The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES ARMOUR, )
)
Plaintiff, )
)
v. ) Case No. 19-cv-678-RJD
)
DR. VENERIO SANTOS, et al., )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Charles Armour, formerly incarcerated within the Illinois Department of
Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983 against prison administrators
and medical staff at Centralia Correctional Center for violations of his Eighth Amendment rights.
Plaintiff alleged that Defendants were deliberately indifferent to his chronic lower back pain.
Plaintiff further alleged that while he was incarcerated at Centralia from June 2016-April 2018,
his feet became contracted and deformed because Dr. Santos refused to prescribe adequate pain
medication to him.
This matter now comes before the Court on the parties’ Motions in Limine, which were
filed prior to the Court’s ruling on Defendants’ summary judgment motions (Docs. 281, 284, and
290).1 The Court’s summary judgment order subsequently narrowed the issues in this case.
Plaintiff had originally claimed that Dr. Santos violated his Eighth Amendment rights by failing
to prescribe him adequate pain medication, failing to refer him to a specialist outside of the IDOC,
1 Defendants Jeffreys, Krebs, Stock and Zurliene also filed Motions in Limine, which are now moot because summary
judgment was granted in their favor.
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and forcing him to ambulate. Plaintiff alleged that various nurses (including Nurse Terri Dean)
were deliberately indifferent by forcing him to ambulate and failing to intercede on his behalf
regarding Dr. Santos’ treatment. The undersigned granted summary judgment in favor of eight
defendants and narrowed the scope of Plaintiff’s claims against Defendants Santos and Nurse Terri
Dean, finding that issues of fact regarding two specific incidents should be resolved by the jury.
Doc. 285. First, Plaintiff contends that in December 2016, Nurse Dean forced his shoulders down
so that his contracted feet would touch the floor. Plaintiff also claims that in October 2017, Dr.
Santos grabbed and squeezed his foot aggressively, then told Nurse Dean and another nurse to put
Plaintiff into an isolation cell where no one could hear him “cry for help” and there was no
emergency call switch; he remained there until the next day, lying in his own urine and feces.2
For the sake of brevity, the Court will refer to the December 2016 incident and October 2017
incident as “the two incidents.”
Evidence may be excluded in limine if the movant establishes “that the evidence is
inadmissible on all potential grounds.” Betts v. City of Chicago, Ill., 784 F. Supp. 2d 1020 (N.D.
Ill. 2011). Rulings in limine may be reconsidered during trial “as the case unfolds” and “even if
nothing unexpected happens at trial.” Id., quoting Farfaras v. Citizens Bank & Trust of Chi., 433
F.3d 558, 565 (7th Cir. 2006).
While he was incarcerated at Centralia, Plaintiff (mostly) resided in the infirmary and
interacted daily with health care staff. His medical records are voluminous and include treatment
for back pain prior to his IDOC incarceration. Both parties seek to exclude various portions of
2 At the final pretrial conference, counsel for Defendants stated that they believe the incident in question occurred in
July or August 2017, according to the medical records.
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the medical records, and their Motions in Limine raise a recurring issue: the admissibility of
medical evidence other than testimony regarding the two incidents. While the undersigned
found that only the two incidents give rise to Eighth Amendment liability, those events did not
occur in a vacuum. For example, Plaintiff’s testimony regarding Nurse Dean pushing his
shoulders down so that his contracted feet would touch the floor would not make sense to the jury
if, e.g., the jury did not hear why Plaintiff would not (or could not) stand up and walk, and why
Dr. Santos thought Plaintiff should walk with assistance from the nurses. Testimony about Dr.
Santos “aggressively squeezing” Plaintiff’s foot would likewise not make sense if the jury did not
hear evidence about how Plaintiff’s foot became contracted. Accordingly, the Court anticipates
that the parties will present some (but not dwell on) evidence of other treatment Plaintiff received
and observations (by Plaintiff, Defendants, and others) regarding his condition.
Plaintiff’s Motions in Limine (Docs. 284)
1. Evidence that Plaintiff was seen standing in the health care unit.
Plaintiff contends that while he was incarcerated at Centralia, his pain increased so
significantly that his feet contracted and he could not stand, which is relevant to the circumstances
surrounding the two incidents. Medical records reflect that healthcare staff and correctional
officers observed Plaintiff standing unassisted (at times) in the infirmary. Plaintiff asks the Court
to exclude these records, but does not point the Court to any specific record or incidents. While
some of these records/incidents may contain inadmissible hearsay, and/or may be irrelevant, the
Court declines to bar in limine all evidence of Plaintiff standing unassisted. Whether Dr. Santos
and Terri Dean heard (or read) that Plaintiff was seen standing prior to the two incidents may be
admissible “to show the effect on the listener” and therefore not prohibited by the hearsay rule.
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U.S. v. Graham, 47 F. 4th 561, 567 (7th Cir. 2022), citing Fed. R. Evid. 801(c)(2). Plaintiff’s
Motion in Limine No. 1 is DENIED.
2. Plaintiff’s prior convictions and/or prior arrests
In a civil case, evidence of a witness’s criminal conviction must be admitted for the purpose
of attacking the witness’s character for truthfulness if the conviction was punishable by death or
imprisonment for more than one year. Fed. R. Evid. 609(a)(1)(a). However, the Court may
exclude evidence of the conviction if “its probative value is substantially outweighed by a danger
of…unfair prejudice.” Fed. R. Evid. 403. Plaintiff contends that evidence of his prior
convictions is irrelevant and unfairly prejudicial and should therefore be excluded. Of course, at
trial, the jury will know that Plaintiff was incarcerated at Centralia. In §1983 cases involving
conditions of confinement, the undersigned typically allows the jury to hear that the plaintiff has
been convicted of a felony for which he was incarcerated. Plaintiff’s motion in limine provides
no justification for the Court to deviate from its normal practice.
However, Defendants inform the Court that Plaintiff was previously convicted of some type of
charge involving fraud and bad checks. Therefore, Defendants contend, evidence regarding that
crime must be admitted for purposes of impeachment pursuant to Federal Rule of Evidence
609(a)(2) because the conviction was for “a dishonest act, or false statement.” Defendants also
inform the Court that “more than ten years have passed” since the conviction. Rule of Evidence
609(b) prohibits evidence regarding convictions “if more than 10 years have passed since the
witness’s conviction or release from confinement for it” unless the proponent shows that “its
probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect.” Convictions that are “remote” (more than ten years old) are only admissible
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in “exceptional circumstances. U.S. v. Rucker, 738 F.3d 878, 883 (7th Cir. 2013). Nothing in
the record reflects the specific crime involving fraud for which Plaintiff was charged and
convicted, or when he was released from confinement for that crime. Without that information,
the Court cannot determine whether Rule 609(b) prohibits Plaintiff’s fraud conviction. On or
before December 12, 2023, Plaintiff shall submit a trial brief that provides the date he was released
from confinement for the fraud related charge. If that date was more than ten years prior to
January 9, 2024 (the date trial begins), Defendants shall file a trial brief that provides the
“exceptional circumstances” for which this Court should admit evidence of the fraud related
conviction, including the actual crime(s) for which Plaintiff was convicted. Defendants’ brief is
due on or before December 19, 2023.
3. References to Plaintiff’s “manipulative behavior” and “drug seeking behavior”
Plaintiff’s medical records contain multiple references to Plaintiff engaging in “drug-seeking
behavior” and “manipulative” behavior by exaggerating his condition. Plaintiff asks the Court to
bar these phrases because they are “emotive.” However, the Court noted several instances in the
medical records where a healthcare provider concluded that Plaintiff was exhibiting drug-seeking
and/or manipulative behavior based upon specific observations. Doc. 285, pp. 4, 9, 10. In his
Motion in Limine and at the final pretrial conference, Plaintiff did not point the Court to any
specific instance of a healthcare provider arbitrarily referring to Plaintiff as “drug-seeking” or
“manipulative” without making specific observations of Plaintiff’s behavior. Accordingly, the
Court has no basis to find that these terms as found in the medical records are merely “emotive”
and therefore irrelevant or overly prejudicial. Plaintiff’s Motion in Limine No. 3 is DENIED.
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4. Defendants’ “reservation of right to offer opinion testimony of themselves and other
individuals”
Defendants disclosed the following statement pursuant to Federal Rule of Civil Procedure
26(a)(2):
Defendants reserve the right to seek opinion testimony, as appropriate, from any of
Plaintiff’s treating healthcare providers, including (but not limited to)
Defendants….these witnesses will be expected to testify in accordance with their
notes in the medical records, their recollections of their involvement with Plaintiff’s
care, and their customs and practices in providing medical treatment. Their
testimony will generally address issues of liability, causation, and damages.
Plaintiff contends this is improper, and seems to suggest that Defendants were required to
provide a written report of their own opinions formed while treating Plaintiff. See Fed. R. Civ. P.
26(a)(2)(B). Since making this disclosure, Defendants have determined that in addition to their
retained expert, only they (Dr. Santos and Terri Dean) will testify at trial. Considering that trial
is limited to two discrete events (neither of which involve complex medical care or judgment), and
Plaintiff deposed both defendants, nothing before the Court suggests that Defendants intend to
offer improper and/or undisclosed medical opinion testimony at trial. Plaintiff’s Motion in
Limine No. 4 is DENIED.
5. Unrelated grievances
Defendants do not object. Plaintiff’s Motion in Limine No. 5 is GRANTED.
6. Prior drug use
Defendants do not object. Plaintiff’s Motion in Limine NO. 6 is GRANTED.
7. Emergency room visit in 2020
While incarcerated at Taylorville Correctional Center in February 2020, Plaintiff was treated
in a local hospital’s emergency room and the doctor noted that he was exhibiting “pseudo-seizure,
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drug seeking behavior.” Considering that this event occurred more than two years after the events
in question, this record has no relevance to the issues to be decided by the jury. Plaintiff’s Motion
in Limine No. 7 is GRANTED.
8. Either Defendant’s inability to pay any monetary award to Plaintiff.
Defendants do not object. Plaintiff’s Motion in Limine No. 8 is GRANTED.
9. Argument or suggestion that any damages will “be borne by the State of Illinois or
Illinois taxpayers.”
Defendants do not object. Plaintiff’s Motion in Limine No. 9 is GRANTED.
10. References to the dismissal of individuals who were originally named as Defendants.
Defendants do not object. Plaintiff’s Motion in Limine No. 10 is GRANTED.
Defendants’ Motions in Limine (Doc. 281)
1. Medical treatment provided to other inmates
2. Defendants’ insurance
3. The size of the law firm representing Defendants and/or the cost associated with
defending this matter
4. Settlement negotiations
5. Wexford Health Sources, Inc.3 is a “for-profit” and “big” corporation
In response to Defendants’ Motions in Limine Nos. 1-5, Plaintiff states that he does not
intend to offer evidence or argument regarding these matters. Defendants’ Motions in Limine Nos.
1-5 are therefore DENIED AS MOOT.
3 Defendants Dean and Santos were employed by Wexford Health Sources, Inc., (“Wexford”), a private company
that contracts with the IDOC to provide medical care to inmates within the IDOC.
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6. Medical or technical literature
Defendants ask the Court to exclude “any and all argument or evidence from medical or
other technical literature as hearsay.” Plaintiff claims that he does not oppose this motion, except
to the extent that he intends to admit certain “standards of care” at trial. At the final pretrial
conference, Plaintiff’s counsel explained that at Defendants’ depositions, he presented certain
standards to them, e.g., the American Medical Association Code of Ethics (“the standards”).
Defendants agreed that these standards apply to them. Plaintiff argues that at trial, these standards
are admissible to show that Defendants “did not conform to basic standards of care.”
Defendants’ hearsay objections are well-taken. The standards are out-of-court statements,
and Plaintiff has not provided any explanation for the purpose of admitting them, other than to
establish the truth of the matter asserted. Plaintiff does not argue that any exception to the hearsay
rule applies.
Moreover, the Court sees little probative value in the standards. For example, Plaintiff’s
proposed Exhibit 28 is the American Medical Association Code of Ethics, Section 1.1.6. This
section states that “physicians should actively engage in efforts to improve the quality of health
care” and then lists a variety of ways physicians should make those efforts. This directive has
little bearing on whether Dr. Santos violated Plaintiff’s Eighth Amendment rights by ordering his
placement in an isolation cell where no one could hear him cry for help.
Defendants’ Motion in Limine No. 6 is GRANTED.
7. Expert testimony from witnesses not qualified as experts
8. Expert testimony from witnesses not disclosed as experts
In their Motions in Limine Nos. 7 and 8, Defendants ask the Court to prohibit testimony
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that would violate the Federal Rule of Civil Procedure 26 and the Federal Rules of Evidence
regarding experts. Nothing in the record before the Court suggests that such an order is necessary.
Defendants do not point to any particular witness or problematic testimony. Defendants’ Motions
in Limine Nos. 7 and 8 are DENIED.
9. References to other litigation or claims against Defendants
Plaintiff has no objection. Defendants’ Motion in Limine No. 9 is GRANTED.
10. Defendants failed to meet the standards of care
Defendants move the Court to bar any evidence that they failed to meet the standard of
care, arguing that such evidence is irrelevant. In response, Plaintiff again points the Court to
standards issued by the American Correctional Association and the American Medical
Association’s Code of Ethics. As noted above, these standards have little probative value in this
case. A medical provider’s failure to meet the standard of care does not equate to deliberate
indifference. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). At trial, the jury will be
asked to determine whether Nurse Dean forced Plaintiff to ambulate, and later abandoned him to
lie in his own excrement in an isolation room on Dr. Santos’ orders after Dr. Santos aggressively
squeezed his foot. The standard of care is not an issue; instead, there is a fundamental
disagreement between the parties as to how these events unfolded. Plaintiff fails to point the
Court to any provision by the AMA or ACA in his proposed exhibits that would assist the jury in
weighing the parties’ conflicting testimony. Defendants’ Motion in Limine No. 10 is therefore
GRANTED.
The Court notes, however, that Defendants intend to call an expert witness (Dr. Kenneth
Breger) to testify at trial who opined in his report that Plaintiff’s “treatment [at Centralia] was
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within the standard of care.” Doc. 265-1. Of course, Dr. Breger’s report was written before the
Court issued its summary judgment ruling, limiting Plaintiff’s claims to the two discrete incidents.
If Dr. Breger testifies at trial regarding Defendants’ adherence to the standard of care, the Court
will revisit this ruling.
11. The jury should “send a message” to Defendants and act as the conscience of the
community.
Defendants ask the Court to prohibit Plaintiff from arguing that the jury should “send a
message” to Defendants and act as the conscience of the community. Clearly, Plaintiff’s counsel
should not make any argument in opening statements. Testa v. Village of Mundelein, Ill., 89 F.3d
443, 446 (7th Cir. 1996). However, the Court will determine whether Plaintiff may ask for
punitive damages prior to closing arguments. The jury instruction for punitive damages explains
that the purpose of such damages is to “serve as a…warning to Defendant and others” and directs
the jurors to consider “the likelihood that Defendant[s] would repeat the conduct if an award of
punitive damages is not made.” See Seventh Circuit Pattern Jury Instruction 7.28. Depending
on whether the jury receives this instruction, Plaintiff may be allowed to argue that the jury should
“send a message.” Consequently, Defendants’ Motion in Limine No. 12 is DENIED.
12. Any documents, testimony, or other evidence not expressly produced in written
discovery.
As previously discussed, it is not necessary for the Court to enter a pretrial order that directs
Plaintiff’s counsel to comply with the Federal Rules of Civil Procedure. If Plaintiff’s counsel
attempts to introduce evidence not properly disclosed, Defendants may object at that time.
Defendants’ Motion in Limine No. 12 is DENIED.
13. Comparisons between medical care provided in a prison and medical care
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provided outside the prison
Plaintiff has no objection. Defendants’ Motion in Limine No. 13 is GRANTED.
14. Plaintiff’s testimony regarding the cause of his injuries
Defendants contend that “Plaintiff may try to testify that his claimed injuries…were caused
by the conduct of Defendants.” Pain and discomfort are symptoms that a layperson can
understand and offer testimony. Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004). At trial, Plaintiff
may testify that he experienced pain immediately following the two incidents. Defendants’
Motion in Limine No. 14 is DENIED.
15. Remarks that “trial is necessary because Defendants are not taking responsibility
for their actions or did not settle”
Defendants ask the Court to prohibit Plaintiff and his counsel from remarking that trial is
necessary because Defendants did not take responsibility for their actions or did not settle. In
response, Plaintiff argues that “responsibility for actions is fundamental to the issue of whether
Defendants engaged in unconstitutional conduct.” This argument is without merit. Whether
Defendants “take responsibility” has no relevance to whether they were deliberately indifferent to
Plaintiff’s serious medical needs. See Brown v. Osmundson, 38 F. 4th 545, 550 (7th Cir. 2022)
(internal citations omitted). The Court agrees that Plaintiff should not argue or remark that trial
is necessary “because Defendants did not take responsibility for their actions or did not settle” and
GRANTS Defendants’ Motion in Limine No. 15.
16. Plaintiff’s affidavits
The Court relied on multiple affidavits (attached to journals and a “spasm report”) by
Plaintiff in finding that a genuine issue of material fact existed regarding the two incidents. Doc.
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285. Defendants now move to bar the admission of those affidavits/journals/spasm report at trial
as hearsay. In response, Plaintiff argues that these documents may be admissible at trial pursuant
to the hearsay exceptions listed in Federal Rule of Evidence 803. The affidavits/journals/spasm
report were written by Plaintiff years after the events in questions and clearly constitute out of
court statements offered to prove the truth of the matter asserted. Therefore, Defendants’ Motion
in Limine No. 16 is GRANTED. If circumstances at trial give rise to a hearsay exception this
ruling may be revisited.
17. Statements made by others regarding Plaintiff’s “alleged injuries, cause of
injuries, or medical conditions”
Defendants argue that Plaintiff cannot testify to statements made by “other inmates,
healthcare providers, Wexford employees, jail or IDOC employees, or other jail and prison staff”
regarding Plaintiff’s injuries and medical treatment because any such statements are “inadmissible
hearsay.” The Court cannot evaluate a statement to determine whether it constitutes inadmissible
hearsay without knowing what the statement is, who said it, and the context of the statement.
Defendants’ Motion in Limine No. 17 is DENIED.
18. “Any misconduct, reprimand, or grievance issued against Defendants”
Plaintiff has no objection. Defendants’ Motion in Limine NO. 18 is GRANTED.
19. Plaintiff’s grievance records
Defendants argue that Plaintiff’s grievance records are inadmissible hearsay if he attempts
to tender them, but they are admissible for Defendants to present as either admissions by Plaintiff
or for impeachment purposes. Similar to Plaintiff’s affidavits/journals/spasms report, the Court
is inclined to find that the hearsay rule prohibits Plaintiff from introducing his own statements
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within the grievances as evidence. However, Plaintiff’s grievance records contain
correspondence and statements from prison officials and healthcare staff at or near the time of the
events in question-unlike Plaintiff’s affidavits/journals/spasms report, which were all written by
Plaintiff years after the events in question. At this juncture, it seems plausible that hearsay
exceptions apply to certain portions of Plaintiff’s grievance records and therefore Defendants’
Motion in Limine No. 19 is DENIED.
20. Journals and spasms report
For the reasons provided in granting Defendants’ Motion in Limine No. 16, Defendants’
Motion in Limine No. 20 is also GRANTED. If circumstances at trial give rise to a hearsay
exception that applies to Plaintiff’s journals and/or spasms report, this ruling may be revisited.
21. News articles, media stories, and opinion pieces
Neither party lists any news articles, media stories, or opinion pieces in their Rule 26(a)(3)
disclosures, and therefore Defendants’ Motion in Limine No. 21 is GRANTED.
22. Plaintiff’s counsel’s “pro bono” status
Plaintiff does not object. Defendants’ Motion in Limine No. 22 is GRANTED.
23. Defendants’ absence from trial
Defendants ask the Court to prohibit Plaintiff, his counsel, or any witness from negatively
remarking on “either Defendant for not appearing live at trial.” A litigant’s decision to not appear
for trial carries consequences. See Rainey v. Taylor, 941 F.3d 243, 251 (7th Cir. 2019).
Defendants’ Motion in Limine No. 23 is DENIED.
Defendants’ Supplemental Motions in Limine (Doc. 290).
1. “Any other events or interactions” other than the two incidents
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As explained above, the Court anticipates that the parties will present some (but not dwell
on) evidence of other treatment Plaintiff received at Centralia and observations (by Plaintiff,
Defendants, and others) regarding his condition. Such evidence will be necessary to provide
context to the jury. As far as Plaintiff’s medical records for treatment received outside of Centralia
Correctional Center, any records that Dr. Santos reviewed and relied upon in determining a plan
of care for Plaintiff prior to October 2017 are relevant. Defendants’ Supplemental Motion in
Limine is DENIED.
2. “Facts related to employee resignation or termination from Wexford”
Defendants have not provided any specific information regarding employee resignations
or terminations to which this motion applies. Accordingly, Defendants’ Motion in Limine No. 2 is
DENIED.
IT IS SO ORDERED.
DATED: November 22, 2023
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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