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Thorington v. Townsend

United States District Court, E.D. Michigan, Northern Division

May 8, 2019

LARRY A. THORINGTON, Plaintiff,
v.
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

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         On 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.

         The 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.

         On 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.

         I.

         Plaintiff's first motion in limine (ECF No. 31) seeks to exclude the testimony of the following defense witnesses: Kathryn Wong, Joshua Searfoss, and Ed Kratz.[1] 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).

         The 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 relevant circumstances.

         As 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.

         Defendant 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, [2] Plaintiff's motion will be granted.

         II.

         Plaintiff's 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.

         III.

         Plaintiff's 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 ...


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