Opinion
File No. 1:98 CV 133.
February 15, 2001.
OPINION
This matter is before the Court on three Motions in Limine, two by Defendants, Ottawa County and Ottawa County Sheriff Gary Rosema (hereinafter "Defendants"), and one by Plaintiff Robert Scott Calver (hereinafter "Plaintiff"), and Defendants' Motion for Leave to Include Standard Jury Instruction. In this civil rights action pursuant to 42 U.S.C. § 1983, Plaintiff asserts that Defendants violated his Eighth and Fourteenth Amendment rights when Defendants did not allow him out-of-cell exercise for a period of 52 consecutive days. In their first Motion in Limine, Defendants argue that pursuant to Federal Rules of Evidence 104, 402, and 403, and Federal Rule of Civil Procedure 8, the Court should preclude Plaintiff from introducing evidence of his jail conditions prior to February 11, 1995, due to the three-year statute of limitations for § 1983 cases in Michigan. In addition, Defendants contend that the Court should not allow evidence of the alleged refusal by jailhouse guards to allow Plaintiff access to the exercise room because there is no evidence to suggest Defendants knew of these actions, nor that such actions took place pursuant to the policies, practices, or customs of Defendants.
In their Second Motion in Limine, pursuant to the same Federal Rules, Defendants assert that the Court should prohibit Plaintiff from producing evidence or making any arguments at trial that imply that there is a constitutional right to exercise outdoors. Defendants also maintain that Plaintiff should not be allowed to argue for damages in excess of the $15,000 that he pled in his First Amended Complaint.
In their Motion for Leave to Submit Standard Civil Jury Instruction 4.09, Defendants argue that this jury instruction was inadvertently left out of the proposed jury instructions submitted to the Court. They contend that this jury instruction regarding impeachment of a witness with his or her prior convictions is appropriate given the nature of the case.
In his Motion in Limine, Plaintiff requests that, pursuant to Federal Rules of Civil Procedure 403, 404, and 609, this Court strike any evidence relating to crimes committed by Plaintiff before and after his term of incarceration ended for the underlying offense in this case. The Court will deny Defendants' Motions in Limine in their entirety, grant Defendants' Motion for Leave, and grant Plaintiff's Motion in Limine.
I. FACTS
On December 27, 1994, Plaintiff turned himself into the Ottawa County Sheriff's Department, and was subsequently arrested and detained in the Ottawa County Jail System. On February 15, 1995, Plaintiff pled guilty to one count of Retail Fraud. During the period between his initial detention and his guilty plea, Plaintiff was held in two different facilities in the Ottawa County Jail System: the Grand Haven facility and the Fillmore complex. Plaintiff was housed in the Grand Haven facility from December 27, 1994, until January 4, 1995. During his first period of detention at the Grand Haven facility, Plaintiff was never allowed out of his cell for exercise because the facility was in a state of lockdown due to an ongoing escape/murder investigation.
On January 4, 1995, Plaintiff was transported to the Fillmore complex. Plaintiff remained in the Fillmore complex until February 13, 1995, at which time he was transported back to the Grand Haven facility. He stayed at the Grand Haven facility until February 17, 1995. During his second stay at the Grand Haven facility, Plaintiff was not allowed out of his cell to exercise because the facility was still in a state of lockdown.
The Court uses lockdown as the reason for Plaintiff's confinement without out-of-cell exercise in the Grand Haven facility between February 13, 1995, and February 17, 1995, because that is what the parties agreed to in the Final Pretrial Order. (See Final Pre. Order at ¶ 11.)
II. LEGAL STANDARDS
Federal Rule of Evidence 104 states, in pertinent part, that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Fed.R.Evid. 104. Under Rule 401, "'[r]elevant 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. "All relevant evidence is admissible, except as otherwise provided . . . by these rules. . . . Evidence which is not relevant is not admissible." Fed.R.Evid. 402. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.III. DISCUSSION
In his First Amended Complaint, pursuant to 42 U.S.C. § 1983, Plaintiff asserts three causes of action: (1) Summary Punishment in violation of the Fourteenth Amendment; (2) Violation of the Eighth Amendment right against cruel and unusual punishment; and (3) Intentional Infliction of Emotional Distress. Plaintiff's claims are based on his assertion that Defendants' policies, practices, and customs prevented him from having any out-of-cell exercise for a period of 52 consecutive days.
The Court uses the 52-day calculation contained in Plaintiff's Response to Defendants' Motion in Limine instead of the 54-day calculation contained in his First Amended Complaint because the 52-day number is correct based on the calender.
A. Defendants' First Motion in Limine
1. Statute of Limitations for § 1983 Actions
In their first Motion in Limine, Defendants make two arguments. First, Defendants maintain that Plaintiff should be denied the ability to introduce any evidence about Defendants' actions towards Plaintiff that predate February 11, 1995, because of the 3-year statute of limitations for § 1983 actions under Michigan law; Plaintiff first filed his Complaint on February 11, 1998.
The statute of limitations for claims under § 1983 is the statute for personal injuries in the state in which the cause of action arose. Wilson v. Garcia, 471 U.S. 261, 276 (1985). For § 1983 claims arising in the state of Michigan, a 3-year statute of limitations applies pursuant to Michigan Compiled Laws § 600.5805(8). Hardin v. Straub, 490 U.S. 536, 540 (1989); McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988).
Defendants would have this Court characterize an Eighth Amendment violation due to lack of out-of-cell exercise not as a continuing act, but rather as violation in which each day without exercise is a discrete and separate violation onto itself. According to this characterization by Defendants, as early as December 28, 1994, Plaintiff knew or had reason to know that Defendants' conduct formed the basis for his injury and he should have brought the cause of action at that time. Defendants cite to McCune for this proposition that their alleged actions in violation of the Eighth Amendment are not a continuing tort that defers the running of the statute of limitations. Such a characterization of an Eighth Amendment violation due to lack of out-of-cell exercise defies both logic and the nature of the violation as described by the Sixth Circuit Court of Appeals and various other Circuit courts that have dealt with this issue.
A total or near-total deprivation of exercise may violate the Eighth Amendment. Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995).
In examining the constitutionality of exercise restrictions, trial courts must determine "the minimum amount of yard time necessary for the inmates' well-being under minimal civilized standards" and whether these restrictions are "'totally without penological justification.'" In making this eighth amendment assessment, factors to consider include: physical or psychological injuries resulting from a lack of exercise or a particularized need for exercise, length of confinement without exercise, time per day outside the cell, and the opportunity for contact with other inmates.Pressley v. Brown, 754 F. Supp. 112, 116 (W.D.Mich. 1990) (emphasis added) (citations omitted).
Only by assessing the length of time without exercise and time per day outside of the cell can a determination be made about whether a specific period of in or out-of-cell exercise deprivation falls within the ambit of the Eighth Amendment. The characterization of this sort of Eighth Amendment violation as continuous is supported by the reasoning in Patterson v. Mintze, 717 F.2d 284 (6th Cir. 1983), in which the Sixth Circuit Court of Appeals found that a 46-day deprivation of out-of-cell exercise created a potentially winnable Eighth Amendment claim and, therefore, should not be dismissed on summary judgment. Id. at 289; see also Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979); Ruiz v. Estella, 679 F.2d 1115 (5th Cir. 1982). The very heart of a deprivation-of-exercise claim under the Eighth Amendment is its continuing nature; it can only occur over time.
Defendants argue that according to the reasoning in McCune, Plaintiff's cause of action accrued on or before February 11, 1995. Defendants are simply incorrect. In McCune, the appellant argued that his false arrest and continued incarceration for that arrest constituted a continuing tort for purposes of the 3-year statute of limitations for § 1983 actions that arise in Michigan. In assessing what constitutes a continuing tort under § 1983, the McCune court agreed with the Ninth Circuit Court of Appeals and stated that "'[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from the original violation.'" McCune, v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981)). The McCune court held that a cause of action for false arrest accrued on the date of the original arrest, but that appellant's continued incarceration for that false arrest did not toll the statute of limitations because it constituted a residual ill effect from the original false arrest. Id at 906-07.
Defendants' cites to and quote from McCune are inapposite. As explained above, the Eighth Amendment violation of which Plaintiff complains is by its nature a violation that occurs over time. The unlawful act can only accrue after a certain period of time has elapsed. Plaintiff's allegations of being denied out-of-cell exercise or exercise at all are not about the residual ill effects of Defendants' unlawful acts, it is the total or near-total deprivation of out-of-cell or in-cell exercise itself that is the unlawful act. Therefore, because a violation of the Eighth Amendment for total or near-total deprivation of exercise is a continuing violation and continues until the time a prisoner is allowed to exercise or is released, the 3-year statute of limitations in Plaintiff's case was tolled until at least February 17, 1995. Since Plaintiff filed his Complaint on February 11, 1998, less than three years after his cause of action under the Eighth Amendment accrued, his Complaint is not time barred and he can introduce all of the evidence from his entire period of incarceration for his offense because it is highly relevant to the issue of deprivation of exercise.
2. Official Policy or Custom under § 1983
Defendants next argue that because the alleged acts of individual jailhouse guards in denying Plaintiff both outdoor and indoor exercise are the source of Plaintiff's Complaint, and there is no evidence to suggest that Defendants knew about these actions or that the actions constituted a "policy or practice" of Defendants, Plaintiff is precluded from introducing evidence of the actions of the guards at trial. In support of their argument, Defendants cite to Lile v. Tippecanoe County Jail, 844 F. Supp. 1301 (N.D.Ind. 1992), and Miller v Kennard, 74 F. Supp.2d 1050 (D.Utah 1999).
Defendants are simply mistaken as to the law in the Sixth Circuit and its application to the facts of this case.
"'To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.'" Leach v. Shelby County Sheriff, 891 F.2d 1241, 1244 (6th Cir. 1989) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). In his First Amended Complaint, Plaintiff claims that Defendants violated his Eighth Amendment right against cruel and unusual punishment by their deliberate indifference to providing him with either outdoor or indoor exercise. Plaintiff did not name the individual jailhouse guards in his Complaint. Rather, Plaintiff named as defendants the Sheriff in charge of the Ottawa County jails and Ottawa County for which the Sheriff works.
In Monell v. New York Dept. of Social Services, 436 U.S. 658, 690 (1978), the Supreme Court held that "a municipality is a 'person' within the meaning of § 1983 who can be sued directly if it causes a constitutional tort through 'a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'" Leach, 891 F.2d at 1244 (quoting Monell, 436 U.S. at 690). A suit against an individual in his official capacity is essentially a suit against the government entity who employs that individual and can result in the entity's liability for that individual's acts. Leach, 891 F.2d at 1245 (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). Supervisory liability can attach when a plaintiff has shown that an official has "' implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending [employees].'" Leach, 891 F.2d at 1246 (quoting Hayes v. Jefferson, 668 F.2d 869, 874(1982)) (emphasis added). It is not necessary for the official to have actual knowledge of the violations for liability to attach, liability can also attach if a plaintiff proves that the official should have known of the constitutional deprivations and failed to correct them. Leach, 891 F.2d 1246-47. If this were not the case, municipalities and official policy makers could play ostrich, stick their collective heads in the sand, and thereby shield themselves from liability.
Under Michigan law, the Sheriff of a county has charge and custody of the jails in his county. Mich. Comp. Laws § 51.75. According to the Ottawa County Correctional Facility Guide Book, "[e]xercise areas are adjacent to the cell units and may be used at the discretion of the Duty Officers." Based on the statute and the language of the Guide Book, Defendant Rosema, as the Ottawa County Sheriff, has responsibility for the jails, how those jail are run, and in particular, the policy regarding how exercise time is properly accorded to each of the inmates in the Ottawa County jails. The policy for prisoner exercise gives the Duty Officers in the jails complete, unfettered discretion as to which prisoner gets to exercise, and when and where that exercise takes place. This kind of complete discretion is obviously ripe for abuse, and like the scenario in Leach, this sort of discretion implies an affirmative duty on the part of Sheriff Rosema "to know and to act." Leach, 891 F.2d at 1247.
While it is true, as Defendants point out, that "[d]iscretion to act is not to be confused with policy making authority," Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993), it is the policy of the Sheriff, a county official with statutory policy making power, to give complete discretion to the guards and what sorts of practices or customs were implemented by the guards with the Sheriff's implicit authorization or approval that are at issue. It is not the discretion of the guards, but how they used the discretion based on the authorization, approval, or knowledge of the Sheriff that is the foundation for this § 1983 action by Plaintiff. If Plaintiff can demonstrate that through the discretion given to the guards by the prison policy of the Sheriff, that the custom, practice, or policy of those running the jails was the total or near-total deprivation of exercise for prisoners, and that the Sheriff implicitly authorized, approved, knew of or should have known of the abuses, then Plaintiff has a cause of action under § 1983.
Testimony of the individual jail guards will indicate whether abuse of this discretion was widespread and how many senior jail officials knew of its alleged abuse and implicitly authorized or approved of the guards' actions. Plaintiff has also stated that he continually requested exercise time from the guards and has alleged that virtually every guard he asked denied him his request. If various guards, independent of one another, continually refused Plaintiff the ability to exercise, either in or out of his cell, this could lead to the inference that such a "practice" was so wide spread, permanent, and well settled as to be a custom with force of law, or that it was implicitly authorized by Defendants. The testimony of the guards will also indicate whether the possibility of abuse was so palpable that Defendants should have known of its existence.
In addition, Plaintiff states that he wrote out several complaints regarding this deprivation of exercise, and evidence suggests none of these complaints was addressed by senior jail officials, or that these complaints even saw the light of day. The testimony of the individual guards is highly relevant to the issue of whether there existed an implicit understanding throughout the jail that guards could routinely deny prisoners the ability to exercise and whether Plaintiff was simply one in a long line of prisoners to have his exercise rights curtailed beyond the minimum acceptable under the Eighth Amendment. Since their testimony is obviously relevant to the issue of whether there was an unspoken understanding in the jail about denial of exercise to prisoners, and whether Defendants knew or should have known of this, and thereby tacitly and implicitly approved or authorized this "policy," "practice" or "custom", the Court will allow Plaintiff to introduce this evidence.
B. Defendants' Second Motion in Limine
1. Right to Outdoor Exercise under the Eighth Amendment
In their Second Motion in Limine, Defendants request that this Court prohibit Plaintiff from suggesting there exists a constitutional right to outdoor exercise and that Plaintiff be constrained to argue for no more $15,000 in damages per his First Amended Complaint.
To prohibit Plaintiff from arguing that a certain amount of outdoor exercise for prisoners may be required by the Constitution simply defies the express language of the case law in the Sixth Circuit. Although no court in this Circuit has precisely defined how much time in an outdoor setting the Eighth Amendment requires, the Patterson court specifically included both "length of confinement without exercise, [and the] time per day outside the cell" as factors to be used in determining whether prison officials have violated a prisoner's Eighth Amendment right against cruel and unusual punishment. Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983) (emphasis added); see also Riddle v. Jones, 1990 U.S. App. LEXIS 21884 (6th Cir. Oct. 4, 1990); Gawloski v. Dallman, 803 F. Supp. 103, 109-10 (S.D.Ohio 1992); Pressley v. Brown, 754 F. Supp. 112, 116 (W.D.Mich. 1990); Gumpl v. Seiter, 689 F. Supp. 754, 755 (S.D.Ohio 1987). Therefore, Plaintiff will be allowed to introduce evidence to prove that Defendants violated his Eighth Amendment right when they prohibited him from exercising in an outdoor setting for an extended period of time without penological justification. Although the Court will not allow Plaintiff to categorically state that there is an Eighth Amendment right to out-of-cell exercise, Plaintiff will be allowed to argue that an extended deprivation of out-of-cell exercise may violate the Eighth Amendment if Defendants can put forth no reasonable penological justification for such deprivation.
2. Damages
Defendants contend that Plaintiff may not request an amount in damages that exceeds the $15,000 prayed for in Plaintiff's Complaint. Under Federal Rule of Civil Procedure 54, "[e]xcept as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party is not demanding such relief in the party's pleadings." Fed.R.Civ.P. 54(c). As correctly pointed out by Plaintiff, his demand does not preclude a damage award of higher than $15,000. Instead, his First Amended Complaint requests an award in the "amount of $15,000 plus costs and attorney fees in this action; and . . . such other and further relief as is appropriate." (Plaint. First Amend. Compl. at 8.)
The cases alluded to by Defendants, Steffen v. United States, 213 F.2d 266 (6th Cir. 1954), and Rotschi v. State Farm Mutual Auto. Ins. Co., 1997 U.S. App. LEXIS 11771 (6th Cir. May 15, 1997), simply do not apply to the facts of this case. In Steffen, the Sixth Circuit Court of Appeals ruled that the district court judge erred by allowing plaintiff to recover interest dating from a period prior to the date specifically pled in the complaint. In Rotschi, the Court of Appeals, in ruling on whether the plaintiff's limited demand through interrogatories precluded removal for failure of the requisite jurisdictional amount, held that defendant did show the requisite jurisdictional threshold amount had been met. Unlike Steffen, Plaintiff is not requesting damages from a period predating his incarceration at the Grand Haven facility or the Fillmore complex. In contrast to Rotschi, there is no indication in the pleadings or otherwise that Plaintiff ever specifically limited his demand to no more than $15,000. In his First Amended Complaint, Plaintiff prayed for relief in the amount of $15,000 and "such other and further relief as appropriate." Since Plaintiff did not limit himself to $15,000, he may argue for the appropriate relief which may be in excess of $15,000.
C. Defendants' Motion for Leave to Submit Proposed Jury Instruction
Defendants request that this Court allow them leave to submit Standard Civil Jury Instruction 4.09 which instructs the jury on impeachment of witness' credibility due to prior convictions. Given that this case may be reduced to a swearing contest between Plaintiff and the jailhouse guards, impeachment through prior convictions is appropriate. Therefore, the Court will allow Defendants leave to submit this proposed jury instruction and grant their Motion. The extent to which Defendants can introduce such prior convictions is discussed below.
D. Plaintiffs Motion in Limine
In his Motion in Limine, Plaintiff requests that this Court preclude Defendants from introducing evidence of Plaintiff's arrests and convictions for offenses committed prior to and after his arrest and conviction in December 1994 that led to the actions involved in this lawsuit. Plaintiff argues that any and all of these arrests and convictions fall within the purview of Federal Rule of Evidence 609(a) and should be excluded under that Rule.
Rule 609 states the following:
(a) General Rule. For the purposes of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted . . .; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement regardless of the punishment.
Fed.R.Evid. 609. The Rule 403 test, included within Rule 609, states that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Fed.R.Evid. 403. "'Unfair prejudice' within its context means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403, 1972 advisory committee's note.
Plaintiff maintains that according to both standards set forth in Rule 609, his prior convictions for trespassing, delivery of marijuana, and home invasion should be excluded because their probative value is substantially outweighed by the danger of unfair prejudice and they are not crimes involving dishonesty or false statements. The Court agrees. As pointed out by Plaintiff, since his case involves the fact that he was in prison for retail fraud at the time of the alleged Eighth Amendment violation, the jury will know of this conviction. At the time of Plaintiff's conviction for retail fraud, the statutory definitions of both first and second degree retail fraud included elements of falseness or dishonesty. See Mich. Comp. Laws §§ 750.356c and 750.356d (West 1991). The Court will allow Defendants to introduce evidence that Plaintiff has a conviction for retail fraud. See United States v. Rodgers, No. 91-1807, 1992 U.S. App. LEXIS 11754, at * 11-*12 (6th Cir. May 15, 1992) (finding retail fraud admissible under Rule 609(a)(2)). His conviction for retail fraud will allow the jury to assess the truthfulness of his testimony in light of that conviction.
"The decision whether to admit prior convictions for impeachment is committed to the discretion of the district court. . . ." United States v. Gaitan-Acevedo, 148 F.3d 577, 591 (6th Cir. 1998).
The recitation by Defendants of the other offenses for which Plaintiff has been convicted carries the great propensity for unfair prejudice given the jury's likely negative emotional reaction to this information. See McHenry v. Chadwick, 896 F.2d 184, 188-89 (6th Cir. 1990). Because a jury will already be able to assess Plaintiff's truthfulness in light of his retail fraud conviction, the addition of evidence regarding his other convictions becomes much less probative; such evidence is unnecessarily cumulative. Defendants' cites to United States v. Sanders, 964 F.2d 295 (4th Cir. 1992), and United States v. Rosales, 680 F.2d F.2d 1304 (10' Cir. 1981), are inapplicable to the facts of this case. In Sanders, the Fourth Circuit Court of Appeals ruled that the district court should not have allowed into evidence the defendant's prior conviction under Rule 609(a) because the similarity between the prior offense and the instant offense might cause unfair prejudice. In this case, the issue is not one of similarity between the prior conviction and the instant offense, the issue here is of the Plaintiff's general credibility. Since the jury will know about Plaintiff's conviction for retail fraud, they can assess his credibility in light of that conviction.
In Rosales, the Tenth Circuit Court of Appeals held that the district court did not abuse its discretion by allowing in the prior convictions of witnesses for Rosales. The Court stated that "the substantial prison terms [of the witnesses] would give them some motive to testify falsely in a dispute with the prison guards. This fact lends probative weight to the convictions and also diminishes the otherwise likely prejudice of the admission of the prior convictions." Rosales, 680 F.2d. at 1307. No such situation is present in this case.
Here, it is Plaintiff who is the potential witness, not a third party prisoner with a criminal record and a motive to lie about the very guards that are still in charge of him. Contrary to Defendants' assertion about the probative value of Plaintiff's convictions, the Rosales court specifically stated that the convictions of Rosales' witnesses for forgery, burglary, conspiracy, illegal possession of a firearm, and narcotics violations "would not normally suggest the special probative value on the issue of credibility." Rosales, 680 F.2d at 1306. Plaintiff's convictions for home invasion, marijuana, and trespass mirror just the sort of crimes the Rosales court thought to have little probative value on the issue of credibility. In Rosales, it was the prison setting, the continued interaction between the defendant guards and the prisoner witnesses, coupled with the length of the prisoners' sentences that provided the prisoner witnesses with particularly strong motives to lie. No such inference can be drawn here, so Rosales is distinguished from this case.
The Court questions the reasoning in Rosales because it is just as likely that prisoners testifying against their prison guards have an incentive not to lie since those very guards are in a unique position to retaliate against the prisoners later. The more likely course of action for a prisoner in that situation is simply to stay quiet, and forego the risk of retaliation.
Because the facts of the case necessarily involve disclosure of Plaintiff's criminal conviction for retail fraud, jurors will know that Plaintiff has a criminal record and can assess his credibility based on that record. Through the use of his other convictions, crimes which bear little, if anything, on Plaintiff's truthfulness, Defendants are essentially attempting to paint Plaintiff as an unsympathetic figure or a "bad" person who must, therefore, be lying. This is "unfair prejudice." Therefore, the Court will not allow Defendants to introduce into evidence Plaintiff's convictions for trespassing, marijuana delivery, and home invasion under Rule 609(a)(1) because their probative value is substantially outweighed by the likelihood of unfair prejudice. See Fed.R.Evid. 609, 1990 advisory committee's note; Cook. v. Greyhound Lines, Inc., 847 F. Supp. 725, 736 (D.Minn. 1994).
Plaintiff also argues that these same convictions not be allowed into evidence under 609(a)(2) because they are not crimes of dishonesty or false statements. As defined by Michigan law, neither trespass, home invasion, nor marijuana delivery involve dishonesty or false statements. See Mich. Comp. Laws §§ 750.546—552 (defining the various forms of trespass); Mich. Comp. Laws § 750.110a (defining the crime of home invasion); Mich. Comp. Laws § 333.7401 et seq. (defining the offense of delivery of a controlled substance); see also United States v. Rattigan, No . 92-3597, 1993 U.S. App. LEXIS 13181, at * 3-*5 (6th Cir. June 2, 1993) (stating that prior convictions should not be allowed into evidence unless the particular conviction rests on some element of active misrepresentation). Since none of these crimes contains elements of falseness or dishonesty, and Defendants have provided nothing indicating active misrepresentations, the Court will not allow Defendants to introduce evidence of Plaintiff's convictions for trespass, marijuana delivery, or home invasion under Rule 609(a)(2). The Court will allow Defendants to introduce evidence of Plaintiff's conviction for retail fraud.
E. Defendant, Ottawa County's Counterclaim under Michigan Compiled Laws § 801.81 et seq.
On October 12, 2000, Defendants filed their Answer and Counterclaim to Plaintiff's First Amended Complaint. Defendants assert that "in the event that relief is granted to Plaintiff, the Defendant Ottawa County asserts the following set-off counterclaim: 1. . . . reimbursement for any expenses incurred for housing [Plaintiff]. . . ." (Def. Ans. at 7.) The issue of whether Plaintiff is liable to Defendants for the cost of his housing is not a factual dispute but an issue of law, and the Court will determine the issue should Plaintiff succeed in this action against Defendants.
V. CONCLUSION
Based on the reasons stated above, the Court will deny Defendants' Motions in Limine, grant Defendants' Motion for Leave, and grant Plaintiff's Motion in Limine.
DATED in Kalamazoo, MI: February 15, 2001
ORDER
In accordance with the opinion entered on this date;IT IS HEREBY ORDERED that Defendants' first Motion in Limine (Dkt. No. 67) is DENIED.
IT IS FURTHER ORDERED that Defendants' Second Motion in Limine (Dkt. No. 72) is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion for Leave to Include Standard Jury Instruction CV 4.09 (Dkt. No. 82) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion in Limine (Dkt. No. 76) is GRANTED.
DATED in Kalamazoo, MI: February 15, 2001