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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Ozzie Pickett,
Plaintiff-Appellant,
v.
Correctional Officer Lindsay,
Correctional Officer BETTS, et al.,
Defendants-Appellees.
56 Fed. Appx. 718
December 31, 2002, Decided
NOTICE: RULES OF THE SEVENTH
CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE
REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Ozzie
Pickett, an Illinois prisoner, brought suit against several prison guards under
42 U.S.C. § 1983. The jury found in favor of defendants. Pickett now argues
that he is entitled to a new trial because: the verdict was against the
manifest weight of the evidence; defense counsel's improper closing argument
was "clearly injurious" to Pickett's case; and the district court
committed prejudicial error by excluding from evidence a disciplinary summary favorable
to Pickett. We affirm.
I.
The
Illinois Department of Corrections presently incarcerates Ozzie Pickett at the
"supermax" maximum security prison in Tamms, Illinois. Pickett
brought an action against various correction officers under 42 U.S.C. § 1983 in
the United States District Court for the Northern District of Illinois.
Pickett's suit arose from events that
allegedly occurred in 1997 and 1998 while he was an inmate at the Stateville
Correctional Center in Joliet, Illinois. Pickett alleged that defendants, who
were guards at Stateville, violated his Eighth Amendment and due process rights
by: (1) confining him in conditions that violate the Eighth Amendment; (2)
using excessive force against him on four separate occasions; and (3) making
false statements against him that led to inappropriate disciplinary action,
including his transfer to Tamms.
As to the
charge of conditions in violation of the Eighth Amendment, the jury heard
Pickett's testimony to the effect that, from April 5 to April 10, 1997, guards
kept him in a cell that had a broken window and was thus "very cold"
and contained snow. He also testified that he had no bedding and that complaints to defendant Lindsay went
unheeded, although another officer gave him a "plastic bag and tape"
to place over the window. Because of these conditions, Pickett testified, he felt ill and
caught a cold. On cross-examination, however, Pickett testified that he could
not recall stating that he had caught a cold in an April 20th letter that he
had written to a prison doctor.
An Officer
Duvall testified, on the other hand, that she had inspected Pickett's cell and
that her log reflected that the window was fixed when Pickett was assigned to
the cell. In a similar vein, a Cpt. Manning testified that the window to the
cell was not broken and that he had not seen snow in the cell. The jury also
viewed weather reports for the Joliet area indicating that outside temperatures
during Pickett's six days in the cell ranged from a high of 68 degrees
Fahrenheit to a low in the 20's.
Regarding
the claims of excessive force, the jury heard evidence concerning four alleged
incidents. The first alleged incident happened in June 1997 and concerned
guards' alleged slamming of Pickett's hands in the chuckhole of his cell
("the chuckhole incident"). Pickett testified that, after defendant
Lindsay had deliberately passed his cell without serving him lunch, Pickett
hollered and placed his hands through the chuckhole. According to Pickett,
guards then proceeded to slam repeatedly the chuckhole door on his hands. The
jury also heard Lindsay's testimony
[*720] to the effect, however,
that Pickett had thrown a tray at him, that Lindsay therefore tried to shut
Pickett's chuckhole, and that Pickett sustained minor injuries while resisting
guards' efforts to close the chuckhole. Cpt. Manning's testimony corroborated
Lindsay's account by stating that he saw food on Lindsay, and Pickett himself
testified that he continued to keep his hands in the chuckhole as guards tried
to close it. The inmate injury report that Pickett adduced stated that, after
the chuckhole incident, Pickett received iodine, ice packs, and Tylenol for his
injuries.
The second
alleged incident of excessive force occurred in July 1997, when three guards
allegedly used excessive force by beating Pickett while he was handcuffed in a
holding cell ("the holding cell incident"). Pickett testified that
the three guards beat and insulted him because he had earlier yelled about not
receiving needed medical attention. The defendants presented testimony to the effect that Pickett had lunged at
Lindsay as guards were removing Pickett from the holding cell and that guards
then used necessary force to restrain Pickett. The inmate injury report that
Pickett put forth showed that Pickett suffered a "minor laceration"
to his left ear, a broken nose, redness in the "back medial area," a
mild contusion to the shoulder, and a hematoma to the lip.
The third
alleged incident of excessive force occurred in October 1997, when Pickett was
in the shower ("the shower incident"). Pickett testified that
defendant Hall placed him in a shower cell and removed one of his handcuffs,
whereupon Pickett, before he would allow Hall to remove the other handcuff,
demanded to see a lieutenant about Hall's refusal to provide Pickett with a
razor. According to Pickett's testimony, Hall then left, returned "a
couple of seconds later," and slammed Pickett to the floor, where two
other officers began punching him. Officer Hall testified, however, that he was
escorting Pickett from the shower when he slipped off one of his handcuffs and
attempted to punch Hall, at which point the guards used necessary force to
restrain Pickett. According to Pickett's
testimony, a prison medic told him shortly after the altercation that
there was "nothing wrong with" him, and that he "would be all
right."
The fourth
and final alleged incident of excessive force happened in April 1998, when
guards confined Pickett to a strip cell ("the strip cell incident").
Pickett testified that guards punched him and confined him to a strip cell for
defying orders not to kick his cell door, which he denied having done.
Defendants presented testimony to the effect that Pickett had defied orders to
stop kicking his cell door, and that they were obliged to use the requisite
force to restrain him upon taking him to a strip cell. Pickett received no
medical attention following this alleged incident, and there is no documentary
evidence that he was injured because of this incident.
The final basis of Pickett's suit is that defendants Lindsay and
Hall allegedly lied about him attacking them in the preceding incidents,
resulting in wrongful disciplinary action being taken against him in the form
of a transfer to Tamms.
In January 2001, a jury returned a verdict in
favor of all eight defendants on all counts. On September 27, 2001, the
district court denied Pickett's Rule 59 motion for post-trial relief, holding
that Pickett was not entitled to a new trial because: the verdict was not
against the manifest weight of the evidence; defense counsel's improper closing
argument was not "clearly injurious" to Pickett's case; and the
district court did not commit prejudicial error by excluding from evidence part
of exhibit 36, which was a disciplinary summary regarding the shower
incident. [*721] Pickett appeals, raising the three issues
delineated below.
II.
We turn first to Pickett's argument that the district court
erred in denying his motion for a new trial based on insufficiency of the
defense's evidence. Pickett bears a heavy burden in attempting to establish
that the district court should have granted a new trial: he must show the
verdict was against the manifest weight of the evidence. Cygnar v. City of Chicago, 865 F.2d 827, 835
(7th Cir. 1989). Our review of a district court's application of this standard
is deferential. See American Nat'l
Bank & Trust Co. v. Regional Trans. Auth., 125 F.3d 420, 431 (7th Cir.
1997). We shall reverse a district court's denial of a motion for a new trial
only if Pickett demonstrates that the
district court abused its discretion. Id.
There was
no abuse of discretion here. As is apparent from the factual summary above,
defendants' liability hinged on a determination of credibility: regarding each
of the abusive incidents that Pickett alleged, the jury had to choose whether to believe Pickett's
testimony or the contradictory testimony put forth by defendants. Regarding
Pickett's first claim, confining a prisoner in extremely cold temperatures
could violate the Eighth Amendment's prohibition against housing prisoners
inadequately. See Del Raine v.
Williford, 32 F.3d 1024, 1035 (7th Cir. 1994). A reasonable jury could,
however, have found the testimony adduced by defendants credible and concluded
that the window to Pickett's cell was not broken and that Pickett therefore did
not suffer the cold temperatures of which he complained. As to the claim of
excessive force, the district court properly instructed the jury to consider:
(1) the extent of the injury suffered; (2) the need to apply force; (3) the
relationship between that need and the amount of force actually used; (4) the
threat the guards reasonably perceived; and (5) any efforts to temper the
severity of the force used. Davis v.
Lane, 814 F.2d 397, 400 (7th Cir. 1987). Given this standard, a reasonable jury could have
believed the evidence indicating that guards used only the force necessary in
responding to Pickett's physical provocations, and that Pickett suffered minor
injuries resulting from his altercations with guards, all of which would lead
to a verdict in defendant's favor as to this claim. Regarding Pickett's third
and final claim, that his transfer to the supermax facility at Tamms violated
due process because it was predicated on the guards lying about his actions,
such conduct could arguably violate due process. See Black
v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). A reasonable jury, nonetheless,
could have found credible defendants' evidence that guards had not lied about
Pickett's behavior during the four incidents discussed above and accordingly
did not violate Pickett's due process rights.
In short,
the jury's verdict for defendants hinged on its assessment of the relative
credibility of two sides' competing evidence. This court shall not re-weigh the
jury's credibility determination on appeal absent "exceptional circumstances."
United States v. Williams, 216 F.3d 611, 614 (7th Cir. 2000). Given that
Pickett has failed to allege any such exceptional circumstances, his challenge
to the evidence's sufficiency lacks merit. See id.
We next
consider Pickett's argument that defense counsel's improper closing arguments
warrant a new trial. We review the district court's denial of a motion for a
new trial for an abuse of discretion. Gruca
v. Alpha Therapeutic Corp., 51 F.3d 638, 644 (7th Cir. 1995). A district court
abuses its discretion by denying a new
[*722] trial when statements
made during closing argument were plainly unwarranted and caused substantial
prejudice, id., and the district court's response, or lack of response, to the
remarks was a prejudicial abuse of discretion, Joan W. v. City of Chicago, 771
F.2d 1020, 1022 (7th Cir. 1985).
Pickett relies on four remarks that defense counsel ostensibly
made during closing argument. He cites to counsel's reference to Pickett as a
"tremendous rule violator," who was "out of control" and
had a "long disciplinary history." Pickett also contends that defense
counsel's statement that the State of Illinois
and the Department of Corrections were not defendants gave the false impression
that Illinois was not indemnifying the defendants. The district court concluded
that these remarks did not warrant a new trial because, although they should
not have been made, "they were unlikely to have resulted in a verdict for
the defendants."
The
ostensible remark about Pickett's "long disciplinary history" need
not detain us, as our review of the transcript of defense counsel's closing
argument reveals that she never said that Pickett had a "long disciplinary
history." The closest defense counsel came to stating that Pickett had a
"long disciplinary history"
was when she mentioned that he had been sent to a segregation unit for
"disciplinary reasons." Furthermore, we cannot see how this comment,
even if Pickett had properly challenged it in the court below or on appeal,
could have caused such prejudice as to warrant a new trial. In the context of a
trial in which the jury heard, without objection, that Pickett had been
convicted of rape, armed robbery, and kidnaping, we find it unfathomable that
hearing that Pickett was a disciplinary problem while in prison would have
affected significantly the jury's
attitude toward Pickett.
As to the comments about
Pickett being "out of control" and a "tremendous rule
violator," the district court sustained Pickett's objection to these
remarks and later instructed the jury that it should disregard any comments
preceding sustained objections. Because Pickett adduces no evidence to the
contrary, we conclude that the jurors followed the district court's
instruction, Williams, 216 F.3d at 615, and therefore hold that no prejudice
flowed from the remark about Pickett being "out of control" and a
"tremendous rule violator." Regarding defense counsel's statement
that the State of Illinois and the Department of Corrections were not
defendants, Pickett did not object to this comment at trial, thereby waiving
this argument. Doe v. Johnson, 52 F.3d
1448, 1465 (7th
Cir. 1995).
Even if we
were to consider all of the allegedly improper statements that defense counsel
made during closing argument, in light of the evidence in defendants' favor,
the opportunity that Pickett's counsel had to rebut these statements in her
final argument, and the minor emphasis that defense counsel placed on these
comments, we would still agree with the
district court that these remarks were not plainly unwarranted and
substantially prejudicial to Pickett so as to warrant a new trial.
We turn to Pickett's third and final contention, that he is entitled
to a new trial because the district court abused its discretion by excluding
impeaching evidence. Pickett argues that the district court committed
prejudicial error by excluding part of exhibit 36, a disciplinary summary
regarding the shower incident containing statements by an inmate Phillips to
the effect that Pickett's version of events was true and, therefore, that would
have impeached Officer Hall's testimony regarding the shower incident. The
district court [*723] excluded this
evidence as inadmissible hearsay.
The crux of Pickett's argument is not that the evidence was not
hearsay, but that defendants had stipulated to its admission. The district
court rejected this argument, reasoning that defendants had agreed to the
admission of the entirety of exhibit 36, not just the part favorable to
Pickett. Given that Pickett had withdrawn his agreement to introduce the whole
exhibit, the district court reasoned that defendants could not be held to have
waived the right to object to introduction of Phillips's statements. We agree.
We also note that, regardless of the parties' stipulations, trial courts are
free to exclude, sua sponte, inadmissible evidence. Noel Shows, Inc. v. United States, 721 F.2d 327, 330 (11th Cir.
1983) (citing C.B. Wright v. Hartford Accident & Indemnity Co., 580 F.2d
809, 810 (5th Cir. 1978)); see also Charles Alan Wright & Kenneth W.
Graham, Jr., 22 Federal Practice and Procedure § 5224 (1978 & Supp. 2002)
(reasoning that trial courts may exclude evidence under Federal Rule of
Evidence 403 without request).
Pickett also attempts, on appeal, to argue that this evidence is
admissible as non-hearsay or under an exception to the hearsay rule. In his
original Rule 59 motion Pickett failed
to put forth this assertion before the district court, however, and he is thus
foreclosed from making this argument on appeal. See Boyers v. Texaco Refining
and Marketing, Inc., 848 F.2d 809, 811 (7th Cir. 1988).
III.
For
the reasons set forth above, we affirm.