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Robinson v. Vidonish

United States District Court, W.D. Pennsylvania

July 10, 2019

HARVEY MIGUEL ROBINSON, JR., Plaintiff,
v.
PETER VIDONISH, Sued in his individual capacity, Defendant.

          MEMORANDUM ORDER RE: ECF NOS. 115, 119, 121, 123 AND 125

          MAUREEN P. KELLY UNITED-STATES MAGISTRATE JUDGE

         Pending before the Court are various Motions in Limine filed on behalf of Plaintiff Harvey Miguel Robinson, Jr., ("Robinson") ECF Nos. 115, and on behalf of Defendant Peter Vidonish, ECF Nos. 119, 121, 123, and 125, seeking to preclude the admission of certain evidence and/or testimony at trial. The parties have filed their briefs in support and in opposition to the Motions in Limine, ECF Nos. 116, 120, 122, 124, 126, 127 and 130, which are ripe for disposition as follows.[1]

         Under the Federal Rules of Evidence, "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by [the Federal Rules of Evidence], or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Fed.R.Evid. 402; see also U.S. v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Thus, Rule 403 mandates a balancing test, "requiring sensitivity on the part of the trial court to the subtleties of the particular situation." United States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010). The various motions now pending require the application of these basic principles to the conduct of a fair trial for each party.

         A. Criminal History of Plaintiff and Certain Witnesses

         Robinson has filed a Motion in Limine to preclude introduction of his criminal and prison misconduct history, as well as the criminal history of three witnesses Robinson intends to call at trial. ECF Nos. 115, 116. In addition, Robinson seeks to preclude reference to the Capital Case Unit ("CCU") where he has been housed since his entry into the Pennsylvania Department of Corrections ("DOC") system. Id.

         Robinson states he is incarcerated pursuant to a sentence of death for criminal homicide, rape, aggravated indecent assault, aggravated assault, burglary, trespass, kidnapping, and various misdemeanor offenses. ECF No. 116n.2. During Robinson's incarceration for his crimes, he has been issued numerous institutional misconducts. In addition, Robinson represents that three witnesses he expects to call at trial are incarcerated pursuant to sentences of death for murder, as well as various offenses including theft by unlawful taking, theft by receiving stolen property, criminal conspiracy, robbery, offenses related to possession and distribution of controlled substances, unlawful possession of a firearm, fleeing an officer, and criminal solicitation. Id. Robinson contends that evidence of each of these offenses and his housing placement in the CCU is irrelevant to his retaliation claim and is otherwise unfairly prejudicial.

         Defendant concedes the inadmissibility of much of the identified criminal and misconduct history. ECF No. 127 at 1 ("Defendant does not disagree with Plaintiff about the convictions and misconducts."). However, Defendant challenges the exclusion of evidence of Robinson's housing in the CCU. Defendant contends that evidence of privilege restrictions in the CCU is relevant for the jury to weigh whether Robinson is able to prove a necessary element of his retaliation claim, i.e., whether he has sustained an adverse action by a prison official as a result of the exercise of his constitutional rights. Rauser v. Horn. 241 F.3d 330, 333 (3d Cir. 2001); Robinson v. Folino. No. 15-1009 at *4 (3d Cir. Jan. 28, 2016). Defendant contends Robinson's conditions of confinement were not materially affected by the alleged retaliatory misconduct, which resulted in Robinson's placement in the Restricted Housing Unit ("RHU") for 30 days, and therefore he did not suffer an adverse action.

         In light of Defendant's apparent agreement that certain evidence is not admissible, the Plaintiffs Motion in Limine is granted with exception. Rule 609 of the Federal Rules of Evidence provides that, "when [an] opposing party seeks to use prior felony convictions to impeach the credibility of a witness who is not a defendant in a criminal case, that evidence 'must be admitted, subject to Rule 403.' Rule 403 requires district courts to consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. In assessing that balance, courts should consider: (1) the nature of the convictions; (2) the time elapsed since the convictions; (3) the importance of the witness's credibility to the case; and (4) the importance of credibility to the claim at hand." Dickens v. Taylor. 655 Fed.Appx. 941, 945 (3d Cir. 2016) (quoting Sharif v. Picone, 740 F.3d 263, 272 (3d Cir. 2014). Accordingly, should a party seek to introduce evidence of a party or witness's conviction for burglary, theft or conspiracy as bearing on credibility, the Court shall require a proffer outside of the presence of the jury applying these identified factors to establish that the conviction sought to be introduced is probative of the witness's truthful character. Id; and see U.S. v. CaldWell, 760 F.3d 267, 286 (3d Cir. 2014) (crimes that by their nature imply some dishonesty, such as theft, have greater impeachment value and are significantly more likely to be admissible [than a crime of violence]).

         The Motion in Limine to exclude evidence of Robinson's housing placement in the CCU is denied. Robinson contends evidence of his placement will cause the jury to unfairly focus on his death-row status, to the detriment of his claim. Defendant opposes the Motion in Limine, citing the relevance of the information to the elements of a prima facie First Amendment retaliation claim.

         To succeed on his retaliation claim, Robinson must demonstrate that in the course of engaging in constitutionally protected conduct, prison officials caused him to suffer "adverse action." Rauser v. Horn, 241 F.2d at 333. "The test for adverse action, however, is not whether this plaintiff would be deterred, but rather whether a prisoner of ordinary firmness would be deterred. Martin v. Gearhart, 712 Fed.Appx. at 188 (citing Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012).

         It has long been recognized that placing a prisoner in restrictive or administrative custody is sufficient adverse action to support a retaliation claim. See e.g., Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). Defendant argues that in the context of this case, placement in the RHU may not amount to adverse action for a prisoner of ordinary firmness assigned to the CCU, because of the extraordinary nature of restrictions ordinarily imposed in the CCU.

         The United States Court of Appeals for the Third Circuit has held that "whether a prisoner-plaintiff has met [this prong] of his or her retaliation claim will depend on the facts of the particular case." Id. Here, evidence of Plaintiff s housing conditions in the CCU is relevant to determine whether a change in privileges occurred and whether such a change would deter a prisoner of ordinary firmness permanently assigned to a similar housing unit from exercising his First Amendment rights. Under these circumstances, evidence of Plaintiff s housing assignment is appropriate background information and is not unfairly prejudicial. See, e.g., Randolph v. Wetzel, 764 Fed.Appx. 240, 244 n.7 (3d Cir. 2019) (references to death row were made by defendants and a witness sparingly and provided background information and so admission of such evidence, even if legal error, was harmless). To limit any potential prejudice that may result, counsel are directed to refer to the housing unit only as the "CCU" and not as the Capital Case Unit. Further, references to the CCU shall only be made when referring to the conditions of confinement in contrast to the conditions experienced by inmates housed in the RHU. Finally, the Court will issue an appropriate limiting instruction to the jury that such evidence may be considered only to determine whether Plaintiff suffered an adverse action as the result of filing a grievance, so as to constitute unlawful retaliation, and not for any other purpose.

         B. Evidence of Grievance Procedure

         Defendant has filed a "Motion in Limine Regarding the Grievance Procedure," seeking to exclude the introduction of evidence of the DOC grievance process and the testimony of Tracy Shawley, DOC's grievance administrator, as irrelevant and otherwise prone to cause juror confusion. ECF Nos. 119, 120. Defendant states that Robinson intends to introduce evidence through Ms. Shawley that his grievance regarding missing a Program Review Committee ("PRC") meeting was improperly assigned to Vidonish. According to Plaintiff, pursuant to DOC policy, Vidonish should have been precluded from reviewing or adjudicating the grievance because he was an active member of the PRC, and the grievance related to PRC proceedings. Defendant contends that this evidence is not relevant to whether Robinson timely filed this lawsuit or whether Defendant correctly determined that Plaintiff made a false ...


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