United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE PRIOR CONVICTIONS
LINDA V. PARKER, District Judge.
Plaintiff filed this lawsuit on September 3, 2013, alleging that Defendant, while serving as Plaintiff's parole officer, used excessive force in violation of the Eighth Amendment to the United States Constitution when he attached a SCRAM bracelet to Plaintiff's ankles too tightly. The matter is ready to proceed to trial. Currently pending before the Court is Plaintiff's March 23, 2015 motion to exclude two prior convictions from evidence at trial. (ECF No. 32.) As indicated in his motion, Plaintiff assumes that Defendant is not seeking to offer Plaintiff's prior convictions which are more than ten years old, as Defendant has neither provided notice of his intent to introduce those convictions nor shown their relevance, as required under the Federal Rules of Evidence. Defendant filed a response to Plaintiff's motion on April 6, 2015, in which Defendant argues that Plaintiff's September 15, 2006 conviction for operating a vehicle while intoxicated is admissible as impeachment evidence and indicates that he intends to offer evidence of Plaintiff's prior prison incarceration to show that Plaintiff knew how to use the Michigan Department of Corrections' grievance process. For the reasons that follow, the Court is granting in part and denying in part Plaintiff's motion.
I. Factual Background
On October 18, 2006, Plaintiff pleaded guilty to unlawful driving away of a motor vehicle (third offense) and for operating a vehicle while impaired (third offense) in the Circuit Court for Ingham County, Michigan. At the time, Plaintiff had several prior convictions, including an unlawful driving away of an automobile (second offense), for which a conviction was entered August 19, 2003. ( See ECF No. 32-2.)
On or about November 22, 2006, the state trial court sentenced Plaintiff on his October 2006 convictions to a term of imprisonment of 36 to 120 months. On or about December 15, 2009, the Michigan Parole Board advised Plaintiff that he would be paroled in 2010.
Plaintiff in fact was paroled in August 2010 with the requirement, among other conditions, that he wear a SCRAM bracelet on his ankle. A SCRAM bracelet is used to detect the use of alcohol and can also detect the wearer's location. On or about August 10, 2010, Plaintiff reported to his parole officer, Defendant, at the Michigan Department of Corrections ("MDOC") Pontiac parole office. At that time, Defendant allegedly affixed the SCRAM bracelet to Plaintiff's ankle too tightly.
Plaintiff thereafter reported to Defendant on repeated occasions, as required by his conditions of parole. On those occasions, Plaintiff complained to Defendant that the SCRAM bracelet was too tight and Plaintiff showed Defendant lacerations and contusions on his ankle which the bracelet was causing. Defendant moved the SCRAM bracelet back and forth between Plaintiff's ankles; but, Plaintiff alleges that Defendant continued to affix the bracelet too tightly each time, even though he knew that it was causing Plaintiff pain and injury.
Plaintiff claims that he sought medical attention for the injuries caused by the too tight SCRAM bracelet on October 28, 2010, December 12, 2010, and other dates. He indicates that Defendant eventually loosened the bracelet, at which time he told Plaintiff to go directly home and stay there until he came to visit. According to Plaintiff, he attempted to transfer his parole to the Macomb County parole office throughout this time period, but Defendant refused. Eventually, Plaintiff's parole was transferred and his new parole officer affixed the SCRAM bracelet on Plaintiff's ankle much more loosely. Plaintiff successfully was discharged from his parole on or about April 21, 2011.
He claims that he continued to experience problems as a result of the injuries caused by the too tight SCRAM bracelet, however. According to Plaintiff, he sought further medical attention on June 11, 2011; and while the bruising and lacerations have healed, he walks with a limp which he has been told is permanent.
As indicated, he filed this lawsuit against Defendant on September 13, 2013.
II. Plaintiff's Motion & Defendant's Response
In his motion, Plaintiff seeks to exclude from evidence at trial the following prior convictions: (1) his October 2006 conviction for unlawful driving away of an automobile, third offense, and operating while intoxicated, third offense; and (2) his August 19, 2003 conviction for unlawful driving away of an automobile, habitual second. Plaintiff argues that the probative value of those convictions is substantially outweighed by their prejudice and therefore they should be excluded pursuant to Federal Rules of Evidence 403 and 609. He contends that any conviction for a second or third offense inherently brings into evidence prior convictions for which he was convicted or released more than ten years before trial. Plaintiff highlights that he "has not challenged the fact that his prior use of alcohol was a sufficient basis for the Parole Board to require him to wear the SCRAM ankle bracelet as a condition of his parole." (ECF No. 32 at Pg ID 107.) Plaintiff argues that his August 2003 conviction also should be excluded because it occurred more than ten years before the trial in this action.
In response, Defendant first argues "there is no way that Plaintiff's incarceration can be hidden from the jury" and then points out that there will be testimony that Plaintiff was a parolee, that the intended use of a SCRAM bracelet is monitoring for alcohol consumption for parolees who are prohibited from consuming alcohol as part of the terms of parole, and that "Plaintiff has a serious and long-term issue with alcohol abuse which made use of the SCRAM bracelet an important component of his parole conditions." (ECF No. 34 at Pg ID 124.) Defendant further argues that Plaintiff's September 2006 convictions are admissible to attack Plaintiff's credibility under Federal Rule of Evidence 609(a)(1)(A). Lastly, Defendant contends that "it may be necessary to elicit testimony regarding the length of Plaintiff's incarceration" to argue the issue of why he never informed anyone at the MDOC that his SCRAM bracelet was too tight or to counter any claim ...