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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10720
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00086-MTT-MSH
KEVIN WEST,
Plaintiff - Appellant,
versus
SERGEANT TEMPLE,
Dooly State Prison,
NATHAN TURNER,
CERT Team Officer, Dooly State Prison,
Defendants - Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 13, 2019)
Before BRANCH, DUBINA and JULIE CARNES, Circuit Judges.
PER CURIAM:
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This is an appeal from a district court’s judgment entered following a jury
verdict in a case brought by inmate Kevin West (“West”) against correctional
officers Derrick Temple (“Temple”) and Nathan Turner (“Turner”) (also referred
to as “defendants”) for use of excessive force. The district court denied summary
judgment for the defendants, and the case proceeded to trial. The issues presented
on appeal come verbatim from West’s brief:
1. Did the district court plainly err when leaving Mr. West in restraints
before the jury without giving any process to determine if the restraints
were necessary and without trying to minimize the restraints’ impact?
2. Did the district court abuse its discretion when making a record of, and
attempting to remedy, the excused juror’s misconduct?
3. Did the district court abuse its discretion when refusing to appoint
counsel to help Mr. West present his excessive-force claim?
(Appellant Br., p. 1.)
I.
Because West did not preserve his first issue on appeal, we review it for
plain error only. S.E.C. v. Diversified Corporate Consulting Group,
378 F.3d
1219, 1227 (11th Cir. 2004). “To find plain error, there must be: (1) error, (2) that
is plain, and (3) that has affected the defendant’s substantial rights.” United States
v. Kahn,
794 F.3d 1288, 1300 (11th Cir. 2015) (quoting United States v. Edmond,
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780 F.3d 1126, 1130 (11th Cir. 2015)). If we find that these conditions are met,
“we may exercise our discretion to recognize a forfeited error, ‘but only if the error
seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Moriarty,
429 F.3d 1012, 1019 (11th Cir. 2005)
(per curiam) (quoting United States v. Olano,
507 U.S. 725, 732,
113 S. Ct. 1770,
1776 (1993) (alteration in original)).
Specifically, West argues that he should not have been required to appear
before the jury in restraints. After reviewing the record and reading the parties
briefs, we conclude the district court did not plainly err in allowing West to be kept
in restraints because of the security concerns involved and the facts of the case.
Additionally, we conclude West was not prejudiced by appearing in front of the
jury in restraints because the instant case involved an allegation that the defendants
used excessive force against West while he was in restraints. West presented a
video showing him in restraints to support his claim against Temple and Turner
that he posed no threat to them because of the restraints, and they used excessive
force on him needlessly. The fact that West appeared before the jury in restraints
added nothing that was not already apparent to the jury. United States ex rel. Stahl
v. Henderson,
472 F.2d 556, 557 (5th Cir. 1973)1 (finding no abuse of discretion
1
In Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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by the court permitting the use of restraining devices on the defendant in light of
security measures in place due to defendant’s potential dangerousness).
Accordingly, because we see no error, plain or otherwise, we affirm the district
court’s decision to leave West in restraints during the jury trial.
II.
Concerning the second issue, we note that a district court has “broad
discretion” when dealing with matters of jury misbehavior, including substantial
discretion in determining how to investigate any allegations of misconduct and its
effects. United States v. Register,
182 F.3d 820, 839–40 (11th Cir. 1999). In this
case, the record demonstrates that when the jury came in to begin the second day
of trial, the district court informed them that a juror had been removed and asked
them if the dismissed juror “said or did anything that would prevent the remaining
six of you from being fair and impartial in this case.” (R. Doc. 213, p. 6.) The
jurors indicated that he had not. (Id.) The district court then explained how
important it was for the parties to receive a fair trial which depended on the jurors
remaining openminded and impartial. (Id.) The district court then reconfirmed
with the jurors that “nothing [the dismissed juror] said or did would have any
affect on your ability to be fair and impartial.” (Id. at 6-7) The jurors indicated
that this was so. (Id. at 7)
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After reviewing the record, we conclude that the district court did not abuse
its discretion in excusing the misbehaving juror, and in its remarks to the
remaining jurors about their ability to remain fair and impartial in considering the
case.
III.
Concerning the third issue, it is noteworthy that a plaintiff in a civil case
does not have the constitutional right to counsel. Bass v. Perrin,
170 F.3d 1312,
1320 (11th Cir. 1999). The district court has broad discretion to decide whether to
appoint counsel for an indigent defendant.
Id. Here, the record shows that West
did not need the assistance of counsel. This was a simple, straightforward case
involving a single use of alleged excessive force. West ably conducted discovery
and capably presented his case at trial. West suffered no prejudice in representing
himself without counsel.
For the foregoing reasons, we affirm the district court’s judgment entered on
the jury’s verdict in favor of Temple and Turner.
AFFIRMED.
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