Myron Kykta v. Jeff Ciaccio ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 22, 2020*
Decided July 8, 2020
Before
KENNETH F. RIPPLE, Circuit Judge
DAVID H. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-3412
MYRON KYKTA, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Western Division.
v.
No. 3:13-cv-50325
JEFF CIACCIO, et al.,
Defendants-Appellees. Thomas M. Durkin,
Judge.
ORDER
Myron Kykta asks us to overturn a jury’s verdict in favor of two sheriff’s
deputies whom he sued under 42 U.S.C. § 1983 for violating the Fourth Amendment by
allegedly stopping and searching his car without adequate justification. Because we are
* We have agreed to decide this case on the briefs because oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 19-3412 Page 2
unable to review Mr. Kykta’s challenge to the jury’s verdict and because his other
argument on appeal—that his recruited counsel was ineffective—lacks merit, we affirm.
This case has a long history. It began in 2011, when deputies Bob Bandelio Juanez
and Jeff Ciaccio of the Winnebago County Sheriff’s Department performed a traffic stop
of Mr. Kykta’s car and, after searching it and him, found cocaine and marijuana. Kykta
v. Ciaccio, 633 F. App’x 340, 342 (7th Cir. 2015). The deputies then obtained Mr. Kykta’s
consent to search his home, where they discovered a marijuana-growing operation. Id.During the ensuing state criminal prosecution, Mr. Kykta moved to suppress all
evidence obtained after the stop, but then, on the advice of counsel, he pleaded guilty
before the district court ruled on the motion. Id.Before changing his plea, however, Mr. Kykta filed a pro se civil-rights complaint
in federal court, alleging, among other things, that the deputies had violated the Fourth
Amendment when they stopped him, searched him and his car, arrested him, and then
searched his residence. Id. The district court entered judgment on the pleadings for the
deputies, concluding that res judicata and collateral estoppel precluded Mr. Kykta’s
claim because he had pleaded guilty. Id. at 343. We disagreed, vacated the dismissal,
and remanded for further proceedings. Id. at 344–45.
The district court recruited counsel for Mr. Kykta, and the case proceeded to
trial. Mr. Kykta maintains that, at trial, he testified that he did not commit any traffic
violations, so the deputies had no grounds to stop him.1 The deputies, however, both
testified that they observed Mr. Kykta speeding. Deputy Juanez also smelled marijuana
when he approached Mr. Kykta’s car; Deputy Ciaccio did not. Further, Deputy Juanez
testified that he had received a tip from a confidential informant that Mr. Kykta was
selling drugs. The jury returned a verdict for the defendants.
Mr. Kykta appeals. First, he asks that we vacate the judgment because the jury’s
verdict is against the manifest weight of the evidence. King v. Harrington, 447 F.3d 531,
534 (7th Cir. 2006). He contends that the jury should have credited his evidence over the
defendants’ because theirs was misleading, implausible, and uncorroborated.
As the appellees point out, however, Mr. Kykta has not provided a trial
transcript, as required when raising such an argument on appeal. Federal Rule of
Appellate Procedure 10(b)(2) provides: “If the appellant intends to urge on appeal that a
finding or conclusion is unsupported by the evidence or is contrary to the evidence, the
1 For the purpose of background, we summarize the discussion in the parties’ briefs about the
trial testimony. Without a transcript, however, we do not endorse any party’s version of what occurred at
trial.
No. 19-3412 Page 3
appellant must include in the record a transcript of all evidence relevant to that finding
or conclusion.” Without a transcript, we are unable to evaluate the evidence, and
therefore we cannot conduct a meaningful review of Mr. Kykta’s arguments.
See Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011).
There is an exception; under Rule 10(c), an appellant “may prepare a statement
of the evidence or proceedings from the best available means” if a record is
“unavailable.” Mr. Kykta asserts that the transcript is “unavailable” under Rule 10(c)
because he cannot afford to have it prepared. Indeed, Mr. Kykta petitioned the district
court to waive the cost of preparing transcripts because he was unable to afford it. The
district court never ruled on Mr. Kykta’s request, however.
We considered remanding this matter to the district court to permit it to act on
Mr. Kykta’s petition, but we decline to follow that course of action because it would be
futile. The district court could grant Mr. Kykta’s request only if it could “certif[y] that
the appeal is not frivolous (but presents a substantial question).” 28 U.S.C. § 753(f). It
could not do so because, even with a transcript, Mr. Kykta could not prevail on his
appeal. Mr. Kykta did not preserve his argument that the jury’s verdict is against the
manifest weight of the evidence in a timely post-trial motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50. Without such a motion, our court is
“‘powerless’” to review his challenge to the sufficiency of the evidence. See Collins
v. Lochard, 792 F.3d 828, 831 (7th Cir. 2015) (quoting Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006)). Although Mr. Kykta proceeded pro se after
trial, and we therefore must treat his filings liberally, we cannot excuse his omission.
“We review the actions of judges, not juries, and the Federal Rules of Civil Procedure
require civil litigants to speak up if they want a trial judge to resolve the factual
sufficiency of a claim as a matter of law.” Collins, 792 F.3d at 831. Because Mr. Kykta did
not ask the district judge to examine the verdict, we would have no ruling to review
even if the appeal returned to us with a trial transcript, and therefore we need not wait
for the district court to act on Mr. Kykta’s petition.
Mr. Kykta also argues that his court-recruited trial attorneys were ineffective
because they failed to present to the jury all of the evidence that he provided to them.
We have no record on which we could conclude that the attorneys performed
defectively in any way, but, more fundamentally, Mr. Kykta had no constitutional or
statutory right to court-recruited counsel in this case. 28 U.S.C. § 1915(e)(1) (court “may
request” counsel to assist indigent civil litigants pro bono); Romanelli v. Suliene, 615 F.3d
847, 851 (7th Cir. 2010) (stating that “[t]here is no constitutional or statutory right to
counsel in federal civil cases”).
No. 19-3412 Page 4
With respect to Kykta’s argument that the jury verdict is against the manifest
weight of the evidence, the appeal is DISMISSED. In all other respects, we AFFIRM the
judgment.