CENSKE v. UNITED STATES OF AMERICA

Filing 161

ORDER ON DEFENDANT'S MOTION IN LIMINE - The Government's Motion in Limine, Dkt. 146 , is GRANTED in part and DENIED in part. As with all orders in limine, this Order is preliminary and "subject to change when the case unfolds." No party shall reference or attempt to elicit evidence that has been provisionally excluded by this Order without first seeking permission from the Court. Each party shall ensure its witnesses' compliance with this Order. (See Order). Copies sent pursuant to distribution list. Signed by Judge Tanya Walton Pratt on 12/30/2022. (AKH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THOMAS ANDREW CENSKE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 1:16-cv-02761-TWP-MJD

ORDER ON DEFENDANT'S MOTION IN LIMINE
This matter is before the Court on Defendant, the United States of America's
("Government") Motion In Limine, (Dkt. 146). Plaintiff Thomas Censke ("Censke"), a former
federal prisoner, initiated this lawsuit against the Government under the Federal Torts Claims Act
("FTCA"). Censke presents three battery claims related to an incident during his incarceration at
the Federal Correctional Complex in Terre Haute, Indiana ("FCC Terre Haute"). Resolution of
these claims will be determined at the bench trial set in this matter on January 30, 2023. The
Government seeks to prevent certain evidence from being presented at the bench trial. For the
following reasons, the Government's Motion in Limine, (Dkt. 146), is granted in part and denied
in part.
I. APPLICABLE LAW
"Motions in limine are well-established devices that streamline trials and settle evidentiary
disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy
and complex evidentiary issues." United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002). Still,
orders in limine are preliminary and "subject to change when the case unfolds" because actual
testimony may differ from a pretrial proffer. Luce v. United States, 469 U.S. 38, 41 (1984). A

trial judge does not bind herself by ruling on a motion in limine and "may always change [her]
mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).
"[J]udges have broad discretion in ruling on evidentiary questions during trial or before on
motions in limine." Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The court
excludes evidence on a motion in limine only if the evidence clearly is not admissible for any
purposes. See Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993).
Unless evidence meets this exacting standard, evidentiary rulings must be deferred until trial so
questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400-01.
Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated
by the motion is admissible; rather, it only means that, at the pretrial stage, the Court is unable to
determine whether the evidence should be excluded. Id. at 1401. Furthermore, the Court notes
that because the case is proceeding by a bench trial, many of the parties' arguments regarding
potential for confusion or undue prejudice are mooted. See United States v. Shukri, 207 F.3d 412,
419 (7th Cir. 2000) ("In a bench trial, we assume the district court was not influenced by evidence
improperly brought before it unless there is evidence to the contrary.").
II. BACKGROUND
On December 16, 2013, Censke was involved in a physical altercation with correctional
officers at the FCC Terre Haute. The incident occurred in Censke's cell during evening count
procedures. During the incident, Censke was exposed to a chemical agent and was extracted from
his cell. Censke alleges the correctional officers gathered outside his cell and threatened to hurt
him even though he was complying with orders to be restrained, and then, once he was in
handcuffs, the officers continued to beat him, punching and kicking him and twisting his arm. See

2

generally Dkt. 120 (order granting in part and denying in part plaintiff's cross motion for summary
judgment as to battery).
After the incident, Censke was housed in segregation for three days where he was put in
shackles and black-box wrist restraints that continued to tighten in response to the pressure from
his wrists. Id. The handcuffs cut into Censke's wrists causing him pain and discomfort, and his
wrists needed medical treatment in the form of dressings and cleaning by medical staff on multiple
occasions. Id.
On summary judgment and pursuant to the FTCA and Indiana state tort law˗˗which applies
to claims under the FTCA˗˗the Court analyzed Censke's three battery claims related to the
December 16, 2013, incident. Id. at 6-10. The Court determined that Censke's battery claims
arising from the use of chemical spray and his removal from his cell shall proceed to a bench trial,
and the Court will determine liability and potential damages. Id. at 11-12. Censke's battery claim
arising from the use of shackles and black-box wrist restraints also proceeds to a bench trial, and
the Court will determine only the award of damages. Id.
III. ANALYSIS
The Government seeks to preclude Censke from referring to or presenting five (5)
categories of evidence. The Court addresses each category, in turn.
1.

Evidence or Argument Regarding Prior Conduct or Other Allegations
The Government "anticipates that at trial Censke intends to question [Bureau of Prisons]

employees about records of prior arrests or convictions, employment reprimands or discipline,
complaints leveled against them by other inmates, and/or prior lawsuits by other inmates involving
them." (Dkt. 147 at 2.) The Government argues that such questioning would elicit only "bad act"

3

evidence, which is inadmissible, and seeks an order in limine precluding such questioning at trial.
Id. at 2-3 (citing Fed. R. Evid. 404(a)(1) and 404(b)).
Censke has no objection, but he reserves the right to offer relevant evidence in this category
if the Government opens the door to it. (Dkt. 156 at 2.) Accordingly, the Government's Motion is
granted to the extent that Censke is precluded from engaging in this line of questioning of the
alleged tortfeasors or any other Bureau of Prisons witnesses.
2.

Declarations, Affidavits, or Other Written Statements by Persons Not Appearing
The Government argues that any declarations, affidavits, or other written statements from

individuals not appearing as witnesses should be excluded because they are inadmissible hearsay.
(Dkt. 147 at 3 (citing Fed. R. Evid. 801(c) and 802).) Further, if admitted, such evidence would
be prejudiced because it would not have the opportunity to cross-examine those non-witnesses.
Id.
Censke objects to the extent that he would be precluded from presenting a declaration or
affidavit by an employee or agent of the Government, and to the extent he would be precluded
from presenting evidence otherwise admissible under Federal Rules of Evidence 801 or 703. 1
(Dkt. 156 at 3.) He argues that such preclusion would result in exclusion of highly relevant
evidence, for example, an affidavit from another former inmate in the neighboring cell during the
December 16, 2013 incident, which may be admissible for a non-hearsay purpose under Rule 801

1

See Fed. R. Evid. 801(d) which defines statements that are not hearsay, for example, when a "statement is offered
against an opposing party and: (D) was made by the party's agent or employee within the scope of that relationship
and while it existed[.]" Fed. R. Civ. P. 801(d)(2)(D).
See Fed. R. Evid. 703. Bases of an Expert: "An expert may base an opinion on facts or data in the case that the expert
has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But
if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only
if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect."

4

and/or as facts considered (or not considered) by an expert under Rule 703. Id. (referencing Jeffrey
Malone's Affidavit at Dkt. 115-1).
At this time, it is unclear to the Court what declarations, affidavits, or other written
statements by non-witnesses may be proffered, and the Government's blanket request to preclude
all such evidence is too broad to allow the Court to rule on the admissibility of such evidence.
Accordingly, the Government's Motion in Limine, (Dkt. 146), is granted to the limited extent
that at the trial the Court will adhere to the Federal Rules of Evidence, the hearsay rules and
applicable exceptions. It is denied as to any other relief sought. Should Censke seek to present
evidence in this category at the trial, the Government may raise contemporaneous objections at
that time.
3.

Evidence Regarding Censke's Allegations of Medical Negligence
The Government argues because it was granted summary judgment on Censke's allegations

of medical negligence related to his alleged injuries in December 2013, any testimony about
deficient medical care during this time "would have no bearing on any of the remaining issues in
this case," and thus, are irrelevant. (Dkt. 147 at 4.) Further, such evidence would lead to confusion
of the issues, undue delay, and a waste of time, and could be excluded for these independent
reasons. Id. (citing Fed. R. Evid. 403).
Censke has no objection but reserves his right to offer relevant evidence in this category if
the Government opens the door to it. (Dkt. 156 at 3.) Accordingly, the Government's Motion is
granted to the extent that Censke is precluded from introducing any evidence or argument
relating to his dismissed medical negligence claim.

5

4.

Opinion Evidence from Lay Witnesses and Unfounded Evidence as to Lasting Effects
The Government seeks "an order prohibiting Censke from presenting evidence or argument

regarding the causation or continuing effects of his alleged injuries." (Dkt. 147 at 5.) The
Government points out that Censke did not disclose any expert witnesses in this case, and argues
that he is therefore precluded from presenting expert testimony at trial, as he has no medical
training or expertise to testify to medical causation. Id. at 4-5 (citing Fed. R. Civ. P. 37(c)(1) and
Fed. R. Evid. 701).
In response, Censke agrees he "will adhere to Rule 701" and will not testify to "any
complex medical diagnoses or opine on long term medical conditions," but objects to the extent
that he can "testify as to his mental and physical pain and his functioning both before and after the
incident." (Dkt. 156 at 4-5) (quoting Christmas v. City of Chi., 691 F. Supp. 2d 811, 821 (N.D. Ill.
2010), where motion in limine was denied as overly broad such that permissible lay opinion
testimony under 701 would be excluded).
Censke's objection is well taken. He may "testify about his personal knowledge of his own
medical conditions and any physical symptoms he experiences. . . . Moreover, [he] can testify to
his own opinions that are based on his personal experience and perceptions. . . . [He] need not
seek permission before offering this testimony." See, e.g., Cherrone v. Carter, 2020 WL
12752818, at *4 (S.D. Ind. Aug. 17, 2020) (citing Fed. R. Evid. 602 and 701). The Government
may object at trial to specific testimony if it is based on scientific, technical, or specialized
knowledge. Id.; see also Fed. R. Evid. 702.
Accordingly, the Government's Motion is granted in part such that Censke cannot present
expert testimony and must adhere to Federal Rule of Evidence 701 as a lay witness. The

6

Government's Motion is denied in part as it relates to the scope of testimony Censke is permitted
to testify to without permission, described above.
5.

Calculated Use of Force Techniques
The Government anticipates that at trial Censke will argue that "instead of employing

immediate force, the Bureau of Prisons should have treated [the December 16, 2013 incident] as a
situation that could have been resolved through 'Calculated Use of Force (CUOF) techniques."
(Dkt. 147 at 6) (citing 28 C.F.R. § 552.21(b); Program Statement 5566.05[5][b])). The
Government argues that the Court is barred from "second guessing" the Bureau of Prisons'
discretionary decision to use immediate force "because the FTCA does not waive sovereign
immunity over negligence arising from the discretionary acts of BOP federal employees." Id.
(citing 28 U.S.C. § 2680(a)). The Government states that the Program Statement provides that
staff may use immediate force when appropriate, and that while "[c]alculated rather than
immediate use of force is desirable in all instances corrections works encounter," it "is not always
possible[.]" Id. at 7 (quoting Program Statement 5566.06[5][b][1]. In sum, the Government argues
that the Court should exclude this category of evidence to avoid confusion of the issues, undue
delay, and wasting time, and that argument that the Bureau of Prisons erred in using immediate
force during the incident implicates discretion and is outside the jurisdiction of the Court under
the FTCA. Id. at 7-8.
Censke objects, stating that the "actual evidence (versus) argument that Defendants seeks
to preclude is unclear," and the Court should deny the Government's motion on this basis alone.
(Dkt. 156 at 5-6.) 2 Mr. Cenkse objects to being precluded from presenting facts about the officers'

2

Mr. Censke additionally argues that the Bureau of Prisons' policy does not discuss "Calculated Use of Force
techniques," but instead, outlines procedures where inmates can be isolated to an area and where no immediate, direct
threat exists. (Dkt. 156 at 5-6.)

7

actions during the incident, their failure to adhere to policy, the extraction procedures and
regulations, discrepancies between written procedures and the officers' actual conduct during the
incident, and the officers' basis for employing immediate force. Id. at 6. Further, Mr. Cenkse
argues this evidence does not implicate sovereign immunity concerns because his claims relate to
"being beaten unnecessarily by correctional workers—whether or not they employed certain
(unspecified) techniques." Id.
Censke's objection is well taken. At this time, it is unclear to the Court the extent or content
and scope of the evidence or argument that would be proffered related to use of force techniques,
and the Government's blanket request to preclude all such evidence is too broad to allow the Court
to rule in limine on the admissibility of such evidence, until any proffered evidence can be
considered in context at trial. The Government may raise contemporaneous objections at that time.
Accordingly, the Government's Motion is denied as it relates to this category of evidence.
IV. CONCLUSION
The Government's Motion in Limine, Dkt. [146], is GRANTED in part and DENIED in
part as outlined in Section III above. As with all orders in limine, this Order is preliminary and
"subject to change when the case unfolds." Luce, 469 U.S. at 41. No party shall reference or
attempt to elicit evidence that has been provisionally excluded by this Order without first seeking
permission from the Court. Each party shall ensure its witnesses' compliance with this Order.
SO ORDERED.
Date: 12/30/2022

8

DISTRIBUTION:
Thomas Andrew Censke
PO BOX 446
Negaunee, Michigan 49866
Elizabeth Anne Charles
FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis)
[e-mail]
J. Taylor Kirklin
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Harmony A. Mappes
FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis)
[e-mail]
Emanuel McMiller
Faegre Drinker Biddle & Reath LLP
[e-mail]
Justin R. Olson
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Jason Rauch
FAEGRE DRINKER BIDDLE & REATH LLP (Indianapolis)
[e-mail]
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

9