Plaintiff KEITH AYOTTE represented by VERNE E. PARADIE, JR.
Defendant DAVID CUTLER In his Individual Capacity as a Correctional Officer, Maine State Prison represented by MARTIN RIDGE BEAGLE & RIDGE, LLC
CURTISS DOYLE In his Individual Capacity as a Correctional Officer, Maine State Prison represented by JAMES E. FORTIN OFFICE OF THE ATTORNEY GENERAL
ORDER ON PENDING MOTIONS 
John H. Rich III United States Magistrate Judge
Pending before me are three motions in limine, filed one each by the three remaining parties in this case, as well as a motion by defendant Curtiss Doyle and nonparties Maine Department of Corrections and Joseph Fagone to quash a subpoena duces tecum served on Fagone by the plaintiff Keith Ayotte, and a motion by Ayotte for the issuance of writs of habeas corpus ad testificandum for two Maine State Prison witnesses. See Plaintiff’s Motion in Limine (“Ayotte Motion”) (ECF No. 104); Motion in Limine of Defendant Curtiss Doyle (“Doyle Motion”) (ECF No. 105); Defendant David Cutler’s Motion in Limine (“Cutler Motion”); Motion To Quash (ECF No. 123); Motion for Writs of Habeas Corpus Ad Testificandum for Witnesses from Maine State Prison (“Motion for Writs”) (ECF No. 125). I rule as follows:
1. Ayotte Motion.
Ayotte seeks to preclude the admission at trial of evidence of his criminal history and to introduce evidence of defendant David Cutler’s asserted similar mistreatment of another inmate, which led to the termination of Cutler’s employment at Maine State Prison (the “Other Inmate Incident”). See Ayotte Motion at 2-7. The defendants oppose precluding the plaintiff’s criminal history, contending that it is admissible impeachment evidence under Federal Rule of Evidence 609. Cutler opposes the introduction of evidence of the Other Inmate Incident, arguing that it is inadmissible pursuant to Federal Rule of Evidence 404(b). See Opposition to Plaintif[f]’s Motion in Limine (“Doyle Opposition”) (ECF No. 107) at 1-2; Defendant David Cutler’s Objection to Plaintiff’s Motion in Limine (“Cutler Opposition”) (ECF No. 110) at 1-4; see also Cutler Motion.
To the extent that Ayotte seeks to preclude the admission of evidence of his criminal history, the motion is DENIED without prejudice to its renewal at trial. The defendants seek to introduce evidence of Ayotte’s conviction of two crimes, aggravated assault and criminal threatening with a dangerous weapon, for the purpose of impeaching his credibility. See Doyle Opposition at 2; Cutler Opposition at 1. Both crimes are punishable by a term of imprisonment of more than one year, see 17-A M.R.S.A. §§ 208, 209, 1252(2)(B)-(C) & (4), and the defendants represent that both occurred within 10 years of Ayotte’s release from prison, see Doyle Opposition at 2; Cutler Opposition at 1. Accordingly, pursuant to Rule 609, the evidence is admissible for the purpose of impeachment unless the court determines that its probative value is substantially outweighed by, inter alia, a danger of unfair prejudice. See Fed. R. Evid. 403, 609(a)(1)(A) & (b). It would be premature to rule on that question outside of the trial context.
To the extent that Ayotte seeks to introduce evidence of the Other Inmate Incident, the motion is DENIED. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). However, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. 404(b)(2). The First Circuit employs a two-part test in assessing the admissibility of evidence pursuant to Rule 404(b)(2): whether the evidence is “specially probative of an issue in the case – such as intent or knowledge – without including bad character or propensity as a necessary link in the inferential chain[, ]” and whether “the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, potential confusion of the issues, or the possibility that the jury would be misled.” United States v. Rodríguez, 215 F.3d 110, 118 (1st Cir. 2000) (citations and internal quotation marks omitted). See also Huddleston v. United States, 485 U.S. 681, 686 (1988) (“The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character.”).
Ayotte fails to show that evidence bearing on the Other Inmate Incident is specially probative of an issue in his case. Ayotte’s sole remaining claim for trial is that Cutler and Doyle harassed and threatened him in violation of his First Amendment rights. See Report of Final Pretrial Conference and Order (“FPTC Report”) (ECF No. 89) at 1-2. He alleges that, on or about March 15, 2011, in retaliation for his complaints to prison officials about his treatment at the Maine State Prison, Cutler, Doyle, and a third corrections officer, Nova Hirsch, appeared at his cell, threw him against the wall, handcuffed him, and brought him to a unit manager’s office, where they forced him to strip off all of his clothes and made him sit in the middle of the room while they threatened him that he needed to keep his mouth shut about things that were going on or they would bury him. Complaint & Demand for Jury Trial (“Complaint”) (ECF No. 1) ¶¶ 23-24; see also Recommended Decision (ECF No. 67) at 8-9, 18-20; Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 79). He seeks to introduce evidence at trial regarding an incident that Cutler says happened almost two years later, in which Cutler allegedly brought another Maine State Prison inmate to an office, ordered him to sit, and pulled his legs out from under him when he refused to do so, causing him to fall on his back. See Ayotte Motion at 6-7; Cutler Opposition at 1.
Ayotte argues that the Other Inmate Incident is probative of Cutler’s intent to use threatening, intimidating, and even assaultive behavior to strike fear in the minds of inmates to attempt to control their behavior and to act maliciously to cause harm to an inmate. See Ayotte Motion at 6. He cites O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988), and Eng v. Scully, 146 F.R.D. 74 (S.D.N.Y. 1993), for the proposition that a civil rights plaintiff is entitled to prove by extrinsic evidence other instances in which a defendant officer acted maliciously and sadistically for the very purpose of causing harm. See id. at 5-6. However, in both Krzeminski and Scully, evidence of prior excessive force incidents was admitted to show that the defendant officer had the intent to use excessive force when he struck the plaintiff. See Krzeminski, 839 F.2d at 10-11; Eng, 146 F.R.D. at 80. In this case, a different question of intent is presented: whether Cutler harbored an intent to retaliate against Ayotte for his exercise of his First Amendment rights. See Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011) (“[T]o survive summary judgment on a retaliation claim, a prisoner must make out a prima facie case by adducing facts sufficient to show that he engaged in a protected activity, that the state took an adverse action against him, and that there is a causal link between the former and the latter.”).
Furthermore, the Other Inmate Incident took place almost two years after the one involving Ayotte. While the mere fact that it was a subsequent incident does not make it inadmissible under Rule 404(b), see, e.g., United States v. Bergrin, 682 F.3d 261, 281 n.25 (3d Cir. 2012), the two-year gap is another factor weighing against a finding of its relevance.
Under the circumstances, the Other Inmate Incident cannot fairly be described as specially probative of Cutler’s intent to retaliate against Ayotte two years earlier for exercising his First Amendment rights. It bears generally on Cutler’s animus against, and propensity to harm, inmates. As a result, drawing an inference from that incident as to Cutler’s intent to retaliate against Ayotte for the exercise of his free speech rights requires “including bad character or propensity as a necessary link in the inferential ...