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Nowell v. City of Cincinnati

September 12, 2006

MICHAEL NOWELL, PLAINTIFF,
v.
CITY OF CINCINNATI, ET AL. DEFENDANTS.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS IN LIMINE

This matter is before the Court on Plaintiff's Motion in Limine Preventing Medical Information (Doc. 32), Defendant's Response to Plaintiff's Motion in Limine (Doc. 33), Defendant's Motion in Limine (Doc. 34) and Plaintiff's Response to Defendants' Motion in Limine (Doc. 35). For the following reasons, the Court DENIES Plaintiff's Motion in Limine as moot and GRANTS in part and DENIES in part Defendants' Motion in Limine.

I. FACTUAL BACKGROUND

This lawsuit stems from an incident that occurred between the Plaintiff, Michael Nowell, and certain City of Cincinnati police officers on February 14, 2002, in the Madisonville section of Cincinnati. Nowell claims that at approximately noon on that date, he was bouncing a basketball outside his home when Officer Dwayne Dawson ("D. Dawson") approached Nowell and began asking him personal information. (Doc. 1 ¶¶ 9-13.) When Nowell refused to answer the questions, Officer D. Dawson escorted Nowell to his police cruiser and patted Nowell down to check for weapons. (Id. at ¶ 14, 16.) Several minutes later, a second officer, Anthony Dawson ("A. Dawson") arrived at the scene.*fn1 (Id. at ¶ 19.) D. Dawson allegedly told A. Dawson that everything was under control. (Id. at ¶ 23.) Nowell alleges that then, without warning or provocation, A. Dawson attacked Nowell by twisting Nowell's arms, picking him up and then slamming his head into the concrete. (Id. at ¶¶ 25-26.) Nowell claims that A. Dawson then kneed him in the spine, pulled his hair, slammed his head into the concrete several times, maced him repeatedly, and used his nightstick to further inflict pain. (Id. at ¶27.) The officers then handcuffed Nowell and placed him in the rear of a police cruiser. (Id. at ¶ 34.) Several officers then arrived to investigate the incident, including Sergeant Nastold, a supervisor with the Cincinnati Police Division. (Id. at ¶ 4, 36.) The officers did not arrest Nowell but issued him a citation for disorderly conduct. (Id. at ¶ 38.)

Nowell asserts that at no time did he commit unlawful conduct or give the officers cause to question or assault him. The day after the incident, Nowell filed a complaint with the Office of Municipal Investigations. (Id. at ¶ 39.) On October 10, 2002, the Cincinnati Police Internal Investigations Section issued a report concerning its investigation into Nowell's complaint and setting forth its conclusions concerning the Officers' conduct. (Doc. 34-2.) On or about November 22, 2002, the Citizen's Complaint Authority determined the Officers detained Nowell without reasonable suspicion or probable cause, used excessive force against Nowell and withheld medical treatment. (Id. ¶ 47.) On March 27, 2003, Nowell received a letter from Cincinnati Police Captain Daniel Gerard, Internal Investigations Section Commander, advising Nowell that the officers and their supervisor "used excessive force and violated police procedure when they searched you, slammed you to the ground and sprayed you with chemical irritant." (Id. at ¶ 48.)

Nowell brings the following claims against the City of Cincinnati, Officers D. Dawson and A. Dawson, and Sergeant Nastold: false imprisonment, arrest without probable cause, excessive force, malicious prosecution, spoliation of evidence, violation of 42 U.S.C. § 1983, and violation of 42 U.S.C. § 1988. Defendants deny any wrongdoing. (Doc. 5.)

II. Plaintiff's Motion in Limine Preventing Medical Information

The first matter presented for the Court's consideration is Nowell's motion to exclude the introduction or discussion of medical records reflecting Nowell's mental health treatment after February 14, 2002, the date of the incident. (Doc. 32.) Defendants respond that because Nowell has abandoned his claim that his mental health issues were caused by the Defendant's actions, they will not seek to use at trial any medical records relating to Nowell's mental heath treatment subsequent to February 14, 2002. (Doc. 33.) Based on the Defendants' assurance that it will not seek to introduce such records, Nowell's motion in limine is hereby DENIED as moot.

III. Defendants' Motion in Limine to Exclude Portions of the Internal Investigation Report and to Prohibit Investigator and Chief Counsel from Testifying Regarding Their Legal Conclusions

The second matter presented for the Court's consideration is Defendants' Motion in Limine to exclude portions of the report made by the Cincinnati Police Department Internal Investigations Section concerning the incident between the officers and Nowell. (Doc. 34.) Defendants additionally seek to prohibit Investigator Deborah A. Bauer and Chief Counsel Terrance Cosgrove from testifying regarding their conclusions expressed in the Internal Investigation report. (Id.) Bauer was the investigator in charge of the Police Department's internal investigation into the matter involving Nowell. (Doc. 34-2 at 1.) Cosgrove rendered a legal opinion concerning the propriety of Officer D. Dawson's original contact with Mr. Nowell and the subsequent arrest for disorderly conduct. (Doc. 34-2 at 10.)

A motion in limine is a request for guidance by the Court regarding an evidentiary question. The trial court may, within its discretion, provide such guidance by making a preliminary ruling with respect to admissibility. United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983). Should a trial court render a decision on a motion in limine, the trial court may change its ruling for whatever reason, when the evidence is actually offered or objected to at trial. Id. In essence, a ruling on a motion in limine is simply an advisory opinion by the trial court subject to change. Id.

A. The Internal Investigations Section Report ("IIS Report")

Defendants move to exclude the IIS Report from evidence pursuant to Federal Rule of Evidence 402 barring the admissibility of irrelevant evidence, Rule 403 permitting the exclusion of relevant evidence on grounds of prejudice or confusion, and Rule 802 barring the admissibility of hearsay. (Doc. 34.)

The Report consists of the following sections: a cover page, an introduction, summaries of witness interviews, and a conclusion. (Doc. 34-2.) The witness interview section summarizes the statements of the plaintiff, four eyewitnesses, Officer A. Dawson, Officer D. Dawson, Police Specialist J.C. Whitehead, and Police Sergeant Nastold. The section also includes Chief Counsel Cosgrove's legal opinion concerning whether Officer D. Dawson had reasonable suspicion to detain or probable cause to arrest the plaintiff. ...


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