Sloley v. State of New York et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MAXMILLIAM SLOLEY,
Plaintiffs,
v. 	1:14:CV-339
(PJE)
ERIC VANBRAMER,
Defendant.
U.S. Magistrate Judge
Paul J. Evangelista
APPEARANCES: 	OF COUNSEL:
Cohen & Green P.L.L.C. 	REMY GREEN, ESQ.
1939 Centre Street, Suite 216 	REGINA J. YU, ESQ.
Ridgewood, New York 11385
Attorneys for plaintiff1
New York State Attorney General 	MARK G. MITCHELL, ESQ.
State of New York 	RACHAEL OUIMET, ESQ.
The Capitol
Albany, New York 12224
Attorneys for defendant
DECISION & ORDER
I. Introduction
A jury trial in this case is set to begin on April 7, 2026, before the undersigned.
The parties have moved in limine, each seeking rulings on the admissibility of a variety
of matters. See Dkt. Nos. 180, 194. Each motion is opposed. See Dkt. Nos. 199, 200.
Defendant’s opposition contains supplemental in limine requests. See id. at 200.2
1 See Dkt. No. 168 (Order Appointing Pro Bono Counsel).
2 The Court’s citations to the parties filing are to the pagination located at the header of each page,
generated by the Court’s electronic filing software, not the documents’ original pagination.
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Familiarity with the facts and procedural history underlying this action is presumed and
will not be repeated here.
As the Eastern District of New York has recently laid out:
“The purpose of a motion in limine is to allow the trial court to rule in advance
of trial on the admissibility and relevance of certain forecasted evidence.”
Gorbea 	v. 	Verizon 	N.Y., 	Inc., 	No. 	11-CV-3758(KAM)(LB), 	2014 	WL
2916964, at *1 (E.D.N.Y. June 25, 2014) (citing Luce v. United States, 469
U.S. 38, 40 n.2, 105 S. Ct. 460, 462 (1984)). “Evidence should be excluded
on a motion in limine only when the evidence is clearly inadmissible on all
potential grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181
(S.D.N.Y. 2001). Further, the court’s ruling regarding a motion in limine is
“subject to change when the case unfolds, particularly if the actual testimony
differs from what was [expected].” Luce[,] 469 U.S. at 41, 105 S. Ct. at 463.
In considering a motion in limine, a court “may reserve decision until trial,
so that the motion is placed in the appropriate factual context.” Gogol v. City
of New York, No. 15 Civ. 5703(ER), 2018 WL 4616047, at *1 (S.D.N.Y.
Sept. 26, 2018).
Zhang v. Rosenbaum, Famularo & Segall, P.C., No. 22-CV-1422(SIL), 2025 WL
622548, at *2 (E.D.N.Y. Feb. 25, 2025).
II. Motions
In his motion in limine, recognizing this Court’s intention to adopt Judge
Hummel’s rulings made in the final pretrial conference in the first trial in this action,
plaintiff “readopts his prior motions in limine.” Dkt. No. 180-1 at 6. He argues as follows
(1) that defendant be precluded from displaying or introducing as an exhibit a poster of
police dog Ryder; (2) that the Court direct defense counsel to use only leading
questions “when examining witnesses on subjects that risk violating in limine rulings”;
(3) preclude defendant from arguing in his summation “that the jury should not brand
defendant as someone who violates peoples’ constitutional rights, while plaintiff is
someone who is generally manipulative and dishonest,” “appeals to sympathy for
defendant and his future career in police work,” and, alternatively, if defendant so
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argues, “the Court should preemptively allow plaintiff to elicit testimony about indemnity,
police that are not heroes, and to appeal similarly to the jury’s emotions”; (4) the Court
should reconsider its ruling on allowing “basic information” about some of plaintiff’s prior
civil actions; and (5) the Court should “reserve certain issues for the charge
conference,” “including but not limited to the precise wording of jury instructions . . . and
any issues concerning qualified immunity that will depend on how the evidentiary record
is developed.” Dkt. No. 180-1 at 6-23.
Defendant seeks this Court to (1) allow cross examination of plaintiff about his
other federal civil lawsuits, Sloley v. Seeley, et al., 9:18-CV-0856; Sloley v. Filli, et al.,
1:12-CV-01751; and Sloley v. NYS DOCCS, et al., 9:23-CV-01469, (2) permit defendant
to inquire into plaintiff’s convictions and supervised release pursuant to the Court’s
earlier rulings; (3) preclude plaintiff from “offering testimony or other evidence . . . about
other individuals claiming that they were searched by Eric VanBramer or other state
troopers” and “offering any testimony or other evidence . . . about Eric VanBramer or
other state troopers having a reputation for engaging in improper searches”;
(4) preclude plaintiff from offering evidence, testimony, or cross-examination regarding
defendant’s or nonparty Bryan VanBramer’s disciplinary records or histories;
(5) preclude plaintiff from referencing dismissed claims; (6) preclude plaintiff from
alleging defendant engaged in a “conspiracy” or “cover-up” with nonparty Bryan
VanBramer or the New York State Police; (7) preclude plaintiff from seeking an adverse
inference instruction or arguing that the jury should draw an adverse inference based on
the destruction of drug evidence; and (8) admit into evidence records from plaintiff’s
mental health provider Dr. Richard Kessler. Dkt. No. 194-1.
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In opposition, plaintiff reiterates most of the arguments raised in his Motion in
Limine. The Court discusses only where his arguments differ or are expanded in
response to defendant’s motion. As to plaintiff’s prior civil cases, plaintiff contends,
should defendant use plaintiff’s prior civil suits to suggest plaintiff has a propensity for
litigation, “the Court should warn Defendant in advance that it will give a curative
instruction that informs the jury that Defendant was told not to make this argument, that
it was improper, that those suits will be addressed elsewhere and could be meritorious,
and further allow Plaintiff to make arguments that the violation of the rule allows
inferences about other issues.” Dkt. No. 199 at 5. As for plaintiff’s criminal convictions,
plaintiff contends that he “does not ask the Court to reconsider the substance of its prior
rulings [] but has raised concerns over how the criminal history was handled,” arguing
that his request to require defendant to ask pre-screened leading questions would cure
that concern. Id. at 6. As to the conspiracy point, plaintiff states that he “does not
intend to argue conspiracy qua conspiracy,” but that he “will touch on exactly what the
Second Circuit said is at issue: whether the ‘trier of fact [will] disbelieve Eric’s account of
finding drugs in Sloley’s car.” Id. at 8 (quoting Sloley v. VanBramer, 945 F.3d 30, 45 (2d
Cir. 2019). “If VanBramer is not telling the truth, what he says he did may involve
something broadly fair to describe as an effort to ‘cover-up’ such a deprivation.’” Id.
Next, in response to defendant’s in limine request that there be no adverse
inference charge or argument made to the jury with respect to the destroyed drug test
kit, plaintiff argues that defendant applies the wrong test, and that under the “special
relationship test,” an adverse inference should be given or, alternatively, any reference
to the drug test kit should be precluded. Dkt. No. 199 at 9-10.
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In defendant’s opposition he reiterates his arguments in his motion in limine;
thus, only those arguments that differ from his motion in limine or new arguments are
detailed here. See Dkt. No. 200-1. With respect to plaintiff’s in limine request to
exclude a photographic image of police dog Ryder (exhibit D-19 in Sloley I), defendant
argues (1) Ryder passed away and cannot be produced for trial; (2) plaintiff stipulated to
Exhibit D-19 in Soley I, which means he “conceded that Exhibit D-19 is appropriate
evidence in this case,” and (3) the Second Circuit rejected his argument on appeal that
the Court improperly allowed the photographic evidence of Ryder. See id. at 4 (citing
Dkt. No. 194-6 at 19-203). As to plaintiff’s request that defense be directed to submit
prescreened questions and ask only leading questions surrounding plaintiff’s criminal
convictions, defendant contends that (1) the Second Circuit rejected plaintiff’s argument
that the Court “erred by not doing enough to exclude evidence of Plaintiff’s prior
convictions” (citing Sloley II, 2025 WL 2741780, at *3), (2) plaintiff ignores that he
“opened the door by referencing his criminal history and trying to create the false
impression that Plaintiff was acquitted of the charges from the April 1, 2013 incident,”
and (3) at trial, “the Court faulted Plaintiff’s counsel for, among other things, attempting
to testify about matters that plainly were not in evidence (Dkt. No. 144 at pp. 182, 239)
and trying to insinuate that Defendant is a racist (Dkt. No. 145 at p. 315)” such that if the
Court imposes “special precautions, they should be imposed on Plaintiff’s counsel in
order to deter such conduct.” Id. at 6-8.
Next, responding to plaintiff’s “emotional appeals” argument, defendant asserts
that plaintiff “did not object to the defense closing, which refutes Plaintiff’s newly-
3 Defendant cited the original pagination, pages 11-12.
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adopted view that the closing was improper.” Dkt. No. 200-1 at 8. Plaintiff argues that
in his appeal, he presented the argument that the Court erred “by permitting defense
counsel to ‘idolize VanBramer in closing[,]’” and the Second Circuit rejected that
argument.” Id. Defendant argues that he is permitted to (1) introduce evidence about
defendant’s long service as a police officer, training, and experience as credibility is
“key” in this trial; and (2) argue that the jury should not find “certain witnesses credible,
including by arguing that plaintiff is making false allegations in an effort to obtain money
from the jury.” Id. at 9-10.4
Defendant newly argues that plaintiff should be precluded from arguing that
defendant would be indemnified should they find for plaintiff as (1) the Court resolved
the issue in the first trial by ruling that neither party would be permitted to introduce
evidence as to “‘who will or will not pay any award which plaintiff may receive with
respect to this matter’ which is “the law of the case” (quoting Dkt. No. 146 at 39),
(2) such evidence would be prejudicial and could influence the jury, and (3) “[w]hether
or not Defendant would be indemnified should Plaintiff obtain a judgment in this action is
a determination that has not yet been made.” Dkt. No. 200-1 at 10. In response to
plaintiff’s request that the Court reserve “certain issues” for the charge conference,
defendant argues that the Court should instruct the jury on nominal damages as the
Court ruled in favor of defendant on this in limine request in Sloley I which is the law of
the case. Id. at 14. Further, defendant provides, “although Plaintiff claims to have
waived his entitlement to seek nominal damages, Plaintiff’s proposed jury instruction
4 In a footnote, defendant argues that the Court, in its May 25, 2023, decision concluded that defendant’s
testimony about searching for missing children was properly admitted “ ‘as an example of [Defendant’s]
use and success working with a canine in conducting a search.’ And should be admitted at the retrial of
this matter.” Dkt. No. 200-1 at 9 n.2.
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tells a different story as the instruction “is conspicuously silent about what the jury
should do in the event that it finds in favor of Plaintiff on liability, but determines that
Plaintiff’s damages have no monetary value” which risks misleading the jury. Id. at 16.
Defendant next argues that the Court should preclude plaintiff’s proposed
witness Aaron King from testifying. See Dkt. No. 200-1 at 16. Plaintiff’s witness list
states that plaintiff may call Mr. King “‘to testify about his own experience encountering
Eric and Bryan VanBramer approximately one year after Plaintiff’s experience, under
similar circumstances involving a car stop, an alert by a K-9, and a subsequent strip
search.’” Id. (quoting Dkt. No. 197 at 2). Defendant avers that Mr. King has no
personal knowledge about the April 1, 2013, incident underlying this complaint; his
testimony about a different search is not relevant; it can be viewed by the jury as
propensity evidence; any probative value is substantially outweighed by the risk of
unfair prejudice; and the search involves Bryan VanBramer, who is not a defendant. Id.
at 17.
Lastly, defendant seeks the Court to preclude plaintiff from introducing
defendant’s “first appellate brief from the first appeal as evidence or offering any proof
or testimony about the contends of that brief.” Dkt. No. 200-1 at 17. Defendant argues
(1) an appellate brief is not evidence, (2) there was a different standard of review
applied to the appeal as it was on review of a motion for summary judgment which
required all inferences be drawn in plaintiff’s favor, and (3) any relevance “would be
outweighed by the risk of confusing the issues and misleading the jury.” Id. at 18.
Defendant argues, if plaintiff is permitted to introduce defendant’s first appellate brief, he
should be permitted to introduce his second appellate brief from the second appeal
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wherein defendant “maintained, among other things, that he did not conduct a visual
body cavity search of Plaintiff.” Dkt. No. 200-1 at 19 (citing Dkt. No. 200-2 at 11, 24-25,
32).
III. Discussion
A. Police Dog Display
Plaintiff’s first request is granted in part and denied in part. With respect to the
display of Ryder, the argument plaintiff made to the Second Circuit was in the context of
his assertion that this Court allowed defendant “to give irrelevant and prejudicial
testimony,” “including” that defendant elicited testimony about defendant’s “love of
animals and his love of the K-9 unit,” that the police dogs become part of your family,
and that during defendant’s testimony “the defense presented a banner of his police dog
to the jury.” Dkt. No. 194-6 at 20. The Court rejected plaintiff’s remaining arguments as
improper, which includes plaintiff’s arguments with respect to the “banner” of police dog
Ryder.
Considering that plaintiff stipulated into evidence the exhibit during the first trial,
did not object to the display at trial, presented an argument about the display of police
dog Ryder to the Second Circuit on appeal, which collectively rejected plaintiff’s
argument, the Court will not now exclude this exhibit. See generally In re Coudert Bros.
LLP, 809 F.3d 94, 98-99 (2d Cir. 2015) (internal citations omitted) (“The scope of a
mandate may extend beyond express holdings, and precludes relitigation both of
‘matters expressly decided by the appellate court” and of “issues impliedly resolved by
the appellate court[ ].’ A mandate, therefore, may expressly dispose of certain issues
raised on appeal, or if the disposition of an issue is ‘necessarily implied’ by our decision,
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a mandate may also foreclose such an issue from being considered by the lower
court.”). The Court will, however, limit the display of the exhibit to being in the jury’s
view only during that portion(s) of defendant’s testimony specific to police dog Ryder.
Accordingly, plaintiff’s in limine request on this ground is denied.
B. Leading Questions
Plaintiff seeks the Court to require defense counsel to ask leading questions
when examining witnesses on topics “that risk violating in limine rulings.” Dkt. No. 180-
1 at 11; Dkt. No. 199 at 6 (seeking “leading questions, screened in advance”). The
Court denies the request as premature. 	Should defense counsel engage, or appear on
the verge of engaging, in a line of questioning is improper based on the Court’s earlier
rulings, the Court will, at that time, consider requiring the use of leading questions.
C. Emotional Appeals
Plaintiff’s request is addressed as follows. The Court will allow general character
evidence and parties to invite the jury to draw conclusions as to each party’s character.
The Court will allow defense counsel to question defendant as to his experience and
accomplishments relating to his police work specific to his K9 experience and search-
related work. However, the Court will not permit testimony or closing arguments about
the impact of a verdict on defendant’s future police career or reputation. To the extent
plaintiff is concerned about defendant attempting to portray plaintiff as someone who is
trying to game the system, while the Court will also allow general character evidence
and allow the jury to reach their own conclusions about each witness’ character and
credibility based on the testimony presented, absent evidence that plaintiff’s other civil
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lawsuits were fraudulent, the defendant will be required to proceed cautiously with
arguments making that suggestion to the jury.
D. Plaintiff’s Prior Civil Cases
Insofar as plaintiff seeks this Court to reconsider Judge Hummel’s earlier
decision regarding plaintiff’s other civil suits, the motion in limine is denied and
defendant’s is granted. The Court adopts Judge Hummel’s ruling as to plaintiff’s prior
civil actions. The Court will allow defendant to present general information about the
filing of plaintiff’s civil suits, such as the nature of the allegations, date the actions were
commenced, and the emotional damages claims:
(1) Sloley v. Seeley, et al., 9:18-CV-856 (N.D.N.Y. 2018): cruel and unusual
punishment 	as 	pretrial 	detainee, 	claimed 	psychological 	impact
(“tremendous harmful psychological effects, such as stress, depression,
fear, anxiety”)
(2) Sloley v. Fili, 12-CV-1751 (N.D.N.Y. 2012): strip search in connection
with an arrest, claimed injury that included “great mental anguish, emotional
distress, public humiliation, and . . . fear of physical harm and violence.”
(3) Sloley v. NYS DOCCS, Dr. Andola, et al., 9:23-cv-01469 (N.D.N.Y.
2023). The Court adopts Judge Hummel’s prior ruling to exclude evidence
about Sloley v. Lebow, 17-CV-68 (N.D.N.Y. 2017) as plaintiff did not claim
emotional damages in the complaint in that case. 	In referring to plaintiff’s
other civil lawsuits, parties are to refer to them as “cases.”
Plaintiff contends that, in the first trial, defense counsel relied on the earlier civil
trials to imply that plaintiff has a propensity for bringing legal actions. Unless defendant
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can proffer evidence that any of the other civil lawsuits were fraudulent, he cannot use
them to argue that plaintiff has a propensity for bringing lawsuits or claiming false
emotional damages. See Scoma v. City of New York, No. 16-CV-6693 (KAM/SJB),
2021 WL 1784385, at *7 (E.D.N.Y. May 4, 2021) (citing Marcic v. Reinauer Transp.
Companies, 397 F.3d 120, 125 (2d Cir. 2005) (“A trial court has a duty to prevent
charges of litigiousness if they are likely to result in undue prejudice that is not
substantially outweighed by their probative value.”) then citing Ragin v. Newburgh
Enlarged City Sch. Dist., No. 10-cv-2797 (JFK), 2011 WL 2183175, at *2 (S.D.N.Y. June
3, 2011) (“The introduction of evidence concerning [plaintiff's] past litigation would
distract the jury from the central issues in the trial and may well lead to prejudice against
[plaintiff] as a frequent litigant. We would be getting too close to propensity evidence.”)).
E. Reserving for Charge Conference; Nominal Damages
To the extent plaintiff seeks this Court to reserve as to the specific language of
the jury charge until the charge conference, that motion is granted insofar as a final
determination on the specific language and contents of the jury charge will be made at
the charge conference. However, the Court will entertain discussion regarding the jury
charge at the final pretrial conference. To the extent plaintiff appears to suggest that he
seeks the Court to defer on whether to include a charge as to qualified immunity, it will
hear parties’ arguments at the charge conference, but the Court intends to follow Judge
Hummel’s ruling: to not instruct the jury as to qualified immunity unless and until the jury
returns a verdict in favor of plaintiff, and if that occurs, the Court will then hear from
counsel as to whether further instruction on qualified immunity is appropriate. See Dkt.
No. 146 at 34.
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Defendant has requested a nominal damages charge. Although the Court
reserves on the exact language of the charge, the Court declines to wait until the charge
conference to address the issue of whether the jury will be charged with nominal
damages. See Dkt. No. 200-1 at 14. The Court adopts Judge Hummel’s prior ruling and
will charge the jury with nominal damages. See Dkt. No. 145 at 122-24, 139.
F. Plaintiff’s Convictions and Supervised Release
Plaintiff indicates that he is not “ask[ing] the Court to reconsider the substance of
its prior rulings” with respect to plaintiff’s felony convictions but instead seeks that his
request defendant be required to submit prescreened leading questions with respect to
those earlier convictions. Dkt. No. 199 at 6. The Court adopts Magistrate Judge
Hummel’s prior rulings for the 2017 convictions. Defendant will be able to inquire into
the statutory name and date of convictions for (1) criminal possession of a weapon in
the second degree in 2017, (2) unlawful fleeing from the police in a motor vehicle in
2017, and (3) criminal impersonation in 1996. See Dkt. No. 146 at 14. 	Defendant will
also be permitted to question plaintiff as to whether he was on supervised release at the
time of the incident.
Consistent with Judge Hummel’s ruling, defendant will not be permitted to
question plaintiff or introduce evidence on his 2005 felon in possession of a firearm
conviction or 1997 conviction for criminal sale of a controlled substance as their
probative value is minimal and far outweighed by their prejudice. See United States v.
Vazquez, 840 Supp. 2d 564, 568-699 (E.D.N.Y. 2011); Dunham v. Lobello, No. 11-CV-
1223 (ALC), 2023 WL 3004623, at *2 (S.D.N.Y. Apr. 19, 2023) (Under Rule 609(b),
“convictions over 10 years old [should] be admitted very rarely and only in exceptional
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circumstances, as convictions over ten years old generally do not have much probative
value.” (first quoting FED. R. E VID 609(b) then (quoting United States v. Brown, 606 F.
Supp. 2d 306, 313 (E.D.N.Y. 2009) (internal citations and quotation marks omitted))
(noting that drug possession crimes have little probative value for credibility purposes).
The Court will not require defense counsel to use leading, prescreened questions
as it relates to plaintiff’s past convictions. It will allow plaintiff’s counsel to renew this
request should it be determined necessary during trial. It will similarly allow defense to
make such a request should plaintiff’s counsel proceed with lines of questioning that
challenge the Court’s in limine rulings.
G. Other Searches & Aaron King’s Testimony
Insofar as defendant seeks to preclude plaintiff from seeking to elicit testimony or
introduce evidence about (1) other searches defendant or other state troopers
performed on individuals other than plaintiff, or (2) any reputation that defendant or
other state troopers may have for performing unlawful searches, that motion is granted.5
Whether other state troopers have engaged in other searches or have a reputation for
improper searches is not relevant here. Further, the Court agrees, even if plaintiff
presents evidence that defendant has engaged in other improper searches, inquiry into
specific searches would require a “trial within a trial.” As per Judge Hummel’s ruling,
the Court will permit some general questioning as to whether defendant has performed
searches in other cases and found drugs. See Dkt. No. 146 at 43-46. It will not allow
5 	In the opposition to defendant’s motion in limine, plaintiff’s counsel suggests that the Second Circuit did
not reject plaintiff’s arguments regarding exclusion of questioning of other searches. See Dkt. No. 199 at
7. Although the Second Circuit did not discuss the other issues plaintiff raised on appeal, it did conclude
that it considered and reject all other arguments plaintiff raised, which included this argument. 	Further,
the Court finds counsel’s implication that defense counsel may have used A.I. to be both unnecessary
and unsubstantiated especially where defendant’s citation properly points to that part of the decision
where the Second Circuit rejected all remaining arguments. See Dkt. No. 199 at 7 n.2.
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testimony as to specific other complaints involving other individuals alleging that
defendant engaged in improper searches.
In his opposition, defendant seeks to preclude testimony from Aaron King, who
plaintiff included as a potential witness. In plaintiff’s opposition, plaintiff indicates that he
intends to introduce evidence of prior searches as they “could be used show absence of
mistake, MO, and the like” and be “used on credibility, depending on Defendant’s
testimony.” Dkt. No. 199 at 7. 	Plaintiff provides that he intends to use potential results
of a subpoena, dkt. no. 201, to seek a complaint and “any closing report,” and it appears
that the complainant is Mr. King. The Court will not allow any testimony on prior
searches. Even if they could be used to challenge credibility or in support of the vague
categories plaintiff’s counsel suggests, it is clear that the probative value is significantly
outweighed by the prejudice. Just as Judge Hummel was concerned at the first trial on
this manner, a complaint is not conclusive of anything. The true purpose of seeking to
include a search alleged to have been improper that involves a different complainant, at
a different time, under different circumstances could not be more plain – to suggest to
the jury that defendant has a propensity to perform improper searches. Accordingly, the
Court grants defendant’s motion in limine insofar as plaintiff is not permitted to introduce
testimony or evidence involving other searches involving individuals other than plaintiff
in which defendant was involved.
H. Disciplinary History of Defendant or Bryan VanBramer
As per Judge Hummel’s ruling, nothing involving complaints against Bryan
VanBramer, who is not a party to this action, is relevant; thus, testimony or evidence
relating to the disciplinary history of Bryan VanBramer or any other officer not a party to
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this suit will not be permitted. The Court is inclined to conclude that prior complaints
against defendant, if they exist, will not be permitted. The Court does not have before it
any evidence of defendant VanBramer’s prior disciplinary history. 	Further, it is not
clear for what purpose plaintiff seeks to introduce defendant’s potential disciplinary
history. It would appear to the Court that such evidence, if it exists, would be used to
demonstrate or suggest propensity to engage in improper conduct, which the Court will
not permit. See FED. R. E VID. 404(a)(1), (b)(1). However, given that the Court has no
such evidence before it nor a description of any such evidence, the Court cannot yet
conclude “at this stage that the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice.” Bryant v. City of Hartford, 585 F. Supp.
3d 179, 187 (D. Conn. 2022). Thus, to the extent (1) plaintiff seeks to enter evidence or
elicit testimony with respect to Bryan VanBramer or any other officer’s disciplinary
history, defendant’s in limine is granted, plaintiff is prohibited from so doing; and (2)
plaintiff may wish to enter into evidence or question defendant regarding his disciplinary
history, the Court reserves judgment until “th[is] issue[] [is] placed in context at trial” or
the charge conference should plaintiff present the Court with a clearer picture. Id.
(citing Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 937 F. Supp. 276, 287 (S.D.N.Y.
1996)).
I. Dismissed Claims
Defendant’s request to preclude plaintiff from testifying or introducing evidence
as to any dismissed claims is granted. Plaintiff states that he does not intend to do so,
“the Court addressed this issue correctly last time, and Plaintiff does and would not ask
to reconsider that ruling.” Dkt. No. 199 at 7. Entry of such testimony or evidence would
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be only for the purpose of seeking to litigate adverse determinations that the Court
already rendered, and, thus, improper. See generally Goreba v. Verizon New York,
Inc., 11-CV-3758 (KAM/LB), 2014 WL 2916964 (E.D.N.Y. June 25, 2014) (granting
motion in limine precluding evidence or previously dismissed claims because such
evidence would not be relevant, and, thus, inadmissible under Fed. R. Evid. 401).
J. Conspiracy
Defendant’s request to preclude plaintiff from testifying about defendant’s
participation in a conspiracy or “cover up” with Bryan VanBramer or the New York State
Police is granted as follows. There is no conspiracy claim in this action. To the extent
plaintiff’s counsel means they intend to argue that defendant “is not telling the truth”
about finding drugs in plaintiff’s car, dkt. no. 199 at 8, the Court will not bar plaintiff from
doing so within reason; however, plaintiff’s counsel is not to use the terms “conspiracy,”
“conspired,” or “cover up” in so arguing. 	Should there be other terms used during the
course of the trial that risk crossing over into a suggestion that there was a legal
conspiracy or agreement between defendant and any other person, the Court will
address such improper uses at that time.
K. Destruction of Drug Evidence
Defendant’s request to preclude plaintiff from seeking an adverse inference
instruction6 is granted unless plaintiff can proffer evidence to suggest that the drug
evidence was destroyed in a manner other than pursuant to the usual course of
6 The heading of this section of defendant’s in limine motion states that plaintiff should be precluded from
arguing that the jury should draw an adverse inference; however, the case law he cites refers to an
adverse inference instruction. See Dkt. No. 194-1 at 18. Thus, the Court addresses both an adverse
inference instruction and the ability of plaintiff’s counsel to argue that that the jury should draw an adverse
inference.
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business. Plaintiff’s alternative request to preclude any testimony or evidence on the
existence of the drug test kit is denied. The Court will later address the different
question of whether plaintiff may make this argument to the jury.
Defendant seeks to preclude plaintiff from requesting an adverse inference
instruction or arguing to the jury that they should draw an adverse inference from the
missing drug test kit, whereas plaintiff, in opposition, argues that the Court should
impute liability for destruction of the test from the New York State Police to defendant.
See Dkt. Nos. 194-1, 199, 200-1. The Court is not convinced the special relationship
test warrants an adverse inference instruction.7 Regardless, even if the Court were to
determine that the test applies, that does not end the discussion. The circumstances of
the agency’s destruction of the evidence is relevant. In Castro v. Smith, No. 16-8147,
2023 WL 5371311 (S.D.N.Y. Aug. 22, 2023),
which plaintiff cites, dkt. no. 199 at 9, the Court was considering spoliation sanctions
where there was no question that the evidence was destroyed after plaintiff’s counsel
contacted the Department of Corrections requesting preservation of the evidence.
Here, there is no evidence that plaintiff provided the state police or defendant a
preservation request before the drug test kit was destroyed or that they would have
reason to believe that the drug test kit would need to be retained. Plaintiff has not
shown authority that suggests that a general knowledge that civil litigation can follow
criminal litigation is grounds for warranting an adverse inference charge, without more.
See Dkt. No. 145 at 91-92.
7 	Although plaintiff does not so request, the Court makes clear that it has no intention to charge the jury
with the “special relationship” test.
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Thus, to the extent plaintiff may be requesting an adverse inference charge, that
request is denied.
The Court will, however, allow plaintiff to question defendant about the
destruction of the test kit and the “policy” or lack thereof for retaining or destroying
evidence, as they did at the first trial.8 See, e.g., Dkt. No. 145 at 91-92. Should plaintiff
open the door, defendant will be permitted to counter with the evidence and testimony
that the test was destroyed before the lawsuit was commenced, that the test was
destroyed pursuant to New York State Police policy, and that defendant was not the
deciding individual. 	Absent on-point case law otherwise, the Court will not permit
plaintiff from arguing that defendant or the New York State Police had a duty to
anticipate litigation absent notice of a civil lawsuit or preservation request.9
L. Dr. Kessler’s Records
The Court adopts Judge Hummel’s ruling to exclude Dr. Kessler’s records. See
Dkt. No. 146 at 42-44. Plaintiff appears to seek garden-variety emotional damages and
proffers no expert testimony as to his emotional damages. See Ruhlmann v. Ulster
Cnty. Dep’t of Soc. Servs., 194 F.R.D. 445, 450 (N.D.N.Y. 2000) (quoting Jaffee v.
Redmond, 518 U.S. 1, 18 (1996)). However, if plaintiff opens the door by testifying that
8 	The Court notes that the testimony at the prior trial was that Eric VanBramer destroyed “less than five”
test kits personally in his role as an evidence custodian. See Dkt. No. 145 at 95. The Court does not
read this testimony as suggesting “less than 5 drug test kits had apparently ever been destroyed . . . .”
Dkt. No. 199 at 10. When asked whether “in your position it was unusual to destroy a test kit, Defendant
testified that it was unusual, defendant responded, “in my position as an evidence custodian, it would be
unusual for me to have a test kit given to me as an item of evidence.” Dkt. No. 145 at 95. Plaintiff’s
motion in limine suggests that the trial established that there were fewer than five test kits ever destroyed
by the New York State Police, when the testimony itself suggested that defendant destroyed fewer than
five kits and that it was unusual or uncommon for him in this position to destroy drug test kits. Should this
testimony again be elicited at trial, absent evidence suggesting otherwise, the Court would be unlikely to
permit an argument that makes the leap suggested here. Dkt. No. 199 at 10.
9 It will consider allowing testimony about any procedures the New York State Police may have with
respect to preservation for civil or criminal lawsuits.
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he sought mental health treatment as a result of the incident underlying the complaint or
suggests emotional damages beyond garden variety, the Court will allow defendant to
renew his argument and will consider its admission. See MacMillion v. Millenium
Broadway Hotel, 873 F. Supp. 2d 546, 560 (S.D.N.Y. 2012) (“In ‘garden variety’ claims,
‘the evidence of mental suffering is generally limited to the testimony of the plaintiff, who
describes his or her injury in vague or conclusory terms, without relating either the
severity or consequences of the injury’”) (quoting Olsen v. County of Nassau, 615
F.Supp.2d 35, 46 (E.D.N.Y. 2009)).
M. Appellate Briefs
Defendant seeks to bar plaintiff from entering his first appellate brief into
evidence, and argues that if it is admitted, he seeks to enter his second appellate brief
into evidence. See Dkt. No. 200-1 at 18 (citing Dkt. No. 196), 17-19. The Court will not
allow either appellate brief into evidence. 	As it appears that the first appellate brief was
included as a potential means of challenging defendant should he argue that no visual
body cavity search occurred, see id. at 19, the Court reserves decision as to (1) whether
and to what extent it will allow questioning into whether defendant performed a visual
body cavity search (versus a strip search) of plaintiff or argument that defendant did not
perform a visual body cavity search of plaintiff, and (2) the language of the jury charge
and verdict form as further argument and support from parties on the issue underlying
is needed.10
10 	Parties should come to the final pretrial conference prepared to discuss this issue and whether this
argument – that defendant did not perform a visual body cavity search – was preserved or whether the
fact that a visual body cavity search occurred is the law of the case. Although the Court does not intend
to finally decide the terms of the charge or verdict forms at the pretrial conference, the Court is aware,
from parties’ proposed jury charges and proposed verdict forms, that defendant intends to have the jury
determine whether a body cavity search occurred and plaintiff’s submissions presume that a visual body
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N. Indemnification
The Court adopts Judge Hummel’s ruling from Sloley I. See Dkt. No. 146 at 38-
39. It will not allow testimony, argument, or evidence from either party that defendant
will or will not be indemnified. It will also not allow any implication that defendant will or
will not be held responsible for any verdict.
IV. Conclusion
For the foregoing reasons, as set forth herein, the parties’ motions in limine are
granted in part and denied in part. See Dkt. Nos. 180, 194, 200.
IT IS SO ORDERED.
Dated: April 2, 2026
Albany, New York
cavity search occurred. The Court observes that the verdict form in Sloley I, dkt. no. 11, appears to have
presumed that a visual body cavity search occurred. See Dkt. Nos. 182, 189.
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