Sodemann, Jason v. Melnick, Joshua et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JASON SODEMANN,
Plaintiff, OPINION AND ORDER
v.
22-cv-374-wmc
JOSHUA MELNICK, DANA MILLER,
and MELISSA POLLESCH,
Defendants.
Plaintiff Jason Sodemann, a state prisoner, is proceeding on claims that defendant
Joshua Melnick sexually harassed him and subjected him to unnecessary pat searches in
violation of the Eighth Amendment, as well as retaliated against him in violation of the
First Amendment for threatening to file a grievance about Melnick’s harassment. Plaintiff
is also proceeding on an Eighth Amendment claim that defendants Dana Miller and
Melissa Pollesch knew that Melnick was sexually harassing him, but failed to intervene.
The case is scheduled for a jury trial commencing on April 27, 2027, with final pretrial
conferences (“FPTC”) scheduled for April 7 at 2:30 p.m., and if necessary, on April 21 at
2:30 p.m. This order addresses the parties’ motions in limine (“MILs”). More specifically,
in omnibus motions, plaintiff has filed 14 motions in limine, while defendant has filed 15
more. (Dkts. ##124, 137.) For reasons explained below, these motions will be granted,
reserved and denied in part.
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OPINION
A. Plaintiff’s Omnibus Motion in Limine (dkt. #124)
1. Evidence of Defendants’ Good Character
Pursuant to Federal Rules of Evidence 401, 402, and 404, plaintiff moves to exclude
evidence that plaintiff and other prisoners regarded the defendants as “well-meaning
people.” (Dkt. #124, at 3-5.) Specifically, plaintiff seeks to exclude questions or testimony
about whether and why he stated at his deposition that he believes defendant Miller is “a
good person” who is “fair.” Plaintiff also seeks to exclude testimony about why he
previously stated at his deposition that he thinks Pollesch is a “nice person.” Similarly,
plaintiff seeks to exclude testimony from an inmate witness, James Cansler, who stated at
his deposition that he thought Miller was “fair” and “trustworthy” and was asked about
whether he considered Melnick “funny.”
Defendants do not address the testimony about Miller or Pollesch. Therefore, that
part of the motion is GRANTED as unopposed. However, defendants argue that the jury
must be allowed to hear any and all evidence relevant to Melnick’s subjective intent in
engaging in the objectionable conduct because the Eighth Amendment includes a subjective
element. (Dkt. #148, at 2.) Generally, a prison official’s conduct does not constitute cruel
and unusual punishment in violation of the Eighth Amendment unless “two requirements
are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the conduct “must be,
objectively, ‘sufficiently serious.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Conduct is sufficiently serious -- or objectively harmful -- if it is “incompatible with the
evolving standards of decency that mark the progress of a maturing society” or “involve[es]
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the unnecessary and wanton infliction of pain.” Hudson v. McMillian, 503 U.S. 1, 10 (1992)
(quoting Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)). Second, the “prison official must
have a ‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834 (quoting Wilson, 501
U.S. at 297). In other words, the official must act with “‘deliberate indifference’ to a
substantial risk of serious harm” of which they are “subjectively aware.” Id. at 828.
Subjective intent is not only relevant in a harassment case like this one, but also a
prerequisite to satisfy the Eighth Amendment standard. See Massey v. Hutschenreuter, No.
20-cv-159-jdp, 2021 WL 3856743, at *4 (W.D. Wis. 2021) (“[H]arassment is actionable
when the conduct is ongoing and intended to inflict physical or psychological harm on the
inmate.”) (emphasis added) (citing Lisle v. Welborn, 933 F.3d 705, 718 (7th Cir. 2019) and
Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2018)). However, general characterizations as
to his “fairness,” “decency,” “goodness” or general “kindness” are all improper propensity
evidence under Fed. R. Evid. 404(a).
Accordingly, the motion is DENIED as to inquiries into a witness’s perceptions of
defendant Melnick’s subjective intent in making derogatory statements to plaintiff or
similar statements to others, and general reputation for honesty if impugned, assuming a
sufficient foundation is laid for either, but not as to general conformity or propensity
evidence.
2. Profanity in Prison
Plaintiff argues that defendants should be prohibited under Fed. R. Evid. 402 and
403 from arguing that plaintiff’s rights were neither violated nor was he harmed by
defendant Melnick’s so-called “harassment,” because prisoners at Fox Lake Correctional
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Institution often use profane words and would falsely accuse each other of being “gay.”
(Dkt. #124, at 5-6.) Plaintiff argues that evidence of prisoners’ use of profane language is
misleading, because it creates a “false equivalence between prisoners and correctional
[officers],” who are in a position of power and responsible for persons in their care.
Defendants argue that evidence of the ubiquity of profanity in prison is relevant to
both a jury’s assessment of the objective and subjective elements of the plaintiff’s Eighth
Amendment claim. Farmer, 511 U.S. at 834. Objectively, the prevalence of profane
language, including comments about others’ sexual orientation or preferences, may provide
some context for defendants’ alleged conduct. Subjectively, the prevalence of foul language
in prison may be relevant to Melnick’s state of mind. Still, plaintiff is entitled to a
cautionary instruction against making a false equivalency between comments by other
inmates and those in positions of authority like defendant.
Because the use of profane, derogatory language is the basis of plaintiff’s sexual
harassment claim, this motion must be DENIED in part. However, defendants may not
offer evidence or make any argument that defendant Melnick’s conduct should be excused
as equivalent to that of prisoners.
3. Melnick’s Motives
Plaintiff argues that defendants should be prohibited from asking third-party
witnesses about whether they thought defendant Melnick was “just joking” when he was
verbally abusing plaintiff. (Dkt. #124, at 6-8.) Plaintiff does not seek to preclude
defendants from asking Melnick if he was joking or from eliciting facts from other witnesses
about what they observed about Melnick’s conduct. (Id. at 8.) But plaintiff argues that
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lay opinion testimony about another person’s mental state is inadmissible under Federal
Rule of Evidence 701 because it is unhelpful to the jury. Plaintiff argues further that such
evidence is inadmissible under Rule 403, because these opinions would have little probative
value. Plaintiff reasons that whether the witness thought Melnick was joking (or not)
depends on facts relevant to that inquiry or whether the witness has “idiosyncratic values
or limited knowledge of Melnick and Sodemann.” (Dkt. #124, at 8.)
Defendants contend that this evidence is relevant to plaintiff’s Eighth Amendment
claim, which will require plaintiff to do more than show how Melnick and he felt about the
situation. Plaintiff will have to show: (1) Melnick’s comments were objectively, sufficiently
serious; and (2) Melnick was deliberately indifferent to Sodemann’s health or safety.
Walton v. Nehls, 135 F.4th 1070, 1072 (7th Cir.), cert. denied, 146 S. Ct. 295 (2025). As
explained at summary judgment in this case, “[t]he test for what constitutes ‘cruel and
unusual punishment’ is an objective one. It is not the actual fear of the victim, but what a
‘reasonable’ victim would fear.’” (Dkt. #110, at 12) (citing Dobbey v. Ill. Dep’t of Corr., 574
F.3d 443, 445 (7th Cir. 2009)).
Leaving the issue of lay opinion aside for the moment, a witness can certainly be
asked how he or she understood the intent of Melnick’s remarks and why. The jury can
then assess what value that point of view has to the issues before it. Even if asked in the
form of “lay opinion,” which would seem unnecessarily formalistic, the Seventh Circuit has
held that such testimony about the mental state of another is neither conclusively nor
presumptively inadmissible. See United States v. Guzzino, 810 F.2d 687, 699 (7th Cir. 1987)
(holding that “lay opinion testimony as to the mental state of another is indeed competent
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under [Rule 701]”). In determining whether that testimony should be admitted, the court
will employ the criteria set forth in Rule 701: “The testimony must be within the personal
knowledge of the witness and ‘helpful to a clear understanding of [the witness’s] testimony
or the determination of a fact in issue.’” Guzzino, 810 F.2d at 699 (citing Bohannon v.
Pegelew, 652 F.2d 729, 732 (7th Cir. 1981) and quoting Fed. R. Evid. 701)).
Thus, this motion is GRANTED in limited part and otherwise DENIED to the
extent that no witness may opine about what another person was thinking, but any witness
may testify about what they saw, heard or felt another person do or say, even if that
observation may be suggestive of another person’s state of mind.
4. Third-Party Conduct
Plaintiff argues that defendants should be prohibited from asking third-party
witnesses whether they have ever joked around about someone being “gay” or insulted
another person for their sexuality because such evidence is irrelevant and would waste the
jury’s time. (Dkt. #124, at 8-9.) In response, defendants indicate that they do not intend
to spend “much time on this line of questioning,” but counsel should be permitted to
question witnesses as to whether “gay” is a term sometimes used in prison by inmates to
mean stupid or the like, as opposed to homosexual. (Dkt. #148, at 11.) Defendants
further argue that this evidence may be relevant to at least two issues: (1) to the extent
inmates believed Melnick was calling Sodemann “gay” as an insult, as opposed to stating
information about Sodemann’s sexuality, it is relevant to how objectively serious the
comments were; and (2) evidence about the use of the term “gay” is especially relevant to
the claim against Miller.
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Defendants further note that another inmate (Bates) complained to Miller that he
did not believe it was right that Melnick was going around “talking crazy,” then “writing
guys up” in conduct reports. (Miller Decl. (dkt. 74) ¶ 25.) More specifically, Bates
complained that Melnick “should stop making his ‘gay-ass comments’ to him, if he was
then going to write Bates ‘bogus’ or ‘petty’ conduct reports,” although Bates refused to be
any more specific about what Melnick was saying. (Id. ¶¶ 26-27.) Miller will also testify
consistent with his summary judgment declaration that Bates used the language “gay-ass”
in many contexts, and Miller believed that when Bates said “talking crazy” or making “gay
ass comments,” he meant that Melnick was attempting to make jokes or talking to inmates
using slang or curse words in jokes. (Id. ¶ 30.) Thus, Miller did not believe Melnick was
literally identifying Bates or any other inmate as homosexual.
Given plaintiff’s argument about the risk associated with being identified as
homosexual in prison, defendants maintain that context matters as to whether Miller
disregarded a substantial risk to safety in violation of the Eighth Amendment. Just as with
plaintiff’s MIL No. 3, therefore, the court GRANTS and DENIES this motion in part and
will allow limited testimony as to how others within the institution (both inmates and
guards) used the terms “gay” or “gay-ass,” as well as testimony about the risks that may or
may not be entailed in an inmate being labelled as such.
5. Disciplinary History
Plaintiff moves to exclude testimony about disciplinary conduct reports filed against
himself and other inmate witnesses. (Dkt. #124, at 9.) In particular, plaintiff argues that
conduct reports for his soliciting staff and drug use did not involve any defendant or
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witness to this lawsuit, and are irrelevant and unduly prejudicial. (Id.) Plaintiff also points
out that he received conduct reports for disciplinary infractions for which he was later
determined to have been falsely accused. (Id.; Dkt. #124-3.) Accordingly, plaintiffs ask
the court to bar any argument, questions, and evidence mentioning plaintiff’s or other
inmates’ prison disciplinary history. (Dkt. #124, at 11.)
In contrast, defendants have moved to allow questioning about the conduct report
filed against plaintiff for soliciting staff. (Dkt. #137, at 34; Defts’ MIL No. 9.) Defendants
also move to allow cross-examination of plaintiff and any other inmate witness about
conduct reports they may have received for lying. (Dkt. #137, at 35; Defts’ MIL No. 10.)
Defendants argue that plaintiff’s and other incarcerated witness’s disciplinary history are
relevant to the claims at issue in this case and to the witnesses’ credibility. (Dkt. #148, at
11-12.)
As to credibility, conduct reports for lying may be admissible on cross-examination
under Fed. R. Evid. 608. See Wynn v. Adams, No. 23-cv-364-jdp, 2024 WL 4589485, at
*6 (W.D. Wis. Oct. 28, 2024) (Defendants “may question witnesses about whether they
have received conduct reports for lying, including the number of times that a witness has
received such conduct reports.”); LaBrec v. Syed, No. 19-cv-804-jdp, 2023 WL 1505603,
at *3 (W.D. Wis. Feb. 3, 2023) (“Rule 608(b) allows a party to ask a witness about specific
instances of untruthfulness.”). However, the court will limit those to such reports sustained
in the review process only, which will not be admitted into the record but may be used to
impeach.
Defendants also argue that plaintiff’s conduct report for soliciting a female
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correctional officer is relevant and responsive to the question of liability on plaintiff’s
sexual harassment, pat search, and retaliation claims. (Dkt. # 137, at 33-34.) In
particular, because plaintiff contends that he was harmed by Melnick’s actions and intends
to introduce evidence that he was withdrawn, scared, and otherwise mentally unwell in
2022 (dkts. #93, at 4; #124, at1-2), defendants argue that this conduct report for soliciting
an officer is relevant to both the existence and severity of plaintiff’s alleged psychological
conditions. The report accuses plaintiff of speaking to the officer on two occasions in April
2022, asking for her personal information and telling her that she was the “sweetest” and
“cutest” correctional officer at Fox Lake. The actions described in the conduct report,
which occurred during the time Melnick was allegedly harassing plaintiff, call into question
whether plaintiff was experiencing “a mental health breakdown, causing him extreme
anxiety, panic attacks, sleeplessness, and constant fear,” as alleged. (Dkt. #124, at 2.)
Accordingly, defendants argue that a reasonable jury could find plaintiff’s soliciting
indicates otherwise, or at least that these symptoms were not as severe or constant as
plaintiff claims. Defendants are confusing two evidentiary issues. At best, the conduct
report might be used to impeach plaintiff’s denial of his alleged conduct, but will not come
in as direct evidence nor any administrative review of it. Even then, the “facts” in the
report appear to be nothing more than hearsay. Nevertheless, the court will RESERVE on
the possible use of this specific conduct report until the FPTC.
Finally, as explained further below in connection with plaintiff’s MIL No. 7,
defendants have failed to proffer any evidence that plaintiff’s drug use is relevant, other
than as inadmissible bad acts. Therefore, conduct reports involving plaintiff’s drug use will
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be excluded.
Accordingly, plaintiff’s motion to exclude his disciplinary history is GRANTED,
RESERVED and DENIED IN PART as set forth above. For the same reasons, a ruling on
defendants MIL No. 9 is RESERVED until the FPTC, while defendants MIL No. 10 is
GRANTED.
6. References to Plaintiff’s Criminal History
Plaintiff moves to preclude all references to any of his criminal history, including
past criminal charges, arrests, or convictions, pursuant to Federal Rules of Evidence 403
and 609. Plaintiff argues that the prejudicial effect of admitting evidence of his past
convictions, including one for sexual assault that requires him to register as a sex offender,
would greatly outweigh the probative value of this evidence, even for purposes of
impeachment. (Dkt. #124, at 11-12.) Specifically, plaintiff seeks to limit defendants to
mentioning only the fact that he has been convicted of multiple felonies. (Id. at 12.)
Plaintiff further asks the court to follow this procedure with respect to any of his witnesses
with criminal records, including James Cansler, Spencer Potts, Stephane Kingue, Richard
Garcia, Colin Habram, Casey Thundercloud, and Michael Becker. (Id. at 13.)
In response, consistent with this court’s general practice, defendants agree to limit
questioning of a witness, including plaintiff, “to the number of relevant convictions that
are unrelated to a crime of dishonesty,” but note that the fact of plaintiff’s felony
convictions are admissible as acts of dishonesty:
1. Robbery with Use of Force, contrary to Wis. Stat. § 943.32(1)(a), a
Felony E level, convicted on 11/19/2013 (2012CF163);
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2. Three counts of Burglary-Building or Dwelling (Repeater), contrary to
Wis. Stat. § 943.10(1m)(a), a Felony F level, convicted on
11/15/2013 (2012CF121);
3. Bail Jumping, contrary to Wis Stat. § 946.49(1), a Felony H level,
convicted on 11/05/2007 (2007CF258);
4. 3rd Degree Sexual Assault, contrary to Wis. Stat. § 940.225(3), a
Felony G level, convicted on 10/11/2007 (2006CF347); and
5. Forgery-Uttering, contrary to Wis. Stat. § 943.38(2), a Felony H level,
convicted on April 22, 2008 (2008CF77).
(Dkt. #137, at 5-6.)
Unless unduly prejudicial under Rule 403, evidence of previous felony convictions
may be admitted for the limited purpose of impeaching a witness’s character for
truthfulness in a civil case, but only if: (1) the offense was punishable by imprisonment
for more than one year; and (2) more than 10 years have passed since the conviction or
the witness’s release from confinement for it, whichever is older. Fed. R. Civ. P. 609(a)(1),
(b). Further, a prior conviction for which the witness has been released from confinement
more than 10 years ago is not admissible unless: (1) its probative value substantially
outweighs its prejudicial effect; and (2) reasonable, written notice of the intent to use it
has been provided to the opposing party. Fed. R. Civ. P. 609(b)(1)-(2).
While the first six of plaintiff’s convictions (1-4 noted above) are admissible because
each involve crimes for which 10 years have not passed since plaintiff’s release from
confinement for those offenses, defendants concede that more than 10 years have passed
since plaintiff’s conviction or release from confinement from his forgery conviction
(number 5 above). Nevertheless, defendants wish to reference that conviction because it
is a crime of dishonesty, (id. at 6), quoting Wis. Stat. § 943.38(2): “Whoever utters as
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genuine or possesses with intent to utter as false or as genuine any forged writing or object
mentioned in sub. (1), knowing it to have been thus falsely made or altered, is guilty of a
Class H felony.”
Thus, defendants propose to ask the following questions of plaintiff during cross-
examination:
1) You have been convicted of seven felonies, correct?
2) One of those convictions was a felony conviction for forgery, correct?
Defendants argument for being allowed to ask specifically about plaintiff’s conviction for
forgery is its highly probative value in establishing plaintiff’s character for lying under Rule
609(b). Defendants rely primarily on Foster v. Davis, No. 10 C 6009, 2013 WL 1729417,
at *3 (N.D. Ill. Apr. 22, 2013) (admitting a nearly 20-year-old forgery conviction because
“the extreme significance of Foster’s testimony and the importance of reliably evaluating
his credibility in this case . . . substantially outweighs its prejudicial effect”). However,
unlike in Foster, the court has been offered no specifics as to the nature of plaintiff’s crime
of forgery or actual sentence and, without any specific facts and circumstances, is unable
to weigh whether its probative value substantially outweighs its prejudicial effect. Without
this, the court is unwilling to add this older felony conviction as one of seven for which
plaintiff has been convicted.
As for plaintiff’s argument that defendants’ request to reference the actual number
of his felony convictions as likely to unfairly prejudice him, this court has regularly rejected
this argument in the past as the number of felonies does give weight to the argument that
plaintiff’s credibility can be questioned. See Ducksworth v. Kinas, No. 23-CV-567-wmc,
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2026 WL 381871, at *1 (W.D. Wis. Feb. 11, 2026) (allowing the defendant to ask the
plaintiff about the fact, date, and number of felony convictions). As for plaintiff’s forgery
conviction, his “willingness to lie” is also less pertinent here given that Melnick admits
making sexually harassing comments that plaintiff complains about, just not with the
intent required to constitute deliberate indifference.
Plaintiff’s motion is DENIED and RESERVED IN PART, as is defendants’ MIL
No. 3 regarding plaintiff’s criminal history. Defendants may ask plaintiff whether he has
been convicted of seven felonies, but may not specifically reference the nature of any of
those convictions or plaintiff’s status as a registered sex offender. Similarly, absent a
further proffer by defendants at the FPTC, no mention shall be made of plaintiff’s forgery
conviction. Any further inquiry or impeachment as to the nature of these convictions may
only be explored if plaintiff denies one of more of these convictions. The same holds true
for defendants’ questioning of any inmate witness under Rule 609(a).1 These same rulings
apply to defendants’ MIL No. 3, which seeks to allow questioning of plaintiff and his
witnesses about their criminal convictions.
7. Drug Use and Intoxication
Plaintiff also seeks to exclude evidence that plaintiff used drugs before his
imprisonment or while in prison. (Dkt. #124, at 13-15.) Defendants do not object to
excluding criminal convictions, past conduct reports, classification hearing, and medical
1 To the extent that defendants seek to offer evidence of other witnesses’ stale felony convictions
for dishonesty under Rule 609(b), they would need to make a similar showing as to the specific
nature and seriousness of the crime outweighing unfair prejudice outside the jury’s presence, and
preferably at the FPTC or at least before that witness takes the stand.
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evidence that speaks to plaintiff’s past and ongoing drug use. (Dkt. #145, at 17.)
However, defendants argue that plaintiff’s motion should be denied as to their own
testimony about beliefs or understanding of plaintiff’s possible involvement in drug
possession and use during the relevant time period. (Id. at 17-18.) Defendants appear to
argue that this testimony – which concerns their belief that plaintiff and other inmate
witnesses were involved in using and moving drugs within the institution -- is relevant to
their understanding and assessment of why inmates were complaining about cell searches
and pat searches.
The court will exclude any testimony about plaintiff’s drug use as irrelevant because
this evidence appears to have little or no tendency to make it more or less probable that
plaintiff was subjected to improper harassment by Melnick. Moreover, while evidence that
a witness has possessed or used illegal drugs while incarcerated might be probative of the
witness’s ability to accurately recall events, United States v. Cameron, 814 F.2d 403, 405
(7th Cir. 1987), that evidence is only admissible for such a purpose if the party seeking to
offer the evidence draws a direct link between drug use and the events about which the
witness is testifying. Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008). Absent such a
link, which defendants will need to proffer at the FPTC, evidence of drug possession or use
serves only to raise the impermissible inference that drug users tend to lie or otherwise
unfairly prejudice plaintiff. Id. Since defendants have proffered no evidence that plaintiff
was using drugs during any of the specific events he will testify about, they have not drawn
the requisite link to make his drug use relevant to the issue of recall. Alternatively, even if
this evidence were relevant, the court finds that its probative value is substantially
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outweighed by the danger of unfair prejudice and confusion of the actual issues before the
jury in this case. Absent a further proffer, therefore, plaintiff’s MIL No. 7 s GRANTED.
8. Plaintiff’s Unrelated Complaints
Plaintiff next seeks to exclude evidence of a previous complaint he made under the
Prison Rape Elimination Act and other complaints he made verbally and in writing during
his time in prison. (Dkt. #124, at 15-16.) Defendants argue that this evidence is relevant
to issues of liability on plaintiff’s sexual harassment, retaliation, and failure-to-intervene
claims because it shows that plaintiff was aware of the inmate complaint system, how to
use the system, and in fact used it frequently to raise issues. (Dkt. #145, at 19.)
Defendants do not show that plaintiff’s previous complaints are sufficiently related
to Melnick’s alleged misconduct. Because introducing plaintiff’s history of filing
complaints may otherwise confuse the jury, the court is inclined to exclude this evidence
unless he were to “open the door.” The court will, however, RESERVE ruling on this
motion until the final pretrial conference on April 7, 2026.
9. Settlement-Related Evidence
Plaintiff moves to exclude from trial any evidence or testimony about settlement
discussions or efforts in this case. (Dkt. #124, at 17.) As an example, plaintiff points to
deposition testimony from defendant Pollesch, who recounted that plaintiff told her “how
the State is trying to settle for a hundred thousand dollars and that is not enough for him,
that he’s been[seeing] similar cases and they’re going for approximately $600,000 and that
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he does not intend to settle for less than that amount.” (Id.)
Evidence of “conduct or a statement made during compromise negotiations” about
a case is “not admissible -- on behalf of any party -- either to prove or disprove the validity
or amount of a disputed claim or to impeach by a prior inconsistent statement or
contradiction.” Fed. R. Evid. 408 (emphasis added). Defendants contend that the motion
should be denied because plaintiff seeks to exclude more evidence than what is
contemplated by Rule 408. (Dkt. #145, at 21.) In particular, while defendants agree that
the quote from Pollesch’s deposition may be prohibited by Rule 408, if the conversation
reflected actual settlement negotiations ongoing at the time. Based on the timing of
plaintiff’s comments, however, defendants contest whether the conversation was grounded
in the actual numbers exchanged. Regardless, defendants’ counsel does not intend to solicit
testimony about that conversation, and it is excluded.
Defendants do indicate an intent to use email exhibits that could arguably be
considered “related” to settlement discussions, but argue these fall outside the restrictions
of Rule 408. In particular, defendants point to the following email that plaintiff sent to
his girlfriend, saying: “I got them by the balls and they know it.” (Def’s Ex. 505, at 1).
Defendants argue that this statement is admissible over a Rule 408 objection because it
does not fit the categories excluded by the rule -- of furnishing, promising, offering,
accepting, promising to accept, or offering to accept money; nor is it conduct or a statement
made during compromise negotiations. Moreover, to the extent that any other sentences
in the email may be inadmissible, defendants offer to redact any statements attributable
to settlement negotiations. Defendants note, however, that Rule 408 does not prohibit
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evidence of a party’s own opinion as to their settlement posture. Bankcard Am., Inc. v.
Universal Bancard Sys., Inc., 203 F.3d 477, 484 (7th Cir. 2000)
There are two other emails in which plaintiff Sodemann envisions the kind of
settlement he will get and writes about what that money will mean. Defendants contend
that this content is likewise not excluded by Rule 408, because it is not “furnishing,
promising, or offering” or “accepting, promising to accept, or offering to accept money,”
nor is it “conduct or a statement made during compromise negotiations about the claim.”
Fed. R. Evid. 408(a)(1)-(2). In the first email sent by plaintiff to his girlfriend on August
20, 2023, plaintiff wrote: “This settlement will help us so so much. Not having to worry
about income takes so much stress off us.” (Def’s Ex. 505, at 4.) In the second email sent
by plaintiff to his girlfriend on January 3, 2024, plaintiff wrote:
Don’t get down on things babe. We have everything falling into place.
… I have a nice size settlement to us as well Terrie. You’ll see. With the
money you'll be able to take care of all your affairs before leaving to come
here. You can get to the Taylor concert, see your friend get married, get your
plane ticket, buy some new clothes for your new home, obviously it would
be better to buy most of them here rather than buy all them and [t]hen fly
with it all. You [know] what I'm saying though. Jus[t] stay positive Ter. This
is going to be the hardest I’ve always said. The last year is gen the most
anxiety creeps in about literally everything. Just fight it and know the most
important thing is that I’m on my way home and we have a head start th[at]
most others don't have when released. OK babe? Smile for me.
(Def’s Ex. 505, at 2). While these two emails contemplate future uses for settlement
money (and therefore “relate” to settlement), defendants argue that they do not fall within
Rule 408’s exclusion because they are not conduct or a statement made during compromise
negotiations, or evidence or furnishing, promising, offering, accepting, promising to accept,
or offering to accept money. Fed. R. Evid. 408(a)(1) and (2).
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The problem is the arguable relevance of such statements versus any unfair prejudice
this may have in painting plaintiff’s motive as purely mercenary. Any guidance from case
law that either of the parties might provide would be appreciated, but at this point, the
court will RESERVE ruling until hearing from the parties’ counsel at the FPTC.
10. DOC Witnesses as Adverse
Plaintiff moves to allow leading questions during direct examination of non-
defendant DOC employees because they are identified with adverse parties. (Dkt. #124,
at 17-18.) “Ordinarily, the court should allow leading questions . . . when a party calls . . .
a witness identified with an adverse party.” Fed. R. Civ. P. 611(c)(2).
Defendants argue this is an improper subject for a motion in limine, as at least one
federal court properly recognized. (Dkt. #145, at 23-24.) See Jackson v. O'Reilly Auto. Stores,
Inc., 131 F. Supp. 3d 756, 759 (M.D. Tenn. 2015) (“This issue, however, is not
appropriately addressed in a motion in limine. When Plaintiff actually calls particular
witnesses at trial, he may explain why they are adverse and ask our permission at that time
to use leading questions.”). Accordingly, defendants contend that the motion should be
denied and that plaintiff should seek the court’s permission on an individual basis under
Federal Rule of Evidence 611. Given that defendants’ counsel will no doubt have met with
these witnesses under an attorney client or work product privilege, and plaintiff has likely
been denied the same opportunity, the court is skeptical but will at least RESERVE until
the FPTC to determine whether leading questions may be appropriate for some of the DOC
employees likely to be called to testify.
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11. Jurors’ Financial Interests
Plaintiff moves to exclude arguments that appeal to the jurors’ financial interest in
the outcome as taxpayers potentially responsible for any judgment of damages. (Dkt.
#124, at 18-19.) Specifically, plaintiff asks the court to bar “any reference to the pecuniary
interests of the jury, including references to the defense attorneys’ employment by the
Wisconsin Department of Justice.” (Id. at 19.) In response, defendants agree with the
underlying premise that it is not appropriate to appeal to the jury’s pecuniary interests and
have no intention of making such an appeal. (Dkt. #145, at 24.) However, defendants
argue that plaintiff goes too far by attempting to exclude that defense counsel work for
DOJ. Regardless, plaintiff has not developed any argument, much less offered any legal
authority, about why the court should bar any reference to DOJ, who after all are counsel
for defendants, an ordinary subject of inquiry during voir dire.
Accordingly, this motion is GRANTED and DENIED IN PART. To clarify,
arguments that appeal to the juror’s financial interests as taxpayers are precluded. Limited
reference to the defense attorney’s employment by DOJ is permitted and is to be first
introduced in the proposed voir dire.
12. Sequester Non-Party Witnesses
Pursuant to Federal Rule of Evidence 615, plaintiff moves to sequester all non-party
witnesses from the courtroom during witness testimony. (Dkt. #124, at 19.) This motion
is GRANTED as unopposed although the court would entertain an exception for either
side’s retained expert witnesses.
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13. Testimony by Videoconference
Plaintiff moves to allow his expert witness, James Ferreira, who lives in
Massachusetts, to testify by Zoom. (Dkt. #124, at 19-20.) This motion is also GRANTED
as unopposed. Plaintiff’s counsel is directed to contact the clerk’s office to make the
necessary arrangements in advance of trial. Both sides are directed to provide any witness
appearing remotely with any exhibits that may need to be viewed during direct or cross
examination, as well as ensure all proposed exhibits have been filed in Box.com in advance
of the FPTC for review at that time and possible use with any remote witness at trial.
14. Street Clothes
Plaintiff requests permission to wear street clothes at trial, rather than prison garb.
(Dkt. #124, at 20.) This motion is GRANTED as unopposed.
Consistent with the court’s procedures, plaintiff will need to arrange for clothes to
be available for him by asking a family member or friend to either mail or deliver clothing
to his counsel or directly to the office of the Clerk of Court, 120 N. Henry Street, Room
320, Madison WI 53703, to ensure receipt and screening by the court no later than 4:30
p.m. on the Thursday before trial.
B. Defendant’s Omnibus Motion in Limine (dkt. #137)
1. Other Legal Proceedings
Defendants move to preclude evidence of “the existence or details of any other legal
cases in which they have been involved, or other inmate grievances not related to this case.”
(Dkt. #137, at 1-3.) Generally, defendants contend that other lawsuits brought against
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them are irrelevant and inadmissible as improper propensity evidence under Federal Rule
of Evidence 404(b).
Plaintiff argues that this motion should be denied as too vague because defendants
do not specify the legal proceedings or grievances to be excluded (dkt. #151, at 1-2), but
this is a bit disingenuous given that plaintiff’s counsel would be introducing any such
evidence. More specifically, plaintiff argues that evidence of other inmate grievances by
plaintiff and other Fox Lake inmates Colin Habram, Stephane Kingue, and Michael Bates
against defendant Melnick are relevant to whether Miller had adequate notice of Melnick’s
harassing behavior to create a duty of inquiry and protection sooner. (Id. at 2-4.) Plaintiff
does not otherwise contest the motion as it pertains to inmate complaints against Miller,
unless defendants open the door to such evidence. (Id. at 4.) Likewise, plaintiff purports
to be unaware of other prisoner complaints or lawsuits involving defendant Pollesch and
does not intend to introduce any such evidence at trial. (Id.)
Unless tied to proof that any of these incidents, grievances or legal proceedings were
brought to defendants Miller’s or Pollesch’s attention before at least some of Melnick’s
alleged acts against plaintiff Sodeman, such evidence does seem to be offered as proof of
Melnick’s propensity to commit similar acts as claimed by plaintiff. Regardless, because it
is unclear both what other legal proceedings or grievances plaintiff seeks to proffer or
defendants seek to exclude, the court RESERVES ruling on the motion until the FPTC on
April 7, 2026.
2. Other Lawsuits or Investigations
Defendants also seek to preclude more broadly any argument, questions, testimony
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or evidence regarding the details of lawsuits relating to DOC or its current or former
employees. (Dkt. #137, at 3-5.) Plaintiff again argues that this motion should be denied
because it is unclear what defendants seek to exclude, although this is even more in the
realm of plaintiff’s counsel to identify. (Dkt. #151, at 4-5.)
Certainly, as plaintiff notes, this court has rejected similarly vague request in other
§ 1983 cases. E.g., Turner v. Rataczak, No. 13-cv-48-jdp, 2014 WL 5023095, at *2 (W.D.
Wis. Oct. 8, 2014) (“Neither side explains which witnesses or what lawsuits are the subject
of the motion. Although the court will be reluctant to allow evidence of lawsuits against
other DOC officials, the motion to exclude is DENIED because it is vague.”). More
specifically, plaintiff speculates that defendants may be seeking to exclude evidence that
one of plaintiff’s inmate witnesses, Colin Habram, has filed a similar lawsuit against
defendants Melnick and Pollesch, alleging that Melnick sexually harassed him and that
Pollesch failed to intervene. Habram v. Melnick, No. 24-cv-733 (W.D. Wis.). Plaintiff also
speculates that defendants wish to exclude evidence of misconduct by another officer who
is not a defendant. (Dkt. #151, at 6.) Specifically, while Melnick was allegedly sexually
harassing him, plaintiff maintains that he was aware of another officer, identified as
“Wouts,” who groomed, exploited and raped other male prisoners at Fox Lake Correctional
Institution. (Id. at 6-7.) However, because it is again unclear what other lawsuits or
investigations plaintiff may seek to proffer or defendants seek to exclude, the court
RESERVES ruling on this motion until the FPTC.
3. Criminal History
Defendants seek to allow questioning of plaintiff (and his witnesses, if applicable)
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about their criminal convictions. (Dkt. #137, at 5-7.) This motion is GRANTED and
DENIED IN PART for reasons already discussed previously in ruling on plaintiff’s MIL
No. 6.
4. Indemnification
Defendants seek to exclude evidence that they may be indemnified for any
judgment against them. (Dkt. #137, at 7-8.) As a general rule, “courts exclude evidence
of indemnification out of a fear that it will encourage a jury to inflate its damages award
because it knows the government -- not the individual defendants -- is footing the bill.”
Lawson v. Townbridge, 153 F.3d 368, 379 (7th Cir. 1998); see also Kemezy v. Peters, 79 F.3d
33, 37 (7th Cir. 1996) (“When the defendant is to be fully indemnified, such evidence, far
from being required, is inadmissible”). An exception exists where a defendant pleads
poverty, but defendants argue that this exception is inapplicable because they do not
intend to present evidence of or argue the individuals’ inability to pay. (Dkt. #137, at 8.)
Based on defendants’ representations, plaintiff does not oppose the motion. (Dkt. #151,
at 10.) Therefore, this motion is GRANTED. If defendants introduce any evidence or
argument suggesting that they are unable to pay a judgment, plaintiff may, of course, ask
the court to revisit the issue at sidebar or otherwise outside the jury’s presence.
5. Plaintiff’s Retaliation Claim
Defendants next move to dismiss plaintiff’s First Amendment claim that defendant
Melnick retaliated against Sodemann after he threatened to file a complaint about his
mistreatment. (Dkt. #137, at 8-16.) To prevail on a retaliation claim under the First
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Amendment, a prisoner must show that: (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter future First Amendment
activity; and (3) the protected activity was at least a motivating factor in the defendant’s
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Even if plaintiff can satisfy each of these elements, defendants assert that Melnick is
entitled to qualified immunity because the law is uncertain as to whether threatening to file
a grievance is an activity protected by the First Amendment. (Id.)
Qualified immunity protects a government official from liability for civil damages
unless the plaintiff shows that “(1) they violated a federal statutory or constitutional right,
and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)). A clearly established right is one “that every reasonable official would have
understood” he is violating.” Reichle, 566 U.S. at 664. Law is “clearly established” only if
it is found in Supreme Court precedent, controlling circuit authority, or “a consensus of
persuasive authority such that a reasonable officer could not have believed that his actions
were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999). In other words, “existing
precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
Unlike most affirmative defenses, however, plaintiff bears the burden of proving a
law is clearly established. Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013). In an
effort to meet that burden here, plaintiff points the court to Pearson v. Welborn, 471 F.3d
732, 741 (7th Cir. 2006), in which the Seventh Circuit held that a prisoner’s oral
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complaints to prison officials about the conditions of his confinement were protected by
the First Amendment. Specifically, the Seventh Circuit held “a reasonable public official
. . . would understand that retaliating against a prisoner on the basis of his complaints
about prison conditions is unlawful.” Id. at 742. Just as in Pearson, plaintiff argues that
the statement he made to Melnick, which allegedly motivated Melnick’s retaliatory
response, was as follows: “Melnick, you need to stop saying this. You need to stop with
all this, saying this all gay stuff to me . . . [b]ecause I’m already going to turn you in if you
continue.” (Dkt. #151, at 11 (citing Sodemann Dep. (dkt. #65) 196:1-9).)
Accepting plaintiff’s version as true, however, his statement to Melnick materially
differs from that in Pearson, where the plaintiff claimed retaliation for actually making a
complaint about his conditions of confinement, while here it was Sodemann who
complained and threatened to file a grievance against Melnick about his harassment.
Indeed, in another case involving a prisoner who similarly threatened to file a grievance
against an officer for harassment, the Seventh Circuit rejected the prisoner’s reliance on
Pearson, finding it “implausible that a threat to file a grievance would itself constitute a First
Amendment-protected grievance.” Bridges, 557 F.3d at 555 (emphasis in original). Thus,
although filing a grievance or lawsuit is clearly protected activity after Pearson, the Seventh
Circuit has now repeatedly declined to rule that threatening to file a grievance or lawsuit
is protected activity. See Reed v. Bowen, 769 F. App’x 365, 370 (7th Cir. 2019) (“We have
not ruled that threatening to file a lawsuit is protected activity.”); Davenport v Szczepanski,
704 F. App’x 602, 603 (7th Cir. 2017) (“Although ‘[a] prisoner has a First Amendment
right to make grievances about conditions of confinement,’ . . . merely threatening to file a
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grievance against someone is not protected activity.” (emphasis in original, citation
omitted)). Given the continued uncertainty on this question, this court has granted
qualified immunity to a defendant facing a claim of retaliation under the First Amendment
in response to a prisoner’s mere threat to file a grievance, rather than actually filing a
grievance, which is protected from retaliation. Gill v. Miller, No. 23-CV-739-WMC, 2026
WL 194681, at *4-5 (W.D. Wis. Jan. 26, 2026); see also Childs v. Rudolph, No. 22-CV-572-
JDP, 2024 WL 639859, at *3 (W.D. Wis. Feb. 15, 2024) (noting that “courts of this
circuit have suggested that [threatening to file a grievance] is not protected activity”)
(collecting cases for this proposition).
None of plaintiff’s other arguments on the subject are persuasive. Having failed to
present authority that places the constitutional question beyond debate, al-Kidd, 563 U.S.
at 741, defendant Melnick is entitled to qualified immunity from plaintiff’s First
Amendment retaliation claim. Therefore, defendants’ motion in limine is GRANTED and
plaintiff’s First Amendment retaliation claim will be DISMISSED with prejudice absent
proof that Melnick materially retaliated because of plaintiff’s actual filing of a grievance
against him.
6. Compensatory Damages
Plaintiff allegedly suffered anxiety, panic attacks, and insomnia after Melnick
verbally abused him in 2021 and 2022, and he continues to suffer anxiety and
sleeplessness. Defendants argue that plaintiff should be precluded from seeking
compensatory damages for all but his pat-search claim because he lacks evidence of any
physical injury, other than the physical manifestation of emotional harm, which is not
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compensable under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). (Dkt. #137,
at 16-28.)2 Accordingly, defendants argue that plaintiff’s evidence establishes, at most,
physical manifestations of emotional distress.
In its opinion denying defendants’ motion for summary judgment on this issue, the
court found that because “plaintiff has presented some evidence that prolonged, persistent
sexual harassment by defendant Melnick caused extreme anxiety, panic attacks, and
insomnia on a sustained basis, for which plaintiff sought medical attention . . . ,
compensatory damages may still be available.” (Dkt. #110, at 27-29.) Several other
district courts within the Seventh Circuit have reached similar conclusions, although most
of these decisions dealt with allegations at the pleadings stage. E.g., Smith v. Dart, No. 20-
cv-1381, 2020 WL 7260802, at *4 (N.D. Ill. Dec. 10, 2020) (sleep deprivation from lack
of CPAP machine to treat sleep apnea); Cotledge v. Dart, No. 20-cv-2629, 2020 WL
7260798, at *4 (N.D. Ill. Dec. 10, 2020) (same); Green v. Dart, No. 20-cv-1459, 2020 WL
7260800, at *4 (N.D. Ill. Dec. 10, 2020) (same); Love v. Godinez, No. 15-cv-11549, 2018
WL 2096375, at *4 (N.D. Ill. May 7, 2018) (loss of sleep requiring medical treatment for
resulting stress and sleep deprivation); Gurley v. Sheahan, No. 06-cv-3454, 2009 WL
2 This provision states:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury or the commission of a sexual act (as
defined in section 2246 of Title 18).
42 U.S.C. § 1997e(e). Plaintiff has made no claim of any “sexual act” as defined by 18 U.S.C
§ 2246 in this case.
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2178685, at *7 (N.D. Ill. July 21, 2009) (sleep deprivation and headaches).3 Most
recently, this court denied summary judgment on a prisoner’s claim for compensatory
damages in a similar case involving allegations of persistent verbal harassment. See Peters
v. Hendrickson, No. 23-cv-232-wmc, 2025 WL 3641161, at *6 (W.D. Wis. Dec. 15, 2025)
(noting that plaintiff had testified “that he suffered nausea, vomiting, insomnia, and panic
attacks, and sought treatment from a mental health professional due to defendant
Schwanz’s harassment, the other defendants’ inaction, and other inmate’s verbal threats,”
which were “sufficient to allege more than a negligible physical injury at this stage”).
However, to date, neither party has offered any medical records showing that
defendants’ actions caused or failed to cause plaintiff to suffer at least some physical harm.
See Hacker v. Dart, 62 F.4th 1073, 1079 (7th Cir. 2023) (“To satisfy § 1997e(e), prisoners
must show an injury that is more than negligible although not necessarily significant.”); see
also Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (holding in the excessive-force context that
a plaintiff can still prevail on an Eighth Amendment claim with no more than a de minimis
injury, though “the relatively modest nature of his alleged injuries will no doubt limit the
damages he may recover”). Whether plaintiff can present evidence that is sufficient to
show that compensatory damages are available is generally a matter for trial. See Gray v.
Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016) (“Gray’s summary judgment materials, we
3 In fairness, there is also contrary authority. See Shaw v. Wall, No. 12-cv-497-wmc, 2015 WL
1925045, at *2-3 (W.D. Wis. Apr. 28, 2015) (granting defendant’s motion in limine on a prisoner’s
claim for compensatory damages for emotional distress manifesting itself physically, but no physical
injury occurred) (collecting cases holding that physical manifestations of mental or emotional
injuries cannot satisfy § 1997e(e)); see also Pearson, 471 F.3d at 744 (rejecting a prisoner’s attempt
to claim physical injury based on his own testimony that he was “mentally and physically depressed”
and “lost at least 50 pounds”).
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conclude, present triable issues of fact for a jury, which must determine the degree of both
physical and psychological harm he suffered as a result of the [conditions of his
confinement]. If the jury finds that Gray suffered only psychological harm, he will be
limited to nominal and punitive damages.”). Accordingly, defendants’ motion in limine
on plaintiff’s claim for compensatory damages is DENIED, although the court invites any
additional, recent and relevant case law on the subject, and defendants may raise the issue
again at the close of plaintiff’s case should he fail to present any proof that his emotional
distress caused him to suffer physical harm.
7. Undisclosed Medical Records
Defendants seek to preclude plaintiff from arguing he suffered a physical injury if
he does not produce his Health Services Unit records. (Dkt. #137, at 28-29.) Defendants
filed a motion to compel the records, and Magistrate Judge Boor ruled in their favor. (Dkt.
#139.) Because the requested records have now been produced, plaintiff argues that this
motion is now moot (dkt. #151, at 21), and the court agrees. While defendants’ motion
is, therefore, DENIED to the extent that any requested records have not been produced in
compliance with Judge Boor’s order, the parties may address this issue at the FPTC.
8. Lay Witness Testimony
Defendants seek to preclude improper medical evidence or lay witness testimony
about plaintiff’s medical issues. Under Rule 701, lay witnesses may not offer opinion
testimony if it is based on scientific, technical, or other specialized knowledge[.]” Fed. R.
Evid. 701. Here, defendants request an order precluding plaintiff from: (1) testifying
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about his mental health “beyond what a lay person can identify about their own health,”
including testifying that he suffered from panic attacks and insomnia caused by Melnick’s
abuse; (2) arguing or presenting evidence that his emotional injuries extended beyond
Melnick’s resignation in May 2022; and (3) arguing or presenting evidence that he will
suffer future harm because of Defendants’ misconduct.
As to the first request, plaintiff responds that he does not intend to offer expert
testimony or testify that he was diagnosed with any medical condition as a result of
defendants’ misconduct. (Dkt #151, at 21.) As plaintiff correctly notes, he is “entitled to
testify to such physical injury, pain, and emotional suffering he claims to have experienced
as a result of any [constitutional] violations” for which defendants are found liable.
Coleman v. Sperry, No. 21-cv-65-wmc, 2024 WL 1521441, at *3 (W.D. Wis. Apr. 8, 2024)
(citing Cyrus v. Town of Mukwonago, 624 F.3d 856, 865 (7th Cir. 2010)). Thus, plaintiff is
allowed to testify about how and why he attributes his physical injury, pain, or emotional
distress to defendants’ actions (or inaction where Miller and Pollesch are concerned).
Having said that, while plaintiff may testify to new or more intense experiences of injury
following defendants’ actions or inactions, causation is for the jury to decide.
As to the second request, plaintiff is allowed to testify about any harm he continues
to suffer as a direct result of defendants’ misconduct even after Melnick’s resignation. See
Lacy v. McArdle, No. 20-cv-1014-jdp, 2023 WL 4581759, at *11 (W.D. Wis. July 18,
2023) (denying motion to bar evidence of a prisoner’s future damages because “[a] jury
may or may not find [plaintiff’s] proposed testimony [about future damages] persuasive,
but the court will not bar [him] from giving that testimony. . . . ‘[E]xpert testimony is not
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required if lay testimony forms a sufficient basis for the jury to consider a claim based on
future pain and suffering.’ That is the case here.”). Still, having indicated that he does not
intend to seek future compensatory damages, that testimony should be brief.
Finally, plaintiff does not contest defendants’ third request to exclude evidence of
future emotional distress, having disavowed a claim for compensatory damages for any
injuries he may continue to experience after trial. Accordingly, this motion is GRANTED
and DENIED IN PART.
9. Plaintiff’s Conduct Report for Soliciting
Defendants’ motion to allow questioning about plaintiff’s conduct report for
soliciting a female correctional officer (dkt. #137, at 33-34) is RESERVED for reasons
discussed previously in a ruling on plaintiff’s MIL No. 5 above.
10. Plaintiff’s Conduct Report for Lying
Defendants’ motion to allow cross-examination of plaintiff and any other identified
inmate witness about conduct reports they have received for lying (dkt. #137, at 35) is
GRANTED for reasons also discussed previously in ruling on plaintiff’s MIL No. 5.
11. Melnick’s Medical Diagnoses
Defendants seek to introduce evidence “through testimony” as to defendant
Melnick’s personal observations about his own mental health in 2021 and 2022. (Dkt.
#137, at 136.) Specifically, Melnick recently represents that he has been diagnosed with
ADHD and a genetic disorder known as Bannayan-Riley-Ruvalcaba Syndrome that “shares
neurobehavioral features with Autism Spectrum Disorder.” (Id.)
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Plaintiff argues that this evidence should not come in because none of it was
disclosed during discovery, including plaintiff’s repeated requests that would have called
for the disclosure of any “defense” or “defenses” to the claims against him and response to
questions at his deposition about the reasons for his conduct. (Dkt. #151, at 28-29.)
Because defendants never supplemented their document production or interrogatory
responses to disclose the defense that Melnick’s diagnosed conditions may have impacted
his thinking or behavior, plaintiff argues that this evidence is not allowed by Federal Rule
of Civil Procedure 37(c)(1). Plaintiff argues further that the request should be denied
because it seeks permission to admit expert testimony about medical diagnoses through
Melnick. (Dkt. #151, at 30.)
Whether these requests created a duty to disclose any medical diagnosis is open to
debate, especially since neither diagnosis would on their face appear to be any defense at
all, but defendant certainly seems to have “hidden the ball” as to his ability to understand
the impact of his conduct on others. Even if plaintiff failed to specifically request medical
files from Melnick, he faces the same problem as plaintiff. Melnick would be escorting in
medical opinions by hearsay unless medical reports themselves came in and defendants
have yet to offer any, though they now promise to do so. More fundamentally, as plaintiff
also points out, Melnick is in no position to testify as to the importance, if any, that either
diagnosis may have had on his ability to display the requisite “deliberate indifference.” If
admissible at all, that would be the role of a psychiatric expert. Since it is far too late for
disclosure of experts, this testimony and any related argument is more likely to confuse the
jury than it is to assist. Therefore, the motion is DENIED, although defendants’ counsel
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will have an opportunity to raise this issue at the FPTC.
12. Demonstrative Video
Defendants seek to use and publish to the jury the first ten minutes of a
demonstrative video depicting an approved DOC pat search procedure. (Dkt. #137, at
36.) Defendants intend to offer the video for the limited purpose of illustrating witness
testimony regarding the pat search procedures, subject to Fed. R. Evid. 107. (Id.)
Plaintiff argues that the video is inadmissible as “substantive evidence” because
defendants never disclosed it during discovery, despite a document request asking for any
materials defendants might use to support their case. (Dkt. #151, at 31.) Plaintiff argues
further that the video is inadmissible as demonstrative evidence because it does not satisfy
Fed. R. Evid. 107. (Id. at 32-34.) As to the latter, the court agrees that the video is
needlessly long and potentially misleading in its sanitized, belabored presentation of a pat
down. Therefore, the motion is DENIED as to the current video, although defendants
may offer an edited down version before the FPTC.
13. Claims Previously Dismissed
Defendants seek to exclude evidence concerning claims that were previously
dismissed. (Dkt. #137, at 37-38.) Plaintiff does not oppose the motion, while noting that
no claims were dismissed at summary judgment, only certain of defendants’ affirmative
defenses. (Dkt. #151, at 34.) For reasons set forth above in Defendant’s MIL No. 5, the
court may still dismiss plaintiff’s First Amendment retaliation claim against Melnick.
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This motion is GRANTED with the following clarification: Neither party may
discuss claims or defenses that were dismissed or rejected on the merits earlier in this case or
make arguments inconsistent with those rulings. However, both parties may elicit
testimony regarding relevant facts surrounding the circumstances of the defendants’
conduct involving plaintiff, whether or not also related to the claims or defenses previously
dismissed.
14. Plaintiff’s Expert Testimony
Defendants seek to exclude certain opinion testimony from plaintiff’s expert, James
Ferreira, who worked in the field of adult institutional corrections in the Commonwealth
of Massachusetts before 2020. (Dkt. #137, at 38-53.) Specifically, defendants seek to
exclude the following to exclude portions of Ferriera’s opinion testimony:
• Opinion No. 1: Staff sexual harassment, as Sergeant Melnick did to Mr.
Sodemann, puts the harassed offender at risk.
• Opinion No. 2: Staff sexual harassment, as Sergeant Melnick did to Mr.
Sodemann, puts staff and other offenders at risk.
• Opinion No. 3: These risks are so serious that the federal government and
prisons have detailed rules about them.
• Opinion No. 4: Prison administrators’ reactions to Sergeant Melnick’s
conduct show how serious it was.
(Id. at 38) (citing Dkt. 99:5-7).) Defendants also seek to exclude Ferreira providing his
ultimate conclusion: “Sergeant Melnick’s misconduct placed Mr. Sodemann at substantial
risk and danger of suffering serious harm.” (Id. (citing Dkt. 99:7).)
Plaintiff argues that Ferreira’s proposed testimony is appropriate and necessary to
combat Melnick’s defense that he was “just joking” and intended no harm. (Dkt. #151,
at 34-40.) The court generally agrees, at least to the extent that Mr. Ferreira may be helpful
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to the jury’s understanding as to the dynamic and potential dangers between officers and
inmates, especially with respect to sexual matters, although he will obviously not be
testifying about what Mr. Melnick did but rather what he understands the evidence will
show. In particular, it is for the jury to decide what Melnick actually did or did not do,
and why any actions were or were not undertaken by defendants in response. With this
caveat, this motion in limine is DENIED.
15. Disclosures in Expert Report
Finally, defendants seek to exclude testimony from Ferreria on matters outside of
those disclosed in his expert report dated March 6, 2024. (Dkt. #137, at 53.) Not only
does plaintiff represent that no undisclosed expert evidence will be introduced at trial, this
is the court’s standard practice consistent with Fed. R. Civ. P. 26(a)(2). Therefore, the
motion in limine is MOOT.
ORDER
IT IS ORDERED that:
1. Plaintiff’s omnibus motion in limine (dkt. #124) is GRANTED, RESERVED
and DENIED IN PART as set forth above.
2. Defendants omnibus motion in limine (dkt. #137) is GRANTED,
RESERVED and DENIED IN PART as set forth above.
Entered this 2nd day of April, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Case: 3:22-cv-00374-wmc Document #: 167 Filed: 04/02/26 Page 35 of 35