Moore v. Granlund

           IN THE UNITED STATES DISTRICT COURT                           
        FOR THE MIDDLE DISTRICT OF PENNSYLVANIA                          

THOMAS MOORE,                        No. 3:12-CV-00223                   

          Plaintiff,                 (Judge Brann)                       

     v.                                                                  

KENNY GRANLUND, et al.,                                                  

          Defendants.                                                    

                   MEMORANDUM OPINION                                    

                         MARCH 18, 2020                                  
I.   BACKGROUND                                                           
    Thomas  Moore,  a  Pennsylvania  state  prisoner,  filed  this  civil  rights 
complaint—which he later amended with assistance from counsel—alleging that 
several defendants violated his rights during his incarceration at the Pennsylvania 
State Correctional Instruction Rockview.1  Over the course of several years, United 
States District Judge Richard P. Conaboy2 issued a series of rulings that narrowed 
the relevant issues and dismissed several defendants from the action.     
    In February 2014, Judge Conaboy dismissed several claims from the amended 
complaint,3 leaving only four remaining claims: (1) Kenny Granlund engaged in 
improper sexual contact with Moore during the fall of 2010; (2) Granlund physically 
                                                                         
1   Docs. 1, 28.                                                          
2   Judge Conaboy died in November 2018 and this matter was administratively reassigned to the 
 undersigned.                                                            
assaulted Moore on December 6, 2010; (3) conditions of confinement at prison 
violated the Eighth Amendment and Defendants Hall, Perks, and Fisher mopped 
chemicals into Moore’s cell on February 19, 2011, which resulted in Moore passing 

out and striking his head on the ground; and (4) Granlund retaliated against Moore 
for filing grievances.4                                                   
    In September 2017, Judge Conaboy granted partial summary judgment in 

favor of Defendants after concluding that Moore failed to exhaust administrative 
remedies as to all remaining claims except claims that (1) Granlund engaged in 
improper sexual contact with Moore during the fall of 2010, (2) Granlund physically 
assaulted Moore on December 6, 2010, and (3) Hall, Perks, and Fisher mopped 

chemicals into Moore’s cell on February 19, 2011.5  Because Judge Conaboy only 
addressed whether Moore’s claims were administratively exhausted, he permitted 
the parties to file motions for summary  judgment that addressed the merits of 
Moore’s remaining claims.6                                                

    The parties thereafter filed cross motions for summary judgment.7  Moore 
contended that he was entitled to summary judgment as a sanction for Defendants 
having failed to properly investigate Moore’s allegations.8  Moore asserted that this 

                                                                         
4   Doc. 103 at 3.                                                        
5   Doc. 103 at 31-62.                                                    
6   Doc. 104.                                                             
7   Docs. 105, 106.                                                       
failure was akin to spoliation of evidence, as it resulted in the purported loss of key 
evidence that would have supported Moore’s claims.9  Defendants in turn asserted 
that judgment should be entered in favor of Hall, Perks, and Fisher because there 

was no evidence that they poured toxic chemicals into Moore’s cell.10     
    In September 2018, Judge Conaboy denied both motions.11  As to Moore’s 
motion, Judge Conaboy concluded that, although Moore’s grievances were “not 
properly investigated in a timely and thorough manner,”12 no remaining Defendants 

were involved in the failure to investigate, and there was no evidence of bad faith 
that could support the entry of judgment in Moore’s favor.13  Moreover, Moore was 
unable to point to any evidence lost as a result of the failure to investigate: there 

were no witnesses to the incidents with Granlund and the only physical evidence that 
was purportedly lost was lost as a result of Granlund’s own actions.14 Finally, Judge 
Conboy noted that an investigation had been conducted into the February 19, 2011 
incident and, thus, no sanctions were warranted with regard to that incident.15  As to 

Defendants’  motion,  Judge  Conaboy  concluded  that  Defendants  failed  to 


                                                                         
9   Id.                                                                   
10   Doc. 107.                                                            
11   Docs. 114, 115.                                                      
12   Doc. 114 at 6.                                                       
13   Id. at 3-8.                                                          
14   Id. at 6-7.                                                          
demonstrate the absence of a genuine issue of material fact.16  This Court thereafter 
denied dueling motions for reconsideration after determining that Judge Conaboy 
did not clearly err in denying the parties’ motions for summary judgment.17   

    Defendants have now filed a motion in limine seeking the admission and 
exclusion of certain evidence at trial.18  Specifically, Defendants argue that they 
should be permitted to introduce evidence of: (1) Moore’s use of multiple names and 

birthdates; (2) Moore’s failure to file tax returns; (3) Moore’s prior convictions; and 
(4) misconduct reports issued by Granlund to Moore.19  Defendants ask that this 
Court bar Moore from presenting evidence of: (1) prior discipline of Defendants or 
any witnesses; (2) grievances or lawsuits filed against Defendants or any defense 

witnesses; (3) Moore’s conditions of confinement in the restricted housing unit 
(“RHU”); (4) Granlund’s personal or sexual life; (5) any alleged settlement offer 
extended to Moore; (6) Moore’s offer to submit to a polygraph examination; (7) 

prison officials’ failure to investigate Moore’s allegations; and (8) Moore’s personal 
timeline, grievances, or other writings related to the alleged incidents.20 



                                                                         
16   Id. at 8-10.                                                         
17   Docs. 127, 128.                                                      
18   Doc. 141.                                                            
19   Doc. 142 at 6-14.                                                    
    Moore has filed a brief in opposition and opposes Defendants’ motion in its 
entirety.21  The matter is now ripe for disposition and, for the following reasons, 
Defendants’ motion in limine will be granted in part and denied in part.  

II.  DISCUSSION                                                           
    Courts  exercise  discretion  to  rule  in  limine  on  evidentiary  issues  “in 
appropriate cases.”22  While motions in limine may serve as a useful pretrial tool that 

enable more in-depth briefing than would be available at trial, a court may defer 
ruling on such motions “if the context of trial would provide clarity.”23  “[M]otions 
in limine often present issues for which final decision is best reserved for a specific 
trial situation.”24  Thus, certain motions, “especially ones that encompass broad 

classes of evidence, should generally be deferred until trial to allow for the resolution 
of questions of foundation, relevancy, and potential prejudice in proper context.”25  
Specifically, “pretrial Rule 403 exclusions should rarely be granted . . . a court 

cannot fairly ascertain the potential relevance of evidence for Rule 403 purposes 
until  it  has  a  full  record  relevant  to  the  putatively  objectionable  evidence.”26  


                                                                         
21   Doc. 144.                                                            
22   In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other 
 grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 
23   Frintner v. TruePosition, 892 F.Supp.2d 699, 707 (E.D. Pa. 2012).    
24   Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518 n.10 (3d Cir. 1997).   
25   Leonard v. Stemetech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013).   
Regardless, “in limine rulings are not binding on the trial judge, and the judge may 
always change his mind during the course of a trial.”27                   
    A.   Motions to Admit Evidence                                       

    The Court will first address Defendants’ motion to admit certain evidence 
during trial.  After examining the record, the Court will grant in part and deny in part 
the requests.                                                             

         i.   Evidence of Multiple Names and Birthdates                  
    First, Defendants argue that they should be permitted to present evidence at 
trial that Moore previously used multiple names and dates of birth.28  Defendants 
contend that such evidence impacts Moore’s credibility and is therefore admissible 

under Federal Rules of Evidence 608 and 611.29  Moore in turn asserts that such 
evidence is not probative of his credibility, as he is of gypsy descent and, thus, was 
unsure of his birthdate or legal name.30  To defend against allegations that his use of 

different names and birthdates implicates his honesty, Moore asserts that he would 
be required to mention his gypsy ethnicity, which may be prejudicial to him.31 
    Federal Rule of Evidence 608 allows parties to cross-examine witnesses on 
any issue that is “probative of the character for truthfulness or untruthfulness of . . . 

                                                                         
27   Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).                
28   Doc. 142 at 6-8.                                                     
29   Id. at 7-8.                                                          
30   Doc. 144 at 9-11.                                                    
the witness.”32  As the United States Court of Appeals for the Ninth Circuit has 
noted, “[l]ying about one’s name constitutes specific conduct that implicates the 
[witness’]  character  for  truthfulness.”33    Although  the  United  States  Court  of 

Appeals for the Third Circuit has not directly addressed the impeachment value of 
using false names or birthdates, in an analogous situation it held that a witness could 
be cross-examined “about numerous blank social security cards recovered from his 

apartment” as such “evidence tended to . . . show deceit, and it was therefore 
admissible to establish [the witness’] lack of truthfulness, not his character.”34   
    In accordance with this case law, the Court concludes that Moore’s past use 
of multiple names and dates of birth is generally admissible, as such information is 

probative of his truthfulness or untruthfulness.35  While Moore argues that he will 
need to reveal information about his gypsy ethnicity to counter this evidence, the 
Court does not find that this militates against admitting such evidence.  First, it 


                                                                         
32   Fed. R. Evid. 608(b).                                                
33   United States v. Santiago-Ledezma No. 98-50153, 1999 WL 450856, at *5 (9th Cir. June 28, 
 1999).  See also United States v. Weekes, 611 F.3d 68, 71 (1st Cir. 2010) (questions about 
 witness’ use of fake “social security numbers obviously went to credibility and was therefore 
 admissible under Federal Rule of Evidence 608(b)”); United States v. Ojeda, 23 F.3d 1473, 
 1477 (8th Cir. 1994) (concluding that “past use of another name is probative for truthfulness”); 
 Nibbs v. Goulart, 822 F. Supp. 2d 339, 351 (S.D.N.Y. 2011) (“[T]he use of aliases and false 
 information is indicative of a witness’ character for truthfulness, and evidence of such use is 
 properly admitted under [Rule] 608(b)”).                                
34   United States v. Irizarry, 341 F.3d 273, 312 (3d Cir. 2003).         
35   Although Moore contends that such information does not implicate his honesty because he was 
 unaware of his legal name or date of birth, this does not explain Moore’s use of multiple names 
 or dates of birth, which undermines any assertion that the use of an erroneous name or date of 
would not be necessary for Moore to discuss his ethnicity to address this issue.  
Moore could simply note that he did not possess a birth certificate for most of his 
life and was unsure about his legal name and date of birth.  Second, the Court is able 

to conduct a voir dire sufficient to ensure that any jurors are not biased against people 
of  gypsy  descent.    By  carefully  crafting  questions  aimed  at  discovering  any 
prejudice, the Court should be able to sufficiently “reduce the possibility of ethnic 
prejudice.”36  Accordingly, the Court concludes that evidence related to the use of 

aliases or different dates of birth is admissible at trial, and Defendants’ motion is 
conditionally granted.                                                    
         ii.  Evidence of Failure to File Tax Returns                    

    Next, Defendants ask that this Court permit evidence related to Moore’s 
failure to file income tax returns, as Defendants contend that such evidence is 
probative of Moore’s truthfulness or untruthfulness under Rule 608.37  Moore argues 

that there is no evidence that he was required to file tax returns and, thus, his failure 
to so file does not implicate his truthfulness or lack thereof.38         
    Federal law provides that not all individuals must file income tax returns.  
Specifically,  the  relevant  portion  of  the  United  States  Code  states  that  only 

individuals “having for the taxable year gross income which equals or exceeds the 
                                                                         
36   United States v. Sarkisian, 197 F.3d 966, 979 (9th Cir. 1999) (citing Rosales-Lopez v. United 
 States, 451 U.S. 182, 193 n.8 (1981)).                                  
37   Doc. 142 at 8.                                                       
exemption amount [plus the basic standard deduction]” are required to file income 
returns.39  Similarly, only the willful failure to file a required income tax return is 
criminal.40                                                               

    Plainly, the failure to file an income tax return does not implicate one’s 
credibility or honesty where one is not required to file such a return.41  Because there 
is no evidence that Moore was required to file income tax returns or that he owed 

the federal government money, the Court concludes that his failure to file income 
tax returns does not reflect upon his truthfulness or untruthfulness.  The Court will 
therefore  conditionally  deny  Defendants’  motion  to  admit  evidence  related  to 
Moore’s failure to file income tax returns.  Should Defendants proffer evidence that 

Moore was required to file said returns, the Court will revisit this decision, since 
Moore’s  failure  to  file  required  income  tax  returns  would  be  probative  of  his 
truthfulness or untruthfulness.42                                         


                                                                         
39   26 U.S.C. § 6012(a).                                                 
40   26 U.S.C. § 7203.                                                    
41   The Third Circuit case cited by Defendants is not to the contrary.  In United States v. Sullivan, 
 the Third Circuit held that evidence that an included “fraudulent replies” in the tax forms that 
 the individual filed with the Government was probative of his truthfulness or untruthfulness.  
 803 F.2d 87, 90 (3d Cir. 1986).  However, that situation differs with that here: in Sullivan the 
 individual filed returns but included false statements within those documents, whereas here no 
 returns were filed in the first instance.                               
42   See United States v. Fairchild, 46 F.3d 1152 (10th Cir. 1995) (“Clearly evidence of the 
 appellant’s  failure  to  file  tax  returns  is  probative  of  truthfulness  or  untruthfulness”); 
 Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993) (“The total failure to file tax returns for a 
 period of eight years should be similarly admissible on the issue of her truthfulness, subject to 
         iii.  Evidence of Prior Felony Convictions                      
    Defendants next argue that the Court should permit evidence of Moore’s 2006 
convictions for robbery, criminal attempted theft by extortion, and theft by unlawful 

taking.43    Defendants  assert  that,  although  the  convictions  do  not  categorically 
involve a dishonest act or false statement, they are admissible under Federal Rule of 
Evidence 609(a)(1), as they were punishable by more than one year imprisonment 
and their probative value outweighs any prejudicial impact.44  Moore, in contrast, 

asserts that the prejudicial impact of admitting evidence related to those convictions 
outweighs any probative value from that evidence.45                       
    “Rule 609 is premised on the common sense proposition that one who has 

transgressed society’s norms by committing a felony is less likely than most to be 
deterred from lying under oath.”46 That Rule provides that a witness’ character for 
truthfulness may be attacked by evidence of a criminal conviction that (1) was 

punishable by more than one year imprisonment, if the probative value of the 
conviction is not substantially outweighed by the danger of unfair prejudice, or (2) 
“the  elements  of  the  crime  required  proving—or  the  witness’s  admitting—a 
dishonest act or false statement.”47 To determine whether the probative value of 

                                                                         
43   These convictions were the basis for Moore’s incarceration at the time of the events underlying 
 this action                                                             
44   Doc. 142 at 8-15.                                                    
45   Doc. 144 at 12.                                                      
46   Walden v. Georgia-Pac. Corp., 126 F.3d 506, 523 (3d Cir. 1997).      
admitting  the  conviction  outweighs  its  prejudicial  effect,  district  courts  should 
examine four factors: “(1) the kind of crime involved, (2) when the conviction 
occurred, (3) the importance of the witness’ testimony to the case, and (4) the 

importance of the credibility of the defendant.”48                        
    As an initial matter, Defendants concede that Moore’s prior convictions are 
not admissible under Rule 609(a)(2), the Court will therefore restrict its analysis to 

Rule 609(a)(1).  Accordingly, to be admissible the crimes must be punishable by 
more than one year of imprisonment.49  While robbery is unequivocally a felony,50 
Defendants have failed to demonstrate that Moore’s theft charges are felonies, since 
such offenses may constitute misdemeanors under Pennsylvania law.51  Therefore, 

the Court will conditionally deny Defendants’ motion with respect to the theft 
convictions and analyze only Moore’s robbery conviction.                  
    As to “the first factor—the kind of crime involved—courts consider both the 

impeachment value of the prior conviction as well as its similarity to the charged 
crime.”52  As the Third Circuit has noted, “[c]rimes of violence generally have lower 
probative value in weighing credibility . . . [i]n contrast, crimes that by their nature 

                                                                         
48   United States v. Greenidge, 495 F.3d 85, 97 (3d Cir. 2007).          
49   Fed. R. Evid. 609(a)(1).                                             
50   18 Pa. Stat. and Cons. Stat. Ann. § 3701.                            
51   See 18 Pa. Stat. and Cons. Stat. Ann. § 3903 (grading theft offenses from third-degree 
 misdemeanors to felonies depending upon sum stolen); 18 Pa. Stat. and Cons. Stat. Ann. 
 § 3903 (noting that third-degree misdemeanor is punishable by no more than one year of 
 imprisonment).                                                          
imply some dishonesty, such as theft, have greater impeachment value and are 
significantly more likely to be admissible.”53                            
    With respect to Moore’s robbery conviction, the Court recognizes that several 

courts  have  concluded  that  robbery  convictions  are  probative  of  a  witness’ 
truthfulness.54  However, the Third Circuit in Walker v. Horn held that “although 
robbery is certainly a very serious crime, it does not involve communicative or 
expressive dishonesty.”55  The Third Circuit later emphasized, in an unpublished 

opinion, that because “participation in [a] robbery d[oes] not involve dishonesty, it 
is not probative of [a witness’] character for truthfulness.”56  These cases makes clear 
that, within the Third Circuit, robberies are not considered to implicate one’s honesty 

and, thus, the first factor weighs against admitting evidence of Moore’s robbery 
conviction.                                                               
    With regard to the second factor, Moore’s convictions are approximately 
fourteen years old,57 which reduces their probative value.58  Moreover, Moore was 


                                                                         
53   Id.                                                                  
54   See United States v. Bellinger, No. 09-4555, 2010 WL 3364335, at *6 (E.D. Pa. Aug. 24, 2010) 
 (collecting cases).                                                     
55   385 F.3d 321, 334 (3d Cir. 2004).                                    
56   United States v. Felix, 221 F. App’x 176, 178 (3d Cir. 2007).  See also United States v. Bibbs, 
 152 F. App’x 247, 251 (3d Cir. 2005) (noting that “four recent convictions for fraud and one 
 older drug offense . . . [are] much more probative of the credibility of the witness than the old 
 robbery conviction (which, as a violent crime, was more likely to prejudice the jury)”). 
57   Doc. 142 at 8.                                                       
58   See Caldwell, 760 F.3d at 289 (noting that Government “failed to show that the probative value 
released  from  custody  in  July  2017.59    The  Third  Circuit  has  stated  that  “the 
probative value of an older conviction may remain undiminished if the defendant 
was recently released from confinement or has multiple intervening convictions, 

both of which could suggest his character has not improved.”60  Moore has been out 
of state custody for more than two and one-half years, and there is no indication on 
the record that he has been in any legal trouble during that time.  Given the age of 

the convictions and the absence of any evidence that Moore’s “character has not 
improved,”61  the  second  factor  likewise  weighs  against  admitting  evidence  of 
Moore’s past convictions.                                                 
    The third factor “inquires into the importance of the [witness’] testimony to 

his [case] at trial,” as “[t]he tactical need for the [witness] to testify on his or her own 
behalf may militate against use of impeaching convictions.”62  Defendants correctly 
note that “there is no video or direct physical evidence to corroborate or refute 



                                                                         
 States v. Davis, 524 F. App’x 835, 840 (3d Cir. 2013) (probative value of prior conviction 
 diminished by 13-year passage of time);                                 
59   Id.                                                                  
60   Caldwell, 760 F.3d at 287.                                           
61   Id.                                                                  
62   Id.  Although Caldwell addressed the use of a prior conviction in the criminal context where 
 concerns about a defendant testifying are stronger than concerns about a plaintiff testifying in 
 his own civil action, other courts have applied the same test to civil matters.  See, e.g., Tenon 
 v. Dreibelbis, No. 1:12-CV-1278, 2017 WL 2734360, at *3 (M.D. Pa. June 26, 2017) (“On the 
 third factor, the importance of the witness’s testimony to the case, this factor would normally 
 favor Plaintiff as it would appear that it is his testimony that would be necessary to establish” 
Plaintiff’s claims,”63 meaning that Moore’s testimony is critical to his case, and this 
factor thus weighs against admitting evidence of Moore’s prior robbery conviction. 
    Finally,  the  fourth  “factor  concerns  the  significance  of  the  defendant’s 

credibility to the case.  When the defendant’s credibility is a central issue, this 
weighs in favor of admitting a prior conviction.”64  This factor weighs in Defendants’ 
favor, as Moore’s credibility will play a pivotal role in the upcoming trial; given the 

absence of physical evidence, this matter is “[a]t its core . . . a ‘he said, they said’ 
battle between” Moore and Defendants.65  Nevertheless, “this single factor is not 
enough  to  warrant  admission  of  the  prior  convictions  where  all  others  favor 
exclusion.”66  Consequently, the Court will conditionally deny Defendants’ motion.  

The Court may revisit this determination should Defendants be able to establish that, 
in the time since Moore’s release from custody, he has behaved in a manner that may 
“suggest  his  character  has  not  improved”  by,  for  example,  committing  other 
crimes,67 or that his theft convictions were felonies.68                  

         iv.  Evidence of Misconducts Issued by Granlund                 


                                                                         
63   Doc. 142 at 9.                                                       
64   Caldwell, 760 F.3d at 288 (internal quotation marks omitted).        
65   Id.                                                                  
66   Id.                                                                  
67   Id. at 287.                                                          
68   Notably, the first factor weighs in favor of admitting evidence of Moore’s theft convictions, 
 since such convictions “imply some dishonesty.”  United States v. Santiago-Rivera, 2017 WL 
    Lastly, Defendants seek to introduce evidence of misconduct reports issued 
by Granlund to Moore.69  Defendants contend that such evidence is relevant to 
demonstrate a possible bias against Granlund, and outweighs any potential prejudice 

given the limited nature of the evidence that will be admitted.70         
    The  admissibility  of  evidence  is  generally  governed  by  two  Rules  of 
Evidence.  Rule 402 provides that relevant evidence is generally admissible, while 

Rule 403 provides that relevant evidence may be excluded “if its probative value is 
substantially  outweighed  by  a  danger  of  one  or  more  of  the  following:  unfair 
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 
needlessly presenting cumulative evidence.”                               

    The  Court  agrees  with  Defendants  that  information  related  to  grievance 
reports issued by Granlund to Moore is relevant inasmuch as such grievance reports 
may “show [Moore’s] antipathy towards these particular Defendants and alert the 

jury to the possibility that [his] testimony against Defendants might be tainted by 
bias or motivated by retaliation toward the individual Defendants who authored the 
misconduct reports.”71                                                    
    Additionally, the fact of the misconduct reports is not unduly prejudicial.  

First, Defendants seek only to introduce evidence of two misconduct reports issued 

                                                                         
69   Doc. 142 at 13-14.                                                   
70   Id.                                                                  
by Granlund to Moore, which mitigates some of the prejudice.  Second, Defendants 
will be permitted to introduce this evidence only for narrow impeachment purposes.  
Third, a limiting instruction will be issued, if requested.  Accordingly, the Court 

concludes that the prejudicial impact of the reports does not substantially outweigh 
their probative value, and the misconduct reports issued by Granlund to Moore will 
be conditionally admitted.72                                              

    B.   Motions to Exclude Evidence                                     
    Next,  Defendants  seek  to  exclude  broad  categories  of  evidence  from 
introduction at trial.  As discussed below, this evidence will largely be excluded. 
         i.   Evidence of Prior Discipline, Grievances, or Lawsuits      

    First,  Defendants  seek  to  preclude  any  evidence  of  prior  discipline, 
grievances, or lawsuits filed against them or any defense witnesses.73  Defendants 
argue that any such evidence “is not relevant in this case” and would be unduly 

prejudicial, as it may lead the jury to believe that Defendants committed the alleged 
acts  simply  because  they  were  previously  otherwise  disciplined.74    Defendants 
further assert that such evidence would confuse the issues and waste time, as it would 


                                                                         
72   The Court notes that neither party has revealed what is contained within the misconduct 
 reports.  It is possible that the reports contain inflammatory material or language to which the 
 jury should not be exposed.  Should Moore demonstrate that this is indeed the case, the Court 
 will modify its ruling to permit evidence related to the fact of the misconduct reports, while 
 excluding the reports themselves and any discussion of the underlying bases for the reports. 
73   Doc. 142 at 14-16.                                                   
lead to a trial-within-a-trial.75  Moore generally opposes this motion, but provides no 
explanation  for  the  admissibility  of  any  underlying  discipline,  grievances,  or 
lawsuits, and fails to describe the underlying bases for any grievances or discipline 

or how they are relevant to this action.                                  
    Without knowing the basis of any prior discipline, grievances, or lawsuits, the 
Court cannot determine their relevance to this case or evaluate the potential prejudice 

that such evidence may cause Defendants.  For example, such evidence would be 
more relevant if the grievances, lawsuits, or discipline were directed by Moore at 
Defendants, as it may provide incentive for the alleged assaults, or would be more 
relevant if the witnesses were disciplined for acts of dishonesty or deception.  Absent 

some explanation from Moore as to why this evidence is admissible, the Court must 
conditionally grant Defendants’ motion.                                   











                                                                         
         ii.  Conditions of Confinement                                  
    Defendants next seek to preclude any evidence related to Moore’s conditions 
of confinement while confined in the RHU, with the exception of testimony related 

to the February 19, 2011 incident involving Perks, Hall, and Fisher.76  Defendants 
contend that such evidence is irrelevant to the trial and is unduly prejudicial.   
    The  Court  agrees  that  any  evidence  related  to  Moore’s  conditions  of 

confinement in the RHU is irrelevant to the matters remaining in this trial.  Moore’s 
remaining claims relate to discrete instances of physical or sexual assault and are 
wholly unconnected to Moore’s conditions of confinement; the only claims in the 
amended complaint that implicated the conditions in the RHU were previously 

dismissed from this case.77  Moreover, there is no viable allegation that Moore lost, 
or was unable to gather, evidence as a result of his confinement in the RHU or that 
any damages related to the remaining claims could emanate from his time in the 
RHU.78  As such, evidence of the conditions in the RHU would not “tend[] to make 

the existence or nonexistence of a disputed material fact more probable than it would 
be without that evidence,” 79 and will be excluded as irrelevant.         



                                                                         
76   Doc. 142 at 16-17.                                                   
77   See Docs. 39, 103.                                                   
78   Cf. Doc. 114 at 6-7 (discussing evidence purportedly lost based on failure to investigate and 
 dismissing such concerns).                                              
         iii.  Evidence of Granlund’s Personal and Sexual History        
    Defendants seek exclusion of any evidence related to Granlund’s personal or 
sexual  history,  arguing  that  such  information  lacks  probative  value  and  is 

substantially prejudicial.80  Moore responds simply that he should be permitted to 
explore “Granlund’s character.”81                                         
    There is no information that would permit the Court to conclude that evidence 

related to Granlund’s personal or sexual history is at all relevant to this matter.  
Notably, there has been no proffer from Moore as to what Granlund’s personal or 
sexual history is, let alone how such history would be relevant to allegations that he 
committed a physical or sexual assault.  This absence is particularly notable since 

Moore chose not to depose Granlund; having foresworn that opportunity, Moore 
now seeks to engage in a line of wholly speculative questioning at trial.   
    Moreover, even if Moore had made a proffer, none of the information sought 

is relevant.  He fails to explain how Granlund’s marriage, or absence thereof, is 
probative of whether Granlund physically or sexually assaulted Moore.  The fact that 
Granlund may or may not be married has absolutely no tendency “to make the 
existence or nonexistence of [whether he assaulted Moore] more probable than it 

would be without that evidence.”82                                        

                                                                         
80   Doc. 142 at 17-18.                                                   
81   Doc. 144 at 13.                                                      
    Similarly, evidence of Granlund’s sexual history or proclivities is entirely 
irrelevant and would only serve to potentially inflame the jury.  Even if, for example, 
Moore were gay, that information does not make Moore’s allegations any more 

likely to be true than they would be absent such information—no more than the fact 
of being heterosexual makes allegations that a male prison guard sexually assaulted 
a female prisoner any more likely.  Indeed, Moore makes no argument whatsoever 
as to the relevance of Moore’s personal or sexual history.83  Put plainly, information 

that an individual is gay may—and obviously does—make it more likely that such 
individual engages in sexual relations with other men, but it has absolutely no 
bearing on whether he is disposed toward physically or sexually assaulting another 

man.  Accordingly, Defendants’ motion in limine will be granted in this respect, and 
Moore is barred from inquiring about Granlund’s personal or sexual history. 
         iv.  Evidence of Alleged Settlement Offer                       

    Next, Defendants ask the Court to exclude any evidence related to an alleged 
settlement offer that Moore received from an unidentified individual; Defendants 
contend that such evidence is inadmissible as a settlement offer under Rule 408, as 
hearsay, and as irrelevant.84  Moore asserts that such evidence should be admissible 




                                                                         
83   Doc. 144 at 12-13.                                                   
because it demonstrates that Moore began making his complaints when he had no 
monetary incentive to lie.85                                              
    Evidence of an alleged settlement offer is inadmissible for three reasons.  

First, Fed. R. Evid. 408 provides that—with limited exceptions not applicable here—
evidence of a settlement offer or statements made during negotiations are “not 
admissible—on behalf of any party—. . . to prove or disprove the validity or amount 
of a disputed claim.”86  The Committee Notes accompanying that statute make clear 

that, not only is such evidence irrelevant, but it should be excluded to “promot[e] . . 
. public policy favoring the compromise and settlement of disputes.”      
    Second, any testimony from Moore regarding what an unidentified individual 

said outside of the courtroom or a hearing would constitute inadmissible hearsay.87  
Finally, such evidence would appear to be irrelevant.  Assuming that a settlement 
offer was in fact extended, such an offer proves nothing with regard to the claims 

against Defendants.  Consequently, any evidence related to an alleged settlement 
offer is barred from admission at trial.                                  



                                                                         
85   Doc. 144 at 4 n.9.  Notably, the offer may not even prove that Moore was uninterested in a 
 financial settlement.  An email submitted by Moore’s attorney indicates that, although Moore 
 initially turned down the alleged settlement offer, shortly thereafter he “changed his mind,” 
 indicating that perhaps he was interested in a financial settlement.  (Doc. 144-2 at 4). 
86   Fed. R. Evid. 408(a).                                                
87   Fed. R. Evid. 801(c), 802.  Moore makes no argument that such statements would be admissible 
         v.   Offer to Take Polygraph Examination                        
    Defendants also ask that this Court exclude evidence related to Moore’s offer 
to submit to a polygraph examination.88  Defendants argue that the results of a 

polygraph examination are generally not admissible in court and, thus, the offer to 
take one likewise should not be admitted.89  Moore contends that his offer to take a 
polygraph examination—which was solicited by Defendants—should be admissible 
to demonstrate his state of mind.90                                       

    Courts are somewhat divided over the question of admitting evidence of an 
offer to take a polygraph examination.  For example, the United States Courts of 
Appeals  for  the  Sixth  and  Eleventh  Circuits  have  held  that  an  offer  to  take  a 

polygraph examination may be admissible to corroborate a witness’ testimony after 
the witness’ credibility is first attacked, and if the probative value of such evidence 
outweighs any prejudice.91  In contrast, absent direction from the Third Circuit, 
judges within this district have concluded that such evidence is not admissible.92   



                                                                         
88   Doc. 142 at 20-21.                                                   
89   Id.                                                                  
90   Doc. 144 at 12-13.                                                   
91   See United States v. Neuhard, 770 F. App’x 251, 255 (6th Cir. 2019); Smart v. City of Miami, 
 740 F. App’x 952, 966-69 (11th Cir. 2018).  See also United States v. Hamilton, 579 F. Supp. 
 2d 637, 639-42 (D.N.J. 2008).                                           
92   See, e.g., Burdyn v. Old Forge Borough, No. 3:12-CV-2236, 2017 WL 387195, at *1-3 (M.D. 
 Pa. Jan. 26, 2017); United States v. Carey, No. 4:05-CR-230, 2007 WL 9752940, at *2 (M.D. 
    The  Court  agrees  with  United  States  District  Judge  Robert  D.  Mariani’s 
conclusion in Burdyn v. Old Forge Borough that Moore’s offer to submit to a 
polygraph examination is inadmissible, as Moore “fails to demonstrate how his state 

of mind is relevant to the current action and the claims [pursued by] him.”93  Here, 
trial will proceed as to claims related to alleged physical and sexual assaults: none 
of the claims involve Moore’s state of mind.  In such circumstances, “[w]hether 

[Defendants’] contact, if any, with [Moore] was inappropriate and further whether it 
amounted to assault, battery, and/or a violation of h[is] bodily integrity is a question 
for the jury.”94  Furthermore, as Judge Mariani noted, the probative value of such 
evidence is substantially outweighed by the danger of unfair prejudice “[g]iven the 

general inadmissibility of polygraph tests at trial due to the lack of reliability” and 
the questions that would necessarily be engendered by placing before the jury 
evidence only of an offer to submit to a polygraph examination.95         

    Moreover,  even  courts  that  permit  evidence  of  an  offer  to  submit  to  a 
polygraph  examination  generally  hold  that  when  “a  defendant  offers  to  take  a 
polygraph upon the advice of, or in the presence of, counsel . . . the presence of 
counsel immediately calls into question the authenticity of the defendant’s offer, 

thereby undermining its probative value.”96  This is so because counsel is presumed 
                                                                         
93   Burdyn, 2017 WL 387195, at *2.                                       
94   Id.                                                                  
95   Id. at *3.                                                           
to understand that polygraph results generally are not admissible at trial and, thus, 
the “offer to take a polygraph is inherently self-serving because the defendant knows 
that  no  adverse  consequences  will  result  from  making  the  offer.”97    Here,  the 

polygraph requests were directed to Moore’s counsel and then passed along to 
Moore by his attorney.98  This significantly reduces the probative value of Moore’s 
offer to submit to a polygraph examination, which buttresses the conclusion that 

such  an  offer  is  not  admissible.    Accordingly,  Defendants’  motion  to  exclude 
evidence of Moore’s offer to submit to a polygraph examination will be granted.  
         vi.  Evidence of Lack of Investigation                          
    Next, Defendants request that this Court exclude evidence of any lack of 

investigation into Moore’s claims by prison officials, as such evidence is irrelevant 
and would confuse the jury by devolving into a trial-within-a-trial regarding the 
investigation of Moore’s claims.99  The Court agrees that evidence related to the 

failure to investigate Moore’s complaints has no relevance to the claims pursued at 
trial.  Simply put, any investigation—or lack thereof—has no tendency “to make the 
existence or nonexistence of a [the alleged assaults] more probable than it would be 
without  that  evidence.”100    Moreover,  as  noted  previously,  there  is  no  viable 

allegation that any evidence was lost or not discovered as a result of the failure to 
                                                                         
97   Id.                                                                  
98   Doc. 144-2.                                                          
99   Doc. 142 at 21-22.                                                   
properly investigate Moore’s allegations.101  Evidence related to prison officials’ 
failure to investigate Moore’s complaints will therefore be excluded as irrelevant. 
         vii.  Moore’s Written Grievances and Other Documents            

    Finally,  Defendants  seek  to  preclude  any  evidence  of  Moore’s  prior 
grievances and other self-created documents, including his personal timeline of 
events.102  Defendants contend that such evidence is inadmissible hearsay offered 
only to bolster Moore’s claims.103  Moore in turn argues that his grievances and other 

papers are admissible as prior consistent statements pursuant to Federal Rule of 
Evidence 801(d)(1)(B).104                                                 
    “Federal Rule of Evidence 801(d)(1)(B) states that a prior statement by a 

witness  is  admissible  non-hearsay  when  it  is  ‘consistent  with  the  declarant’s 
testimony and is offered to rebut an express or implied charge of recent fabrication 
or improper influence or motive.’”105                                     

    The Supreme Court has said that four requirements must be met in order 
    for prior consistent statements to be admitted into evidence under Rule 
    801(d)(1)(B): (1) the declarant must testify at trial and be subject to 
    cross-examination; (2) there must be an express or implied charge of 
    recent fabrication or improper influence or motive of the declarant’s 
    testimony; (3) the proponent must offer a prior consistent statement that 
    is consistent with the declarant’s challenged in-court testimony; and, 
                                                                         
101  Doc. 114 at 6-7 (discussing evidence purportedly lost based on failure to investigate and 
 dismissing such concerns).                                              
102  Doc. 142 at 22.                                                      
103  Id.                                                                  
104  Doc. 144 at 4-9.                                                     
    (4) the prior consistent statement must be made prior to the time that 
    the supposed motive to falsify arose.106                             

    After examining the relevant factors, the Court concludes that it must defer 
any ruling on Defendants’ motion.  The first and third factors do not appear to be 
contested.  As to the first factor, there is no dispute that Moore will testify at trial 
and will be subject to cross-examination.  With regard to the third factor, it is likely 
that the challenged documents will be consistent with any testimony that Moore 
offers in court.  Thus, the dispute centers around the second and fourth factors: 
whether there will be an implied charge of recent fabrication, and whether Moore’s 

documents predate any motive to testify falsely.                          
    As to the second factor, case law makes clear “that ‘prior consistent statements 
may not be admitted to counter all forms of impeachment . . . [t]he purpose of Rule 

801(d)(1)(B) is not to ‘bolster the veracity of the story told,’ but to rebut a charge of 
recent fabrication or improper influence or motive.”107  The Third Circuit “has stated 
that  there  need  be  only  a  suggestion  that  the  witness  consciously  altered  his 
testimony in order to permit the use of earlier statements that are generally consistent 

with the testimony at trial.”108  As Moore correctly notes, there clearly will be an 
allegation at trial that Moore will testify falsely as to the events underlying his 


                                                                         
106  Id. (citing Tome v. United States, 513 U.S. 150 (1995)).             
107  Id. (brackets omitted) (quoting Tome, 513 U.S. at 158).              
remaining claims.109  However, there is no evidence from which the Court may 
conclude that Defendants will allege a “recent fabrication or improper influence or 
motive” on Moore’s part.110  It may be that Defendants assert Moore has a recent 

motivation to testify falsely, or they may assert that he always possessed the same 
motivation; the Court simply cannot know at this time.  Similarly, with respect to 
the fourth factor, without knowing whether there is a charge of a recent motive to 

fabricate testimony, the Court cannot determine whether Moore’s prior statements 
were “made prior to the time that the supposed motive to falsify arose.”111  As such, 
the Court cannot rule on Defendants’ motion in limine at this time, and will defer 
any ruling until trial.                                                   

III.  CONCLUSION                                                          
    In accordance with the above discussion, Defendants’ motion in limine will 
be granted in part and denied in part.                                    

    An appropriate Order follows.                                        
                                   BY THE COURT:                         


                                  s/ Matthew W. Brann                    
                                  Matthew W. Brann                       
                                  United States District Judge           
                                                                         
109  Doc. 144 at 5-6.                                                     
110  Frazier, 469 F.3d at 88.