United States District Court, S.D. New York
Margaret Smith United States Magistrate Judge.
Motion in Limine filed October 11, 2019, Defendants sought to
limit the proposed testimony of Plaintiff s expert, Wayne A.
Robbins, at trial. DE ## 68, 69, 70, 71. Plaintiff opposed
the Motion. DE ## 82, 82-1. For the reasons set forth herein,
the motion is granted in part and denied in part.
Complaint in this case was filed on June 30, 2016. DE # 1.
Following service of the Complaint Defendants filed a Motion
to Dismiss. DE ## 7, 8, 9. The Honorable Vincent L.
Briccetti, United States District Judge, to whom the matter
was then assigned, issued an Order requiring Plaintiff to
determine whether to file an Amended Complaint or to oppose
the Motion to Dismiss. On September 9, 2016, the Amended
Complaint was filed. DE #13. On September 28, 2016, the
Answer was filed. DE # 14. On December 19, 2016, Plaintiff
filed a Second Amended Complaint. DE # 18. The Second
Amended Complaint was not answered, because Plaintiff filed a
Third Amended Complaint on December 28, 2016. DE # 19.
answered the Third Amended Complaint on February 8, 2017. DE
# 21. Discovery proceeded with numerous requests by the
parties for extensions, and the parties eventually proposed a
Stipulation and Order on January 16, 2019 (DE # 49),
which was signed by Judge Briccetti and went into effect on
that same date. DE # 50. That Stipulation provided
that all but three causes of action, and all but three
Defendants, would be dismissed. The remaining causes of
action identified in the Stipulation were "the
Fourteenth Amendment claim of excessive force, the First
Amendment claim against individual defendants Karen Jackson
and Richard Bartley, and the Fifth Claim for retaliation
under the Americans with Disabilities Act of 1990[.]"
Id. at p. 2, ¶5. Neither the First Claim
(asserting, inter alia, a Fourteenth Amendment
excessive force claim), nor the Second Claim (asserting,
inter alia, a First Amendment retaliation claim),
nor the Fifth Claim identified which of the named Defendants
were charged in that claim. The Stipulation only specified
the remaining Defendants for the First Amendment claim
(Defendants Jackson and Bartley), and identified that, with
the exception of the County of Putnam, all claims against the
remaining Defendants were dismissed. Id. at pp. 1-2,
¶¶4, 5. Thereafter, on April 23, 2019, the parties
consented to the jurisdiction of the undersigned, pursuant to
Title 28, United States Code, Section 636(c).
parties appear to agree that the Stipulation resulted in just
three claims against three Defendants, the Fourteenth
Amendment excessive force claim against Defendants Jackson
and Bartley brought pursuant to Section 1983, the First
Amendment retaliation claim against Jackson and Bartley, also
brought pursuant to Section 1983, and a retaliation claim
under the ADA against the County of Putnam.
has identified Wayne A. Robbins as an expert in correctional
practices. DE # 70-2. Defendants move to preclude Mr. Robbins
from testifying, and to preclude his expert
report. The expert report expresses seven separate
opinions. The first six opinions conclude with substantially
the same language: "These failures indicate deficiencies
in management, supervision, training[, ] including use of
force and policy." hi at p. 23, ¶l. This opinion,
however, reflects criticism of Defendant County based on a
so-called Monell claim - pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978),
"a local government may not be sued under § 1983
for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government's policy or
custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity
is responsible under § 1983." Id. at 694;
see also Connick v. Thompson, 563 U.S. 51,
61 (2011) ("In limited circumstances, a local
government's decision not to train certain employees
about their legal duty to avoid violating citizens'
rights may rise to the level of an official government policy
for purposes of § 1983."); Wellington v.
Daniels, 717 F.2d 932, 936 (4th Cir. 1983) ("A
number of courts have interpreted Monell to hold
that a municipal policy of authorizing or condoning police
misconduct can be inferred where the municipality has been
grossly negligent in the supervision and training of its
police force.") (citing, inter alia, Owens v.
Haas, 601 F.2d 1242, 1246-47 (2d Cir. 1979), cert,
denied, 444 U.S. 980 (1979); Lucky v. City of New
York, No. 03 CIV.1983(DLC), 2004 WL 2088557, at *7
(S.D.N.Y. Sept. 20, 2004), aff'd, 140 Fed.Appx.
301 (2d Cir. 2005) ("To prevail in a Section 1983 claim
against a municipality, a plaintiff must show that the
challenged acts were performed pursuant to a municipal policy
or custom. To show a policy, custom or practice, a plaintiff
may introduce evidence of an express rule or regulation, a
practice so widespread as to constitute a custom with the
force of law, or a failure to train employees that displays a
deliberate indifference to human rights.") (interior
quotes and citations omitted). However, there is no
claim against the County for the two claims brought under the
Section 1983, the First Amendment claim and the Fourteenth
Amendment claim. The remaining claim is brought solely under
the Americans with Disabilities Act, and in the Second
Circuit such a claim may only be brought against the
employer, not against individual defendants. Garcia v. S.
U.N.Y. Health Sciences Or. of Brooklyn, 280 F.3d 98, 107
(2d Cir. 2001) (a title II ADA claim cannot proceed against
defendants in their individual capacities.) In any event, the
ADA claim, not brought under Section 1983, does not include a
Monell theory of liability for the County.
deficiencies identified in Mr. Robbins' report are not
relevant to the question of whether the individual Defendants
are liable under the two Constitutional claims that are
brought under Section 1983. Their liability would be based on
their own personal actions, not on any custom, policy or
practice of supervision or training. Thus, to the degree that
Mr. Robbins has offered opinions about the custom and policy
of the County (and of its Corrections' or Sheriffs
Departments), particularly with regard to "deficiencies
in management, supervision, training and policy," (DE #
70-2 at p. 23, ¶2), those opinions have no relevance,
and are precluded.
Robbins has also offered an opinion that "Sgt.
Jackson's reporting and testimony in this matter lacks
candor and supervisory oversight]." Id. at p.
23, ¶l. However, "expert witnesses may not offer
opinions on relevant events based on their personal
assessment of the credibility of another witness's
testimony. The credibility of witnesses is exclusively for
the determination by the jury, . .., and witnesses may not
opine as to the credibility of the testimony of other
witnesses at the trial." United States v. Scop,
846 F.2d 135, 142 (2d Cir.), on reh'g, 856 F.2d 5 (2d
Cir. 1988) (citation omitted). Thus, any opinion
about the "candor" or "credibility" of
any other witness is precluded. Also precluded are general
observations such as "Reporting by custody staff
involved, was found to be inconsistent and
conflicted....." DE # 70-2 at p. 24, ¶4. Defense
counsel may, of course, cross-examine witnesses based on
inconsistencies and apparent conflicts, but this is not an
appropriate basis for an expert in a case such as this.
Robbins' opinion number 3 is also precluded. That opinion
focuses on Officer Vecchione, but he is no longer a
Defendant. The opinion is therefore irrelevant, and
Robbins' opinions about whether force was justified (see
Id., at lines 12-14) are admissible, but only insofar as they
apply to actions of the two remaining individual Defendants.
Opinions about Officer Villani's actions, for example,
opinions stated in paragraphs 5 and 6 are precluded; they
apply solely to a Monell theory of liability, and
are therefore irrelevant.
undersigned has insufficient information to know what the
opinion in paragraph 7 is, and what it is based on. No
supporting documents have been provided to the Court. Before
Plaintiff may offer any such opinion through Mr. Robbins,
such documents, and a more fulsome description of the
opinion, must be submitted to the Court. Such submission must
take place at least one business day before the proposed
constitutes the Decision and Order of the Court. The Clerk is