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Benson v. Facemyer

United States District Court, N.D. Georgia, Atlanta Division

April 18, 2017

DAN J. BENSON, Plaintiff,
OFFICER ANDRES FACEMYER, in his individual capacity, Defendant.



         This matter is before the Court on Defendant Andres Facemyer's (“Defendant”) Motion in Limine [108] and Plaintiff Dan J. Benson's (“Plaintiff”) Motion in Limine [109].

         I. BACKGROUND

         Plaintiff's Amended Complaint asserts a Fourth Amendment claim under 42 U.S.C. § 1983. A trial was held from February 2, 2015, through February 5, 2015, where the jury found in favor of Plaintiff, deciding that Plaintiff was arrested without probable cause when Defendant handcuffed and searched Plaintiff and placed him in a police wagon. Defendant moved, under Rule 29 of the Federal Rules of Civil Procedure, for judgment as a matter of law and also moved to alter or amend the judgment or, in the alternative, for a new trial. The Court declined to find that Defendant was entitled to qualified immunity as a matter of law, but stated that a new trial on the issue of damages would be conducted after determining if arguable probable cause developed after Plaintiff's initial arrest. Both parties appealed the Court's order.

         On July 20, 2016, the Eleventh Circuit affirmed the order, concluding that Defendant “violated clearly established law in making that arrest” and that he “was not entitled to qualified immunity at the time of the initial arrest.” The Eleventh Circuit dismissed the parties' remaining appeals for lack of jurisdiction. Benson v. Facemyer, 657 F. App'x 828, 835 (11th Cir. 2016).

         To further process this case for trial on Plaintiff's damages, on September 23, 2016, the Court required the parties to file memoranda on whether arguable probable cause developed after Plaintiff's arrest. On December 14, 2016, the Court found that no arguable probable cause arose during Defendant's investigation after the initial arrest.

         The new trial will solely be on damages, and the parties have filed their respective motions in limine. ([108], [109]).


         A. Legal Standard

         A motion in limine is a pretrial motion by which a litigant seeks to exclude inadmissible or prejudicial evidence before it is actually offered at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also Soto v. Geico Indem. Co., No. 6:13-CV-181-ORL-40KR, 2014 WL 3644247, at *1 (M.D. Fla. July 21, 2014) (“The real purpose of a Motion in Limine is to give the trial judge notice of the movants' position so as to avoid the introduction of damaging evidence which may irretrievably affect the fairness of the trial.”) (citation and internal quotation marks omitted). Judges have broad discretion when ruling on such motions. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1104-05 (11th Cir. 2005). Limine rulings are provisional rulings, and the trial judge may reverse the decision during the course of a trial. See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

         A court “will grant a motion in limine to exclude evidence only if the evidence in question is clearly inadmissible.” Wilson v. Pepsi Bottling Grp., Inc., 609 F.Supp.2d 1350, 1359 (N.D.Ga. 2009). “The district court has wide discretion in determining the relevance of evidence produced at trial.” Boyd v. Ala. Dep't. of Corr., 296 Fed. App'x 907, 908 (11th Cir. 2008); see also United States v. Nowak, 370 Fed. App'x 39, 41 (11th Cir. 2010) (“District courts have broad discretion to admit probative evidence, but their discretion to exclude [relevant] evidence under Rule 403 is limited.”).

         B. Defendant's Motion in Limine

         1. All Evidence Related to Plaintiff's Alleged Damages

         Defendant seeks to exclude “any evidence relating to Plaintiff's alleged damages, because Plaintiff is barred from recovery by the United States Supreme Court's ruling in Heck v. Humphrey.” ([108.1] at 3 (citing Heck v. Humphrey, 512 U.S. 477 (1994))]. In Heck, the Supreme Court held that, to recover damages for harm caused by actions the unlawfulness of which would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

         Defendant acknowledges that Plaintiff was not “convicted” under the Georgia Child Molestation statute, but he asserts that Plaintiff should, nonetheless, be barred from recovering damages under Section 1983 because Plaintiff's “charges were not reversed or otherwise declared invalid.” (Id. at 4). Plaintiff argues that Heck does not apply because Plaintiff was never convicted of a crime. In support of his position, Defendant relies on Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998), and Roesch v. Otarola, 980 F.2d 850 (2d Cir. 1992).

         In Roesch, the Second Circuit found that a plaintiff's participation in a pretrial intervention program, which resulted in a dismissal of his criminal charges, barred his subsequent Section 1983 claim because it was not a termination in his favor. 980 F.2d at 853. In McClish v. Nugent, 483 F.3d 1231, 1251 (11th Cir. 2007), the Eleventh Circuit expressly rejected Roesch. In McClish, the plaintiff participated in Florida's pretrial intervention program, which resulted in a dismissal of his criminal charge. The Eleventh Circuit, rejecting the district court's reliance on Roesch, found that “the question is an antecedent one, ” because “there was never a conviction in the first place.” Id. To dismiss the “§ 1983 claim as barred by Heck . . . would stretch Heck beyond the limits of its reasoning.” Id. at 1252 (citing Wallace v. Kato, 549 U.S. 384, 393 (2007) (characterizing a theory to bar “an action which would impugn an anticipated future conviction” as a “bizarre extension of Heck”) (emphasis in original)).[1]

         As in McClish, Plaintiff here was never convicted of the charge on which he was wrongfully arrested and thus Heck does not apply. Defendant's request to exclude evidence relating to Plaintiff's alleged damages is denied.

         2. First Appearance Hearing Held on February 23, 2011

         Defendant next seeks to exclude evidence after a first appearance hearing held on February 23, 2011. ([108.1] at 5, 13). The Court has addressed this request in its Opinion and Order dated April 14, 2017 [133], and Defendant's motion in limine on this ground is denied.

         3. Evidence Related to the “Ultimate Dismissal” of the Charges

         Defendant next seeks to bar Plaintiff from introducing “any evidence related to the ultimate dismissal of the charges.” ([108.1] at 8). Plaintiff agrees that if all evidence after the indictment is excluded, then the dismissal of his charges and his participation in a pretrial diversion program should be excluded. ([118] at 11). Because the damages can only be awarded through the date of the indictment, the Court finds that evidence regarding the indictment and the events after the indictment are excluded, and the motion in limine on this ground is granted.

         4. Evidence Related to ...

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