The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
As of January 2004, plaintiff Clemmie Carthans was a
32-year-old University of Chicago graduate student in the School
of Social Service Administration. Carthans is an African-American
male. At 3:00 a.m. on Saturday January 24, 2004, Carthans was on
the University of Chicago campus on his way to visit Valerie
Curro, who was a freshman living in a dormitory on campus. At the
time, Curro was plaintiff's girlfriend. Curro is Caucasian.
Defendant Donald Jenkins, a University of Chicago police officer,
saw Carthans and questioned him. There are factual disputes
regarding that encounter and the conversation that took place.
Carthans then went on and was met by Curro outside her dormitory.
Jenkins again questioned Carthans and also called for backup. Defendant Anthony Cochran arrived on the
scene. There are factual disputes regarding the conversations and
actions that occurred outside the dormitory. Plaintiff contends
that, initially, Jenkins used excessive force in placing
handcuffs on him and also assaulted him by pointing a handgun.
Plaintiff further contends that, upon his arrival, Cochran
slammed plaintiff to the ground and thereafter pushed him into a
garbage can and police car, as well as slamming plaintiff's head
against the car. Plaintiff alleges he suffered abrasions and
bruises, and still suffers from a herniated disc. Defendants'
version of the events is that they simply questioned plaintiff,
whom they claim was suspiciously walking on campus in the early
morning. When Jenkins asked plaintiff for identification,
plaintiff would not provide any. Defendants contend that they
handcuffed plaintiff without using unnecessary force and released
plaintiff after finding his student identification. Defendants
deny slamming plaintiff against the ground or a car and contend
that they slipped against a garbage can when plaintiff resisted
Plaintiff brings two claims. The first claim is a
constitutional claim pursuant to 42 U.S.C. § 1983.*fn1
Plaintiff claims that Jenkins and Carthans used excessive force. There is
no constitutional claim for race discrimination, but plaintiff
does contend that his treatment was, at least in part, motivated
by racial profiling and the fact that he and Curro are of
different races. Plaintiff's second claim is a state law claim
for assault and battery. That claim is against Jenkins and
Cochran and also against defendant University of Chicago based on
respondeat superior liability for the acts of its employees.
The parties have submitted their final pretrial order. Presently
pending are the parties' motions in limine. The parties were
provided an opportunity to respond to the motions in limine.
Defendants move to exclude testimony of 26 witnesses named by
plaintiff in the pretrial order, but who were not witnesses to
the January 24 incident. These witnesses are mostly University of
Chicago employees or students. Defendants contend these witnesses
would only be able to offer hearsay testimony regarding
statements that plaintiff made to them about the incident.
Perhaps some could offer admissible testimony relevant to the
issue of damages suffered by plaintiff. Plaintiff, though, did
not respond to the motion. Therefore, plaintiff does not point to
any potentially admissible testimony by these witnesses. This
motion will be granted.
Also moves to exclude references to racial profiling.
Plaintiff's complaint does not allege racial discrimination, but
plaintiff makes clear that he intends to show that defendants
were motivated, at least in part, by plaintiff's race and the fact that Curro is a different race. Even absent a claim of race
discrimination, such evidence might be intended to support
punitive damages for the claimed excessive force. Again, however,
plaintiff has failed to respond to defendants' motion in
limine. Since plaintiff does not point to a basis for admitting
the evidence, this motion will be granted.
Plaintiff moves to bar defendants' law enforcement expert.
Defendants intend to present Rudolph Nimocks, the Executive
Director of the University of Chicago Police Department, as an
expert. Defendants will have him opine as to the appropriate
amount of force to use in the situation that is at issue. He will
also opine that the University provided adequate training for its
police force. Whether the defendant officers were adequately
trained, however, is not at issue. Plaintiff does not contend
that inadequate training was a cause of his injuries and will not
present any evidence that the officers were inadequately trained.
Since not at issue, this opinion is irrelevant.
As to opinions about the appropriate amount of force to use, it
is true that such evidence can be relevant in particular cases.
See, e.g., Kladis v. Brezek, 823 F.2d 1014, 1019 (7th Cir.
1987). This, however, is not such a case. Plaintiff contends he
was slammed against a car, a garbage can, and the ground.
Defendants will testify that they simply handcuffed him and that
there was an accidental slip. This is not a case in which the
propriety of force is at issue. It is a case in which the parties have two different accounts of what happened. The
issue for the factfinder will be which party to believe.
Defendants' expert will not testify that slamming a nonresisting
arrestee into a car, garbage can, or the ground is a proper
exercise of force. Plaintiff does not contend that a simple
handcuffing and accidental trip constitute excessive force.
Nimocks's testimony is not relevant to the issues in the case.
Plaintiff's first motion in limine will be granted.
Plaintiff's second motion in limine is to bar defendants' use
of a November 17, 2004 email that plaintiff sent to Curro two
days before she gave her deposition in this case. That email
Hi Val. I just wanted to say hi and I'm sorry for
just putting you on the phone the other day. I just
don't want you to think that my calls aren't sincere
when I call. I have to be honest, this coldness
towards me is not you. I can tell that you are
struggling with it; you couldn't even look me in the
eyes the other nite when we talked. Look at me, now
I'm playing psychologist. Anywho, I'm not the
smartest person on the planet, but you don't need a
rocket scientist to figure out that you're
uncomfortable with your new tough role. I just hope
that one day you will find it in your heart to
forgive me. I don't care if it takes 40 years. I just
can't imagine not having you in my life in some way.
I miss you sooooooooo much, and I think about you
everyday. I think of your smile and how good you look
when you smile. Sometimes it seemed as if that smile
was made for me. Sometimes I find myself laughing
thinking about something funny that you would say or
do. These last few months without you have been
extremely difficult. I wish that you could smush me
right now; that always seemed to make everything
better, anyway. I'm not going to make things anymore
difficult than they already are, I just wanted to say hi and I
hope that you are feeling alright.
Defendants contend this email was an effort to sway and
influence Curro's testimony. Defendants intend to introduce it
both during plaintiff's cross-examination and Curro's direct
testimony, contending it is relevant to the credibility of both.
Defendants cite no case law supporting that this evidence would
be admissible for such a purpose.
Plaintiff first objects that the email should not be allowed in
because a copy was not provided to plaintiff until the pretrial
order was being prepared. The source of the email, however, was
plaintiff himself. Even if he did not retain a copy on his
computer, he was aware of its contents. Also, questions about the
email were raised at both plaintiff's and Curro's deposition.
Plaintiff cannot claim surprise.
Plaintiff also contends that the email is not relevant to any
issue in the case. Contrary to defendants' contention, the email
is not an obvious attempt to influence Curro's testimony. Also,
there is no contention that Curro's testimony has been affected
by the email. Since the email has not actually influenced Curro's
testimony, the email is not admissible regarding Curro's
As to plaintiff's credibility, attempts to influence witnesses
may be admissible in a criminal case to show consciousness of guilt. See United States v. Balzano,
916 F.2d 1273, 1281 (7th Cir. 1990); United States v. Garrison,
168 F.3d 1089, 1093 (8th Cir. 1999). If the email may properly be
characterized as an improper attempt to influence Curro's
testimony, it might be admissible to show plaintiff's
consciousness of the fact that the honest testimony of an
eyewitness would be inconsistent with plaintiff's version of
events. As such it would go to plaintiff's credibility. However,
the email will not be admitted for that purpose because it is not
found that the email constitutes an improper attempt to influence
The email, however, apparently will be admissible on another
basis. Defendants represent that, based on her deposition
testimony, Curro's testimony will not support plaintiff's version
of events. Defendants further represent that, at his deposition,
plaintiff testified that Curro is lying about the events because
she is a vindictive, spurned lover. The email, however, supports
that, at least as of November 2004, plaintiff was the spurned
lover, not Curro. To the extent plaintiff attempts to raise
questions as to Curro's credibility by presenting evidence that
he had spurned her, the email would be admissible to show the
contrary. If presented by defendants, it would be admissible as
an admission of a party-opponent. Defendants may present the
email for that purpose. However, it will only be admissible if plaintiff first presents evidence
supporting that Curro was a spurned lover. If plaintiff does not
attempt to make such a showing, there is no basis for admitting
the email into evidence. Therefore, defendants shall not mention
the email during opening statements unless plaintiff, in his
opening statement, states something to the effect that the
evidence will show that Curro was a spurned lover. The email
shall not be presented at trial unless plaintiff first presents
evidence that Curro was a spurned lover.
A status hearing will be held on October 26, 2005 at 11:00 a.m.
Prior to status hearing, it may be advisable to again attempt to
settle this case before incurring the expense of a trial.
Plaintiff should again submit a settlement demand to defendants.
IT IS THEREFORE ORDERED that defendants' motions in limine to
exclude references to racial profiling  and to exclude
hearsay testimony by persons who were not witnesses to the events
of January 24, 2004  are granted. Plaintiff's first motion
in limine to bar defendants' law enforcement expert is granted.
Plaintiff's second motion in limine to bar defendants' email
exhibit is granted in part and denied in part. The November 17,
2004 email may not be admitted into evidence unless plaintiff