United States District Court, N.D. Illinois
April 21, 2004.
CLYNELL MICKEY, Plaintiff
LIUTARUS DARGIS FOSTER BRADLEY, RONALD PROHASKA and ALBERT STUBENVOLL, all in their indiviual capacities, Defendants
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Both plaintiff and defendants have filed motions in limine. We rule
upon them as follows:
Plaintiff's motion l seeks to exclude any other "bad acts" evidence,
pursuant to Rule 404, Federal Rules of Evidence. Defendants have no
objection, and the motion is granted.
Plaintiff's motion 2 seeks to exclude any evidence that he was
convicted in a criminal case referred to as 92 CR 12107, contending that
it is beyond the ten-year window of Rule 609(b). That window is ten years
after the date of conviction or release from confinement imposed for that
conviction. We are told that the conviction on 92 CR 12107 was January
19, 1993, more than ten years ago, but we are not told when plaintiff was
released after serving some portion of his three-year sentence. If IDOC
records establish that the release was within the ten-year window, the
conviction is proper evidence; if the release date is not established, or
was more than ten years prior to trial, it is not. Further, defendants
make reference to a probation violation, without indicating whether they
seek admission of evidence respecting the violation. We are not provided with any precedent Indicating that a
probation violation is a conviction for the purposes of Rule 609. It
appears to be more akin to a Rule 404 prior bad act, and therefore not
admissible. We note that defendants do not appear to be seeking admission
of that violation as a conviction, as they list no exhibit relating to it
Plaintiffs motions 3 and 5, and defendants* motions l and 8, are all
related. Plaintiff seeks to exclude any evidence that the defendants were
"exonerated" by Internal Affairs. Since that relates to plaintiff's
motion 5, we turn to the issue of road flares. Plaintiff contends that
the "defendants" planted road flares, which are contraband, in his
belongings. He was written up, but not punished for that possession,
which led to the dismissal of Count n. He contends, however, that the
planting of the road flares by the defendants was a frame-up, indicating
The defendants are not, however, fungible. The suit earlier named six
defendants, but two were voluntarily dismissed. Presumably they had
access to plaintiff's belongings, or so Count II indicates. Defendants
contend that two of the remaining four did not have access, but we are
not provided with the basis for that contention. Further, we are not told
who else may have had access. All we are told is that plaintiff would
testify that road flares were found among his belongings sometime after
the incident, he did not put them there and he has no idea who
specifically did so. Thus we are left with the contention that one or more
of the six defendants, or perhaps others, planted the road flares, and
that is an indication of malice by the four remaining defendants. That
is, however, too weak a reed to support plaintiff's contention. We deny
plaintiff's motion 5. We grant his motion 3 because it has no relevance if
we are not getting into the road flares issue. We also, for the same
reasons, grant defendants1 motions 1 and 8.
Plaintiff's motion 4, to bar evidence of the underlying facts of any
criminal conviction, is granted, subject, of course, to reconsideration
should plaintiff testify about those facts.
Defendants' motion 2 seeks to bar any reference to excessive force at
the Cook County Department of Corrections or Criminal Courts Building,
witnessed by plaintiff before December 17, 1998. While plaintiff notes
that there are some exceptions to Rule 404(b) exclusion, he points to
none applicable here. The motion is granted, subject to reconsideration
If plaintiff believes he has admissible evidence and discusses it with
defendants and the court before any inquiry.
Defendants' motion 3 to bar any medical opinion or diagnosis by
plaintiff is granted to the extent the opinion or diagnosis is beyond the
competence of a layman. He may testify to his treatment, e.g., sutures
and prescriptions, and how he felt at various times matters of personal
knowledge and observation well within his competence.
Defendants' motion 4 seeks to exclude evidence of their conduct before
the date of the incident, "where such conduct does not bear any
relationship to their conduct on the date and time of the incident." That
motion is granted, subject to the same qualification noted concerning
defendants* motion 2.
Defendants' motions 5 and 6 are granted, plaintiff having no objection.
Defendants' motion 7 seeks to exclude any character witnesses on behalf
of, we assume, plaintiff. We are not told why. Plaintiff objects, but he
does not list any such witness nor does he indicate why he would want to
offer such a witness, who might well be asked about his knowledge of the
facts underlying plaintiff's past convictions and about his probation violation. While questioning on what basis defendants seek to exclude or
the wisdom of plaintiff's objection, we leave to another day ruling on
the matter if and when plaintiff seeks to introduce such a witness who is
not otherwise barred by the ruling on defendants' motion 6 and the
failure to name the witness In the Final Pretrial Order.
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