In this action, plaintiff Israel Diaz asserts three claims under 42 U.S.C. 1983 for violations of his Eighth Amendment rights in connection with an incident that took place on May 14, 2010 while he was incarcerated at Lancaster County Prison. Specifically, Diaz brings claims for “malicious and sadistic use of force” under the Eighth Amendment against defendants Sergeant William Aberts and Officer Rodney Simione’s and a claim for “failure to intervene” under the Eighth Amendment against defendant Aberts only.
Now before me are five motions in limine brought by plaintiff Israel Diaz (Dkt. Nos. 47-51) and defendant Sergeant William Aberts and Officer Rodney Simione’s responses thereto (respectively, Dkt. Nos. 57-61. For the following reasons I will: grant in part and deny in part Diaz’s motion to exclude evidence of Diaz’s prior prison conduct (Dkt. No. 50); grant in part and deny in part Diaz’s motion to exclude evidence of Diaz’s prior criminal convictions (Dkt. No. 51); grant Diaz’s motion to exclude evidence of defendants’ prior good acts, employment disciplinary records or involvement in prior lawsuits (Dkt. No. 49); grant Diaz’s motion to preclude any comments by defense counsel or questioning of defendants regarding defendants’ feelings about being sued at trial (Dkt. No. 47); and deny Diaz’s motion to preclude any “Golden Rule” comments (Dkt. No. 48).
A. Evidence of Diaz’s Prior Prison Misconduct
Diaz moves to exclude “all evidence of prison misconduct, testimonial or otherwise.” Dkt. No. 50 at ECF p. 4. “Such evidence is irrelevant because [his] alleged acts of misconduct have no bearing on whether he was the victim of excessive force on May 14, 2010, the incident underlying this case.” Id.. Additionally, Diaz argues that even if this evidence is relevant, I should exclude it under Federal Rule of Evidence 403, which permits the exclusion of relevant evidence 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. Id. at ECF p. 6-7; see also Fed.R.Evid. 403. Diaz also argues that evidence of his misconduct should not be admissible as impeachment evidence pursuant to Federal Rule of Evidence 608. Id. at ECF p. 10.
Defendants counter that part of the inquiry governing Diaz’s Eighth Amendment claims is the reasonableness of the force they applied, which is determined based in part upon “what the defendant officers knew and reasonably believed at the time.” Dkt. No. 60 at ECF p. 5. Thus, they argue, Diaz’s “prior prison misconducts for violent or assaultive acts are admissible as relevant to [defendants] subjective state of mind, knowledge, and motive or intent” which is relevant to the inquiry as to whether defendants’ use of force was reasonable. Dkt. No. 60 at ECF p. 10. Defendants further argue that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice and further, that this evidence is proper impeachment evidence. Id. at ECF p. 11.
i. Rule 404 and Evidence of Diaz’s Other Acts
The admissibility of character evidence and evidence of a party’s crimes, wrongs or other acts is governed by Federal Rule of Evidence 404. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Fed.R.Evid. 404(a). Evidence of a crime, wrong, or other act is also not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character. Fed.R.Evid. 404(b)(1). However, this 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)(2). For other acts evidence to be admissible under the exceptions listed in Rule 404(b), (1) the evidence must have a proper purpose; (2) it must be relevant under Rule 401 and 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the Court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 2003).
“A proper purpose is one that is probative of a material issue other than character.” United States v. Smith, 12-1642, 2012 WL 5984695, *3 (3d Cir. Nov. 30, 2012), quoting United States v. Green, 617 F.3d 233, 250 (3d Cir. 2010) (quotation omitted). That is, other acts evidence can be offered for
a purpose other than showing that an individual has a propensity or disposition for certain activity . . . [In admitting such evidence] a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.
Ansell, 347 F.3d at 520-21 (citations omitted). I find that evidence of Diaz’s prior prison misconduct can be offered for the limited proper purposes of demonstrating a defendants’ knowledge of plaintiff’s prior violent misconduct at the time of the incident giving rise to his excessive force claim, and for evaluating the reasonableness of defendants’ and whether they used excessive force. Smith v. City of Phila., No. 06-4312, 2009 WL 3353148, at *2-3 (E.D. Pa. Oct. 19, 2009).
Additionally I find that defendants’ knowledge of Diaz’s prior prison misconduct is relevant to Diaz’s Eighth Amendment claims. Evidence is relevant if it has “any tendency to make a fact [that is of consequence to the determination of the action] more or less probable than it would be without the evidence.” Fed.R.Evid. 401. “If the [defendants] were aware of [Diaz’s] prior criminal conduct or discipline while incarcerated . . . and this information formed a basis to evaluate the level of threat posed by [Diaz], knowledge of such history would be relevant to the inquiry as to whether the force used against [Diaz] was reasonable under the circumstances.” Smith v. City of Phila., 2009 WL 3353148, at *2, citing Virgin Islands v. Carino, 631 F.2d 226, 229 (3d Cir. 1980) (“If it can be established that the accused knew at the time of the alleged crime of prior violent acts by the victim, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused.”) (internal citations and quotation marks omitted).
To the extent defendants knew about it at the time of the incident, Diaz’s prior prison conduct, specifically incidents of violence or threats of violence made against other inmates or prison staff, is relevant to the inquiry under the Eighth Amendment as to whether the force that defendants applied was reasonable and is specifically probative of defendants’ perception of the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of the threat posed by Diaz to the safety of the prison staff. See Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002); Whitley v. Albers, 475 U.S. 312, 321 (1986). However, this finding does not mean that every incident of misconduct is relevant or admissible. Indeed defendants do not propose to “introduce all of [Diaz’s] numerous misconducts so as . . . to unnecessarily delay the trial or delve into some areas that are not especially relevant. Rather, Defendants will focus on those instances involving violence, or threats of violence, towards prison and medical staff.” Dkt. No. 60 at ECF p. 6 n.1. In support of their opposition to Diaz’s motion, defendants have attached excerpts from the depositions of defendants as well as two other corrections officers ...