Brandon Motton v. Cory Ruark, et al.

[[COURTLISTENER_SUBOPINION {"id":"11206765","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                                  
           CENTRAL DISTRICT OF ILLINOIS                                 
                   ROCK ISLAND DIVISION                                 

BRANDON MOTTON,                 )                                         
                              )                                         
   Plaintiff,                 )                                         
                              )                                         
        v.                    )      Case No. 4:21-cv-04093             
                              )                                         
CORY RUARK, et al.              )                                         
                              )                                         
   Defendants.                )                                         

                          ORDER                                         
   Plaintiff, then proceeding pro se, brought the present lawsuit pursuant to
42 
U.S.C. § 1983
alleging a Fourteenth Amendment claim for failure to protect from 
harm.  The  matter  comes  before  this  Court  for  ruling  on  the  parties’  respective 
motions in limine, (Docs. 137, 138), and other issues related to the upcoming trial. 
              LEGAL STANDARD FOR MOTIONS IN LIMINE                      
   A  district  court  has  broad  discretion  in  ruling  on  evidentiary  questions 
presented before trial. Jenkins v. Chrysler Motor Corp.,
316 F.3d 663, 664
(7th Cir. 
2002). The moving party bears the burden of showing that the evidence sought to be 
excluded is clearly inadmissible for any purpose. Mason v. City of Chicago,
631 F. 
Supp. 2d 1052, 1056
(N.D. Ill. 2009). A district court may alter a pretrial ruling 
regarding  the  admissibility  of  evidence  should  it  become  necessary  as  the  trial 
progresses. Perry v. City of Chicago,
733 F.3d 248, 252
(7th Cir. 2013).  
             DEFENDANT’S MOTION IN LIMINE (DOC. 137)                    
                     Motion in Limine No. 1                             
   Defendant  seeks  an  order  barring  “any  lay  witness  from  giving  medical 

opinions  on  diagnoses,  causation,  and  the  necessity  of  treatment  regarding 
Plaintiff’s claims of injury.” (Doc. 137 at 3).                           
   A lay witness may offer opinion testimony to the extent that it is rationally 
based on the witness’ perception, helpful in determining a fact at issue, and not 
based  upon  scientific  evidence.  Fed.  R. Evid.  701.  Expert  testimony  is  also  not 
required “to assist jurors in determining the cause of injuries that are within their 

common experiences or observations.” Hendrickson v. Cooper,
589 F.3d 887, 892
(7th Cir. 2009).                                                          
   Plaintiff  may  accordingly  testify  as  to  where  he  was  struck  during  the 
incident in question, whether and in what part of his body he experienced pain 
thereafter, and the severity and duration of that pain. Defendant has not identified 
any specific expert or medical opinion testimony Plaintiff seeks to introduce at trial, 
aside from the fact that Plaintiff may use the terms “migraine” and “head pain” 

interchangeably. Any issues arising from that testimony are likely to be resolved on 
cross examination. Defendant’s request is denied.                         
                     Motion in Limine No. 2                             
   Defendant  seeks  to  admit  evidence  regarding  Plaintiff’s  criminal  history. 
Defendant’s request is granted in part and denied in part as outlined in the Court’s 
ruling,  infra,  on  Plaintiff’s  Motion  in  Limine  request  no.  1  involving  the  same 
evidence.                                                                 
                     Motion in Limine No. 3                             

   Defendant  seeks  to  bar  evidence  regarding  any  indemnification  he  may 
receive  from  the  County  or  payment  of  any  judgment  by  the  County’s  insurer. 
Plaintiff does not object. The request is granted. See Fed. R. Evid. 411. 
                     Motion in Limine No. 4                             
   Defendant seeks to bar Plaintiff from making “golden rule” or “guardians of 
the community” arguments or admitting evidence along these lines. A “golden rule” 

argument is an argument “in which the jury is asked to put itself in the plaintiff’s 
position.” United States v. Teslim,
869 F.2d 316, 328
(7th Cir. 1989). A “guardians of 
the community” argument asks jurors to discharge their duties within the context of 
protecting the community. Smith v. City of Chicago,
2025 WL 1744919
, at *23 (N.D. 
Ill., filed Jun. 24, 2025). Both arguments have been found improper. Id.; Teslim,
869 
F.2d  at  328
(a  “golden  rule”  argument  is  “universally  recognized  as  improper 

because it encourages the jury to depart from neutrality and to decide the case on 
the basis of personal interest and bias rather than on the evidence.”).   
   Plaintiff states that he does not intend to make either argument, see (Doc. 
142 at 6), and, therefore, Defendant’s request is granted insofar as it relates to such 
arguments. The record does not disclose any specific testimony or evidence that 
would fall under these types of arguments. Defendant’s request is denied as to any 
other relief requested.                                                   
                     Motion in Limine No. 5                             
   Defendant seeks an order barring previously undisclosed witnesses, opinions, 
or documents. Plaintiff does not object. Defendant’s request is granted.  

                     Motion in Limine No. 6                             
   Defendant  seeks  an  order  barring  argument  or  reference  to  punishing  or 
“sending a message” to Rock Island County, the Rock Island County Sheriff’s Office, 
or law enforcement generally. Plaintiff states that he does not intend to assert an 
argument as it relates to these organizations or Defendant. Plaintiff objects as it 
relates to arguments regarding punitive damages.                          

   Defendant’s request is granted to the extent that it seeks to bar argument as 
it relates to the organizations mentioned above. Defendant’s request is denied as to 
any  other  relief  requested.  Nothing  in  this  Order  shall  prohibit  Plaintiff  from 
asserting  arguments  related  to  any  factor  properly  considered  with  respect  to 
punitive damages.                                                         
                     Motion in Limine No. 7                             

   Defendant seeks an order precluding improper character evidence against 
him,  including  disciplinary  records  and  unrelated  lawsuits  filed  against  him. 
Defendant has not identified any specific  information he seeks to exclude, and, 
absent  such  information,  the  Court  finds  that  Defendant  has  not  shown  this 
information is not admissible for any purpose. Any determinations regarding the 
admissibility of this evidence are best reserved for trial. Defendant’s request is 
denied.                                                                   
                     Motion in Limine No. 8                             
   Defendant seeks an order precluding an argument that Plaintiff waited a 
long time for justice or other reference to the length of time this case has been 

pending. Plaintiff does not object. Defendant’s request is granted as it relates to 
arguments related to the passage of time.                                 
                     Motion in Limine No. 9                             
   Defendant seeks an order precluding  evidence or argument about alleged 
violations of jail policies. Plaintiff states that he intends to offer evidence “detailing 
Defendant’s violations of jail policies and procedures to demonstrate the actions of a 

reasonable  officer.”  (Doc.  142  at  12).  Plaintiff  elaborates  that  he  “should  be 
permitted to introduce the policies to show that Defendant failed to conduct himself 
as a reasonable officer when allowing an inmate to go unescorted to his cell while 
Mr. Motton was on his one-hour out.” Id. at 13.                           
   “[A] violation of a jail policy is not a constitutional violation enforceable under
42 U.S.C. § 1983
.” Pulera v. Sarzant,
966 F.3d 540, 551
(7th Cir. 2020). Because the 
objective reasonableness analysis requires the trier of fact to consider the facts and 

circumstances specific to each case, the Seventh Circuit has held that evidence 
regarding institutional policies and the violations of same are not relevant to this 
inquiry. Thompson v. City of Chicago,
472 F.3d 444, 455
(7th Cir. 2006) (“[T]he 
violation of police regulations or even a state law is completely immaterial as to the 
question of whether a violation of the federal constitution has been established.”); 
Rakes v. Roederer,
117 F.4th 968, 985
(7th Cir. 2024) (same); see also Kingsley v. 
Hendrickson,
576 U.S. 389, 397
(2015) (“[O]bjective reasonableness turns on the 
facts  and  circumstances  of  each  particular  case…A  court  must  make  this 
determination from the perspective of a reasonable officer on the scene, including 

what the officer knew at the time, not with the 20/20 vision of hindsight.”) (internal 
citations omitted).                                                       
   Plaintiff’s proposed reasons for introducing evidence regarding Defendant’s 
alleged violations of jail policy suggest an argument that the policies define how a 
reasonable officer should act, and that Defendant’s violations of those policies mean 
that  his  actions  were  unreasonable.  This is  just  a  different  way  of  saying  that 
Defendant’s violation of a jail policy makes his conduct unconstitutional, which is 

not consistent with the applicable law or permissible argument.           
   Defendant’s request is granted to the extent that it seeks to bar evidence that 
Defendant violated a jail policy and argument that the violation of same made 
Defendant’s actions unreasonable or unconstitutional.                     
                    Motion in Limine No. 10                             
   Defendant seeks an order barring testimony from Plaintiff’s Jail Practices 

Expert.  Plaintiff  retained  Arthur  Wallenstein  as  an  expert  in  this  case.  Mr. 
Wallenstein’s expert report makes five findings:                          
   Finding  #1:  A  reasonable  officer  would  have  checked  whether  an 
   inmate  being  transferred  was  going  to  segregated  housing  and 
   adjusted the transportation methods accordingly. CO Ruark failed to  
   check Hayes’s housing classification before transferring in violation of 
   industry practice and common knowledge, and thus, Ruark did not      
   take  reasonable  measures  when  transferring  Hayes  on  March  25, 
   2021, such as using restraints or transferring individually (not in a 
   group).                                                              
Finding  #2:  A  reasonable  officer  would  have  checked  an  inmate’s 
behavior history before transferring and adjusted the transportation 
methods  accordingly.  CO  Ruark  failed  to  check  Hayes’s  behavioral 
history, which included three prior fights, including a fight the day 
prior, and thus, CO Ruark should have used his discretion under RICJ 
policy that authorizes restraints “if the Officer has reason to believe 
that  the  inmate  may  become  uncooperative/combative,”  to  restrain 
Hayes during the transfer on March 25, 2021.                         
Finding #3: A reasonable officer would have escorted, controlled, and 
supervised  an  inmate  from  point  A  to  point  B  in  alignment  with 
industry standards and customs, RICJ’s policy, the practices of other 
RICJ  officers,  and  common  sense.  A  reasonable  officer  would  have 
appreciated the risk of violence to others at the jail when allowing an 
inmate to be unescorted, uncontrolled, and unsupervised. CO Ruark    
failed  to  fully  escort,  control,  and  supervise  Inmate  Hayes  while 
transferring him on March 25, 2021, by not escorting Mr. Hayes to his 
cell and ensuring the cell was locked. CO Ruark testified under oath 
that fighting was “routine” at RICJ, and thus, permitting inmates, who 
are  required  to  be  segregated  from  others,  to  interact  inherently 
creates a risk of violence.                                          
Finding #4: A reasonable correctional officer would have recognized  
that inmates in segregation should not interact outside of very limited 
circumstances, and thus, upon seeing another inmate in the dayroom,  
the officer would have taken steps to avoid the inmates interacting  
such as ordering the inmate in the dayroom to his cell or taking other 
steps to ensure the two inmates did not interact. CO Ruark clearly saw 
Motton before allowing Hayes into Lower N, and so, he consciously    
chose not to abate the risk of these two inmates, who were both in   
protective custody in segregated housing, interacting.               
Finding #5: A reasonable correctional officer would call for support 
and  then  immediately  intervene  when  an  inmate  they  were      
supervising was attacked right in front of him in order to minimize  
injuries and potential loss of life. CO Ruark should have entered the 
unit, Lower N, the moment he realized his error in permitting another 
Special  Management  inmate  to  enter  the  Dayroom  and  invade  the 
presence of another inmate who was using the phone as part of the    
one-hour standalone recreation period permitted for inmates within   
the Special Management Unit (Lower N). He did not come to the aid of 
inmate  Motton  as  Motton  was  being  attacked.  CO  Ruark  waited  a 
considerable amount of time when he was personally on-site and could 
have utilized his 20 years of experience to intervene and assist inmate 
   Motton  while  awaiting  the  arrival  of  other  correctional  officers  to 
   assist.                                                              
(Doc. 137-2 at 2-4). Defendant argues that Mr. Wallenstein’s findings are improper 
legal  conclusions  that  will  not  assist  the  jury  to  understand  the  evidence  and 
resolve any issues of fact. Plaintiff asserts that the testimony will “provide[] the jury 
with context to understand the actions of a ‘reasonable officer,’ by explaining the 
training,  policies,  and  national  standards,  related  to  the  types  of  housing  and 

transportation options that affect the movement of an inmate within the jail.” (Doc. 
142 at 15).                                                               
   Federal Rule of Evidence 702 provides:                               
   A witness who is qualified as an expert by knowledge, skill, experience, 
   training,  or  education  may  testify  in  the  form  of  an  opinion  or 
   otherwise if:                                                        
   (a) the expert’s scientific, technical, or other specialized knowledge will 
   help the trier of fact to understand the evidence or to determine a fact 
   in issue;                                                            
   (b) the testimony is based on sufficient facts or data;              
   (c) the testimony is the product of reliable principles and methods; and 
   (d) the expert has reliably applied the principles and methods to the 
   facts of the case.                                                   
Fed. R. Evid. 702. The rule imposes a “special gatekeeping function” on district 
courts  to  ensure  that  the  evidence  is  relevant  and  reliable  before  admitting  it. 
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 588-89
(1993); Kumho Tire Co., 
Ltd. v. Carmichael,
526 U.S. 137, 141
(1999); see also Lees v. Carthage Coll.,
714 
F.3d  516,  521
(7th  Cir.  2013)  (“[T]he  Daubert  analysis  applies  to  all  expert 
testimony under Rule 702, not just scientific testimony.”). In doing so, district courts 
must evaluate: (1) the proffered expert’s qualifications; (2) the reliability of the 
expert’s methodology; and (3) the relevance of the expert’s testimony.” Kirk v. Clark 
Equip. Co.,
991 F.3d 865, 872
(7th Cir. 2021). Expert testimony is relevant if it will 

assist the jury “to understand the evidence or to determine a fact in issue.” Fed. R. 
Evid. 702. Defendant does not challenge the Plaintiff’s expert’s qualifications or 
methodology in his motion.                                                
   As discussed above, Thompson and other Seventh Circuit jurisprudence hold 
that  evidence  of  a  policy  violation  is  immaterial  to  the  question  of  objective 
reasonableness. The Seventh Circuit in Thompson also affirmed the district court’s 
exclusion of expert testimony from a police sergeant that would have offered an 

opinion  about  the  reasonableness  of  the  officer’s  conduct  based  in  part  on  the 
policies at issue in that case. Thompson,
472 F.3d at 457
. The Seventh Circuit held 
that  presentation  of  the  expert  testimony  in  question  “would  have  induced  the 
jurors to substitute their own independent conclusions for that of the experts.”
Id.
The Seventh Circuit later clarified in United States v. Brown, that Thompson 
should not be understood to categorically prohibit all evidence related to policies 

and  procedures.
871  F.3d  532,  537
(7th  Cir.  2017).  “Even  though  jurors  can 
understand the concept of reasonableness, in some cases they may not fully grasp 
particular techniques or equipment used by police officers in the field.”
Id.
In cases 
where expert testimony can “help the trier of fact to understand the evidence or to 
determine a fact in issue,” this type of testimony may be permissible under Fed. R. 
Evid. 702.
Id.
The Seventh Circuit explained further:                     
   The  level  of  factual  complexity  in  the  case  may  also  bear  on  the 
   relevance of expert testimony about police practices or protocols. In 
   many cases evaluating an officer’s conduct will draw primarily on the 
   jury’s collective common sense. The everyday experience of lay jurors 
   fully equips them to answer the reasonableness question when a case  
   involves  facts  that  people  of  common  understanding  can  easily 
   comprehend. The jury’s common experience will suffice, for example,  
   when  police  use  their  bare  hands  in  making  an  arrest,  the  most 
   primitive  form  of  force.  But  when  “something  peculiar  about  law 
   enforcement (e.g., the tools they use or the circumstances they face) 
   informs the issues to be decided by the finder of fact, a juror’s everyday 
   experience may not be enough to effectively assess reasonableness. If a 
   case involves “a gun, a slapjack, mace, or some other tool, the jury may 
   start to ask itself: what is mace? what is an officer’s training on using a 
   gun? how much damage can a slapjack do?
Id. at 538
(internal quotations and citations omitted). This case does not involve 
police  procedures  or  protocols,  but  the  holdings  in  Thompson  and  Brown  are 
sufficiently analogous for the Court to find them controlling.            
   The parties agree that jail officials housed Plaintiff in Lower N, an area of 
the  jail  “used  for  inmates  who  must  be  separated  from  other  inmates  for 
disciplinary, administrative, or protective custody reasons.” (Doc. 71 at 3). Expert 
testimony  is  not  required  for  jurors  to  appreciate  the  fact  that  detainees  may 
sometimes need to be housed separately from others and that the jail has dedicated 
an area for that purpose. The reasons for this type of confinement (violation of a 
rule, poses a safety threat to self or others, protective custody, and medical) are also 
not beyond a juror’s common experience or comprehension.                  
   This  case  does  not  involve  the  use  or  non-use  of  restraints  outside  of 
handcuffs  that  may  require  an  expert’s  explanation,  nor  does  the  relevance  a 
detainee’s prior history may have in determining the risk of harm the detainee 
presents to others. Two of Mr. Wallenstein’s findings directly contradict the law in 
this circuit. Compare Findings #3 and #5, infra, with Giles v. Tobeck,
895 F.3d 510, 
513-14
(7th Cir. 2018) (failure to escort inmate back to cell “did not cross the line 
from negligently enabling the attack to recklessly condoning it,” and decision to 

wait for backup once fight started was not unreasonable).                 
   The Court finds that Mr. Wallenstein’s expected testimony is not likely to 
assist  the  jurors  in  resolving  any  issues  of  fact  and  that  presentation  of  his 
testimony unnecessarily risks that the jury will decide the case on an improper 
basis. Defendant’s request is granted.                                    
              PLAINTIFF’S MOTION IN LIMINE (DOC. 138)                   

                     Motion in Limine No. 1                             
   Plaintiff  seeks  an  order  excluding:  “(1)  the  details  of  Mr. Motton’s  felony 
convictions for murder and possession of a firearm that occurred within the past ten 
years; (2) Mr. Motton’s convictions from more than ten years ago; and (3) any other 
criminal conviction punishable by less than one year or charge that never resulted 
in a conviction.” (Doc. 138 at 4). Plaintiff requests that the Court limit evidence of 
his prior convictions to “the basic fact that he has been convicted of two felonies and 

is currently serving a sentence in excess of one year in the Illinois Department of 
Corrections.”  Id.  at  3.  Defendant  argues  that  identifying  “the  particular  felony 
charged, the date, and the disposition” should be allowed. (Doc. 140 at 2). 
   Evidence of criminal convictions for crimes punishable by more than one year 
imprisonment or convictions for crimes involving a dishonest act or false statement 
are admissible for impeachment purposes, unless the court finds that the evidence 
is more prejudicial than probative or more than 10 years has passed since the date 
of conviction or release from confinement. Fed. R. Evid. 403, 609(a)-(b). The parties 
concede that Plaintiff’s convictions for murder and possession of a firearm are of the 

types of convictions admissible under Fed. R. Evid. 609.                  
   A court “may exclude relevant evidence if its probative value is substantially 
outweighed by a danger of one or more of the following: unfair prejudice, confusing 
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 
cumulative  evidence.”  Fed.  R.  Evid.  403.  “Evidence  is  unfairly  prejudicial  if  it 
appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to 
punish, or otherwise may cause a jury to base its decision on something other than 

the established propositions in the case.” United States v. Thompson,
359 F.3d 470, 
479
(7th Cir. 2004) (internal quotation marks omitted). Factors the court should 
consider include: “(1) the impeachment value of the prior crime; (2) the point in time 
of the conviction and the [party’s] subsequent history; (3) the similarity between the 
past crime and the charged crime; (4) the importance of the [party’s] testimony; and 
(5) the centrality of the credibility issue.” United States v. Gant,
396 F.3d 906, 909
(7th Cir. 2005). (internal quotation omitted).                            
   Plaintiff’s convictions for murder and possession of a firearm are not crimes 
of dishonesty and have no relation to the facts of this case. Jones v. City of Chicago,
2017 WL 413613
, at *9 (N.D. Ill., filed Jan. 31, 2017) (“Murder is not a crime that is 
particularly  indicative  of  untruthfulness.”).  The  video  depicting  the  incident 
removes most, if not all, question regarding the parties’ physical actions. Plaintiff 
does not have personal knowledge of Defendant’s interactions with his assailant or 
any event that transpired outside the area of the jail where the event took place, 
and the parties do not appear to dispute facts where Plaintiff’s credibility would 

play a material role in the jury’s determination.                         
   The Court finds that testimony or evidence regarding the details of Plaintiff’s 
convictions would be unfairly prejudicial in this case. Plaintiff’s request is granted. 
Defendant may elicit testimony or other evidence only to the facts that Plaintiff has 
been convicted of two felonies and that he is currently serving a sentence that 
exceeds one year. See Byrd v. Hobart,
2022 WL 2388728
, at *3 (C.D. Ill., filed Mar. 
1, 2022) (limiting evidence at trial to the fact that the plaintiff had committed a 

felony, without divulging the exact nature of the crime, and that the conviction 
predicated his confinement in IDOC).                                      
                     Motion in Limine No. 2                             
   Plaintiff seeks an order precluding evidence related to “medical treatment, 
diagnoses, or medication prescribed to Mr. Motton predating March 25, 2021, or 
related to his mental health.” (Doc. 138 at 8). The fact that Plaintiff’s diagnoses and 

treatment may have predated the events in question does not automatically make 
them irrelevant or otherwise inadmissible. These conditions may be relevant to the 
calculation of damages. Plaintiff’s request is denied.                    
                     Motion in Limine No. 3                             
   Plaintiff  seeks  an  order  precluding  “Defendant  from  introducing  into 
evidence, offering any testimony about, or referring to his prison disciplinary record 
or incident reports and grievances unrelated to his request for protective custody at 
Rock Island County Jail…and any unproduced records.” (Doc. 138 at 10). Defendant 
states that he does not intend to admit Plaintiff’s disciplinary records or requests 

about “unrelated matters such as visitation or food orders,” and, therefore, does not 
object to the request as it relates to these documents. (Doc. 140 at 6).  
   Plaintiff’s  request  is  granted  as  to  Plaintiff’s  disciplinary  records  and 
requests related to visitation and food orders and denied as to any other relief 
requested.                                                                
                     Motion in Limine No. 4                             

   Plaintiff seeks an order precluding evidence regarding “the alleged injuries 
sustained by Correctional Officer Nelson while restraining Mr. Motton” during the 
incident in question. The parties agree that C/O Nelson broke his jaw during the 
incident and that there exists no conclusive evidence regarding who caused this 
injury.                                                                   
   C/O Nelson’s injury occurred after Defendant had allowed the other inmate to 
enter  the  common  area  while  Plaintiff  was  present.  The  fact  that  C/O  Nelson 

sustained an injury thereafter does not bear on the question of whether Defendant’s 
conduct  prior  to  that  injury  was  objectively  reasonable.  Plaintiff’s  request  is 
granted.                                                                  
                     Motion in Limine No. 5                             
   Plaintiff seeks to bar evidence of Defendant’s good character, “such as any 
personal  and  professional  accomplishments”  to  show  that  Defendant  acted  in 
accordance with that character on the date in question or to prove that he did not 
fail to protect Plaintiff.                                                
   The Federal Rules of Evidence prohibit character evidence for purposes of 

showing  that  the  person  acted  in  accordance  therewith.  Fed.  R.  Civ.  P.  404. 
Defendant  indicates  that  he  does  not  oppose  the  request  insofar  as  it  seeks  to 
prohibit  evidence  of  “commendations  and  awards  he  received  a  Correctional 
Officer.” (Doc. 140 at 8). Plaintiff’s request as to this evidence is granted. 
   Defendant  objects  to  Plaintiff’s  request  as  it  relates  to  “basic  career  and 
background information,” including his service in the military. Defendant argues he 
should be allowed to testify regarding his basic military duties, any promotions, and 

whether  he  received  an  honorable  discharge  because  the  absence  of  such 
information “would raise suspicion in the jury’s mind.”
Id.
Brief  testimony  regarding  an  officer’s  military  service  is  generally 
appropriate “to provide a complete picture to the jury of the officer’s professional 
background.” Holt v. Lewsader,
2021 WL 4094996
, at *14 (C.D. Ill., filed Apr. 19, 
2021); Valdez v. Lowry,
2021 WL 5769533
, at *15 (N.D. Ill., filed Dec. 5, 2021) (“The 

military service of plaintiff (and defendant officers, for that matter) is appropriate 
background  evidence.”).  Plaintiff’s  request  is  denied  as  to  any  remaining  relief 
requested.                                                                
                     Motion in Limine No. 6                             
   Plaintiff seeks an order permitting him to appear in civilian clothing without 
restraints. Defendant does not object to the request as it relates to clothing, or to an 
order permitting Plaintiff to appear without visible restraints. Plaintiff’s request is 
granted as to the clothing and for Plaintiff to appear before the jury within visible 
restraints and denied as to any other relief requested. The Court will make a final 

determination regarding the extent of Plaintiff’s restraints after consultation with 
security staff.                                                           
                     Motion in Limine No. 7                             
   Plaintiff seeks an order directing counsel and witnesses to refer to Plaintiff 
only as “Mr. Motton.” Defendants ask the Court to permit them and witnesses to 
refer to Plaintiff as “plaintiff” or “Motton.” Reference to an individual as plaintiff or 

defendant, or simply by a last name, is common practice. Calling Plaintiff by these 
monikers, or even the occasional reference to Plaintiff as a detainee or inmate do 
not  appear  to  be  unfairly  prejudicial  within  the  context  of  this  case.  Plaintiff’s 
request is denied.                                                        
            PROPOSED FINAL PRETRIAL ORDER (DOC. 141)                    
   The parties submitted a joint proposed final pretrial order on November 12, 
2025.  (Doc.  141).  At  the  final  pretrial  conference  held  November  17,  2025, 

Defendant indicated that the proposed order did not reflect his intention to waive 
authentication for certain exhibits. Plaintiff indicated that, in light of Defendant’s 
waiver, he does not intend to call a custodian of records as a witness to authenticate 
the documents in question.                                                
   The Court also discussed with the parties an objection pursuant to Rule 26(a) 
that Plaintiff had indicated in the proposed final pretrial order to testimony from 
Brett  Josie  and  Melissa  Fletcher.  Plaintiff’s  counsel  stated  at  the  final  pretrial 
conference that he would withdraw his objection as to Melissa Fletcher.   
   Plaintiff stated that he had disclosed Brett Josie in his supplemental Rule 26 

disclosures  after  the  Court  had  reopened  discovery.  He  stated  that  because 
Defendant  did  not  disclose  Mr.  Josie  as  a  witness  that  he  made  a  “strategic 
decision” not to depose this witness. Plaintiff asserts that he accordingly does not 
know to what Mr. Josie will testify, and, therefore, permitting Defendant to call this 
witness is prejudicial.                                                   
   Rule 26 requires a party to disclose the name of every individual “likely to 
have discoverable information…that [the party] may use to support its claims or 

defenses,”  and  to  identify  “the  subjects  of  that  information.”  Fed.  R.  Civ.  P. 
26(a)(1)(A)(i). Parties have an ongoing duty to supplement these disclosures “in a 
timely  manner”  if  the  party  learns  new  information  or  discovers  that  previous 
disclosure is somehow deficient and “if the additional or corrective information has 
not otherwise been made known to the other parties during the discovery process or 
in writing.” Fed. R. Civ. P. 26(e)(1)(A).                                 

   A  party  that  fails  to  comply  with  these  disclosure  requirements  “is  not 
allowed to use that information or witness to supply evidence…at trial, unless the 
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Exclusion 
is “automatic and mandatory” unless the noncomplying party can show its violation 
was either justified or harmless. David v. Caterpillar, Inc.,
324 F.3d 851, 857
(7th 
Cir. 2003).                                                               
   The parties do not appear to dispute that Defendant failed to disclose Mr. 
Josie as a witness, and that that failure affected Plaintiff’s litigation strategy. The 
question before the Court hinges on whether Plaintiff’s disclosure and Mr. Josie’s 

presumed  inclusion  in  discovery  documents  relieved  Defendant  of  his  duty  to 
disclose him under the “otherwise been made known” exception in Fed. R. Civ. P. 
26(e)(1)(A), and, if not, whether the failure to disclose was justified or harmless. The 
Court will provide the parties an opportunity to submit argument or authority on 
the issue as they deem necessary.                                         
                         CONCLUSION                                     
   The parties’ respective motions in limine (Docs. 137, 138) are granted in part 

and denied in part. The parties shall submit a revised proposed final pretrial order 
to reflect the changes discussed at the final pretrial conference and any argument or 
authority on the witness issue as directed below.                         
THEREFORE:                                                                
1)  The parties’ respective motions in limine [137][138] are GRANTED in 
   part and DENIED in part.                                             
2)  The parties shall submit a revised proposed final pretrial order by 
   December 1, 2025.                                                    
3)  The parties shall submit any argument or authority on the issue of  
   whether Brett Josie should be permitted to testify by December 1,    
   2025.                                                                
SO ORDERED.                                                               
Entered this 20th day of November, 2025.                                  
                                       s/Ronald L. Hanna                
                                        Ronald L. Hanna                 
                                  United States Magistrate Judge