OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S. District Judge

Plaintiff Scott Lombardo, a former patient at Kirby Forensic Psychiatric Center ("Kirby"), brought a section 1983 suit against Secure Health Treatment Aides ("Aides") Patricia Crescent, Gerald Greene, Frank Burgos and Carlos Rosario, Registered Nurse Romy Rousseau, former Executive Director Renate Wack, Director of Quality Assurance Kin Wah Lee, and the Commissioner of the New York State Office of Mental Health ("OMH") James Stone, alleging various constitutional violations in conjunction with defendants' restraint of him on January 4-5, 1998.

This Court granted summary judgment with respect to various claims and several defendants. See Lombardo v. Stone, No. 99 Civ. 4603, 2001 WL 940559, at *5-8, 12 (S.D.N.Y. Aug. 20, 2001). The remaining defendants in the case are Aides Greene, Burgos, Rosario and Crescent, see id. at *9, and Registered Nurse Rousseau. The issues that remain are whether plaintiff, in violation of his constitutional rights, was subject to excessive force, and was unreasonably denied the use of a toilet. See id. at *12.

Trial is set to begin on February 11, 2002. The parties now bring several evidentiary motions in limine pursuant to Federal Rule of Evidence 404.

I. RELEVANT FACTS

A. Lombardo's Assault on Reede

Lombardo's claims arise out of a string of incidents that occurred while he was a patient at Kirby. At approximately 3:50 a.m. on January 4, 1998, plaintiff became irrationally angry with Aide Pamela Reede because "she was giving [him] a bunch of shit." Deposition of Scott Lombardo ("Lombardo Dep."), Ex. B to 3/8/01 Affidavit of Assistant Attorney General Jonathan Birenbaum ("Birenbaum Aff."), at 70. The parties do not dispute that plaintiff attacked Reede when her back was turned and choked her until she lost consciousness. See id. at 69-72. Staff members and security personnel quickly subdued Lombardo and took him to the seclusion room where he was placed in a five-point restraint. See id. at 73-77.

B. Lombardo's Time in Restraints

After the assault on Reede, plaintiff was placed in a bed and restrained. See Lombardo Dep. at 92-93. It is undisputed that later in the morning of January 4, at approximately 4:30 a.m., Aide Doeman brought plaintiff a urinal and allowed him to urinate. See id. at 101-02. Defendants contend that plaintiff was also toileted at 7:00 a.m. However, plaintiff denies being toileted at this time and defendants' records concerning this assertion are vague. See id. at 102-04. Plaintiff claims that at about 8:00 a.m. he asked for a urinal. See id. at 79-80. He contends that his request was ignored and, at approximately 8:20 a.m., he urinated on himself. See id.

Defendants claim that plaintiff did not give staff adequate advance warning of the problem, and the accident was caused "because [Lombardo] could not wait." Def. 56.1 ¶ 14. At 11:15 a.m., Lombardo, who had been lying in his own urine for approximately three hours, informed Crescent of his predicament. See Lombardo Dep. at 81. Plaintiff alleges that Crescent responded with the words "fuck you." Id.

Sometime during the evening of January 4, 1998, plaintiff claims he informed defendant Rousseau that he had to use the bathroom. See id. at 100. She allegedly responded "you get nothing" and left the seclusion room. Id. Lombardo claims to have subsequently urinated on himself again. See id. at 101. Plaintiff's medical records indicate that he refused a urinal three times between 3:00 p.m. and 11:00 p.m. on January 4 and make no mention of plaintiff urinating on himself during that time period. See Med. Rec. at 1131-34. Plaintiff remained in restraints until approximately 2:30 p.m. on January 5 when he was allowed to shower and change his clothes before being placed in padded restraints. See Lombardo Dep. at 104-05.

C. The Alleged Assault of Lombardo by Kirby Staff

Greene, Burgos, and Rosario released plaintiff from his restraints and escorted him to the shower room so that he could wash himself. See id. at 81-85. After showering, Lombardo was escorted back to the seclusion room by Greene, Burgos and Rosario, while Crescent watched. See id. at 84-86.

According to plaintiff, Burgos suddenly grabbed him from behind. See id. at 87-88. Burgos allegedly choked plaintiff to the point where plaintiff nearly lost consciousness and then dropped him to the ground.See id. Plaintiff claims that Greene, Burgos and Rosario proceeded to kick and "stomp" him for approximately five to ten minutes as he lay on the ground. See id. at 87-91. During the beating, Greene allegedly admonished plaintiff "you don't do this to a TA [Aide]." Id. at 93. Lombardo further testified that Greene, Burgos, and Rosario continued to kick him until just moments before security officers arrived. See id. at 90-92.

According to plaintiff, Crescent witnessed the whole incident as she was standing on the other side of the hallway. See Plaintiff's Opposition to Defendants' Motion in Limine ("Pl. Opp.") at 2. After the security officers arrived and Lombardo was placed in a five-point restraint bed again, Lombardo heard Crescent say, "I saw it, I saw what you did. You struck Mr. Burgos; understand, okay?" Lombardo Dep. at 93. Lombardo also testified that Greene told him in the seclusion room, "[y]ou're going to get this all week long." Lombardo Dep. at 95.

Not surprisingly, defendants' version of events is different from plaintiff's. According to defendants, plaintiff was walking back from the shower room when, without provocation, he suddenly turned around and punched Burgos in his left temple. See Deposition of Frank Burgos ("Burgos Dep."), Ex. K to Birenbaum Aff., at 22, 26, 29. Crescent testified that she only saw Lombardo punch Burgos, but did not witness anything further. See Pl. Opp. at 2.

D. Evidentiary Disputes

Through a series of letters and phone conversations, the parties have agreed not to introduce evidence of Lombardo's juvenile infractions, drug charges, and the charge of attempted rape in the first degree of Aide Reede on January 4, 1998. See Plaintiff's Motion in Limine ("Pl. Mot.") at 1-2; 1/8/02 Letter from Marc Reiner, Plaintiff's Attorney, to Jonathan Birenbaum ("1/8/02 Reiner Ltr."). The parties also agreed not to make any reference to Lombardo as a "sexual predator." See Pl. Mot. at 2; 1/8/02 Reiner Ltr. The parties agree that the charges of burglary in the second degree and public lewdness are admissible to explain why Lombardo was hospitalized at Kirby. See 1/8/02 Reiner Ltr.

The parties disagree over whether this Court can admit evidence of (1) Lombardo's January 4, 1998 assault on Reede; (2) Lombardo's medical records; and (3) evidence of an infraction in Aide Crescent's employment history.

II. PLAINTIFF'S MOTION TO EXCLUDE THREATS, MISCONDUCT

Plaintiff moves to preclude evidence of his assault on Aide Reede, as well as his medical records of the following assaultive and threatening acts.

Medical records show that on October 10, 1996, plaintiff became agitated, banged on the door and pushed the Aide assigned to him, continued to struggle with staff and had to be placed in four-point restraints. See Defendant's Opposition to Plaintiff's Motion in Limine ("Def. Opp.") at 1-2. The records also show that plaintiff "was involved in an incident of aggressive assault" against another patient on May 26, 1997. Id. at 6. Without providing additional detail, defendants state that Lombardo became "agitated and combative with staff" on September 13, 1997 and on November 23, 1997. Id. The records also show various verbal threats that Lombardo made while at Kirby, from threatening to kill the treatment team leader on January 31, 1996, to threatening to punch staff "`dead in the head'" on September 9, 1996. Id. at 2-3.

A. Similar Act Evidence

Federal Rule of Evidence 404(b) prohibits the introduction of character evidence to show that an individual has a certain predisposition, and acted consistently with such predisposition during the event in question. Fed.R.Evid. 404(b). The rationale behind the rule is that

[c]haracter evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.

Both Hynes and Lataille are section 1983 actions against corrections officers for use of excessive or unreasonable force, where defendants sought to introduce the plaintiff inmate's disciplinary record of violent acts. See Hynes, 79 F.3d at 287-88; Lataille, 754 F.2d at 34-5. Finding that defense counsel's real purpose in offering the evidence was to show that the inmate was a violent person by nature, and therefore must have been the initial aggressor on the date in question, the appellate court in each instance reversed the district court's admission of the evidence and called for a new trial, holding that admission of disciplinary history was "inconsistent with substantial justice," Hynes, 79 F.3d at 293, or affected the substantial rights of the inmate, see Lataille, 754 F.2d at 36.

Evidence of other acts and wrongs may be admitted under Rule 404(b) for purposes other than to show propensity, subject to the limitations of Rule 403. Fed.R.Evid. 404(b) ("such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"); Fed.R.Evid. 403; see also United States v. Ramirez, 894 F.2d 565, 569-70 (2d Cir. 1990) (admitting similar act evidence for the purpose of proving knowledge and the state of mind of an individual at the time of an event). Indeed, evidence may be admitted for "any other relevant purpose under [the Second Circuit's] inclusionary approach."Berkovich, 922 F.2d at 1022. See also Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 345 (2d Cir. 1994) (citing Berkovich for the proposition that the Second Circuit takes an "inclusionary approach to admitting evidence under Rule 404(b)").

Where evidence of other acts is offered for a proper purpose, it is only admissible if the acts are sufficiently similar to the alleged act.See United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (admitting evidence of other acts because sufficient similarity showed relevance);United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993) (holding that other-act evidence must be sufficiently similar).

Rule 403 prohibits the introduction of similar act evidence, even when offered for a proper purpose, where its prejudicial effect, tendency to confuse the jury or to delay the trial outweighs its probative value. Fed.R.Evid. 403. of course, "all evidence incriminating a defendant is, in one sense of the term, `prejudicial' to him: that is, it does harm to him." Ismail v. Cohen, 706 F. Supp. 243, 252 (S.D.N.Y. 1989), aff'd in part, 899 F.2d 183 (2d Cir. 1990). What matters is whether the prejudice is unfair, rather than harmful. See Ismail, 706 F. Supp. at 252. On the other side of the equation, the more similar the evidence is, the more relevant or probative. In addition, the strength of the evidence establishing that the actor committed the similar act "is one of the factors the court may consider when conducting the Rule 403 balancing."Berkovich, 922 F.2d at 1022 (quoting Huddleston v. United States, 485 U.S. 681, 689 n. 6 (1988)).

B. Analysis

Previous threats by Lombardo are not admissible because they do not qualify as similar act evidence. Moreover, Lombardo's verbal threats,e.g., to kill the director of Kirby, fail the Rule 403 balancing test because they are not sufficiently similar to the alleged assault to be relevant and are unfairly prejudicial.

Assuming that the alleged previous assaults constitute similar acts, they are offered to show propensity and cannot be admitted. Defendants' argument that Lombardo should not be permitted to portray himself as "a model patient who is always docile and cooperative," Def. Opp. at 8, betrays their purpose in offering evidence of Lombardo's alleged assaults: to show that Lombardo was the initial aggressor in the incident in question. See Hynes, 79 F.3d at 291 (holding that defense counsel's vigorous objection to plaintiff's self-portrayal as an "innocent party" revealed his illegal purpose in introducing disciplinary records of violent acts). To admit the evidence for this purpose would be "inconsistent with substantial justice." Hynes, 79 F.3d at 293. See also Eng v. Scully, 146 F.R.D. 74, 77 (S.D.N Y 1993); Lewis, 149 F.R.D. at 481.

Here, Lombardo's intent is not in issue. "A dispute as to whether or not a party performed a particular physical act is not an issue as to intent." Hynes, 79 F.3d at 291. Further, the previous assaults are not admissible to show defendants' state of mind because defendants have not claimed that they were aware of these assaults. In Lataille, the court held that the plaintiff's "prior history cannot have had any impact on defendant's state of mind," because the case record was "devoid of any evidence that the defendants knew or knew of Lataille." Lataille, 754 F.3d at 36. Moreover, defendants cannot now contend that Lombardo's medical records "are relevant to show the reasonableness of their actions . . . because they did not present evidence that, at the pertinent time, they were aware of [plaintiff's] disciplinary record." Hynes, 79 F.3d at 291.

The previous alleged assaults are also too "varied," Berkovich, 922 F.2d at 1022-23, and too commonplace, to constitute a pattern or the plaintiff's modus operandi. A series of wrongful acts do not follow a pattern, or qualify as a person's modus operandi, unless the acts "shareunusual characteristics with the act charged or represent a unique scheme." Id. (excluding acts as not unique, and not occurring under circumstances identical enough, to show modus operandi or pattern) (emphasis added). Shoving an Aide on one occasion and being involved in a fight with a patient on another occasion, are different types of events which share only commonplace characteristics. See, e.g., United States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000) (holding that a series of common robberies did not form a modus operandi where the shared characteristics were that "the perpetrator wore a nylon stocking mask, carried a gun, and vaulted over the counter to put the bank's money in a bag.").

I turn now to a Rule 403 balancing to decide whether to admit Lombardo's January 4, 1998 assault against Reede. See supra note 5 (holding that this evidence is admissible to show state of mind, subject to Rule 403). The danger that it will focus the jury's attention on a separate incident is slight because the January 4 incident precipitates the critical events in the case. The risk of prejudice is outweighed by the relevance of the evidence to defendants' state of mind. I also note that it is undisputed that Lombardo committed the act, which strengthens the probative value side of the equation. Thus, the evidence of Lombardo's assault on Reede will be admitted with a limiting instruction to the jury that it should only be considered for the purpose of evaluating defendants' state of mind.

III. DEFENDANTS' MOTION TO EXCLUDE EMPLOYMENT RECORDS

Defendants move to exclude evidence of an employee disciplinary action taken against Crescent, and the events giving rise to it. In May 2000, more than two years after the incidents that form the basis of Lombardo's claims, Crescent was suspended for seventeen days without pay and then put on disciplinary probation for: (1) failing to intervene in a separate use of force incident where a hospital assistant assaulted a patient; (2) not reporting the incident; and (3) providing false information to a Special Investigator. See 7/28/00 Kirby Letter to Patricia Crescent, Disciplinary Notices to Crescent, Etc. ("Crescent File," paginated consecutively), Ex. A to Defendants' Notice of Motion. In the alternative, defendants request that the Court limit cross-examination according to Rule 608(b).

A. Character Evidence to Prove Defendant's Intent; Character Evidence To Impeach

As set forth above, Rule 404(b) allows the introduction of other wrongful acts for any relevant purpose other than to show propensity. See United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986). Where the evidence is offered for a proper purpose, it makes no difference whether the acts occurred before or after the events in issue. See United States v. Germosen, 139 F.3d 120, 128 (2d Cir. 1998) ("The fact that the [similar act] involved a subsequent rather than prior act is of no moment."); Ismail v. Cohen, 899 F.2d 183, 188 (2d Cir. 1990) (same)

Similar act evidence offered to show a defendant's intent is admissible in a section 1983 case because the defendant's intent is a relevant element of the constitutional tort. See O'Neill v. Krzeminski, 839 F.2d 9, 11 n. 1 (2d Cir. 1988) (evidence of other instances where officer used excessive force admitted to show pattern and intent in constitutional tort case); Eng, 146 F.R.D. at 79 (same); see also Carson v. Polley, 689 F.2d 562, 572 (5th Cir. 1982) (holding that performance reports stating that defendant officer needed to "`work on controlling temper and personal feelings' because he `tends to get into arguments with inmates, lets his temper flare up too quickly'" were admissible to show officer's "intent to do harm to [plaintiff]" on the day in question).

A civil rights plaintiff is entitled to prove by extrinsic evidence that the defendant acted for the purpose of causing harm. See Eng, 146 F.R.D. at 79; United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (admitting extrinsic evidence to show intent). Indeed, the exclusion of such evidence may affect the substantial rights of the plaintiff under Rule 103(a). Fed.R.Evid. 103(a); see, e.g., Carson, 689 F.2d at 572 (holding that district court's failure to admit officer's performance reports "affected the substantial rights of [plaintiff], thus warranting reversal."). No "civil judgment, administrative finding or even preliminary judicial finding is necessary before specific acts of other misconduct may be introduced as extrinsic evidence under Rule 404(b)."Ismail, 706 F. Supp. at 252-53. The bottom line is that "[w]here malicious, aggravated conduct is purportedly involved, reports [of this conduct] are admissible." Eng, 146 F.R.D. at 80.

Character evidence may also be used to impeach. Rule 608 provides that evidence of specific instances of a witness's conduct, concerning the witness's character for truthfulness or untruthfulness, may be used to attack her credibility on cross examination. See Fed.R.Evid. 608(b);Schaetzle, 901 F.2d at 255 (admitting witness's failure to disclose prior arrest to state bar commission for purpose of examining him as to veracity); Lewis, 149 F.R.D. at 481 (excluding similar act evidence offerred to impeach because "none of the acts chronicled in Mr. Lewis' disciplinary record reflect dishonesty or deceit"). Except for criminal convictions, specific instances of conduct may not be proved by extrinsic evidence in this context. See Fed.R.Evid. 608(b).

B. Analysis

The use of force incident in Crescent's disciplinary file at Kirby is very similar to the facts alleged in this case. In that incident, Crescent witnessed but did nothing to stop another Aide from assaulting a patient, failed to report the incident, and then attempted to cover up her involvement by lying to an investigator. See Crescent File at 6. Similarly, Lombardo alleges here that while Crescent did not physically participate in the beating, she failed to intervene while he was beaten by Burgos, Rosario and Greene. He also argues that her statement following the incident, "You hit Burgos, ok? . . .," shows that she attempted to cover up her involvement. Thus, Crescent's wrongful act in May 2000 qualifies as similar act evidence under Rule 404.

Such evidence is not admissible to prove Crescent's propensity to fail to intervene when a patient is assaulted, and that she is likely to have done the same on January 4, 1998. See Berkovich, 922 F.2d at 1022. Lombardo offers this evidence, however, to show Crescent's intent to harm when she was confronted with the alleged assault on Lombardo by her fellow Aides. See Pl. Opp. at 3-4.

Lombardo is entitled to show that Crescent acted with the intent to cause harm or had "an aggravated state of mind." O'Neill, 839 F.2d at 11 n. 1 (citing Carson, 689 F.2d at 573); Eng, 146 F.R.D. at 80. Lombardo must show as a prerequisite, however, that Crescent "intended to use force," as contrasted with "accidental stumbl[ing]" onto a patient.O'Neill, 839 F.2d at 11 n. 1. Crescent's intentional failure to intervene, as evidenced by her later cover-up, would satisfy this non-accidental requirement. See id. But see Berkovich, 922 F.2d at 1022 (plaintiff's attempt to introduce prior civilian complaints against officer to show his "sadistic, malicious" nature or "aggravated state of mind" was "no more than a veiled attempt to do what Rule 404(b) expressly prohibits"). Evidence that Crescent failed to intervene and thus facilitated the beating of another patient may therefore be probative of her intent to harm, or allow harm to happen, to Lombardo, a patient.

This Circuit has recognized the importance of allowing civil rights plaintiffs to present evidence showing the wrongful intent of state actors. See, e.g., Ismail, 899 F.2d at 183 (affirming district court's admission of evidence of police officer's similar harmful acts to prove intent); Eng, 146 F.R.D. at 79. Aide Crescent is a state actor. See Lombardo, 2001 WL 940559, at *5 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18 (1982)).

If Crescent's subsequent discipline passes the Rule 403 balancing test, Lombardo would be entitled to prove Crescent's wrongful intent by introducing proof of that discipline. See O'Neill, 839 F.2d at 11;Ismail, 706 F. Supp. at 252 (referring to Rule 403 balancing as second step in Rule 404's two-part analysis). Here, the record of the subsequent discipline is more prejudicial than probative. There are no findings as to whether the underlying use of force was warranted. The discipline arose from an isolated incident that may have resulted from Crescent's inability to stop the beating of the patient, rather than any wrongful intent. See O'Neill, 839 F.2d at 11 (holding that police officer's failure to intercede was not a proximate cause of the beating by other officers because police officer had no realistic opportunity to attempt to prevent them).

Nevertheless, Crescent's wrongful act can be admitted for the purpose of impeachment to the extent that the act bears on her credibility. See Fed.R.Evid. 608(b); Schaetzle, 901 F.2d at 255; Lewis, 149 F.R.D. at 481. Crescent's proffer of false information to the Special Investigator regarding the May 2000 incident clearly reflects her character for untruthfulness. Thus, plaintiff's counsel may cross-examine Crescent on the fact that she lied to the Special Investigator regarding the May 2000 incident. See Defendants' Motion in Limine ("Def. Not.") at 8 (suggesting that, if the Court admitted evidence of Crescent's wrongful act, an acceptably-worded inquiry would be "[whether] she provided false information to an investigator regarding an assault on a patient."). Necessarily, plaintiff's counsel is permitted to explore the facts leading up to Crescent's cover-up of the incident.

Plaintiff's counsel may not, however, offer the Crescent File into evidence or use it to prove Crescent's misconduct. Rule 608(b) states plainly that where specific instances of conduct are admissible to cross-examine a witness, counsel may not use extrinsic evidence. Fed.R.Evid. 608(b).

IV. CONCLUSION

Evidence of Lombardo's threats and other assaults is excluded, but his assault on Reede will be admitted for the limited purpose of proving defendants' state of mind in using force on Lombardo. Aide Crescent's wrongful act is excluded pursuant to Rule 403, but is a permissible subject of cross-examination conducted pursuant to Rule 608(b).

SO ORDERED.