United States District Court, N.D. Illinois, Eastern Division
June 25, 2004.
RENICE POWELL, best friend of Reginald Reed, Plaintiff,
JOHN DOE; CITY OF CHICAGO, a municipal corporation; ALEXANDER CALATAYUD, Officer, Star # 18664; and CHICAGO BOARD OF EDUCATION, a municipal corporation, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
Before the court are four motions in limine brought by
Plaintiff Renice Powell ("Powell") and three motions in limine
brought by Defendants Alexander Calatayud ("Calatayud") and
Chicago Board of Education. For the reasons set forth below, the
parties' motions are granted in part and denied in part.
This case arises out of an incident that occurred on December
20, 2002, outside of a grammar school on Chicago's South Side.
According to the complaint, Calatayud, a school security guard,
beat up a student, Reginald Reed ("Reed"). Powell, Reed's mother, filed suit against Calatayud and the Chicago Board of
Education alleging excessive force in violation of
42 U.S.C. § 1983 and assault and battery under Illinois law. Discovery has
been completed and the cased is poised for trial. The parties
have filed various motions in limine.
A federal district court's authority to manage trials includes
the power to exclude evidence pursuant to motions in limine.
Falk v. Kimberly Services, Inc., 1997 WL 201568, * 1 (N.D.Ill.
1997). However, a court has the power to exclude evidence in
limine only when that evidence is clearly inadmissible on all
potential grounds. Hawthorne Partners v. AT & T Technologies,
Inc., 831 F. Supp. 1398, 1400 (N.D.Ill. 1993). A district court
should be mindful that some proposed evidentiary submissions
cannot be accurately evaluated in a pretrial context via a motion
in limine. Tzoumis v. Tempel Steel Co., 168 F. Supp.2d 871,
873 (N.D. Ill. 2001). For this reason, certain evidentiary
rulings should be deferred to trial so that questions of
foundation, relevancy, and potential prejudice may be resolved in
proper context. Hawthorne Partners at 1400. Denial of a motion
in limine does not automatically mean that all evidence
contemplated by the motion will be admitted at trial. Id. at
1401. Instead, the court will entertain objections to individual
proffers as they occur at trial. Id. In any event "the district judge is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling."
Luce v. U.S., 469 U.S. 38, 41-42 (1984).
Powell's first motion seeks to bar the introduction of six
school misconduct reports regarding Reed that were written
between May 5, 2000, and October 31, 2002. Powell argues that
these misconduct reports are both irrelevant to the issue of
whether Calatayud used excessive force and could be highly
prejudicial in that they would lead the jury to conclude that
Reed was a "bad kid." Powell also contends that this sort of
evidence of Powell's prior misbehavior at school is inadmissable
under Federal Rule of Evidence 404(b). Defendants counter that
these misconduct reports are relevant to Powell's damages claim
in that they are proof that Reed lacked respect for authority
long before the incident in question. Because this question may
be more appropriately resolved in the fuller context of trial,
the motion is presently denied.
Powell's second motion seeks to bar the introduction of two
school misconduct reports relating to an altercation between Reed
and another student on December 20, 2002, that preceded the
incident with Calatayud. Powell contends that these reports are
irrelevant to the excessive force claim and could prejudice the
jury by leading them to believe that Reed's injuries were the
result of his altercation with the other student. As with the
misconduct reports discussed above, Defendants claim that the December 20, 2002, reports are relevant to refute Powell's
damages argument. Defendants claim that, contrary to Powell's
assertion, the misconduct reports show that Reed was treated no
differently than the other student he fought with. As this issue
can also be better answered at trial, the motion is denied.
Powell's third motion asks that we prohibit the introduction of
Reed's standardized test results and school progress records from
1997 to 2003. The motion argues that this information is
irrelevant to the excessive force claim. Once again Defendants
claim that this evidence is relevant to damages (purported proof
that Reed's grades and attendance have not suffered as a result
of the Calatayud incident) and again the question of
admissibility can best be answered at trial. The motion is thus
Powell's fourth motion seeks to bar introduction of her Second
Amended Complaint, arguing that the Second Amended Complaint is
irrelevant and hearsay. However, a plaintiff's factual assertion
in a complaint constitutes a judicial admission, Keller v.
U.S., 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995), that is
admissible in a civil trial as an evidentiary admission.
Contractor Utility Sales Co. v. Certain-teed Prods. Corp.,
638 F.2d 1061, 1084 (7th Cir. 1981) (overturned on other grounds:
See Rissman v. Rissman, 213 F.3d 381, 385 (7th Cir. 2000)).
Because Defendants represent that they may introduce the Second
Amended Complaint for impeachment purposes, we find that it is
potentially relevant and accordingly deny Powell's motion. Defendants' first motion seeks to bar the testimony of numerous
individuals who were not identified in Powell's Rule 26(a)
disclosures. Under Rule 37(c)(1), witnesses not identified
according to the requirements of Rule 26(a) shall not be
permitted to testify "unless the party to be sanctioned can show
that its violation of Rule 26(a) was either justified or
harmless." Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th
Cir. 1996). Because six witnesses not identified in Powell's
Rule 26(a) disclosure (Sullivan, Bolt, Frederick, Silva-Vera, McKee,
and Robinson) were deposed, we find that their exclusion from the
Rule 26(a) list was harmless and we will not bar their testimony.
So too is the case with Debanique Reed, who was identified in
Powell's answer to Defendants' interrogatories as a person with
knowledge of the incident in question. While Taiwan Anthony (a
student with whom Reed was involved in an altercation prior to
the Reed-Calatayud incident) was not included on the Rule 26(a)
list, because Defendant has included a misconduct report
regarding Anthony on its exhibit list, Anthony's exclusion from
the Rule 26(a) list is harmless and he may testify.
Defendants also seek to bar from testifying two Chicago Board
of Education employees Ms. Martinez and Ms. Bassie who were
not included on Plaintiff's Rule 26(a) list but who, according to
Plaintiff's counsel, were identified at Calatayud's deposition as
witnesses to the incident in question. Because Martinez's and
Bassie's identities were brought to the parties' attention during
Calatayud's deposition, Powell was under no duty under Rule 26(e)
to supplement her Rule 26(a) disclosures. Weiland v. Linear
Constr., Ltd. 2002 WL 31307622, *2 (N.D. Ill. 2002). As such,
these witnesses may testify.
As for witnesses Collins, Williams, Capers, and Shontana
Powell, according to Defendants' counsel, their names were not
disclosed to Defendants until March 19, 2004, the date discovery
(which had been extended at least three times) concluded. On
March 25, 2004, we denied Plaintiff's motion to again extend
discovery to depose these four witnesses, so Defendants had no
reasonable opportunity to depose them. Accordingly, they will not
be permitted to testify at trial.
Defendants finally seek to prohibit from testifying as yet
unidentified individuals who are listed by Powell as potential
witnesses under the moniker: "Any and all Chicago Board of
Education personnel with knowledge." This request is granted. If
Powell wishes to call any other witnesses who were not disclosed
under Rule 26(a), she must first demonstrate to the court that
their exclusion was either harmless or justified.
Defendants' second motion asks that we prohibit Powell, Reed,
or any of Plaintiff's counsel from referring to Calatayud as a
police officer. At the time of the incident in question,
Calatayud was employed as a police officer with the Chicago
Police Department while working "off-duty" as a security guard at
Reed's school. Defendants argue both that there is no probative value in
referring to Calatayud as a police officer and that police
officers are sometimes not regarded in a positive light in the
community. For this reason, Defendants seek to bar Powell, Reed,
and counsel from referring to Calatayud as "Officer Calatayud"
under Federal Rule of Evidence 403. Powell responds that, even
though Calatayud was off-duty, because he held himself out as a
police officer, whether he was an officer is relevant to her
claim that Calatayud was acting under color of law. See Padin
v. O'Conner, 1998 WL 246437, *2-3 (N.D. Ill 1998). In addition,
while some in the community may not have favorable views of the
police, others hold them in very high regard. For these reasons,
and because Calatayud has earned the title "Officer" by his
service with the Chicago Police, we deny Defendants' second
motion, provided that Plaintiffs do not abuse this ruling by
over-emphasizing Calatayud's status or title as a police officer.
Defendants' third motion seeks to bar the introduction into
evidence of Plaintiff's Exhibits 6 and 7. Plaintiff's Exhibit 6
consists of nineteen photographs of Reed that were taken
following his altercation with Calatayud. Defendants contend that
the nineteen photographs (six of Reed's face, thirteen of his
left leg) are needlessly cumulative and should be prohibited
under Federal Rule of Evidence 403. However, Defendants do not
object to Powell's response that she intends to submit only nine
of the photos (six leg, three face) so this request is denied as
moot. So too is the case with Defendants' request that we exclude Plaintiff's Exhibit
7-photographs of Reed taken by "OPS" as Plaintiff's counsel
represents that he does not intend to use these photographs at
Based on the foregoing analysis, the parties' motions in
limine are granted in part and denied in part.
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