McCoy v. IDOC Transfer Coordinator

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MAX MCCOY,

Plaintiff,

v. Case No. 3:18-CV-1297-NJR

LUCAS MENNERICH, KELLIE ELLIS,

and TYLER JONES,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court are the motions in limine filed by Plaintiff Max McCoy

(Doc. 118) and Defendants Lucas Mennerich, Kellie Ellis, and Tyler Jones (Doc. 119). The

Court held a Final Pretrial Conference on January 26, 2022. The motions in limine were

filed on February 4, 2022. The Court discussed the motions in limine with counsel at the

outset of trial on February 8, 2022. The Court rules as follows.

I. Legal Standard

A federal district court’s authority to rule on motions in limine is derived from its

inherent authority to manage the course of a trial. D.W.K. v. Abbott Labs., Inc. (In re

Depakote), 87 F. Supp. 3d 916, 920 (S.D. Ill. 2015) (citing Luce v. United States, 469 U.S. 38,

41, n.4, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984)). Motions in limine are intended “to avoid

the delay and occasional prejudice caused by objections and offers of proof at trial.”

Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999). Such motions perform a gatekeeping

function by allowing a trial judge to eliminate evidence “that clearly ought not be

presented to the jury” because it would be inadmissible for any purpose. Jonasson v.

Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997).

As motion in limine rulings are preliminary, a federal district court reserves the

power to make evidentiary rulings as a trial progresses and remains free to revisit or

alter its earlier disposition of a motion in limine. See Perry v. City of Chicago, 733 F.3d 248,

252 (7th Cir. 2013); see also United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

Evidence may only be excluded in limine when it is clearly inadmissible on all potential

grounds. Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp 1398, 1400 (N.D. Ill. 1993).

A denial of a motion in limine does not mean that all evidence considered by the motion

will be admitted at trial. Id.

II. Plaintiff Max McCoy’s Motions in Limine (Doc. 118)

a. McCoy’s Motion in Limine No. 1

McCoy asks the Court for an order to exclude evidence of the “specifics of his prior

felony convictions.”1 He defines “specifics” as any detail beyond the fact that he was

convicted of a felony and that he remains incarcerated. McCoy asserts that Defendants

are likely to seek introduction of the specifics of his prior felony convictions under

Federal Rule of Evidence 609 to attack his credibility. McCoy argues that Seventh Circuit

precedent instructs that “presenting a § 1983 Plaintiff’s criminal history to the jury

presents a substantial risk that the jury will render a defense verdict based not on the

evidence but on emotions or other improper motives, such as belief that bad people

1 This does not include McCoy’s conviction and ultimate guilty plea for assault of a non-party

correctional officer at Menard Correctional Center related to the events at issue on June 16, 2017.

should not be permitted to recover from honorable police officers.” Barber v. City of

Chicago, 725 F.3d 702, 714 (7th Cir. 2013); see also Wilson v. City of Chicago, 6 F.3d 1233, 1236

(7th Cir. 1993) (holding that it was an error to admit details of the crimes underlying

Plaintiff’s incarceration). McCoy believes that any details of his prior convictions beyond

the fact that he was convicted of a felony and that he remains incarcerated have no

bearing on his credibility in this case. McCoy also argues that the probative value of the

details of his prior felony convictions is outweighed by unfair prejudice. While his motion

does not outline any details of his prior convictions, the Court discussed the nature of

McCoy’s underlying convictions with the parties before trial.

Rule 609 allows admission of evidence, subject to Rule 403, of prior criminal

convictions for the purpose of impeaching a civil witness. Under Rule 403, this type of

evidence may be excluded where the probative value is substantially outweighed by the

danger of unfair prejudice. When used to attack a witness’s character for truthfulness, the

Seventh Circuit has made clear that there are boundaries regarding evidence of past

felony convictions for the purpose of impeachment. “[A]ll that is needed to serve the

purpose of challenging the witness’s veracity is the elicitation of the crime charged, the

date, and the disposition.” Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir. 1992). The Seventh

Circuit also “emphasize[s] that evidence of current incarceration is highly prejudicial,

and therefore courts should not be quick to admit such evidence” especially in civil rights

cases. Id. at 1331.

Accordingly, the Court GRANTS in part and DENIES in part McCoy’s first

motion in limine. The Court agrees with McCoy that details of his felony convictions could

create unfair prejudice, and ultimately are not relevant to the issues of the case. Rule

609(a)(1)(A) allows Defendants to introduce a prior felony conviction for purposes of

impeachment. The Court will allow Defendants to elicit the facts that McCoy is charged

with a felony and is currently incarcerated for that felony. Allowing Defendants to

discuss the crime charged would create unfair prejudice in this circumstance. Thus, to the

extent that Defendants plan to inquire about McCoy’s prior felony convictions to attack

his credibility under Rule 609, they may do so within the boundaries set forth by the

Seventh Circuit and this Court: that Mr. McCoy has been charged with a felony, that he

remains in prison, and the date of his conviction.

b. McCoy’s Motion in Limine No. 2

McCoy requests to exclude evidence of the specifics of any of his witnesses’ prior

felony convictions. McCoy argues that, while Rule 609 allows introduction of convictions

for crimes related to a witness’s credibility and felony convictions that survive a Rule 403

examination, no conviction of any of his potential witnesses invokes concerns of capacity

for truthfulness. McCoy also warns that potential for prejudice is great.

The Court’s analysis as to McCoy’s first motion in limine also applies here. Thus,

the Court GRANTS in part and DENIES in part McCoy’s second motion in limine. The

Court agrees with McCoy that details of his witnesses’ felony convictions could create

unfair prejudice, and ultimately are not relevant to the issues of the case. Rule 609(a)(1)(A)

allows Defendants to introduce a prior felony conviction for purposes of impeachment.

The Court will allow Defendants to elicit the facts that a particular witness is charged

with a felony and is currently incarcerated for that felony. Allowing Defendants to

discuss the crimes charged would create unfair prejudice in this circumstance. Thus, to

the extent that Defendants plan to inquire about any of McCoy’s witnesses’ prior felony

convictions to attack credibility under Rule 609, they may do so within the boundaries

set forth by the Seventh Circuit and this Court: that the witness has been charged with a

felony, that he remains in prison, and the date of his conviction.

c. McCoy’s Motion in Limine No. 3

McCoy seeks an order to exclude his disciplinary records outside of records

relating to the underlying events on June 16, 2017. McCoy argues that evidence of a crime,

wrong, or other act is not admissible to prove a person’s character to show that on a

particular occasion the person acted in accordance with that character under Federal Rule

of Evidence 404(b)(1). McCoy also asserts that Rule 402 renders evidence of McCoy’s

disciplinary records inadmissible due to relevancy concerns.

Rule 404(b)(1) describes prohibited uses of evidence of other crimes, wrongs, or

acts such as to prove a person’s character to show that on a particular occasion the person

acted in accordance with the character. Rule 404(b)(2), however, establishes that 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.”

Because Defendants may plan to use the disciplinary records for a purpose other

than the prohibited use in 404(b)(1), the Court DENIES McCoy’s third motion in limine.

As to McCoy’s point on relevancy, the Court will evaluate relevancy during trial

depending on what records Defendants intend to introduce and for what purpose.

d. McCoy’s Motion in Limine No. 4

McCoy asks the Court for an order to exclude evidence of McCoy’s unrelated

litigation. He argues that evidence of other litigation is irrelevant to any issue in this case

and, therefore, is inadmissible pursuant to Rule 402. Defendants do not object to this

motion. Thus, the Court GRANTS McCoy’s fourth motion in limine, and evidence of his

unrelated litigation shall be excluded.

e. McCoy’s Motion in Limine No .5

McCoy moves to exclude evidence regarding general risks faced by correctional

officers. He argues such evidence is inadmissible under Rules 401 and 402. McCoy also

argues that such evidence amounts to impermissible character evidence fitting into none

of the exceptions of Rule 404(b).

Evidence pertaining to the general risks faced by correctional officers likely does

not have any tendency to make any fact of consequence in this particular action more or

less probable. Without knowing, however, what evidence Defendants would produce

and how they plan to use such evidence, the Court cannot determine its relevance at this

time. Accordingly, the Court DENIES McCoy’s fifth motion in limine. The Court will

evaluate relevancy during trial depending on what records Defendants intend to

introduce and for what purpose.

f. McCoy’s Motion in Limine No. 6

McCoy asks the Court for an order to exclude evidence about Defendants’

commendations or awards and to bar bolstering. McCoy states that he does not intend to

attack the character of Defendants based on reputation or unrelated events. He argues

that testimony regarding commendations or awards is hearsay and leads to improper

bolstering. Defendants do not object to this motion. Thus, the Court GRANTS McCoy’s

sixth motion in limine, and evidence of Defendants’ commendations or awards shall be

excluded.

g. McCoy’s Motion in Limine No. 7

McCoy requests to bar testimony that “anyone can file a lawsuit.” He argues that

this is a strategy commonly used by defense counsel in § 1983 actions. McCoy further

asserts that this type of argument is one-sided, self-serving, misleading, highly

prejudicial, and unsupported. Defendants do not object to this motion. Thus, the Court

GRANTS McCoy’s seventh motion in limine, and evidence related to an “anyone can file

a lawsuit” argument is barred.

h. McCoy’s Motion in Limine No. 8

In his last motion in limine, McCoy asks the Court to bar testimony or argument

that a ruling in his favor would result in higher taxes or would be paid by taxpayers.

McCoy argues that reference to taxpayer liability would obviously create bias and

prejudice against him, which could lead to jurors making decisions out of personal

financial interest instead of the facts. The Seventh Circuit instructs that an appeal to

jurors’ pecuniary interests as taxpayers is improper. See Moore ex rel. Estate of Grady v.

Tuelja, 546 F.3d 423, 429 (7th Cir. 2008). Defendants do not object to this motion. Thus, the

Court GRANTS McCoy’s eighth motion in limine, and evidence or argument regarding

the tax implications of a favorable verdict for McCoy is barred.

III. Defendants’ Motions in Limine (Doc. 119)

a. Defendants’ Motion in Limine No. I

Defendants ask the Court to bar McCoy or any of his disclosed witnesses from

testifying about the causation of any medical or mental health condition. Specifically,

Defendants anticipate that McCoy will testify that the actions of each Defendant caused

his injuries and that he will suffer long-term effects from those injuries. Defendants argue

that McCoy, as a layperson and not a physician or psychiatrist, should not be allowed to

offer any medical opinions under Federal Rule of Evidence 701. See Pearson v. Ramos, 237

F.3d 881, 886 (7th Cir. 2001) (holding that a state prisoner wholly lacking medical

knowledge was incompetent to testify to the causal relation between an event and a

subsequent medical condition). Defendants agree that McCoy can testify to his own

experiences but should not be permitted to testify regarding any long-term effects from

Defendants’ alleged actions.

McCoy has not disclosed any expert witnesses under Federal Rule of Civil

Procedure 26(a)(2), and the time to do so has expired. McCoy, and any of his disclosed

lay witnesses, will be limited, under Rule 701, to offer opinion testimony only to the

extent that it is “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge.” They are entitled to testify about

their own perceptions and experiences, including the subjective physical and emotional

symptoms or effects of Defendants’ alleged conduct, but they cannot offer medical

opinions requiring any scientific, technical, or other specialized knowledge.

Accordingly, the Court GRANTS in part Defendants’ first motion in limine to the

extent McCoy attempts to bring in expert medical testimony and DENIES in part the

motion to the extent McCoy or any lay witness testifies regarding their subjective

symptoms and their own personal observations and experiences.

b. Defendants’ Motion in Limine No. II

Defendants request that the Court bar McCoy from offering inadmissible hearsay

statements of any medical or mental health professional. Defendants acknowledge that

McCoy’s out-of-court statements made to medical professionals for the purposes of

treatment are admissible, however, the out-of-court statements made by a medical

professional to McCoy, not contained in admissible medical records, and offered by

McCoy are inadmissible hearsay under Federal Rules of Evidence 801, 802, 803, and 804.

Without knowing for what purposes McCoy intends to offer statements made by

a medical professional, the Court cannot properly evaluate whether the evidence

qualifies as inadmissible hearsay. For example, such statements by medical providers

may be offered for a purpose other than proving their truth. Thus, the Court DENIES in

part and RESERVES RULING in part on second motion in limine.

c. Defendants’ Motion in Limine No. III

Defendants seek an order to bar McCoy from offering testimony or otherwise

suggesting, referencing, or eliciting any testimony that the State of Illinois will indemnify

defendants. McCoy does not object to this motion. Thus, the Court GRANTS Defendants’

third motion in limine, and any evidence related to the state’s indemnification of

Defendants is prohibited.

d. Defendants’ Motion in Limine No. IV

In their fourth motion in limine, Defendants ask the Court to bar McCoy and any

of his witnesses from testifying about whether Defendants followed Illinois Department

of Corrections (“IDOC”) policies and procedures. Defendants argue that a violation of

policy is not relevant to the issue of whether they violated McCoy’s constitutional rights,

and further, mention of policy will only confuse the jury.

Demonstrating violations of IDOC policies and procedures will likely not help

determine whether any Defendant exhibited reasonable behavior in the constitutional

context. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006); see also Scott v.

Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (holding that “42 U.S.C. protects plaintiffs from

constitutional violations, not violations of state law or…departmental regulations and

police practices.”). One factor of consideration for the factfinder, however, under

McCoy’s Eighth Amendment claim, is whether Defendants were acting pursuant to a

policy or practice of the prison that, in the reasonable judgment of prison officials, was

needed to preserve security or order. To Defendants’ point about creating confusion, a

jury instruction can be used to eliminate confusion regarding the difference between

violating an IDOC policy or practice and violating a constitutional right. As such, the

Court will not bar this type of evidence entirely. Accordingly, the Court DENIES in part

Defendants’ fourth motion in limine and RESERVES RULING in part to evaluate the

admissibility of such evidence during trial depending on what the parties intend to

introduce regarding IDOC policies and practices and for what purpose.

e. Defendants’ Motion in Limine No. V

Defendants ask the Court to prohibit McCoy from offering evidence or testimony

of other lawsuits involving Defendants. They argue, primarily, that such testimony is

unfairly prejudicial, would not be relevant under Federal Rule of Evidence 401, and

constitutes inadmissible character evidence under Rule 404(b).

Similar to the Court’s ruling on McCoy’s fourth motion in limine, any evidence of

unrelated litigation involving Defendants is irrelevant. Thus, the Court GRANTS

Defendants’ fifth motion in limine, and evidence of unrelated lawsuits involving

Defendants shall be excluded.

f. Defendants’ Motion in Limine No. VI

Defendants move to prohibit McCoy from offering evidence or testimony of any

misconduct, reprimand, or grievance issued against them. They argue that such

testimony is unfairly prejudicial, would not be relevant under Federal Rule of Evidence

401, and constitutes inadmissible character evidence under Rule 404(b). McCoy does not

object to this motion. Thus, the Court GRANTS Defendants’ sixth motion in limine, and

any evidence related to misconduct, reprimands, or grievances issued against Defendants

shall be excluded.

g. Defendants’ Motion in Limine No. VII

In their final motion in limine, Defendants ask the Court to prohibit any “Golden

Rule” appeal asking the jurors to place themselves in McCoy’s position. McCoy does not

object to this motion. Thus, the Court GRANTS Defendants’ seventh motion in limine,

and any “Golden Rule” type of appeal is barred.

CONCLUSION

For the reasons set forth above, the Court GRANTS in part, DENIES in part, and

RESERVES RULING in part on Plaintiff's Motion im Limine (Doc. 118). The Court also

GRANTS in part, DENIES in part, and RESERVES RULING in part on Defendants’

Motion in Limine (Doc. 119).

IT IS SO ORDERED.

DATED: February 8, 2022 Tl

NANCY J. ROSENSTENGEL □

Chief U.S. District Judge

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