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April 11, 1995

RICHARD HODGES, Plaintiff, against JOHN P. KEANE and K. GOEWEY, Defendants. RICHARD HODGES, Plaintiff, -against- JAMES E. SULLIVAN, SUPT.; LT. K. GOEWEY; SGT. G. ROBERTS; C.O. R. MARTINEZ; and RONALD F. COTE, Defendants.


The opinion of the court was delivered by: SONIA SOTOMAYOR

Before me is a motion in limine by plaintiff Richard Hodges ("Hodges"), requesting that I exclude from evidence at trial his past mental health records and expert testimony by psychiatrist Dr. Richard Ciccone. Defendants seek to introduce this evidence to impeach Hodges' credibility. The mental health records proffered by defendants are comprised of over 600 pages of reports issued by various mental health professionals during plaintiff's incarceration. The expert testimony is based on Dr. Ciccone's review of these records and his examination of the plaintiff. For the reasons discussed below, plaintiff's motion is conditionally granted.


 Hodges was an inmate in the Sing Sing correctional facility, Ossining, New York ("Sing Sing") at all relevant times. Plaintiff brought these actions pursuant to 42 U.S.C. § 1983 against defendants, correctional personnel at Sing Sing. *fn1" Hodges alleges that defendants engaged in a systematic pattern of harassment, intimidation and retaliation against him for his vigorous and sometimes successful challenges to unlawful prison procedures and to violations of his and other prisoners' civil rights.

 According to Hodges, in the period from 1987 to 1990, defendants subjected him to disciplinary proceedings and solitary confinement for various baseless charges which either were dismissed or annulled in subsequent hearings or court proceedings. For example, Hodges was disciplined and held in a Special Housing Unit ("SHU") from November 1987 until May 1988 after a Tier III hearing on charges of sexual assault brought by another inmate, a finding later annulled by the Supreme Court of New York State, Westchester County. *fn2" Hodges further alleges that despite the Supreme Court's ruling, defendants kept him in solitary confinement and "keep lock" status and repeatedly subjected him to various forms of disciplinary and administrative segregation for other groundless charges, including dousing correction officers with water and coffee. Hodges also asserts that correction officers tampered repeatedly with his legal mail.

 Defendants contest all of plaintiff's assertions. They maintain that Hodges has a long history of paranoid schizophrenia which has affected his perception of the events underlying his Complaint and which will affect his testimony at trial. Defendants also raise various affirmative defenses including qualified immunity.

 Defendants previously moved, pursuant to Fed. R. Civ. P. 35(a), for an order directing a medical examination of the plaintiff. By Order dated February 3, 1994, I granted the motion, finding that sufficient cause existed to place plaintiff's mental condition in controversy. However, I expressly reserved judgment as to whether Hodges' medical reports and the results of the Rule 35(a) examination would be admissible at trial.

 As a result of my Order, plaintiff was examined by defendants' forensic psychiatrist expert, Dr. Richard Ciccone on June 10 and 11, 1993. Dr. Ciccone also reviewed over 600 pages of mental health records.

 Defendants have now indicated their intent at trial to introduce Dr. Ciccone's expert testimony and plaintiff's mental health records to establish that plaintiff suffers from a chronic, persistent mental condition, called Anti-Social Personality Disorder, which they claim existed in the past at the times relevant to Hodges' claims, and is present today. Defendants assert that plaintiff's condition is likely to cause him to mislead the jury about the events giving rise to his Complaint. According to the defendants, testimony by an expert will assist the jury in assessing the effect of plaintiff's mental condition on his ability to perceive and accurately remember the events in question, and in evaluating whether defendants behaved in a retaliatory fashion as Hodges claims.

 Dr. Ciccone examined plaintiff for about five hours. He also reviewed over 600 pages of prison mental health records which detailed plaintiff's psychiatric hospitalization and treatment from approximately 1976 to 1982. Based on his examination of plaintiff and review of the records, Dr. Ciccone found plaintiff to meet the criteria for the diagnoses of Polysubstance Abuse and Antisocial Personality Disorder. (Toran Aff. Ex. G). Dr. Ciccone, however, found insufficient evidence of psychiatric trauma to plaintiff from his alleged mistreatment while in prison. While Dr. Ciccone stated that he is "unable to provide an opinion whether Mr. Hodges will be truthful while testifying," he noted that "[plaintiff's] record indicates that he has lied about himself and fabricated psychiatric symptoms." Id.

 The records which Dr. Ciccone reviewed and which defendants seek to introduce at trial are comprised of reports issued by at least two dozen mental health professionals, including psychiatrists, psychiatric social workers, psychologists, nurses and parole officers. See generally Defendants' Memorandum of Law in Anticipation of Plaintiff's Motion In Limine at 3-14 [hereinafter Defs.' Mem.]. Not all of the reports were issued for the purpose of treating plaintiff. Some were issued to the Parole Board for the purpose of evaluating plaintiff for release. The reports, spanning approximately the period from 1975 to 1987, the year when the events giving rise to Hodges' Complaints began to occur, embrace many different diagnoses. They include "anti-social personality with malingering features," "schizophrenia, paranoid type," (Defs.' Mem. at 5), "sociopathic personality disturbance, dyssocial type," (Defs.' Mem. at 6), and "skillful manipulator who has learned to manipulate the ins and outs of the mental health system to get away from the pressures and demands of the correctional system" (Defs.' Mem. at 10).

 The last time plaintiff was diagnosed, however, as having paranoid delusions was in early 1982 when plaintiff was briefly readmitted to Central New York Psychiatric Center ("CNYPC"). At CNYPC, a psychiatrist observed plaintiff "as openly hostile, negativistic and responding to paranoid delusions." (Defs.' Mem. at 10-11). Staff at CNYPC, however, also noted that "plaintiff presented no problem and that he was an extremely manipulative individual who used his psychotic behavior at the correctional facility to be sent to CNYPC." (Defs.' Mem. at 11). Subsequent to plaintiff's release from CNYPC in February 1982, a report rendered by the Mental Health Bureau of Forensic Services in October 1982 indicated that plaintiff's paranoid schizophrenia was in remission (Defs.' Mem. at 12). A 1986 report by the Unit Coordinator in Mental Hygiene commented that plaintiff had not shown any symptoms of major mental illness since 1978. (Defs.' Mem. at 14).

 Plaintiff makes this motion in limine to exclude from evidence his psychiatric records and Or. Ciccone's testimony. ...

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