McGill v. Duckworth

• Decision Date: 30 November 1989
• Docket Number: No. S85-70.,S85-70.
• Citation: 726 F. Supp. 1144
• Parties: Herbert F. McGILL, Plaintiff, v. Jack R. DUCKWORTH, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

726 F. Supp. 1144

Herbert F. McGILL, Plaintiff, v. Jack R. DUCKWORTH, et al., Defendants.

No. S85-70.

United States District Court, N.D. Indiana, South Bend Division.

November 30, 1989.

Donald W. Pagos, Michigan City, Ind., for plaintiff.

David Arthur, Thomas Quigley, Deputy Attys. Gen., Indianapolis, Ind., for all defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

On September 28, 1989, following four days of trial, a jury returned a verdict in favor of plaintiff Herbert F. McGill and against defendants Jack R. Duckworth, Robert Bronnenberg, and Brian Webb. Judgment was entered against those defendants the following day. The cause is now before the court on those defendants' motion for judgment notwithstanding the verdict, for new trial, or for amendment of judgment.

Mr. McGill's evidence indicated that while he was an inmate at the Indiana State Prison, he was placed on "protective custody" in a cell on "IDU", a unit primarily used to house inmates assigned there for disciplinary purposes. Shortly after his assignment to IDU, Mr. McGill was sodomized at knifepoint in the shower by fellow inmate Arthur Ausley. He brought this suit against these defendants and others. He claimed, among other things¹, that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment and so were liable to him under 42 U.S.C. § 1983. He also claimed that the defendants were negligent toward him and so were liable to him under Indiana's Tort Claims Act, IND.CODE 34-4-16.5-1 et seq. The jury found for Mr. McGill on both claims and awarded him compensatory damages but no punitive damages.

The defendants raise several arguments in support of their motion for judgment notwithstanding the verdict. They contend that the evidence was insufficient to establish a violation of the Eighth Amendment and make six points in support of that argument. They contend further with respect to the Eighth Amendment claim that the evidence was insufficient to establish any causal connection between their acts or omissions and Mr. McGill's injuries and make four points in support of that argument. They argue that the evidence was insufficient to support Mr. McGill's state negligence claim and make four points in support of that argument. They raise four arguments for immunity under Indiana's Tort Claims Act.

In support of their motion for a new trial, the defendants raise several arguments concerning the court's evidentiary rulings and jury instructions. Finally, the defendants argue that the judgment should be amended to avoid a double recovery for the plaintiff.

The court first addresses the motion for new trial, then turns to the motion for judgment notwithstanding the verdict, and finally to the motion to amend the judgment.

I.

In their motion for a new trial, the defendants challenge an evidentiary ruling, reference to an Indiana statute, and three final instructions.

A.

At the trial's outset, the court granted Mr. McGill's motion in limine concerning the defendants' intent to offer evidence that Mr. McGill previously had engaged in homosexual activity. The defendants argued then, as they do now, that such evidence would be admissible on the issues of consent and damages, explaining that "it was offered to rebut a natural presumption, based on every day experience, that a given man would never consent to homosexual acts" and "to show that Plaintiff may not have suffered the mental anguish from a homosexual experience that would be experienced by a man with no consensual homosexual experience." Defendants' Memorandum in Support of Post-Trial Motions, at 2-3.

The defendants' motion does not identify the excluded evidence, but it is the court's recollection that during Mr. McGill's guilty plea to state manslaughter charges or in his confession with respect to the homicide, he admitted that he had engaged in an act of oral sex with his male victim. The record does not include Mr. McGill's confession or guilty plea proceedings, but it appears that an order in limine is reviewable on appeal without an in-trial offer of proof. Harris v. Davis, 874 F.2d 461, 464 n. 5 (7th Cir.1989) ("In this circuit, however, an unsuccessful motion in limine serves to preserve an issue for appeal.").

The court remains convinced that exclusion of the evidence was proper. Federal Rule of Evidence 404(b) governs civil cases as well as criminal cases.²Harris v. Davis, 874 F.2d 461 (7th Cir.1989). The Seventh Circuit has established a four-part test that must be satisfied for evidence of other acts to be admissible under Rule 404(b). United States v. DeGeratto, 876 F.2d 576, 584-585 (7th Cir.1989); United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984).

1. The evidence must be addressed to some matter in issue other than propensity to commit such acts. Rule 404(b) provides that, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The defendants' proffered use of the evidence on the issue of consent would seek to create the precise inference forbidden by Rule 404(b): Mr. McGill is the sort of person who engages in consensual homosexual activity because he did it before, so he must have done it this time. In other words, Mr. McGill acted in conformity with his character, which entails consensual homosexual activity. See generally United States v. Beasley, 809 F.2d 1273, 1277-1279 (7th Cir.1987) (discussing "pattern" evidence).

The second sentence of Rule 404(b) sets forth other purposes for which "other act" evidence may be admissible, such as proof of motive³, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of Mr. McGill's homosexual history would not have served any of these purposes.

2. The other act must be similar enough, and close enough in time, to the act in issue to be probative. The prior act was similar insofar as it entailed sexual activity between males, but the defense did not suggest that the prior act involved anal intercourse. Moreover, it is questionable whether a single prior sexual act, whether homosexual or heterosexual, is probative of later willingness to engage in sexual conduct with another. See Note, If She Consented Once, She Consented Again—A Legal Fallacy in Forcible Rape Cases, 10 Val.U.L.Rev. 127 (1976) ("giving away sex has no more in common with rape than giving away money has in common with armed robbery").

3. The evidence of the other act must be sufficient to allow the trier of fact to find that Mr. McGill engaged in the prior act. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Because the defendants sought to introduce Mr. McGill's statements at his guilty plea, this requirement would have been satisfied.

4. Finally, the probative value of the evidence must outweigh the danger of unfair prejudice. As noted above, the evidence has little or no permissible probative value on the issue of consent. Unless Mr. McGill claimed a loss of virginity, it is difficult to see how the proffered evidence would have been probative on the issue of damages. At the time of the order in limine, the court indicated that it would reconsider the order if Mr. McGill raised such a claim. The defendants now argue that Mr. McGill did so in his final argument. The proper remedy would have been to strike the argument and instruct the jury to disregard it, but the defendants made no objection to any such indirect assertion. Accordingly, the court deems it inappropriate to consider that argument.

The defendants' proffered evidence would have done nothing more than portray Mr. McGill as a person to whom the jury should accord lesser respect because of his past act of homosexuality. Based on the other evidence presented at trial, the prior act would not have been probative of any permissible inference. Any permissible probative value that might be attributed to the prior act would have been so slight as to have been dwarfed by the potential for unfair prejudice.

The defendants argue that the order in limine deprived them of the opportunity to present their defense that the act between Ausley and Mr. McGill was consensual. The court did not exclude the defense; indeed, Dr. Doster's testimony can only be viewed as raising an inference that consensual sexual contact left the medical evidence upon which Mr. McGill relied. The order in limine simply deprived the defendants of evidence barred by Rule 404(b).

B.

The defendants argue that, "During Plaintiff's case, the Court read to the jury Ind.Code § 11-11-6-1 and instructed the jury that violation of that section `may be negligence.'" The defendants' recollection of the trial is inaccurate. At the outset of the second day of trial, Mr. McGill's counsel asked the court to take judicial notice of IND.CODE 11-11-6-1(a), and the defense objected on the grounds raised here. The court granted the request for judicial notice and read the statute to the jury. The court did not, however, instruct the jury that violation of the statute may be negligence.⁴ Before and after reading the statute to the jury, the court informed the jury that state statutes do not set federal constitutional standards and that the final instructions would inform the jury as to the standards governing Mr. McGill's federal claims.

The statute was pertinent to the evidence before the jury and to the plaintiff's claims as they then stood. Mr. McGill based his Eighth Amendment claim in part on a "reign of terror" theory⁵ first articulated in Woodhous v. Commonwealth of Virginia, 487 F.2d 889 (4th Cir. 1973). Mr. McGill attempted to demonstrate a "reign of terror" by use of statistics maintained by the Indiana Department of Correction. The defendants' testimony demonstrated the inefficiency of those records. Robert Bronnenberg testified that the best records of violence at the prison would be found in the...