United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER RE: ECF NOS. 115, 119, 121, 123 AND
MAUREEN P. KELLY UNITED-STATES MAGISTRATE JUDGE
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.
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.
Criminal History of Plaintiff and Certain Witnesses
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")
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
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.
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]).
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.
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).
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.
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.
Evidence of Grievance Procedure
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