The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM - DECISION AND ORDER
Currently pending before the Court are a host of pre-trial motions. Defendant has filed a motion in limine to preclude plaintiff from offering grievances and letters of complaint into evidence at trial. See Dkt.112, Pre-Trial Mem. at 5-8. In addition, defendant seeks to preclude plaintiff from introducing any evidence of alleged emotional and/or psychological injuries as a result defendant's actions. See Dkt. 128, Letter Br. Furthermore, defendant requests that the Court bifurcate the trial, such that the Court would initially address plaintiff's claim for nominal and/or compensatory damages, and reserve ruling on the issue of punitive damages until such time as it appears that evidence bearing on that issue is relevant. See Dkt. 112, Pre-Trial Mem. at 15. Finally, defendant has moved pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure and Rules 402 and 403 of the Federal Rules of Evidence for an order precluding plaintiff from offering the testimony of Dr. Henderson and various exhibits pertaining to plaintiff's mental health records and correspondence from plaintiff to a mental health provider. See Dkt. 142.
Plaintiff seeks to preclude defendant from introducing any evidence or eliciting any testimony pertaining to his: (1) criminal history; (2) prison disciplinary record; and (3) prior litigation history. See Dkt. 125, Letter Br. at 1. In addition, plaintiff has filed a motion pursuant to Rule 45(c)(2)(B)(i) of the Federal Rules of Civil Procedure to compel David Rock, Superintendent of Great Meadow Correctional Facility ("Great Meadow") to testify and to produce defendant's personnel records. See Dkt. 137.
A single claim remains for trial. Plaintiff, George Baba Eng, alleges that, between May of 2004 and November of 2004, while he was incarcerated at Great Meadow, defendant, Corrections Officer Charles Blood, retaliated against him for filing grievances and letters of complaint regarding allegedly improper pat frisks.*fn1 Specifically, plaintiff contends that on October 20, 2004, defendant filed a false misbehavior report against him in retaliation for the grievances plaintiff filed on June 29, 2004, July 19, 2004, September 16, 2004, and October 7, 2004, for a grievance dated October 19, 2004, but apparently not filed until October 22, 2004, and for having submitted letters of complaint on July 14, 2004, and July 15-16, 2004, all of which implicated defendant in alleged violations of plaintiff's rights. Plaintiff asserts that defendant's alleged retaliation violated his rights under the First and Fourteenth Amendments of the United States Constitution. Plaintiff filed his claim pursuant to 42 U.S.C. § 1983 and seeks nominal, compensatory and punitive damages. The parties stipulated that the Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and 2201. See Dkt. 136.
A. Defendant's Motion in Limine
1. Grievances and Letters of Complaint
Defendant moves to preclude plaintiff from offering his grievances and letters of complaint into evidence at trial. Defendant is willing to stipulate that the grievances were filed on the dates noted above but objects to plaintiff introducing their respective content in substance. Defendant submits that the grievances and letters of complaint contain allegations which characterize the pat frisks as: retaliatory; harassing; abusive; having inflicted pain and distress; having been motivated by racial and religious animus; having been performed in a sexually abusive manner; having violated plaintiff's civil rights; and having endangered plaintiff's life. Defendant argues that the law of the case should preclude the introduction of such inflammatory and prejudicial allegations because the Court specifically ruled that the pat frisks performed by defendant were proper and did not violate the First, Fourth or Eighth Amendments. In the alternative, defendant suggests that the Court give a limiting instruction to the jury both prior to and at the close of the case. See Dkt. 112, Mem. of Law at 5-8.
Plaintiff opposes defendant's motion and submits that the grievances and complaints that he filed against defendant are highly probative of his retaliation claim. In particular, plaintiff argues that the grievances and complaints provide insight as to defendant's motivation in filing the misbehavior report. Plaintiff argues that the Court should also permit his grievances pertaining to other Department of Corrections employees, such as Corrections Officer Therrien. These grievances reference defendant as having directed Therrien to pat frisk plaintiff and are alleged to be relevant as to defendant's motive, i.e., avenging his partner--Therrien--whom plaintiff named in the grievances, in retaliating against plaintiff. See Dkt. No. 135, Letter Br. at 1-2.
In deciding the various motions, the Court notes that the proper approach to prisoner retaliation claims is one of " 'skepticisim and particular care,' " because " 'virtually any adverse action taken against a prisoner by a prison official--even those not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act." Davis v. Goord , 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). With this in mind, the Court considers the elements of plaintiff's First Amendment retaliation claim and the intersection Rules 401, 402 and 403 of the Federal Rules of Evidence. To establish a First Amendment retaliation claim, a plaintiff must show: (1) that he engaged in constitutionally protected speech or conduct; (2) that the defendant took adverse action against the plaintiff; and (3) that there was a causal connection between the protected activity and the adverse action. Dawes , 239 F.3d at 492. As to the first element, the filing of prison grievances is a constitutionally protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). With respect to the second element, the Second Circuit has offered that [o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation. Otherwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection. In making this determination, the court's inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse.
Davis, 320 F.3d at 353 (citations and internal quotations omitted). As to the third element, to determine whether a causal connection exists, consideration of several factors is appropriate, including: "(1) the temporal proximity between the protected activity and the alleged retaliatory conduct; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant concerning his motivation." Bakersville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 872-873 (2d Cir. 1995)).
Under Rule 401, " 'relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Rule 402 provides for the admission of all relevant evidence except as otherwise limited. FED. R. EVID. 402. Rule 403 provides in pertinent part that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." FED. R. EVID. 403.
The Court finds that the grievances and letters of complaint are relevant beyond their mere existence and chronology. Their content is probative of whether a sufficient nexus exists to the alleged retaliatory conduct. The jury should have the opportunity to consider whether the content of the grievances and complaints, of which defendant was aware,*fn2 "was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff." Graham, 89 F.3d at 79. Although the Court has previously determined that the pat frisks of which plaintiff complained in the grievances and letters of complaint did not offend the Constitution, at the time of the alleged retaliation, the reassurance provided by the Court's ruling was not yet forthcoming. Moreover, that a particular grievance fails to set forth an actual constitutional violation does not necessarily diminish its significance to those targeted by its allegations. The opportunity to consider the content of the grievances and complaints permits a jury to best determine whether they served as a catalyst for retaliatory conduct by assessing their degree of provocation. Accordingly, defendant's motion is denied. However, as defendant suggested, the Court will give a limiting instruction to the jury both prior to and at the close of the case. To this effect, the Court will instruct the jury in substance as follows:
Throughout the course of this trial, you will hear evidence concerning various grievances and complaints filed by plaintiff against defendant regarding pat frisks that defendant caused plaintiff to undergo in 2004. Plaintiff alleged that such pat frisks were improper, abusive and/or retaliatory and in violation of the Fourth and Eighth Amendments. You are advised that the Court has previously determined that these allegations, even if true, did not state either a Fourth or Eighth Amendment violation.
2. Emotional and/or Psychological Injuries
Defendant moves to preclude plaintiff from introducing any evidence of alleged emotional and/or psychological injuries allegedly sustained as a result of the pat frisks. Defendant also moves to preclude the testimony of a fellow inmate, Shawon Bolden, regarding the propriety of the pat frisks. Defendant asserts that any such testimony must be excluded as irrelevant because the Court already dismissed those claims stemming from the pat frisks. Moreover, defendant asserts that plaintiff's claims for compensatory damages for alleged emotional injuries are precluded by 42 U.S.C. § 1997e(e). Plaintiff opposes defendant's motion arguing that plaintiff's emotional state resulting from the pat frisks is highly relevant and that while Section 1997e(e) precludes compensatory damages for emotional or mental injury without a concomitant physical injury, it does not similarly ...