Gerald Prophete, Plaintiff, v. Haydee Acevedo-Smith, et al., Defendants. (2025)

Memorandum & Order

Pending before the Court are the parties’ motions in limine. On May 21, 2025, the plaintiff Gerald Prophete filed five motions in limine. (ECF No. 116-1.) The defendants – Department of Homeless Services (“DHS”) officers Haydee Acevedo Smith, Abraham Watkins, and Alex Andujar (collectively, “Defendants”) – filed their response on May 28, 2025. (ECF No. 119.) Mr. Prophete filed a reply on June 2, 2025. (ECF No. 122.) Also, on May 21, 2025, Defendants filed nine motions in limine. (ECF No. 115.) Mr. Prophete filed a response on May 28, 2025, (ECF No. 120), and Defendants filed a reply on June 2, 2025 (ECF No. 121).

In Part I of this Memorandum & Order, the Court reviews the excessive force, false arrest, and malicious prosecution claims to be tried and identifies the elements of each claim.¹ In Part II, the Court analyzes the parties’ motions in limine. Finally, in Part III, the Court rules on the admissibility of the parties’ proposed exhibits.

I. Mr. Prophete's Claims

Mr. Prophete, a resident of the Samaritan Village shelter, brings the following civil rights claims under 42 U.S.C. § 1983 arising from an October 2, 2018 incident during which he alleges that DHS Sergeant Acevedo-Smith unlawfully pepper-sprayed him in the eyes and caused his arrest and prosecution:

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(See ECF Nos. 7 (Amended Complaint), 113 (Proposed Joint Pretrial Order) at 2-3.) In evaluating the admissibility of evidence the parties seek to admit or exclude, the Court looks to the elements of each claim to establish relevance under Federal Rule of Evidence (“FRE”) 401.

A. Count One: Excessive Force

For Count One, which alleges that Sergeant Acevedo-Smith used excessive force against Mr. Prophete on October 2, 2018, the Court is guided by the Supreme Court's recent May 15, 2025 decision in Barnes v. Felix, 145 S. Ct. 1353 (2025). “A claim that a law enforcement officer used excessive force during a stop or arrest is analyzed under the Fourth Amendment.” Barnes, 145 S. Ct. at 1357 (internal quotations omitted). The test is objective, and as relevant here, “the question ․ is whether the force deployed was justified from the perspective of a reasonable officer on the scene, taking due account of both the individual interests and the governmental interests at stake.” Id. at 1358 (internal quotations omitted). “That inquiry into the reasonableness of police force requires analyzing the totality of the circumstances.” Id. (internal quotations omitted).

“[D]eciding whether a use of force was objectively reasonable demands careful attention to the facts and circumstances relating to the incident, as then known to the officer.” Id. (internal quotations omitted). In assessing whether a particular use of force was “objectively reasonable,” relevant facts and circumstances include, but are certainly not limited to, (1) “the severity of the crime prompting the stop” (2) “actions the officer took during the stop,” (3) “the stopped person's conduct,” (4) “[t]he history of the interaction,” (5) “other past circumstances known to the officer,” and, more broadly, (6) “earlier facts and circumstances” – including “[p]rior events” – that “may bear on how a reasonable officer would have understood and responded to” the incident at issue. Id. (internal quotations omitted). In Barnes, the Supreme Court endorsed a broad, inclusionary inquiry of whether a particular use of force was objectively reasonable and held that “the ‘totality of the circumstances’ inquiry has no time limit.” Id.

B. Count Two: False Arrest

For Count Two, in which Mr. Prophete alleges false arrest against all Defendants, the elements are straightforward. “A [Section] 1983 claim for false arrest ․ is substantially the same as a claim for false arrest under New York law.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). “Under New York law, the elements of a false arrest and false imprisonment claim are: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (internal quotations omitted). “[P]robable cause to arrest is a complete defense to such a claim brought under ․ § 1983.” Harrison v. Cnty. of Nassau, 804 F. App'x 24, 27 (2d Cir. 2020). “Probable cause is established when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Id. (internal quotations omitted).

C. Count Three: Malicious Prosecution

The elements are similarly straightforward for Count Three, in which Mr. Prophete alleges malicious prosecution against all Defendants. “To state a [Section] 1983 claim for malicious prosecution, a plaintiff must plead both a violation of his rights under the Fourth Amendment and the elements of a malicious prosecution claim under state law.” Dettelis v. Sharbaugh, 919 F.3d 161, 163 (2d Cir. 2019). “Under New York law, a malicious-prosecution claim requires a plaintiff to show (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for the defendant's actions.” Id. at 163-164 (internal quotations omitted).

II. Motions in Limine

Having identified the elements for the claims at issue in this trial, the Court applies the Federal Rules of Evidence to analyze Mr. Prophete's five motions in limine and then Defendants’ nine motions in limine.

A. Mr. Prophete's Motions in Limine

1. Mr. Prophete's First Motion in Limine: Cross-Examination of Sergeant Acevedo-Smith based on January 2019 Incidents

Pursuant to FRE 608(b)(1), Mr. Prophete seeks to cross-examine ² Sergeant Acevedo-Smith regarding disciplinary findings arising from unrelated subsequent incidents that did not involve Mr. Prophete. (ECF No. 116-1, at 5.) For the reasons stated below, Mr. Prophete's motion is DENIED.³

a. Sergeant Acevedo-Smith's Disciplinary Findings for the January Incidents

Mr. Prophete seeks to impeach Sergeant Acevedo-Smith's credibility on findings contained in disciplinary reports for unrelated later incidents, on January 1, 2019 and January 8, 2019 (collectively, “the January Incidents”), involving use of excessive force by Sergeant Acevedo-Smith against two other residents of the shelter. The disciplinary reports for both incidents found that Sergeant Acevedo-Smith used excessive force against arrestees but did not find that she was not credible or that she had lied.

For the January 1, 2019 incident, the disciplinary report found, inter alia:

[Sergeant Acevedo-Smith] testified that the client attempted to stomp her hand when she attempted to retrieve his wallet that fell on the floor while he was clearing “Search.” [Sergeant Acevedo-Smith] stated that the client was screaming and yelling at the DHS staff because he was unable to retrieve his belongings due to arriving after the specified period to retrieve his belongings. [Sergeant Acevedo-Smith] stated that the client violently slapped a bottle in the “Search” area. [Sergeant Acevedo-Smith] stated that she gave the command to handcuff the client, and that he heard and took a fighting stance and proceeded to remove his jewelry. [Sergeant Acevedo-Smith] stated that at this juncture she sprayed the client once with the pepper spray.

․

The evidence established that CCTV captured the client entering the facility approximately 10:36am through “Search,” clearing “Search”, and slapping a bottle off a firehose box in the direction of the Officers at “Search.” CCTV captured the Officers approaching the client and [Sergeant Acevedo-Smith] spraying the client. [Sergeant Acevedo-Smith]’s testimony was refuted by CCTV footage that established that the client had not moved from his position and did not adopt a fighting stance as alleged by [Sergeant Acevedo-Smith]. The CCTV footage does capture [Sergeant Acevedo-Smith] bending down to retrieve an item; however, [Sergeant Acevedo-Smith]’s body was blocked by another Officer, so it was not clear if the client attempted to stomp on [Sergeant Acevedo-Smith]’s hand.

(ECF No. 116-3, at 15) (underline added). Mr. Prophete contends that this finding – that “[Sergeant Acevedo-Smith]’s testimony was refuted by CCTV footage” – is part of a pattern of cover-ups of Sergeant Acevedo-Smith's use of excessive force. The findings do, however, also note that the CCTV footage corroborates portions of her account.

For the January 8, 2019 incident, the disciplinary report found, inter alia:

[Sergeant Acevedo-Smith] testified that the client was yelling and screaming at the house manager when she arrived on her tour. A staff member complained that the client was in -the cafeteria throwing chairs; subsequently, the client entered the hallway and had an exchange of words with a staff member. The client adopted a fighting a [sic] stance and picked up a chair, of which [Sergeant Acevedo-Smith] stated that she directed the client to release, but instead the client proceeded to tug on the chair back and forth with her. [Sergeant Acevedo-Smith] stated that at this juncture she sprayed the client with her OC (pepper) spray, while the officers were wrestling him to the ground.

․

Upon review of the circumstances which led to [Sergeant Acevedo-Smith] utilizing her OC Spray, the client does appear to be visibly upset and may very well be making threats towards staff and DHS officers. However, at the time the OC Spray is utilized, the client's hands are in his pockets and although he may have made threats that he was going to throw a chair at someone, he is not taking any action to suggest that was about to happen. Additionally, it does not appear that the DHS officers anticipated that [Sergeant Acevedo-Smith] was going to be deploying her OC Spray based on their demeanor at the time; all three (3) officers appear to have their hands in their pockets. Furthermore, the PSR 4 mentions that the client grabbed a chair in a threatening manner acting like he was going to throw it at staff and DHSPD. That does not appear to have happened; at least not in the minutes leading up to his arrest and detainment. The other documents generated in connection with the arrest 5 also appear to contain detains [sic] which embellish the actions of the client.

(ECF No. 116-3, at 16, 54) (underlines added). The January 8, 2019 disciplinary report, unlike the January 1, 2019 report, ultimately made a finding that “documents generated in connection with the arrest” “contained” apparent “embellish[ed]” details about “the actions of the [arrestee]” against whom Sergeant Acevedo-Smith used excessive force. (ECF No. 116-3, at 54.)

“[FRE] 608(b) prohibits a party from presenting extrinsic evidence of specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility.” United States v. Crowley, 318 F.3d 401, 417 (2d Cir. 2003) (cleaned up). “The rule, however, permits the witness to be examined about such specific conduct, in the discretion of the court, if probative of truthfulness or untruthfulness.” Id. (internal quotations omitted). “[C]ourts in this Circuit have ․ permitted cross-examination about adverse credibility findings made by non-judicial actors, including police commissioners and administrative law judges. Martinez v. City of New York, No. 16-CV-79 (NRM) (CLP), 2022 WL 20042798, at *4 (E.D.N.Y. Dec. 4, 2022); see also Hardy v. Adams, No. 17-cv-1382 (BKS)(CFH), 2024 WL 838689, at *3 (N.D.N.Y. Feb. 28, 2024) (collecting cases). The Court therefore applies FRE 608(b) to the analysis of the disciplinary findings at issue.

b. Timing of adverse credibility findings

As a threshold matter, the Court considers whether it may permit cross-examination on alleged adverse credibility findings that occurred after the events at issue in this case. United States v. White, 692 F.3d 235 (2d Cir. 2012) is instructive. In White, the Second Circuit held that the district court erred by excluding an adverse credibility finding made on March 31, 2009 – nearly eight months after the August 6, 2008 events at issue in that case. The Second Circuit's use of the word “prior” in analyzing a “prior adverse credibility finding,” see id. at 251, refers to adverse credibility findings prior to trial, not prior to the events at issue in the case. After all, when a witness takes the stand, they put at issue their current credibility rather than their past credibility. See e.g., Perkowski v. Town of Brookhaven, No. 18-CV-5480 (NRM) (LGD), 2023 WL 1863513, at *2 (E.D.N.Y. Feb. 9, 2023) (“Plaintiff's quarter-century-old conviction — which stemmed from Plaintiff's nearly 30-year-old criminal conduct — simply has little to no bearing on his current character for truthfulness.”) (emphasis added); see also AdVantage Tel. Directory Consultants v. GTE Directories, 37 F.3d 1460, 1464 (11th Cir. 1994) (“Temporally remote acts are only weakly probative of the witness's current credibility.”) (emphasis added); see also Dalton v. Dinwiddie, 273 F. App'x 724, 727 (10th Cir. 2008) (“Given that the conviction occurred thirty-seven years ago, the connection between this impeachment evidence and Ray's current credibility is minimal.”) (emphasis added). The Court therefore finds that FRE 608(b) does not bar the use of adverse credibility findings that occurred after the incident at issue and prior to trial.

c. Legal standard for cross-examination based on adverse credibility findings

As explained below, the Second Circuit has not applied a consistent standard for evaluating adverse credibility findings for testifying law enforcement officers. The Court will review in depth the Second Circuit case law on FRE 608(b) to ascertain the standard applicable to the disciplinary findings at issue in this motion.

First, in United States v. Cruz, 894 F.2d 41 (2d Cir. 1990), the Second Circuit “concluded that a prior adverse credibility finding by a federal judge was not relevant to the credibility of that same witness in a later proceeding because (a) the judge had not found a general lack of veracity on the part of the witness, and (b) there was no connection between the subject matter of the two cases.” White, 692 F.3d at 249 (citing Cruz, 894 F.2d at 43.) But “[m]ore recently, in Cedeño, ․ [the Second Circuit] noted that ‘Cruz ․ did not purport to set out a rigid two-part test.’ ” White, 692 F.3d at 249 (quoting United States v. Cedeño, 644 F.3d 79, 82 (2d Cir. 2011)). Cedeño appeared to narrow the holding of Cruz to only its unique facts, finding that “Cruz held that consideration of these two factors was sufficient to avoid a finding of abuse of discretion on the particular facts of that case only; it did not hold that consideration of these two factors is sufficient to avoid such a finding in all cases.” Cedeño, 644 F.3d at 82 (emphasis added). Nonetheless, in White, decided the following year, the Second Circuit hinted that Cruz may have broader application “in certain cases.” See White, 692 F.3d at 250 n.7 (“Though not sufficient in the instant case, we leave open the possibility that in certain cases, consideration of only the two Cruz factors might be appropriate and support an evidentiary ruling.”) In any event, Cedeño, supported by the subsequent holding in White, raised concerns that “[a] rigid application of Cruz could unduly circumscribe ․ a trial court's discretion in a manner contrary to the plain meaning of Rule 608(b)(1).” Cedeño, 644 F.3d at 82 (internal quotations omitted).

The Cedeño Court “articulated seven non-exhaustive factors for courts to consider in determining the probity and relevance of a prior incident in which a court has criticized a witness's testimony as unworthy of belief: (1) whether the prior judicial finding addressed the witness's veracity in that specific case or generally; (2) whether the two sets of testimony involved similar subject matter; (3) whether the lie was under oath in a judicial proceeding or was made in a less formal context; (4) whether the lie was about a matter that was significant; (5) how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness; (6) the apparent motive for the lie and whether a similar motive existed in the current proceeding; and (7) whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible.” White, 692 F.3d at 249 (internal quotations omitted) (citing Cedeño at 82-83).

It bears noting, however, that in between the Second Circuit's rulings in Cedeño and White, the Second Circuit issued two non-precedential summary orders regarding the scope of FRE 608(b) without citing to the Cedeño factors at all. First, in United States v. Horsford, the Second Circuit held, “[a]pplying Rule 608(b), ․ that a district court does not abuse its discretion in prohibiting inquiry, where, as here, the prior acts involve no deceit or falsification.” 422 F. App'x 29, 30 (2d Cir. 2011) (summary order).⁶ Second, in United States v. Teron, the Second Circuit found (without reference to the Cedeño factors) that the district court did not abuse its discretion by “exclud[ing] cross-examination of a police sergeant regarding a Civilian Complaint Review Board's (‘CCRB’) determination that an unrelated complaint against him was substantiated.” Teron, 478 F. App'x 683, 684–85 (2d Cir. 2012) (summary order). In Teron, the Second Circuit appeared to raise the bar on what inaccuracies rise to the level of an adverse credibility finding that would warrant impeachment on cross-examination. Specifically, the Second Circuit found that an adverse credibility finding in a CCRB investigator's report alone, without adoption by the CCRB's voting members, did not necessarily warrant cross-examination:

Although the CCRB investigator's report notes that “Clements's account of the incident was not credible,” the CCRB did not make any findings with respect to Sergeant Clements's credibility and did not specifically adopt the investigator's report. Indeed, each voting CCRB member left blank that section of the voting form in which “other misconduct” could be recorded. There is no basis to infer that the CCRB adopted the investigator's statements regarding Sergeant Clements's credibility when it voted to substantiate the improper search. The district court did not abuse its discretion under Fed. R. Evid. 608(b) by limiting this area of inquiry on cross-examination.

Teron, 478 F. App'x at 685. Courts have not uniformly adopted the Second Circuit's non-precedential holding in Teron. See e.g., United States v. Jackson, No. 19-CR-356 (ARR), 2020 WL 6738155, at *3 (E.D.N.Y. Nov. 16, 2020) (“[A]lthough the Second Circuit found no abuse of discretion in Teron, I am not convinced that a district court is always required to ignore an investigator's determination of incredibility․”). In sum, the Second Circuit case law on the application of FRE 608(b) remains somewhat unsettled as to what findings in an officer's disciplinary report constitute adverse credibility findings that would warrant cross-examination.

In evaluating the disciplinary findings at issue here, the Court applies the Cedeño/White factors as binding and the nonbinding summary orders in Horsford and Teron as persuasive. Reviewing the body of the Second Circuit case law as a whole, some clear guidance emerges: A disciplinary finding that an officer's statements was merely inaccurate (or inconsistent with other evidence) is not enough to warrant cross-examination. Instead, to warrant cross-examination, the disciplinary finding must, inter alia, contain language suggesting that the officer's inaccurate statement was the result of dishonesty rather than a product of accident or inadvertence.

d. Analysis

The Court analyzes the findings from the January 2019 incidents using the seven non-exhaustive Cedeño/White factors ⁷ to determine whether cross-examination based on disciplinary findings from the January Incidents are, under FRE 608(b)(1), “probative of [Sergeant Acevedo-Smith's] character for truthfulness or untruthfulness.”

The first Cedeño/White factor is “whether the prior ․ finding addressed the witness's veracity in that specific case or generally.” White, 692 F.3d at 249. As a threshold matter, the disciplinary finding for the January 1, 2019 incident did not address Sergeant Acevedo-Smith's veracity at all.⁸ The report found that she had applied excessive force and that certain testimony she provided regarding the arrestee “was refuted by CCTV footage.” (ECF No. 116-3, at 15.) The disciplinary finding for the January 8, 2019 incident also does not make any clear adverse credibility finding, only going so far as to state that “other documents generated in connection with the arrest also appear to contain detains [sic] which embellish the actions of the [arrestee].” (ECF No. 116-3, at 84) (emphasis added). This vague and conclusory disciplinary finding fails to identify which documents included any embellished details, what details were embellished, and whether any of the embellishments were material. Even if the disciplinary finding for the January 8, 2019 incident could arguably be characterized as a credibility finding, it related only to a particular, unspecified aspect of Sergeant Acevedo-Smith's statements regarding the January 8, 2019 incident.

The second Cedeño/White factor is “whether the two sets of testimony involved similar subject matter.” White, 692 F.3d at 249. Although the precise details of each incident necessarily differ, Sergeant Acevedo-Smith's testimony for the January Incidents included – similar to Mr. Prophete's claims – allegations of excessive force against a resident of Samaritan Village and a subsequent allegedly inaccurate narrative of the arrestee's conduct.

The third and fourth Cedeño/White factors – “whether the lie was under oath in a judicial proceeding or was made in a less formal context” and “whether the lie was about a matter that was significant,” see White, 692 F.3d at 249 – weigh against permitting cross-examination on disciplinary findings related to the January Incidents. The most serious accusation (a vague and conclusory finding of apparent embellishment, (see ECF No. 116-3, at 84)) arose from testimony at an “informal conference” with no indication that such testimony was under oath. (Id. at 12.)

The fifth and seventh factors are minimally relevant,⁹ and the Court will complete its Cedeño/White analysis with the sixth factor: “the apparent motive for the lie and whether a similar motive existed in the current proceeding.” White, 692 F.3d at 249. Mr. Prophete alleges that, both in the January Incidents and in the incident involving him, Sergeant Acevedo-Smith used excessive force and then attempted to cover it up by providing a false account of the arrestee's conduct such that her use of force would appear justified. While it is for the jury to decide the claims in this case, the Court finds that “the apparent motive” in embellishing the conduct of the arrestee would, if substantiated at trial, be a similar motive to that of the January Incidents.

Having analyzed the disciplinary findings for the January Incidents under the Cedeño/White factors, the Court finds that Mr. Prophete has not met his burden to show that he is entitled to cross-examination on the January 2019 disciplinary findings. The findings do not contain any clear adverse credibility findings. The disciplinary findings for the January 1, 2019 incident raise an inaccuracy but no credibility finding. The disciplinary findings for the January 8, 2019 incident involve, at worst, apparent embellishments – the details of which are unspecified. As discussed earlier, this vague and conclusory disciplinary finding fails to identify which documents included any embellished details, what details were embellished, and whether any of the embellishments were material. Balancing the Cedeño/White factors, the Court finds that the disciplinary findings arising from the January Incidents do not constitute adverse credibility findings that entitle Mr. Prophete to cross-examination.

Finally, cross-examination on vague and conclusory findings of apparent embellishments should also be excluded under FRE 403, which permits the exclusion of impeachment information, even if relevant, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The Court finds that cross-examination on vague and conclusory findings related to the January Incidents risks unfair prejudice as well as misleading and confusing the jury because the findings lack any meaningful specificity or probative value. For all the reasons explained above, this motion is DENIED.

2. Mr. Prophete's Second Motion in Limine: January Incidents as evidence of motive, intent, and common plan

Mr. Prophete moves under FRE 404(b)(2) “to admit evidence of the January [I]ncidents for the purpose of proving defendant's motive, intent, malice, and the existence of a common plan.” (ECF No. 116-1, at 18.) “[W]hile the previous motion concerned [Sergeant Acevedo-Smith]’s false statements regarding the January [I]ncidents, this motion concerns the January [I]ncidents themselves.” (Id.) For the reasons explained below, Mr. Prophete's second motion is DENIED.

Mr. Prophete's argument that the January Incidents were part of a common plan that included the assault, false arrest, and malicious prosecution of Mr. Prophete approximately three months earlier is meritless. Though “subsequent similar acts” may be admissible when they are “substantially relevant for a purpose other than merely to show defendant's criminal character or disposition,” see United States v. Cavallaro, 553 F.2d 300, 305 (2d Cir. 1977), Mr. Prophete has not met his burden to show “the existence of a definite project” or common plan. Carofino v. Forester, 450 F. Supp. 2d 257, 272 (S.D.N.Y. 2006). Even if there are notable similarities between the January Incidents and Mr. Prophete's allegations, the existence of similar wrongdoing on two subsequent occasions approximately three months afterwards is not sufficient to admit evidence of, much less prove, “the existence of a definite project” or plan that encompasses all three incidents.¹⁰ Additionally, the Court finds under FRE 403 that evidence of the January Incidents would be unduly prejudicial and risk confusing and misleading the jury because of the risk that such evidence would be used for improper propensity inferences.

3. Mr. Prophete's Third Motion in Limine: Defendants’ Exhibit A

Mr. Prophete seeks to exclude Defendants’ Exhibit A, a report by Shairon McCallum describing the incident involving Mr. Prophete. (ECF No. 116-1, at 27.) This motion is GRANTED. As a threshold matter, the report is double hearsay because it does not appear to be based on Ms. McCallum's personal knowledge. (See ECF No. 116-7, at 2) (“HS [presumably Homeless Services] was informed that the client was involved․”) (emphasis added)). It is unknown who provided the information that appeared in Ms. McCallum's report, and the Defendants cite to no Federal Rule of Evidence or case law to support admission of the report, even as rebuttal evidence. (See ECF No. 119, at 20.) The Court therefore finds Ms. McCallum's report inadmissible.

4. Mr. Prophete's Fourth Motion in Limine: Defendants’ Exhibit D

Mr. Prophete seeks to exclude Defendants’ Exhibit D, “a series of reports of incidents involving plaintiff between the years 2014 and 2019.” (ECF No. 116-1, at 28.) Defendants state that they “do not wish to include Exhibit D as evidence in their case in chief.” (ECF No. 119, at 20.) Defendants state that they “strictly intend on using any portion of Exhibit D as impeachment evidence, should Plaintiff testify, for example, that he has never been involved in any altercations while living at Samaritan Village, or makes comments of a similar nature.” (Id.) Mr. Prophete's motion to exclude Exhibit D is GRANTED, except as to cross-examination if Mr. Prophete “opens the door” by asserting that he was not involved in any prior altercations. If Mr. Prophete testifies that he was not involved in any prior altercations while living at Samaritan Village, he may be cross-examined on those incidents. Neither party is permitted to inquire as to Mr. Prophete's past incidents at Samaritan Village, and therefore there should not be any need to admit Exhibit D (or information contained therein) to impeach or rebut Mr. Prophete.

5. Mr. Prophete's Fifth Motion in Limine: Pleadings as evidence

Mr. Prophete believes “[b]ased on the parties’ informal discussions” that Defendants may seek to introduce the parties’ pleadings, including Mr. Prophete's pro se complaints, as substantive evidence. (ECF No. 116-1.) The three claims to be tried – Section 1983 claims of excessive force, false arrest, and malicious prosecution – have been narrowed since the filing of Mr. Prophete's pro se complaints and therefore admission of the pleadings would be particularly confusing to the jury. Mr. Prophete seeks to exclude admission of his pleadings into evidence. (Id.) The Court GRANTS Mr. Prophete's fifth motion in limine to preclude admission of Mr. Prophete's pleadings except as provided herein.

“[A]llegations contained in unverified pleadings are not evidence.” Gov't Emps. Ins. Co. v. Strut, 758 F. Supp. 3d 140, 147 (W.D.N.Y. 2024). “[U]nverified allegations of [a] Complaint do not ․ constitute a factual showing of anything.” Id. at 146 (internal quotations omitted). In this case, Mr. Prophete filed a pro se complaint, (ECF No. 1), followed by a pro se amended complaint, (ECF No. 7), which is the operative complaint in this case. The Court finds no basis to admit Mr. Prophete's pleadings as evidence, especially since Mr. Prophete's original claims have since been narrowed to the three claims that will be tried. However, if Defendants are able to make a showing of a material inconsistency between Mr. Prophete's trial testimony and the factual allegations he pleaded, the Court will then consider whether there is a proper basis to permit the use of certain excerpts of the pleadings, for example, as impeachment by prior inconsistent statement.

B. Defendants’ Motions in Limine

1. Defendants’ First Motion in Limine: Mr. Prophete's testimony about medical conditions

In their first motion in limine,¹¹ Defendants seek to limit Mr. Prophete's testimony about various health conditions both related and unrelated to the incident at issue in this case:

(1.a) “Plaintiff must be precluded from offering evidence or argument regarding claims of physical or psychological damages which cannot be causally connected to his October 2, 2018 arrest. (ECF No. 115, at 9.)

(1.b) “Plaintiff should be precluded from offering any evidence of psychological diagnoses or treatment following the incident and any evidence of prior or post-incident physical conditions, including, but not limited to, any mention of retinal holes, glaucoma, worsening vision, or high blood pressure/hypertension.” (Id. at 10.)

(1.c) “[P]laintiff should be precluded from offering evidence regarding any purported psychological injuries beyond ‘garden variety’ emotional distress—i.e., mental anguish, shock, fright, apprehension, embarrassment, humiliation—and the jury should be instructed that plaintiff is claiming only ‘garden variety’ emotional injuries.” (Id.)

(1.d) “[A]ny testimony by plaintiff regarding medical diagnoses or other statements made by plaintiff's medical providers constitutes inadmissible hearsay, and thus should be precluded.” (Id. at 11.)

(1.e) “[P]laintiff should be precluded from testifying about his previous mental health diagnoses under Rule 403.” (Id. at 12.)

In sum, Defendants argue “plaintiff's damages should ․ be limited to his time in custody while in the hospital, garden variety emotional damages, and temporary pain caused by the OC spray.” (ECF No. 115, at 12.) Mr. Prophete responds, inter alia, that “[p]rior diagnoses ․ provide important context for the jury to evaluate the impact of defendants’ misconduct.” (ECF No. 120, at 6.)

As explained below, Defendants’ motion to preclude Mr. Prophete's testimony regarding physical and psychological damages, conditions, and diagnoses is GRANTED IN PART and DENIED IN PART. Mr. Prophete may, as a lay witness, testify as to any and all physical and psychological symptoms he experienced leading up to, during, and in the aftermath of the incident at issue in this case. He may also testify as to the fact that he sought medical care or needed to undergo testing or procedures. As a lay witness, however, Mr. Prophete is not permitted to testify as to specific diagnoses related to this incident ¹² or offer causation testimony connecting the incident to any particular medical diagnosis.¹³

Lay witnesses “may testify about their injuries and symptoms, and even describe procedures they underwent that are relevant to claims at issue.” United States v. James, 607 F. Supp. 3d 246, 262 (E.D.N.Y. 2022). “This testimony can include Plaintiff's own perceptions, including the physical and emotional effects Plaintiff experienced at certain times.” Mercado v. Dep't of Corrections, No. 3:16-CV-01622-VLB, 2019 WL 625697, at *2 (D. Conn. Feb. 14, 2019) (internal quotations omitted).

As to the issue of causation, a “[p]laintiff can only lay the groundwork for the jury to infer causation by testifying about his condition” before, during, and after the incident. Mercado, 2019 WL 625697, at *2. “[C]ausation in complex medical cases tends to require the testimony of an expert witness.” Colson v. Mingo, No. 18-CV-2765 (JGLC), 2025 WL 688832, at *3 (S.D.N.Y. Mar. 4, 2025). “Where ․ the nexus between the injury and the alleged cause would not be obvious to the lay juror, expert evidence is often required to establish the causal connection between the [event] and some item of physical or mental injury.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (cleaned up). As stated earlier, Mr. Prophete's injury-related testimony must be limited in scope to what he personally experienced as a lay witness, and Mr. Prophete is precluded from testifying as to specific diagnoses related to this incident or offering causation testimony between the alleged assault and any particular medical diagnosis.

2. Defendants’ Second Motion in Limine: References to “City Attorneys” and Indemnification

Defendants seek to preclude Mr. Prophete from referring to Defendants’ attorneys as “City Attorneys” and from revealing the existence of indemnification agreements. (ECF No. 115, at 12-13.) This motion is GRANTED. Mr. Prophete has agreed not to refer to counsel for Defendants as “City Attorneys” or offer evidence of indemnification. (ECF No. 120, at 8.) Mr. Prophete may elicit testimony that Defendants worked for a city agency.

3. Defendants’ Third and Fourth Motions in Limine: Punitive Damages and Request for Specific Dollar Amounts

In their third motion in limine, Defendants seek to preclude Mr. Prophete from requesting a specific dollar amount from the jury. Defendants’ third motion is GRANTED. In their fourth motion in limine, Defendants seek to preclude a punitive damages instruction. The Court RESERVES DECISION on Defendants’ fourth motion regarding a punitive damages instruction.

Consistent with its prior practice, see Scoma v. City of New York, No. 16-cv-6693 (KAM) (SJB), 2021 WL 1784385, at *13–14 (E.D.N.Y. May 4, 2021), the Court reserves decision on whether a punitive damages instruction is warranted until the facts have developed at trial and the parties have rested. Until that point, Mr. Prophete shall refrain from mentioning punitive damages to the jury.

a. Defendants’ Third Motion: Specific Dollar Amounts for Damages

The Second Circuit has expressed a preference, though not a categorical rule, against permitting plaintiffs from asking juries for specific dollar amounts for pain and suffering and punitive damages. See Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1016 (2d Cir. 1995) (“While this court has not adopted a per se rule about the propriety of suggested damage amounts ․ we wish to emphasize that specifying target amounts for the jury to award is disfavored” because “[s]uch suggestions anchor the jurors’ expectations of a fair award at a place set by counsel, rather than by the evidence.”) Consistent with its prior practice, this Court will not permit Mr. Prophete to request a specific dollar amount for non-economic damages (including pain and suffering) and punitive damages if the Court permits punitive damages to be considered. See Scoma, 2021 WL 1784385, at *13; see also EEOC v. United Health Programs of America, No. 14-CV-3673 (KAM) (JO), 2017 WL 10088567, at *13 (E.D.N.Y. Sept. 4, 2017) (precluding plaintiffs from suggesting or requesting at trial a specific dollar amount regarding their noneconomic damages); Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 558 (E.D.N.Y. 2011) (precluding plaintiff's counsel from submitting a specific dollar amount regarding damages for pain and suffering, but permitting plaintiff's counsel to submit a dollar amount regarding other compensable damages if supported with admissible evidence during case in chief).

b. Defendants’ Fourth Motion: Punitive Damages Instruction

“A punitive damages instruction is appropriate when the plaintiffs have produced evidence that the defendant's conduct is motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others, or, in other words, when the plaintiffs have produced evidence of a positive element of conscious wrongdoing or malice.” Cameron v. City of New York, 598 F.3d 50, 69 (2d Cir. 2010) (cleaned up). “The plaintiffs’ evidence need only be enough to permit the factfinder to infer that the responsible official was motivated by malice or evil intent or that he acted with reckless or callous indifference.” Id. Direct evidence is not required because “[a]s with liability determinations, a jury can rely on circumstantial evidence to reasonably infer the requisite mental state for an award of punitive damages.” Ortiz v. Stambach, 137 F.4th 48, 71 (2d Cir. 2025). The Court will reserve decision until the close of evidence to determine whether Mr. Prophete is entitled to a punitive damages instruction.

4. Defendants’ Fifth Motion in Limine: Disciplinary histories

Defendants argue Mr. Prophete “should be precluded from introducing evidence relating to DHS or NYPD investigations, disciplinary histories, personnel files, or prior lawsuits, including Plaintiff's proposed Exhibit 17, and all of its sub-parts.” (ECF No. 115, at 17.) This motion is duplicative of Mr. Prophete's first and second motions in limine (the admissibility of disciplinary findings related to Sergeant Acevedo-Smith), and the Court therefore incorporates its reasoning and rulings on those motions here. Mr. Prophete has not proven that any specific records in Exhibit 17 are admissible in this trial, and therefore Defendants’ fifth motion to preclude is GRANTED.

5. Defendants’ Sixth Motion in Limine: Unrelated Misconduct and Certain Colloquial Language

“Defendants request that the Court bar plaintiff from referring to unrelated purported instances of misconduct, class actions, and criminal investigations” as well as “using terminology and colloquialisms including, but not limited to, such terms as ‘testilying,’ ‘blue wall of silence,’ or the like.” (ECF No. 115, at 20-21) (emphasis added). Mr. Prophete “does not oppose defendants’ sixth motion.” (ECF No. 120, at 14.) This motion is GRANTED.

6. Defendants’ Seventh Motion in Limine: Evidence relating solely to dismissed or withdrawn claims

Defendants argue that “[p]laintiff should be precluded from introducing evidence or making arguments that relate solely to claims that have been dismissed.” (ECF No. 115, at 21.) This motion is GRANTED.

Mr. Prophete responded with a “limited opposition” to the motion, emphasizing that Mr. Prophete should not be categorically precluded from admitting evidence that merely pertains to dismissed or withdrawn claims. The Court interprets Defendants’ motion as restricted to facts “that relate solely to claims that have been dismissed.” (ECF No. 115, at 21.) (emphasis added). Evidence that relates solely to claims not being tried is excluded, and Mr. Prophete is cautioned not to confuse the jury by introducing or mentioning such evidence.

7. Defendants’ Eighth Motion in Limine: DHS policies or procedures

Defendants argue that Mr. Prophete “should be precluded from referring to and offering any evidence or argument regarding alleged ‘violations’ of DHS policies or procedures” because “alleged violations of DHS policies or procedures by the defendants are irrelevant to the determination of whether plaintiff's constitutional rights were violated.” Defendants’ argument is meritless, and the motion is DENIED. Admission of DHS policies or procedures is, however, restricted to specific relevant excerpts that are probative to the specific claims at issue in this case: excessive force, false arrest, and malicious prosecution. Mr. Prophete shall provide copies of proposed excerpts to Defendants and the Court no later than June 23, 2025.

“[C]ourts in this Circuit regularly admit sections of” agency policies and guidelines, including “patrol guides in § 1983 cases to aid the jury in its determination of whether an officer's actions were reasonable.” Martinez v. City of New York, No. 16-cv-79 (NRM) (CLP), 2022 WL 17090267, at *14 (E.D.N.Y. Nov. 18, 2022) (collecting cases). The “inquiry into the reasonableness of police force requires analyzing the totality of the circumstances,” Barnes, 145 S. Ct. at 1358 (internal quotations omitted), and agency policies and guidelines (which provide objective standards for officer conduct) are probative as to how an objectively reasonable officer in the defendants’ position would have acted.

The jury will be instructed that, even if Mr. Prophete proves that Defendants violated DHS policies and procedures, Mr. Prophete must still prove that Defendants’ actions, based on the totality of the circumstances, violated his constitutional rights in order to prevail on his claims.

8. Defendants’ Ninth Motion in Limine: Exhibit 11

Defendants seek to exclude Exhibit 11, (see ECF No. 115, at 26), and Mr. Prophete “has offered to withdraw exhibit 11,” (see ECF No. 120, at 16). Given that Mr. Prophete is not seeking to admit Exhibit 11, the Defendants’ motion is DENIED AS MOOT.

9. Use of the word “destroyed” when referring to surveillance footage

In between responses to Mr. Prophete's motions in limine, Defendants raised an unrelated issue regarding whether Mr. Prophete should be precluded from arguing that Defendants “destroyed” the surveillance footage for the incident at issue. (See ECF No. 119, at 18-19.) Mr. Prophete alleges that, on the day of the incident, he “sent an email to the DHS Complaint Review Department in which he complained about the abuse and requested that DHS officials review the video footage, which would show he did not threaten anyone.” (ECF No. 116-1, at 6.) Mr. Prophete argues that his “complaint was ignored, and the video footage was destroyed.” (Id.) Defendants correctly argue that Mr. Prophete cannot use a word like “destroyed” without Mr. Prophete first making and the Court granting a motion for sanctions based upon spoliation of the evidence pursuant to Federal Rule of Civil Procedure 37(e)(2). (ECF No. 119, at 18.) Having considered the parties’ arguments, the Court will permit Mr. Prophete to argue that Defendants “failed to preserve” the surveillance footage only if he is able to lay a foundation that (i) cameras existed that would have captured the scene at issue in this trial; (ii) the cameras were operational and recording at the time of the incident; and (iii) DHS had notice that they should preserve the footage. On the facts currently in the record, the Court will not permit Mr. Prophete to state that Defendants “destroyed” the footage, if it existed.

III. Preliminary Rulings on Admissibility of Proposed Exhibits

The Court now turns to the parties’ proposed exhibits. The Court will issue preliminary rulings below on the admissibility of the proposed exhibits and incorporate its rulings on the parties’ motions in limine.

A. Preliminary Rulings on Plaintiff's Exhibits and Defendants’ Objections:

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B. Preliminary Rulings on Defendants’ Exhibits and Plaintiff's Objections:

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CONCLUSION

Having ruled on the parties’ motions in limine and the admissibility of the parties’ proposed exhibits, the Court directs the parties to narrow their proposed list of final exhibits to only the relevant excerpts that are admissible in light of the Court's rulings in this Memorandum & Order. The parties are further directed to confer in good faith and endeavor to resolve any lingering disagreements about factual stipulations and the admission of exhibits by June 23, 2025. Finally, the parties are reminded to comply with the requirements set forth in the Court's Pre-Trial Scheduling Order. (See ECF No. 114.)

Pursuant to the Court's Pre-Trial Scheduling Order, the parties are reminded to file via ECF the following by June 23, 2025:¹⁴

a. A stipulated statement of the case briefly describing the nature of the case and issues to be tried;

b. A final list of exhibits and a final list of witnesses, including, with respect to any expert witness, a description of qualifications and a summary of expected testimony;

c. A list of persons, including attorneys; corporations; entities; institutions; places; and scientific, technical or colloquial terms that will be referred to by counsel or witnesses during the trial, for the use of the court in voir dire of prospective jurors and to assist the court reporter in recording the proceedings;

d. Voir dire requests;

e. Proposed verdict forms, special verdict forms, and proposed special interrogatories, if applicable;

f. Proposed requests to charge, with legal authority cited for each request, which the parties intend to ask the court to consider without prejudice to the parties’ right to submit additional requests to charge, the need for which was not apparent prior to trial, at the conclusion of the taking of evidence; and

g. If recordings and transcripts are to be used either as substantive evidence or as aids to the jury, a single copy shall be appropriately marked by all parties to indicate portions to be read and portions to be objected to, after the parties have attempted in good faith to resolve any disputes.

Also pursuant to the Court's Pre-Trial Scheduling Order, (see ECF No. 114), the parties, by June 23, 2025, shall:

a. Make every effort to enter into stipulations of fact, including as to the authenticity of all documents intended to be offered as evidence at trial, and to give notice as to all objections to authenticity so as to permit the adversary to have available at trial all necessary foundation witnesses.

b. The parties shall file a revised Joint Pre-trial Order, in the form specified in the Court's pretrial practices, including but not limited to:

○ (i) witness and exhibit lists;

○ (ii) all stipulations of fact;

○ (iii) any objections to the admissibility of evidence still remaining; and

○ (iv) a streamlined and updated view of the case after the parties have met and conferred.

The parties are directed to carefully read the entirety of this Memorandum & Order and to incorporate its analysis and rulings into their next filings in this case.

So ordered.

FOOTNOTES

1.   The claims to be tried have been narrowed since the filing of Mr. Prophete's operative complaint, (ECF No. 7), in January 2020. The parties agree the remaining claims are Section 1983 claims of excessive force, false arrest, and malicious prosecution. (ECF No. 113, at 2-3.)

2.   Although Mr. Prophete's motion in limine references cross-examination, Sergeant Acevedo-Smith is listed on the parties’ Proposed Joint Pretrial Order as a plaintiff's witness. Whether the impeachment of Officer Acevedo Smith occurs on direct examination or cross-examination, the analysis is the same because, under FRE 607, “[a]ny party, including the party that called the witness, may attack the witness's credibility.”

3.   Mr. Prophete's first and second motions in limine cover much of the same issues as Defendants’ fifth motion in limine. Therefore the analysis and rulings on Mr. Prophete's first and second motions in limine are incorporated later in this Memorandum & Order in the Court's ruling on Defendants’ fifth motion in limine.

4.   Based on Plaintiff Exhibit 1, “PSR” here likely refers to “Police Service Report.”

5.   According to the disciplinary report, Sergeant Acevedo-Smith was “listed as the ‘Supervisor Approving’ NYPD Complaint Report,” see ECF No. 116-3, at 83, which indicates she had official responsibility for the documents generated in connection with the January 8, 2019 arrest.

6.   It remains somewhat unclear in the subsequent case law whether an unambiguous, formal finding of a “lie,” see White, 692 F.3d at 249, “deceit,” or “falsification,” see Horsford, 422 F. App'x at 30, is required to permit cross-examination on that basis. Given that “district courts are not constrained by any rigid test when considering the admissibility of prior adverse credibility findings,” White, 692 F.3d at 250 n.7, the Court finds that no talismanic words are required for an adverse credibility finding. In White, for example, the adverse credibility findings (resulting in the vacatur and remand) were contained in a passage of a judicial opinion that identified inconsistencies in an officer's testimony and noted that “the Court cannot credit” some of the officer's key testimony. White, 692 F.3d at 241 (citing United States v. Goines, 604 F. Supp. 2d 533, 540-44 (E.D.N.Y. 2009)). Nonetheless caution is prudent because certainly not every disciplinary finding of inaccuracy suggests dishonesty. FRE 608(b) permits cross-examination on impeachment information that bears on a witness's credibility, not merely the accuracy of his or her recollection. For example, as this Court has previously held, where the CCRB found an officer's account “relatively credible” (rather than completely credible) due to “understandable confusion,” impeachment on that credibility finding was not warranted. See United States v. Daniels, 566 F. Supp. 3d 191, 196 n.3 (E.D.N.Y. 2021).

7.   Though not covered by a Cedeño/White factor, the Court notes that, until the proceedings related to the January 2019 incidents, Sergeant Acevedo-Smith had “no prior disciplinary history” in her last 16 years with the Department of Homeless Services. (ECF No. 116-3, at 13-14.)

8.   Nonetheless, out of an abundance of caution, the Court will still analyze the rest of the Cedeño/White factors for the January 1, 2019 incident.

9.   The fifth factor is “how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness.” White, 692 F.3d at 249. The Court finds no intervening credibility determinations, and the time elapsed since the January 2019 incidents and the disciplinary proceedings does not materially affect the analysis. The seventh factor is “whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible.” White, 692 F.3d at 249. There is no indication that Sergeant Acevedo-Smith was confronted with and requested to explain the purported inaccuracies in her testimony vis-à-vis the CCTV footage and, therefore, the Court cannot weigh this factor. The apparent lack of an opportunity for Sergeant Acevedo-Smith to explain the inaccuracies weighs somewhat against permitting cross-examination on the disciplinary findings.

10.   Further, for claims involving objective standards of police conduct (like Mr. Prophete's Section 1983 excessive force claim), Sergeant Acevedo-Smith's subjective intent would be irrelevant.

11.   Because the Defendants seek to exclude different subcategories of evidence within the same motion in limine, the Court subcategorizes the Defendants’ first motion into five subcategories, (1.a) through (1.e.).

12.   To provide relevant background and context, the parties may briefly elicit testimony that “Samaritan Village is a shelter designated for individuals with mental health disorders” and substance use disorders. (ECF No. 120, at 6.) Mr. Prophete may describe the mental health symptoms he experienced leading up to the incident, but he may not, as a lay witness, testify as to his prior mental health diagnoses. See Woolfolk v. Baldofsky, No. 19-cv-3815 (WFK)(ST), 2022 WL 2600132, at *4 (E.D.N.Y. July 8, 2022) (“Medical diagnoses ․ are highly technical and thus generally require specialized testimony” by an expert).

13.   In the Proposed Joint Pretrial Order, (ECF No. 113), Mr. Prophete indicated that he seeks to call as a witness Dr. Susan Shields, an optometrist who treated Mr. Prophete in 2022. (ECF No. 113, at 10.) Mr. Prophete has not explained how the results of an optometry visit (or treatment) in 2022 could plausibly relate to the 2018 incident at issue in this trial. The Court finds the relevance, if any, between the 2018 incident and a 2022 medical treatment too speculative and attenuated and therefore at risk of confusing or misleading the jury. Any evidence relating to Mr. Prophete's 2022 optometry visit is therefore inadmissible.

14.   The deadline to deliver to the Court the two required courtesy copies for the filings due on June 23, 2025 is noon on June 24, 2025.

Kiyo A. Matsumoto United States District Judge Eastern District of New York