United States District Court, E.D. Michigan, Northern Division
LARRY A. THORINGTON, Plaintiff,
STEVE TOWNSEND, MICHAEL SHEA, Defendant.
ORDER GRANTING PLAINTIFF'S MOTIONS IN LIMINE,
DENYING PLAINTIFF'S MOTION IN LIMINE AND GRANTING IN PART
DEFENDANT'S MOTION IN LIMINE
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
March 7, 2018, Plaintiff Larry A. Thorington filed a
complaint against Sergeant Steve Townsend and Sheriff Michael
Shea of the Gladwin County Sheriff's Department. ECF No.
1. Count I alleges that Townsend violated the Fourth
Amendment by using excessive force when effectuating the
arrest of Plaintiff, leading to injuries of Plaintiff's
left arm. Count II alleges that Shea violated the Fourteenth
Amendment because he was deliberately indifferent to
Plaintiff's medical needs while Plaintiff was held at the
Gladwin County Jail. After six months of discovery,
Defendants moved for summary judgment. ECF No. 17. Plaintiff
responded and Defendant replied. ECF Nos. 23, 27.
Court granted Defendant Shea's motion as Plaintiff had
identified no evidence to support his deliberate indifference
claim. The Court denied Defendant Townsend's motion as to
the excessive use of force claim because his testimony that
Plaintiff did not resist arrest was inconsistent with the
theory he advanced in his motion summary judgment, namely
that he only used force sufficient to overcome resistance. A
full factual summary can be found in that order. ECF No. 30.
April 12, 2019, Plaintiff filed five motions in limine (ECF
Nos. 31, 34-37), and Defendant filed one (ECF No. 32). On
April 26, 2019, the parties responded to the motions. ECF
Nos. 40-45. The motions will be addressed in turn.
first motion in limine (ECF No. 31) seeks to exclude the
testimony of the following defense witnesses: Kathryn Wong,
Joshua Searfoss, and Ed Kratz. Plaintiff argues that their
testimony is irrelevant because they did not see Defendant
handcuff Plaintiff. Pursuant to Federal Rule of Evidence 401,
“evidence is relevant if a) it has any tendency to make
a fact more or less probable than it would be without the
evidence; and b) the fact is of consequence in determining
the action.” The threshold for relevance under Rule 401
is low. See United States v. Lang, 717 Fed.Appx.
523, 530 (6th Cir. 2017).
witnesses' testimony will be excluded as irrelevant.
Defendant argues that, although Ms. Wong and Mr. Searfoss did
not see the handcuffing, they witnessed Plaintiff's
conduct before Defendant arrived at the scene, during which
time Plaintiff was drunk and disorderly. Defendant contends
this is relevant information because the fact finder must
consider the “totality of the circumstances.”
This is largely the same argument rejected in the order
denying summary judgment. Events that took place before
Defendant's arrival at the scene are not a part of the
explained in the order denying summary judgment, the only
relevant circumstances are the circumstances as they appeared
to Townsend, because it is his conduct that is in issue.
Townsend did not witness the alleged conduct described by Ms.
Wong and Mr. Searfoss because he was not yet at the scene.
Even if he had witnessed the alleged conduct, that conduct
would only be relevant to support a belief that force was
necessary to overcome resistance. But Townsend testified that
he used no force and encountered no resistance.
also argues that “the fact that Deputy Eaton was the
first officer to grab Plaintiff's arms and place them
behind his back provides a potential alternative explanation
for Plaintiff's injuries.” Resp. at 8. Indeed it
does. Sergeant Cuddie's report states that he
“observed Deputy Eaton holding Larry Thorington in a
control hold of Thorington's left arm.” ECF No.
17-6. Presumably, Sgt. Cuddie will be called as a witness by
Defendant Townsend. His absence as a party, as well the
absence of Deputy Eaton, is notable and likely will be to a
jury. Because the only relevant aspect of Ms. Wong and Mr.
Searfoss's testimony is duplicative of other evidence in
the record,  Plaintiff's motion will be granted.
second motion in limine (ECF No. 34) seeks to exclude
evidence of his convictions for malicious destruction of
personal property (unrelated to the incident at issue in this
case) and attempted disturbing the peace (relating to the
arrest at issue in this case). Defendant intends to introduce
the attempted disturbing the peace conviction for the purpose
of impeachment “if Plaintiff attempts to downplay or
deny his disorderly behavior on the date of his
arrest.” Defendant again argues that Plaintiff's
disorderly behavior prior to Defendant Townsend's arrival
at the scene is relevant. As explained above and in the order
denying summary judgment, it is not relevant. Plaintiff's
motion will be granted.
third motion in limine (ECF No. 35) seeks to exclude
irrelevant medical evidence “including evidence of
plaintiff's alleged alcoholism and use of alcohol,
alleged depression, and family history of Alzheimer's
disease, psychosis, and suicide.” Defendant contends
that Plaintiff's drinking is relevant to show his state
of mind and the potential threat he posed to the officers and
to evaluate the reasonableness of their response. Again,
Defendant's primary defense theory (“reasonable
force to overcome resistance”) is directly at odds ...