Opinion
No. 00 Civ. 1302 (LTS) (HBP)
September 18, 2002
MEMORANDUN OPINION AND ORDER
Plaintiff, an incarcerated inmate in the custody of the New York State Department of Correctional Services, brings this action pursuant to 42 U.S.C. § 1983 alleging that the defendant correction officers used excessive force to extract him from his cell and subsequently beat him. Defendants deny that the incident occurred and claim that no force of any kind was used against plaintiff on the date of the alleged incident.
Presently before me is plaintiff's application to compel discovery of complaints of excessive force made against the defendants by other inmates. It appears that Sing Sing Correctional Facility, where the alleged incident occurred, has the capability of performing a computer search of its inmate grievance files so that responsive grievance files can be located without undue burden. Defendants' principal objection is relevance.
There can be no serious dispute that similar act evidence cannot be used to prove conduct in conformity therewith. Fed.R.Evid. 404(a). Thus, whatever interactions the defendants may have had with other inmates, regardless of their nature, cannot be used here to prove that the events alleged by plaintiff either did or did not occur.
Notwithstanding the limits on the use of similar act evidence, plaintiff has offered two alternative theories of relevance. First, plaintiff claims that inmate grievances of excessive force often refer to other instances of excessive force by the individuals named in the grievance. Thus, argues plaintiff, excessive force complaints against the defendants arising after the incident alleged by plaintiff may disclose other witnesses to the incident alleged by plaintiff. Second, plaintiff claims that other instances of excessive force will be relevant to the issue of intent.
The former argument is not persuasive. The fact that a second inmate may refer to the assault alleged by plaintiff does not disclose whether that second inmate is a witness to the assault in issue here. All it establishes is that the second inmate heard from some source about the assault alleged by plaintiff. A much more efficient way to locate possible witnesses would be to seek the identity of the occupants of the cells adjacent to or opposite the cell at which the alleged altercation occurred.
Plaintiff's second argument comes closer to the mark. Where intent is in issue, similar act evidence may be admitted to show intent or absence of mistake. Fed.R.Evid. 404(b). The fact that other grievances against the defendants may have been found to be unsubstantiated is not dispositive. Assuming that principles of collateral estoppel and res judicata are even applicable to prison grievance proceedings, Sedney cannot be bound by the results in any other proceedings because he was not a party thereto. See generally Levin v. Tiber Holding Corp., 277 F.3d 243, 252-53 (2d Cir. 2002).
The more troubling issue is whether intent is in issue here. This issue most frequently arises in criminal prosecutions where the prosecution seeks to introduce evidence of other criminal activity by the defendant. In criminal cases it has been held that a criminal defendant's general denial that the criminal transaction occurred does not ordinarily put intent in issue. United States v. Tarricone, 996 F.2d 1414, 1421 (2d Cir 1993) ("Where a defendant claims that he did not commit the charged acts, as opposed to claiming that he acted innocently or mistakenly, `[k]nowledge and intent, while technically at issue, [are] not really in dispute.'" (citation omitted)); United States v. Colon, 880 F.2d 650, 657-660 (2d Cir. 1989); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) ("[I]ntent is not placed in issue by a defense that the defendant did not do the charged act at all."). However, in order for intent to be removed from the case, the defendant must ordinarily,
express a decision not to dispute that issue with sufficient clarity that the trial court will be justified (a) in sustaining objection to any subsequent cross-examination or jury argument that seeks to raise the issue and (b) in charging the jury that if they find all the other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1990).
In this case, the defendants' denial that any force was used against plaintiff seems to take the issue of intent out of then case.. However, the quoted language from Figueroa suggests that intent may be in issue unless the defendant is willing to enter into the two stipulations suggested in that case.
Accordingly, no later than September 27, 2002, counsel for defendants is to advise my chambers whether the defendants are willing to agree to remove the issue of intent from the case with the clarity and under the conditions required by Figueroa.
Defendants also object on the basis of state statutes that create a privacy interest. I express no opinion on that objection at this time and note that if the discovery sought is irrelevant, the applicability of any state-created privacy interest is immaterial.
SO ORDERED.