Free Response to Motion - District Court of Delaware - Delaware

p Case 1 :04-cv-00193-SLR Document 141 Filed 06/23/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANIBAL MELENDEZ, )
Plaintiff, 3
v. g C.A. No. 04-193-SLR
NATE GARDELLS, and MICHAEL g
ALLEN, )
Defendants. g
PLAINTIFF’S RESPONSE TO DEFENDANTS’
MOTION TO STRIKE PLAINTIFF’S WITNESS CURTIS EVANS
Plaintiff Anibal Melendez ("Melendez") hereby responds to Defendants’ Motion
to Strike Plaintiffs Witness Curtis Evans (the "Motion to Strike") as follows:
1. Curtis Evans ("Evans") occupied the prison cell next to the cell of
Melendez on December 10, 2003, the day Melendez alleges he was assaulted by the
Defendants. Evans testified in his deposition that he was able to hear sounds from
Melendez’s cell through a grate in the wall separating their cells and that they talked to
each other.
2. Evans also testified in his deposition that he would not discuss what he
heard at certain times on December 10, 2003, concerning what went on in Melendez’s
cell because he feared retaliation by prison officials. The jury would be entitled to draw
the inference from that testimony that Evans heard the Defendants assault Melendez.
Otherwise, Evans would testify that he heard nothing unusual that day. Thus, his
testimony meets the "any tendency” criteria for relevant evidence under F.R.E. 401. .

Case 1 :04-cv-00193-SLR Document 141 Filed 06/23/2008 Page 2 of 2
3. Defendants main argument is that Evans’ testimony, if he says he fears
future retaliation, will be "inflammatory" so as to constitute "unfair prejudice." Motion to
. Strike 116.
4. There are ways to address this issue presented by the Motion to Strike.
First, the Court may hold a hearing without the jury present to instruct Evans that he must
testify as to what he heard on December 10, 2003. Second, the Court may instruct the
jurors that it would be improper for them to infer that Defendants are in any way
responsible for Evans’ fear of future retaliation.
5. Melendez is not responsible for Evans’ reluctance to testify and should not
be prejudiced by Evans’ fears. Defendants are free to argue that Evans’ refusal to testify
is because he does not want to testify against the interests of his Hiend, Melendez, and the
jurors should infer Evans’ testimony would be against Melendez’s interests if he testified
truthfully.
WHEREFORE, Melendez prays that the Motion to Strike be denied.
MORRIS JAMES LLP
Edward M. McNajly ED. No. 614)
Jason C. Jowers (I.D. No. 4721)
500 Delaware Avenue, Suite 1500
P.O. Box 2306
Wilmington, Delaware 19899
Telephone: 302-888-6800
Facsimile: 302-571-1750
[email protected]
[email protected]
Attorneys for Plaint@’Anibal Melendez
Dated: June 23, 2008
1825705/1
2

Case 1:04-cv-00193-SLR

Document 141

Filed 06/23/2008

Page 1 of 2

Case 1:04-cv-00193-SLR

Document 141

Filed 06/23/2008

Page 2 of 2