Thomas Wayne Lovelace v. TODD MCK ENNA , LES YEPSEN, and DARRIN SMITH

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1393
T HOMAS WAYNE LOVELACE ,
Plaintiff-Appellant,
v.
T ODD MCK ENNA , LES YEPSEN, and D ARRIN SMITH,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13 CV 04299 — Iain D. Johnston, Magistrate Judge.
____________________
A RGUED MARCH 28, 2018 — D ECIDED J ULY 3, 2018
____________________
Before EASTERBROOK , KANNE , and S YKES , Circuit Judges.
KANNE , Circuit Judge. Thomas Lovelace alleges that correc-
tional officers at Dixon Correctional Center severely beat him
while he was transferred between housing units. Lovelace
sued the officers in federal court, claiming they used excessive
force in violation of the Eighth Amendment and bringing ad-
ditional state-law claims. After a four-day trial in January
2017, a jury returned a verdict in favor of the officers on all of
Lovelace’s claims. Now, Lovelace argues that the district court

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committed two evidentiary errors that affected the outcome
of the trial. Because the district court properly exercised its
discretion, we affirm.
I. BACKGROUND
On November 6, 2011, Lovelace and a fellow inmate at
Dixon Correctional Center fought over colored pencils. As a
result, correctional officers handcuffed Lovelace and walked
him to a transportation van to be taken to the segregation unit.
Once in the van, Lovelace kicked his foot through its window.
During his case-in-chief, Lovelace offered his version of
what happened next. He testified that Officers Todd McKenna
and Les Yepsen carried him out of the van and slammed his
face into the ground. Lovelace was then placed inside another
van, where officers continued to beat him. Once at the segre-
gation unit, Officer Darrin Smith approached Lovelace and
punched him in the ribs. After placing Lovelace in a cell, cor-
rectional officers removed his clothes and continued the as-
sault. They then left Lovelace for several hours without cloth-
ing or bedding.
Lovelace asserted that the beating resulted in long-lasting
injuries. He testified that his eye was swollen shut and black-
ened, that his ribs were bruised, and that he had back pain.
He presented evidence from his medical providers to corrob-
orate his story. A nurse’s outpatient notes from November 6,
2011, indicate that Lovelace self-reported that he needed pain
medication and that he had a bruise. The next day, the nurse’s
examination revealed tenderness on the right side of Love-
lace’s face. Lovelace also reported back pain, and the nurse
gave him ibuprofen. On November 8, a physician’s assistant
increased the ibuprofen dosage after Lovelace reported that

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No. 17-1393 3
he was in a fight and complained of rib and back pain. Over
the next couple months, Lovelace continued to report back
pain, and he continued to receive ibuprofen or Tylenol.
While this evidence suggested that Lovelace had been in-
jured, none of it specifically indicated that a beating by cor-
rectional officers was the cause. So Lovelace also called Dr.
Elaine Bochenek—a psychologist who treated Lovelace at
Dixon on January 4, 2012—to testify. Lovelace stated that he
told Dr. Bochenek about the “events of November 6, 2011, so
that she could understand and treat [his] frustration.” (R. 229
at 40.) Dr. Bochenek’s note from January 4 indicates that Love-
lace “discussed his frustration with, what he perceives of as,
the lack of attention to the grievance he filed ‘when the C/O’s
[correctional officers] kicked my ass.’” (Appellee’s App. at
A14.) Before admitting this note as a trial exhibit, the district
court redacted Lovelace’s statement—“the C/O’s kicked my
ass”—after concluding it was inadmissible hearsay. Similarly,
the court permitted Dr. Bochenek to read an unredacted ver-
sion of the note to refresh her memory, but instructed her not
to relay Lovelace’s statement to the jury when testifying. Ac-
cordingly, Dr. Bochenek testified that Lovelace sought treat-
ment because he was frustrated over “not having received any
response to a grievance he filed about being mistreated by
prison staff.” (R. 229 at 222.)
Lovelace’s final witness was Daniel Sullivan, a fellow in-
mate and Lovelace’s only witness to the alleged beating in the
segregation unit. Sullivan was unavailable for trial, so desig-
nated portions from his deposition were read to the jury. Be-
fore reading the substantive portions of the deposition, the
district court explained to the jury that a deposition is “the
sworn testimony of a witness taken before trial,” and then

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4 No. 17-1393
read the portion of Sullivan’s deposition where Sullivan
acknowledged he swore to tell the truth. (R. 230 at 34–35.) The
court also read part of Sullivan’s response when he was asked
whether there was any reason he could not tell the truth—
“No”—but it did not read, over Lovelace’s objection, Sulli-
van’s subsequent elaboration:
I just hope I don’t get in trouble from IDOC [Illinois
Department of Corrections], you know. This is my fifth
time in IDOC. I have been here quite a bit since I was
an adult. I know they kind of like to stick together and
cover things up, and I don’t want—I am supposed to
get transferred back to Dixon, and I don’t want it to af-
fect me going back there.
(R. 196-1 at 5.) The substantive portions of Sullivan’s deposi-
tion somewhat corroborated Lovelace’s case: Sullivan testified
that he saw correctional officers, including McKenna and
Yepsen, beating Lovelace as they moved Lovelace to a segre-
gation cell. Sullivan could not see Lovelace’s cell from his lo-
cation, but he heard sounds after the cell door was closed and
saw officers carry Lovelace’s clothes away.
After Lovelace’s case-in-chief, McKenna, Yepsen, and
Smith each took the stand. The defense argued that the offic-
ers did not beat Lovelace and sought to discredit his account.
For example, the officers maintained that the beating did not
occur because Lovelace’s Dixon medical notes would have
mentioned it if it had. Indeed, one of Lovelace’s treating
nurses testified at trial that if Lovelace had complained about
being beaten by correctional officers, she would have re-
flected that complaint in her notes.

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No. 17-1393 5
Lovelace attempted to rebut the defense’s theory of the
case by arguing that the Dixon medical providers had an in-
centive to leave a beating by correctional officers out of their
notes: the officers were responsible for protecting the medical
providers day in and day out. Ultimately, though, the jury re-
turned a verdict in favor of the officers on all of Lovelace’s
claims. Lovelace now appeals, arguing that the district court
reversibly erred when it excluded Lovelace’s statement in Dr.
Bochenek’s note and when it excluded Sullivan’s deposition
statements that elaborated on his ability to testify truthfully.
II. A NALYSIS
We review a district court’s evidentiary rulings for an
abuse of discretion. Flournoy v. City of Chicago, 829 F.3d 869,
876 (7th Cir. 2016). A district court abuses its discretion when
it bases its decision on an erroneous conclusion of law or
clearly erroneous factual findings, when the record contains
no evidence from which the court could have rationally made
its decision, or when its decision is clearly arbitrary. Heraeus
Kulzer, GmbH v. Biomet, Inc., 881 F.3d 550, 565 (7th Cir. 2018).
In this case, the district court did not abuse its discretion in
excluding either of the statements Lovelace raises as issues on
appeal.
A. The district court did not abuse its discretion in excluding
Lovelace’s statement to Dr. Bochenek.
An out-of-court statement offered to prove the truth of the
matter asserted is generally inadmissible hearsay. Flournoy,
829 F.3d at 876; Fed. R. Evid. 801(c). But see, e.g., Fed. R. Evid.
803 (outlining some exceptions under which hearsay may be
admissible). Conversely, an out-of-court statement is not hear-
say—and is generally admissible—if it is not offered to prove

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the truth of the matter asserted. Whether a particular
out-of-court statement is inadmissible hearsay “will most of-
ten hinge on the purpose for which it is offered.” United States
v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998).
The district court redacted Lovelace’s statement—“the
C/O’s kicked my ass”—from Dr. Bochenek’s note before ad-
mitting the note into evidence, and instructed her not to read
the statement to the jury during her testimony. Lovelace con-
tends that this was an abuse of discretion because his state-
ment was not being offered for its truth. He posits that it was
instead “offered as evidence that [he] sought and received
medical treatment from a psychologist in connection with the
beating,” which would be relevant to damages. (Appellant’s
Br. at 13, 14.) The district court heard argument on this point,
and it concluded that the statement was not necessary to
prove damages and that Lovelace intended to offer it for its
truth. Our standard of review gives the district court—the
court uniquely familiar with the case and the parties—leeway
in deciding whether a statement is being offered for its truth.
We are not convinced the district court abused its discretion
when making that determination in this case.1
In the alternative, Lovelace contends that the statement
was nonetheless admissible under Federal Rule of Evidence
803(4), which provides in relevant part that a hearsay state-
1 Moreover, some of Lovelace’s arguments on appeal intimate that he
sought to introduce the statement—at least in part—for its truth. For ex-
ample, when arguing that the exclusion of the statement caused him prej-
udice, Lovelace states that “[t]he court’s decision to redact the statement
prevented [me] from presenting a more complete version of what hap-
pened on November 6.” (Appellant’s Br. at 16.)

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No. 17-1393 7
ment is admissible if it “is made for—and is reasonably perti-
nent to—medical diagnosis or treatment.” Fed. R. Evid.
803(4)(A). The district court, relying on Dr. Bochenek’s testi-
mony, concluded that Lovelace’s statement did not fall within
the exception because it was not made for medical diagnosis
or treatment. Lovelace’s statement he was frustrated with the
grievance process was made for diagnosis or treatment, but
his statement regarding the catalyst of that grievance—“the
C/O’s kicked my ass”—was not. (R. 228 at 3–7; R. 185-2,
Bochenek Dep., at 89 (“[H]e’s not talking about any symptoms
of mental health problems related to being assaulted. He’s
talking about his frustration with not having—having a re-
sponse to his grievance about the situation.”).)
Lovelace argues that the district court abused its discretion
because treating a mental health issue like frustration is aided
by an understanding of its cause. To be sure, this is a rational
proposition. But the district court was permitted to rely on Dr.
Bochenek’s assessment of what statements were made for
medical treatment, and it did so. See Gong v. Hirsch, 913 F.2d
1269, 1273–74 (7th Cir. 1990) (noting that we should consider
what an expert in the field would consider relevant in diag-
nosing and treating); Cook v. Hoppin, 783 F.2d 684, 690 (7th Cir.
1986) (crediting a physician’s assessment of whether the state-
ments made are the type “medical personnel generally rely on
in making a diagnosis and providing treatment”).
For these reasons, the district court did not abuse its dis-
cretion when redacting Lovelace’s statement from Dr.

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8 No. 17-1393
Bochenek’s note and prohibiting Dr. Bochenek from reading
it to the jury.2
B. The district court did not abuse its discretion in excluding
the portion of Sullivan’s deposition testimony in which he
elaborated on his ability to be truthful.
Daniel Sullivan was Lovelace’s only witness to the alleged
beating at the segregation unit. At his deposition, Sullivan
was asked if there was any reason that he wouldn’t be able to
tell the truth. He responded “No,” but then continued on to
say he was concerned his truthful testimony would result in
IDOC officials retaliating against him by preventing his trans-
fer back to Dixon. (See R. 196-1 at 5.) Sullivan posited that
IDOC officials have a tendency “to stick together and cover
things up.” (Id.) The defense argued that all of Sullivan’s re-
sponse other than “No,” should not be read to the jury be-
cause the statements were irrelevant, nonresponsive, and
prejudicial. The district court seemingly agreed, striking the
comments without explanation. Lovelace believes that the
district court’s decision to keep Sullivan’s elaboration from the
jury was an abuse of discretion that substantially prejudiced
his case. We disagree.
Federal Rule of Evidence 403 provides that a court may
exclude even relevant evidence if its probative value is sub-
2 As explored at oral argument in this appeal, Lovelace’s statement
likely could have been admitted under Federal Rule of Evidence
801(d)(1)(B), which provides that prior consistent statements, under cer-
tain circumstances, are not hearsay. But Lovelace concedes that he did not
raise Rule 801(d)(1)(B) in the court below or in this court, so it cannot serve
as a basis for reversal.

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No. 17-1393 9
stantially outweighed by dangers like unfair prejudice or con-
fusion. Here, the risk that Sullivan’s statements would have
unfairly prejudiced the defendants outweighed any probative
value the statements may have had. Indeed, Sullivan’s com-
ments may have given the jury reason to doubt the defense’s
contention that Sullivan fabricated his testimony to benefit
Lovelace; why would a person fabricate a story to benefit an-
other inmate at the risk of their own harm? But the jury al-
ready had reason to doubt the defense’s contention: it heard
on several occasions that Sullivan took an oath to tell the
truth. Moreover, the prejudicial nature of the testimony is
clear: Sullivan insinuated that Dixon officials conspire and re-
taliate together to “cover things up,” and McKenna, Yepsen,
and Smith were all Dixon officials. Thus, the risk that the jury
would use Sullivan’s comments against the defendants sub-
stantially outweighed any probative value the comments had.
For this reason, the district court did not abuse its discre-
tion in excluding the portion of Sullivan’s deposition testi-
mony in which he elaborated on his ability to tell the truth.
III. CONCLUSION
The district court did not abuse its discretion when it de-
cided to exclude Lovelace’s statement to Dr. Bochenek, nor
did it abuse its discretion when it decided not to read a por-
tion of Sullivan’s deposition testimony to the jury. We there-
fore AFFIRM.

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