John Draper v. D. Rosario, 836 F.3d 1072

Background

Plaintiff John Clint Draper, a mobility-impaired prisoner, alleged excessive force by Officer David Rosario (Eighth Amendment) after an altercation and a due-process violation by Lieutenant E. Rogers in the ensuing disciplinary hearing (Fourteenth Amendment).
Draper failed to complete the full three-level administrative grievance process for his claim against Rogers; defendants moved to dismiss for failure to exhaust under the PLRA.
At trial on the excessive-force claim, Draper presented two inmate eyewitnesses (Thompson and Shepard); a third eyewitness (Doe) was threatened and refused to testify in person; Draper sought deposition, live video testimony, or admission of Doe’s prior sworn statement—court denied each request and excluded Doe’s evidence.
Defense witnesses (officers Colter and Lee) testified in support of Rosario; closing argument by defense counsel included statements that officers risked job loss or prosecution if they perjured themselves; Draper’s counsel did not object at trial.
Jury returned verdict for Rosario. District court taxed $3,018.35 in costs against Draper. Draper appealed, arguing errors on exhaustion dismissal, exclusion of Doe, improper vouching, and the cost award.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Draper’s procedural due-process claim against Rogers should have survived dismissal for failure to exhaust administrative remedies under the PLRA	Draper argued officials obstructed or impeded his ability to exhaust (forms withheld/retaliation), so remedies were unavailable	Defendants produced grievance records showing appeals were not completed; non-exhaustion is an affirmative defense	Affirmed dismissal: defendants met burden; Draper’s vague allegations insufficient to create a triable issue under Albino burden-shifting
Whether the district court abused discretion by excluding Doe’s testimony (video deposition, live video, or prior sworn statement)	Doe was threatened and unwilling to appear; deposition or video testimony or prior statement should have been allowed under Rules 32/43/804/807	Court: exceptional/compelling circumstances not shown; testimony largely cumulative; safety concerns; hearsay catchall not satisfied	Affirmed: court did not abuse discretion in denying deposition use, live video, or admitting prior statement
Whether defense counsel’s closing argument improperly vouched for officer witnesses and warrants reversal	Counsel’s statements (officers would lose jobs or face prosecution if they lied) improperly vouched and relied on evidence outside the record, prejudicing Draper	Defense: statements permissible argument about credibility; no timely objection; civil-context limits were unsettled	Held: statements were improper vouching, but on plain-error review reversal not warranted because error was not "plain or obvious" at time of trial
Whether the district court abused its discretion in taxing $3,018.35 in costs against Draper	Draper (indigent prisoner) argued factors (public importance, closeness, chilling effect, limited resources, disparity) rebut presumption for awarding costs; large award is unjust	Defendants argued presumption under Rule 54(d)(1) favors prevailing party; cost amount modest; district court acted within discretion	Reversed as to costs: award vacated and remanded for reconsideration—district court abused discretion by not accounting appropriately for the enumerated factors

Key Cases Cited

Hudson v. McMillian, 503 U.S. 1 (excessive-force standard under Eighth Amendment)
Albino v. Baca, 747 F.3d 1162 (en banc) (burden-shifting and proper procedure for PLRA exhaustion defenses)
Porter v. Nussle, 534 U.S. 516 (PLRA exhaustion requirement applies to prisoner § 1983 suits)
United States v. Weatherspoon, 410 F.3d 1142 (improper vouching and reliance on matters outside the record)
Ass’n of Mexican-American Educators v. California, 231 F.3d 572 (en banc) (factors district courts may consider in declining to award costs)