Michael Thomas v. Raymond Anderson ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2830
MICHAEL N. THOMAS,
Plaintiff-Appellant,
v.
RAYMOND ANDERSON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 12-C-1343 — Joe Billy McDade, Judge.
____________________
ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018
AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019
____________________
Before BAUER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner
formerly confined at Hill Correctional Center, alleged that
prison guards attacked him with excessive force and that the
beating and subsequent disciplinary proceedings were in
retaliation for lawsuits and grievances he filed. He sued the
guards and other prison officials seeking damages under
42 U.S.C. § 1983. In the course of pretrial proceedings, the
2 No. 15-2830
district judge required the parties to stipulate to the events
preceding the attack and ruled that certain inmate witnesses
must appear, if at all, by video conference. The judge also
declined Thomas’s request for recruited counsel, determin-
ing that he was competent to litigate the suit pro se. At trial
the judge entered judgment as a matter of law for the de-
fendants on all claims except those asserting excessive force
by two officers. The jury decided those claims against
Thomas.
On appeal Thomas contests the judge’s evidentiary rul-
ings, the decision not to recruit counsel, and the partial
judgment for the defendants as a matter of law. Because
Thomas’s trial testimony allowed for a permissible inference
of retaliation, the judge should not have taken the retaliation
claims from the jury. We reverse the judgment on those
claims. In all other respects, we affirm.
I. Background
Thomas’s lawsuit centers on an altercation that occurred
on March 24, 2011, at Hill Correctional. Thomas alleged that
two prison guards, Raymond Anderson and Richard
Cochran, attacked him and that a third guard, Roger
Fitchpatrick, failed to intervene to stop the attack, all in
violation of his rights under the Eighth Amendment. He also
claimed that the officers violated the First Amendment by
retaliating against him for his past grievances and lawsuits:
Anderson, Cochran, and Fitchpatrick by assaulting him (or
failing to intervene); Anderson and Cochran by issuing
phony disciplinary charges after the attack; and two hearing
officers, Cornealious Sanders and Scott Bailey, by finding
him guilty of the charges knowing that they were baseless.
No. 15-2830 3
At trial Thomas testified to his version of the events on
March 24 and the disciplinary proceeding that followed. He
testified that on the morning of March 24, he was showering
before the morning lockup when Officers Anderson,
Cochran, and Fitchpatrick saw him and signaled—seven or
eight minutes early—that all inmates must immediately
return to their cells. Thomas hurried, still soapy and partial-
ly undressed, to return to his cell. Cochran slammed the cell
door shut before Thomas could enter, but the door bounced
open and he managed to slip inside. Anderson, Cochran,
and Fitchpatrick followed, and Anderson told Cochran to
“write that MF’er a ticket” for refusing to enter his cell after
the lockup signal. When Thomas protested, Cochran cor-
nered him, cursing and screaming. Anderson then rebuked
Thomas, saying, “You should have thought about that
before you made all of [your] complaints about me and
filing grievances about me in the prison.” Thomas had
previously filed grievances complaining that Anderson had
(among other things) threatened to retaliate against him for
notifying prison administrators, legislators, and government
officials of problems at Hill, including safety and sanitation.
Cochran told him that he “didn’t like inmates who tried to
get staff in trouble.”
Thomas testified that after the officers entered his cell,
Cochran handcuffed him and Fitchpatrick ordered his
cellmate to leave. Anderson then directed Cochran to teach
Thomas how to keep his “mouth closed and to not make the
staff upset.” Cochran pushed Thomas to the ground and
punched him while a second guard “yanked” him. Thomas
told the jury that this second guard must have been
Anderson because he could see Fitchpatrick standing back
“egging them on.” The three guards then pulled Thomas
4 No. 15-2830
from his cell and threw him against the corridor walls before
sending him to the segregation unit.
The defendants disputed Thomas’s version of events,
denying that they used excessive force against him.
Anderson and Cochran testified that Thomas resisted the
lockup and shouted racial epithets. Cochran acknowledged
that he handcuffed Thomas but denied using excessive force
in doing so. Fitchpatrick echoed that Thomas had been
shouting and swearing, and he too denied that Cochran used
undue force. Anderson testified that he told Fitchpatrick that
he did not want anything to do with Thomas because of his
previous grievances against him. Fitchpatrick admitted
knowing that Thomas had filed grievances against
Anderson; Cochran testified that he did not know about the
grievances.
Disciplinary proceedings against Thomas followed this
incident. Cochran wrote Thomas up for resisting the lockup,
making threats, being insolent, and disobeying a direct
order. Officers Bailey and Sanders conducted the discipli-
nary hearing on these charges; the parties disagree about
what happened. According to Thomas, Bailey and Sanders
told him that “their hands were tied” and they “couldn’t”
exonerate him. He testified that Sanders mentioned that he
was about to retire and did not want trouble, and Bailey said
that Thomas “shouldn’t have been making complaints about
the prison” if he did not want “to be in a situation like” this
one. Sanders denied saying that he found Thomas guilty
because his “hands were tied” or that Thomas should not file
grievances. Likewise, Bailey denied warning Thomas against
complaining about prison employees. Thomas was found
guilty of the rules violations and received a month in segre-
No. 15-2830 5
gation and then spent three months assigned to C grade, a
more restrictive confinement.
The judge restricted the scope of the trial in several ways
that are relevant to this appeal. In lieu of admitting volumi-
nous evidence of Thomas’s prior grievances, the judge
required the parties to stipulate that Thomas had filed
numerous grievances against Anderson and others, and that
he also had sued Anderson. Over Thomas’s objection, the
judge also refused to permit testimony about events before
March 24. The judge barred the testimony of two of
Thomas’s proffered inmate witnesses, Kiante Simmons and
Xavier Landers, who were no longer in state prison. Thomas
thought that they might be incarcerated elsewhere—perhaps
the Cook County Jail and an unnamed federal facility,
respectively—but this supposition was just speculation. In
any event, even assuming that they were in custody some-
where else, the judge was only willing to permit them to
testify via video conference; he would not order them pro-
duced for in-person testimony.
Early on in the case, the judge had denied Thomas’s sev-
eral requests for recruited pro bono counsel. Closer to trial,
the judge did not rule on Thomas’s requests to reconsider
those earlier decisions. Finally, at the close of the evidence,
the judge took several claims from the jury, granting the
defendants’ motion for judgment as a matter of law under
Rule 50 of the Federal Rules of Civil Procedure. In the end
the jury was asked to decide only if Anderson and Cochran
had used excessive force and, if so, whether Anderson had
been motivated to do so by a desire to retaliate for Thomas’s
6 No. 15-2830
lawsuits and grievances. On these claims the jury returned a
verdict for Anderson and Cochran. This appeal followed. 1
II. Analysis
We begin with Thomas’s argument that the judge was
wrong to grant the defendants’ Rule 50 motion on two
claims: that Anderson and Cochran retaliated against him by
issuing a phony disciplinary report and that Sanders and
Bailey retaliated against him by conducting a sham discipli-
nary hearing. Judgment as a matter of law is justified only if
after a full hearing there is no “legally sufficient evidentiary
basis to find for the party on that issue.” FED. R. CIV.
P. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir.
2006). Because the judge overlooked testimony supporting
Thomas’s position and failed to view evidence in the light
most favorable to him, we reverse the judgment on these
claims.
As to Anderson, the judge explained that “the only evi-
dence relating to any retaliation” was Anderson telling
Fitchpatrick that he did not want anything to do with
Thomas because of his previous grievances. But Thomas’s
account of the encounter provided an evidentiary basis from
which a reasonable jury could infer retaliatory motive.
Thomas testified that (1) Anderson called for an early lockup
after seeing him in the shower; (2) Anderson told Cochran to
write Thomas a ticket for refusing to lock up, even though
Thomas did not refuse; and (3) when Thomas protested that
1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry
Levenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the
appointment. They have ably discharged their duties. We thank them for
their service to their client and the court.
No. 15-2830 7
the ticket was baseless, Anderson scoffed: “You should have
thought about that before you made all of [your] complaints
about me and filing grievances about me in the prison.” It
was for the jury to decide which account to believe.
Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012)
(noting that in assessing a Rule 50 motion, “[t]he court does
not make credibility determinations or weigh the evidence”);
Lopez, 464 F.3d at 720 (same). A jury could reasonably con-
clude from Thomas’s version that Anderson orchestrated
Thomas’s “late” return to his cell to trump up a false disci-
plinary charge in retaliation for Thomas’s past complaints.
We reach a similar conclusion about Cochran. The judge
granted the Rule 50 motion on the retaliation claim against
him because he thought that there was no evidence that
Cochran knew of Thomas’s litigation. But Thomas testified
that Cochran was in the cell when Anderson told Thomas
that he should not have filed grievances and that Cochran
himself said that he “didn’t like inmates who tried to get
staff in trouble.” A jury could reasonably infer based on
these statements that Cochran helped call for an early lockup
before Thomas finished showering as revenge for Thomas’s
grievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d
475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires
the court “to assume the truth of” the testimony of the
nonmoving party).
Finally, the jury should have been permitted to decide
whether Bailey and Sanders held a hearing that they knew
was a sham for the purpose of retaliating against Thomas.
The judge entered judgment in their favor on this claim
because again he thought no evidence showed that these
defendants knew of Thomas’s past grievances. But retaliato-
8 No. 15-2830
ry motive can be inferred from Thomas’s account of the
hearing. See id. at 477, 481–82. Thomas testified that Bailey
told him that he “shouldn’t have been making complaints
about the prison” if he didn’t “want to be in [this] situation”
and that his “hands were tied.” And he testified further that
Sanders agreed that his “hands were tied” and expressed
concern that conducting a fair hearing could interfere with
his retirement.
Bailey and Sanders respond that Thomas’s testimony
suggests only that they were motivated by personal con-
cerns, not by Thomas’s First Amendment activity. But a
retaliation claim only requires evidence that the plaintiff’s
protected activity was “at least a motivating factor” for the
retaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.
2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it
credible, could support an inference that retaliation for his
past grievances was a motivating factor in their decision.
Viewed as a whole, there was sufficient evidence to present
this claim to the jury.
A. Events Before March 24, 2011
Thomas also contests the judge’s decision to bar testimo-
ny about events before March 24, 2011, and instead require
the parties to stipulate that Thomas had filed grievances
against Anderson and other prison officials. Thomas pro-
posed to introduce at trial more than 150 complaints and
grievances he had filed. The judge ruled that admitting that
number of grievances could confuse the issues, prolong the
trial, and possibly prejudice the jurors. And apart from
concerns about the quantity, the judge worried that jurors
No. 15-2830 9
would be tempted to assess whether the grievances were
true.
Thomas contends that this restriction disabled him from
showing that his grievances actually motivated Anderson to
retaliate against him. He argues that he could have used
evidence from before March 24 to show that Anderson had
threatened to issue “bogus disciplinary reports” and physi-
cally harm him if he did not stop filing grievances. In place
of this evidence, Thomas says, the stipulation informed the
jury only that he had engaged in constitutionally protected
activity.
That is not an accurate characterization of the stipulation.
The stipulation informed the jury in general terms of
Thomas’s grievance and complaints about prison conditions.
It also explained that Thomas had accused Anderson of
“locking prisoners up in their cells earlier than the allowable
time, making racial comments to inmates and threatening
inmates, including plaintiff, with punishment for making
complaints about [Anderson].” That was enough to convey
to the jury the basic background facts pertaining to the
alleged retaliatory motive.
Moreover, the judge was understandably concerned that
permitting Thomas to introduce the entire record of his prior
grievances would bog down the proceedings and distract
and potentially confuse the jurors. To avoid those risks, the
judge reasonably concluded that the stipulation was an
appropriate substitute for this evidence. See Marcus &
Millichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307
(7th Cir. 2011). That ruling was well within the judge’s
authority to manage the efficiency of the trial by streamlin-
ing Thomas’s voluminous proposed evidence. See Whitfield
10 No. 15-2830
v. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).
We see no abuse of discretion.
B. Exclusion of Kiante Simmons and Xavier Landers
Thomas also challenges the judge’s decision to exclude
the testimony of two inmate witnesses, Kiante Simmons and
Xavier Landers. In both instances the judge stated that the
witnesses must testify, if at all, using video-conferencing
technology. Because Thomas did not produce video-
conference addresses for Simmons and Landers, they did not
testify.
First, to the extent that either witness would have testi-
fied about events before March 24, 2011, their exclusion was
harmless because the judge’s earlier ruling foreclosed that
evidence. And contrary to Thomas’s argument on appeal,
the judge’s failure to apply the balancing test outlined in
Stone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversi-
ble error. By its terms, Stone applies when a district judge
must decide whether a “plaintiff-prisoner in a civil rights
suit” should be brought to court for trial. We explained that
the judge should weigh the logistical difficulties and particu-
lar security risks of transporting the plaintiff-prisoner
against the prisoner’s interest in testifying in person and
examining the witnesses face-to-face. Id. at 735–36.
We have not extended Stone’s particularized balancing
test to nonparty inmate witnesses. As we’ve explained more
recently, forcing a prisoner-plaintiff to try his case remotely
by video conferencing raises special challenges—e.g., the
inability of the prisoner-plaintiff to see jurors’ faces, the
difficulty in examining and evaluating witnesses, and the
complications associated with communicating with the court
No. 15-2830 11
and opposing counsel. See Perotti v. Quinones, 790 F.3d 712,
725 (7th Cir. 2015). Those concerns do not affect nonparty
inmate witnesses testifying live via video-conferencing
technology.
Instead, Rule 43(a) of the Federal Rules of Civil Proce-
dure and 28 U.S.C. § 2241(c)(5) bear directly on this question.
The latter permits the court to issue a writ of habeas corpus
when “[i]t is necessary to bring [a prisoner] to court to testify
or for trial.” § 2241(c)(5). And under Rule 43(a), the judge
has discretion to allow live testimony by video for “good
cause in compelling circumstances and with appropriate
safeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir.
2005) (“Rule 43 affirmatively allows for testimony by vide-
oconference in certain circumstances … .”).
Here, another inmate witness testified to the same infor-
mation that Thomas says he wanted to cover with Simmons
and Landers. The judge determined that Thomas’s interest in
their testimony was outweighed by the expense and incon-
venience of transporting them for trial (assuming they could
be located and were in fact in custody). So he allowed them
to testify, if at all, only by video. That ruling was well within
his discretion.
Moreover, Thomas has not come close to establishing
that he was prejudiced by the absence of their testimony. See
Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43
(7th Cir. 2000) (explaining that the party challenging the
exclusion of the evidence must record the grounds for
admissibility, content, and significance of the excluded
testimony). Thomas suggests that Simmons and Landers
would have recalled the March 24 altercation better than the
inmate who testified in support of his story. But he has no
12 No. 15-2830
evidence to back up that assertion. Accordingly, the judge’s
failure to apply Stone’s particularized balancing test was not
reversible error. 2
C. Recruitment of Counsel
Finally, Thomas argues that the judge abused his discre-
tion by declining to recruit counsel to represent him. We
disagree. Thomas filed two requests for counsel in February
2014 and February 2015. But neither request showed that he
tried to obtain counsel on his own or that he was precluded
from doing so. So the judge’s denial of these requests was
not an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–
55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d
2 We note that the Third Circuit has said that the Stone balancing test
applies to a request by a prisoner-plaintiff for production of nonparty
inmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d
Cir. 1980). But in Jerry the magistrate judge and the district court com-
pletely overlooked the prisoner-plaintiff’s motion to produce inmate
witnesses to testify at his civil-rights trial. The court held that “[i]t was
clearly error to fail to act on the motion and exercise the discretion.” Id.
at 256. More importantly, without analysis and in a single sentence, the
Third Circuit imported the Stone balancing test to this situation. Id. (“We
believe that the same considerations must be weighed in determining
whether a writ of habeas corpus ad testificandum should be issued to
secure the appearance of an incarcerated non-party witness at the
request of an incarcerated plaintiff.”). The court did not pause to consid-
er that the concerns underlying Stone—namely, safeguarding a prisoner-
plaintiff’s access to the courts— are not implicated in precisely the same
way when the inmate is a witness for the plaintiff rather than the plaintiff
himself. Finally, and most significantly, the Third Circuit was not con-
fronted with the ready alternative of live inmate testimony by video-
conferencing technology, which is now widely available and was the
mode of testimony the judge settled on here. For these reasons, Jerry is
distinguishable.
No. 15-2830 13
847, 851–52 (7th Cir. 2010) (explaining that the denial of a
motion to recruit counsel was justified by the district court’s
finding that the plaintiff had not tried to obtain counsel).
And the judge did not limit his decision to that particular
defect; he also ruled that Thomas was competent to litigate
his own case.
Before trial, Thomas twice more asked that the judge “re-
consider appointing counsel.” Although these requests
cured the technical defect in the earlier ones—Thomas
specifically stated that he had tried unsuccessfully to find
counsel—the judge did not rule on them. But once a judge
appropriately addresses and resolves a request for recruit-
ment of pro bono counsel, he need not revisit the question.
Pruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433,
442–43 (7th Cir. 2015) (finding that it was an abuse of discre-
tion to act on neither of the plaintiff’s requests for counsel);
Dewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014)
(finding that it was an abuse to deny the initial motions for
counsel without explaining the reasoning and then to ignore
subsequent requests). We find no error.
III. Conclusion
Accordingly, the judgment is REVERSED, and the case is
REMANDED for further proceedings on the retaliation claims
against Anderson, Cochran, Sanders, and Bailey. In all other
respects, the judgment is AFFIRMED.