in his cell was "on the fritz." [Id. at 14]. Plaintiff contends that in the evening of August 20, 2010, when he returned to his cell on L-Block after finishing his work on J- Block, the following events transpired:

I came back in with the other block worker. Lucas stopped me by the sergeant's bubble and said, do you want to borrow a TV? I said yeah. He said wait here. He goes into the control room. He's in there maybe a minute, two minutes, comes back out and says, follow me. We walked around his right side. He goes in the armory and says, stay here. I stood there at the armory. He was gone maybe another minute, two minutes. He comes back out. He says, follow me.

We went to D Pod where we met up with CO Elstner and the other block worker . . . We went upstairs on D Pod. We went in the back room. CO Lucas asked Elstner if he had the keys to the [property room] door. Elstner opened up the door for us. We went in, and we was asking if he had the TV. We looked for the TV. It wasn't in that room. So Elstner and [the other block worker] left. They came back in with the TV.

Elstner set the TV up on the desk. We're trying to get it to work. . . . I asked CO Elstner, are we done, and he said yeah. Then CO Lucas said, well, not yet. He said either I was going to give them all a blow job or get tasered . . . And I looked at him. I was like, tasered? And he pulled the taser out of his pocket. And I go, I'm cool. I'm good. I go to walk out of the room, and CO Chipikitas was walking in as I was about to leave. And he's like, where are you going, convict? And he started to laugh. I was like, I'm out of here. He pushed me back in the room. When he pushed me back, CO Lucas grabbed the back of my jumpsuit that I had tied around and pushed me over to the wall.

And from what I could see Chipikitas was on my left side; Lucas was on my right. And Chipikitas had his arm on my left side holding me against the wall. Lucas had his left hand on my shoulder, and I got tasered. (Id. at 12-13). The transcript of Plaintiff's deposition then reflects the following exchange:

Q. Do you know how many times?

A. Three

Q. On your right? Chipikitas was on your-

A. Left.

Q. -- left? And they were holding you against the wall?

A. Wall.

Q. As they were holding you that's when you were struck with the EBID?

A. Well, Lucas let go of me when he tasered me, but Chipikitas still had a hold of me on my left side. And he jumped back, and Lucas tasered me two more times.

Q. And then what happened?

A. After the third time I fell to the floor. I got up, and I lost control of my bowels and I urinated on myself. They laughed. As I was walking toward the desk because there's [a] chair at the desk, I went to sit down, and Lucas hands me the TV and said, keep your mouth shut, thanks for participating in our little experiment.

Q. Then what happened?

A. Elstner left. Lucas left. Me - - not Elstner, but Chipikitas and Lucas left first. There's me, Elstner and [the other inmate] left. I picked the TV up, walked outside on the catwalk and went to my cell. [Id. at 13].

The next day, Plaintiff completed a sick call slip stating that he had been tasered by guards, and that the resulting welts appeared to be infected. [Id. at 14]. On August 22, a physician's assistant examined him through the door of his cell, stating that the welts did not seem to be infected and were healing. [Id. at 15]. Plaintiff then wrote a letter to the then Superintendent of SCI-Fayette, Harry E. Wilson, and filed a grievance. Two lieutenants visited Plaintiff three or four days after the examination by the physician's assistant, and a nurse photographed the marks on Plaintiff's right side. [Id. at 16].

According to Defendant Lucas, during the 2:00 p.m. - 10:00 p.m. shift on August 20, 2007, he took armory keys from the L-5 control booth, went to the armory, and removed an EBID. [ECF No. 37 at ¶34]. On the pretense of securing a television for Plaintiff's use, he then went with Plaintiff and another inmate to the property room on the second level of D-Pod, a room lacking a security camera, where he used the EBID against Plaintiff. [Id. at ¶ 36]. Lucas states that he did this at Plaintiff's request, so that Plaintiff could settle an argument with his cellmate regarding the physical effect of an EBID. [ECF No. 38 Ex. 6 at 25-26]. Lucas testified at his deposition that afterward, he gave Plaintiff a television so that "maybe he wouldn't say anything." [Id. at 26]. Defendant Elstner contends that he was present when Lucas used the EBID on Plaintiff, but believed that Plaintiff was a willing participant. [ECF No. 43 at ¶ 19]. Defendant Chipikitas testified at his deposition that he did not enter the room until the incident was over. [Id. at ¶ 14].

Defendant Lucas ultimately was terminated from his position, and faced criminal charges.*fn1 While the ultimate disposition of his charges is contested by the parties, Lucas consented to participation in an Accelerated Rehabilitation Program to resolve the charges against him. [ECF No. 17, ECF No. 55-1, ECF No. 57 p. 16]. Defendant Elstner received a single day suspension for failing to report the incident. Defendant Chipikitis was not disciplined.


A. Legal Standard

The purpose of a motion in limine is to avoid injecting into trial matters which are irrelevant, inadmissible, and prejudicial. Emcore Corp. v. Optium Corp., Civ. No. 07--326, 2009 U.S. Dist. LEXIS 96305, *2-3 (W.D.Pa. Oct. 16, 2009) (quoting Black's Law Dictionary 1013 (6th ed.1990)). Otherwise stated, motions in limine narrow the evidentiary issues for trial and eliminate unnecessary trial ...

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