Flоyd JENNINGS, Plaintiff-Appellant, v. Brent BRADLEY, et al., Defendants-Appellees.
No. 09-1372.
United States Court of Appeals, Sixth Circuit.
April 12, 2011.
419 Fed. Appx. 594
Roszczewski has one attempt at an answer to this line of reasoning, and we reject it. Citing an inapposite case, he argues thаt even if probable cause for the crime charged is not present, “proof of probable cause to arrest the plaintiff for a related offense is also a defense which may entitle the arresting officer to qualified immunity.” Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997). But Avery involved an unlawful arrest claim arising out of a warrantless аrrest, id. at 13, whereas Kuslick‘s claims arise out of an arrest pursuant to a warrant procured through alleged falsifications. There is good reason to treat qualified immunity differently in these distinct contexts. In warrantless arrest cases such as Avery, an officer is confronted with a rapidly developing situation and makes the on-the-scene determination to arrest someone in the reasonable-but-mistaken belief that the arrestee committed a crime whose elements, it turns out later, were unmet, though the arrestee‘s conduct did satisfy the elements of a different crime. See id. at 14-15. The officer‘s mistake in the Avery case is in no small part technical: he is correct in believing the arrestee susceptible to arrest, and mistaken only as to which crime the arrestee committed. That officer is in a thoroughly different position than the one here (again, resolving the disputed facts in Kuslick‘s favor), who, from a position of safety and retrospective deliberation, decides to falsify details of the arrestee‘s conduct in a sworn statement made to a magistrate in order to obtain authorization for a retaliatory arrest. Cf. Holmes v. Village of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007) (justifying a distinction in this respect between warrantless false arrest and malicious prosecution claims). Telling lies to a magistrate in order to concoct probable cause is no technical violation of the law, and qualified immunity surely does not require us to countenance such behavior, if indeed a jury concludes that is what occurred here.
III.
For the foregoing reasons, the district court‘s denial of summary judgment is AFFIRMED.
BOYCE F. MARTIN, JR., Circuit Judge.
Floyd Jennings, a Michigan prisoner proceeding pro se, sued a number of employees at Alger Maximum Correctional Facility under
I. BACKGROUND
Jennings sued the following employees of Alger Maximum Correctional Facility: Corrections Officer Brent Bradley, Assistant Resident Unit Manager Thomas Salo, Resident Unit Manager Curt Rife, Sergeant Donald MacDonald, Deputy Warden Lloyd Rapelje, Corrections Officer Gary Schertz, Corrections Officer Robert Wickstrom, Sergеant Kevin Taskila, Lieutenant Craig Taylor, and Lieutenant Jeffrey Stevens.1 Jennings alleged that they violated his Eighth Amendment rights by putting human feces in his food; smearing feces on him; using various forms of unwarranted or excessive force; forcing him to lie in his own waste; and denying him food, water, and restroom breaks. Jennings also alleged that the defendants violated his procedural due process rights and retaliated against him by placing him without notice on a “Cell Slot Management” program, which required him to move to the back of his cell and assume a certain position when receiving meals, mail, or medication. A full recounting of the factual background of this case is available in the magistrate judge‘s Report and Recommendation.
Jennings filed two motions requesting that counsel be appointed to represent him and the district court denied both motions. Before trial, the defendants moved for summary judgment. Aftеr a de novo review of the magistrate judge‘s Report and Recommendation, the district court adopted it and granted summary judgment to all of the defendants except Bradley, who Jennings alleged had served him a sandwich containing feces and used a feces-smeared shield against him. After a twо-day trial, the jury rendered a verdict in favor of Bradley. Jennings moved for a new trial, and the district court denied the motion. Jennings now appeals, challenging the district court‘s denial of his motion for a new trial as well as several pre-trial and trial rulings.
II. ANALYSIS
A. Motion for summary judgment
We review the district court‘s grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summаry judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Jennings claims that the district court erred in granting Salo, Rife, MacDonald, Rapelje, Schertz, and Wickstrom summary judgment based on qualified immunity as to his Procedural Due Process claim and First Amendment retaliation claim. Under the doctrine of qualified immunity,
1. Procedural Due Process
Jennings claims that the district court erred in granting Salo, Rife, MacDonald, Rapelje, Schertz, and Wickstrom summary judgment based on qualified immunity as to his Procedural Due Process claim. To establish that the defendants violated a constitutional right, Jennings must demonstrate that being placed on a Cell Slоt Management program constitutes an atypical and significant hardship. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that due process liberty interests created by prison regulations are generally limited to freedom from restraint that imposes “atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life“). The district court correctly found that Jennings failed to make this showing. See, e.g., id. at 486 (holding that inmate‘s thirty days in solitary confinement did not constitute an atypical and significant hardship); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (noting that placement in administrative segregation normally does not constitute an atypical and significant hаrdship). Furthermore, the defendants introduced substantial evidence that Jennings’ segregation was not atypical because it was based on his continuous violent conduct. Cf. id. (stating that it is not atypical for a prisoner to be placed in segregation because of participation in violеnt conduct). Thus, we AFFIRM the district court‘s grant of summary judgment to the defendants on Jennings’ Procedural Due Process claim.
2. Retaliation
Jennings claims that the district court erred in granting summary judgment to Schertz and Rife on his retaliation claim. He asserts that they retaliated against him by placing him on a Cell Slot Management program because he testified against prison officials at another inmate‘s trial. To state a claim of retaliation, a plaintiff must establish that: (1) he engaged in protected conduct; (2) he suffered an adverse action that would deter a person of ordinary firmness from continuing to engage in the protected conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Furthermore, “[i]f the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevаil on summary judgment.” Id. at 399.
Schertz and Rife presented substantial evidence that Jennings’ behavior justified his being placed in a Cell Slot Management program. They presented evidence that Jennings assaulted prison officials by throwing urine and feces, biting them, threatening them, and masturbating in front of them. Thus, we AFFIRM the district court‘s grant of summary judgment to Schertz and Rife on Jennings’ retaliation claim.
We review the district court‘s order denying appointment of counsel for abuse of discretion. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Appointed counsel in civil suits is a privilege only justified in exceptional circumstances, id. at 606, and Jennings did not present any exceptionаl circumstances in this case. Thus, we hold that the district court did not abuse its discretion by denying Jennings’ motion to appoint counsel.
C. Testimony Via Video Teleconferencing
Jennings claims that the district court erred by requiring that four of his witnesses testify via video teleconferencing. The Federal Rules of Civil Procedure provide that “[f]or good causе in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.”
D. Motion for New Trial
Jennings claims that the district court erred in denying his motion for a new trial. We review a district court‘s refusal to grant a motion for a new trial for abuse of discretion. Mike‘s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006). A new trial may be granted “when a jury has reached a seriously erroneous result as evidenced by ... the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Id. (internal quotation marks and citation omitted). For the reasons stated below, we AFFIRM the district court‘s dеnial of Jennings’ motion for a new trial.
1. “Worst of the Worst” Comments
Jennings argues that Bradley and his attorney prejudiced his right to a fair trial by referring to the inmates at Alger Maximum Correctional Facility as the “worst of the worst,” which stereotyped all inmates as untruthful and dangerous. During opening argument, Bradley‘s attorney told that jury that “you‘re going to have to go inside a world that most of you, and probably none of you, will ever experience. It‘s a world in which the worst of the worst prisoners in the state of Michigan are incarcerated.” Later, Bradley testified in response to a question about the prison‘s security level that “[i]t‘s a Level V, the worst of the worst.”
“Misconduct by an attorney that results in prejudice may serve as a basis for a new trial. The burden of showing prejudice
Jennings has arguably shown that the “worst of the worst” comments were improper. See Williams v. Drake, 146 F.3d 44, 48 (1st Cir. 1998) (affirming decision tо exclude reference to plaintiff‘s prison as the “highest security prison in the State of Maine, housing the most dangerous prisoners in the State of Maine” because it was unduly prejudicial). But we need not resolve the point because we are not persuaded that Jennings has demonstrated that there is a reasonable probability that the jury‘s verdict was influenced by the improper argument. The statements describing Alger Maximum Correctional Facility inmates as “the worst of the worst” were accurate. Cf. Fuhr, 364 F.3d at 760 (holding that party failed to demonstrate a reasonable probability that the jury was improperly influenced by a comment when it was accurate). Furthermore, the district court instructed the jury that attorney comments are not evidence, and that “[t]his case is to be decided by you as an action between persons of equal standing in the community, of equal worth, holding the same or similar stations in life. Prisoners and prison employees are entitled to the same fair treatment at your hands as any private individual.” Thus, any prejudice resulting from the comments was alleviated by the jury instructions. Cf. Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1047 (6th Cir. 1996) (holding that a motion for a new trial should be denied if prejudice is cured by jury instructions); James v. Tilghman, 194 F.R.D. 408, 420-21 (D.Conn. 1999) (holding that inmate failеd to establish that “worst of the worst” statements warranted new trial when jury instructions adequately redirected the jury‘s attention). Because we cannot say that the arguably improper statements adversely affected the fairness of Jennings’ trial, we hold that the district court did not abuse its discretion in declining tо grant a new trial on this ground.
2. Spoliation Instruction
Jennings claims that his trial was unfair because the district court denied his request for a spoliation instruction based on Bradley‘s failure to produce certain videos of the incidents at issue. Bradley‘s attorney was ordered to make available for use at trial all video rеcordings of the incidents at issue. He produced a video of Jennings being placed in restraints on June 18 and June 20, 2005, but he did not produce a video of himself entering Jennings’ cell. We have held that a party seeking a spoliation instruction based on the destruction of evidence must make a three-рrong showing: (1) the party having control over the evidence had a duty to preserve it; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party‘s claim or defense. Beaven v. U.S. Dep‘t Of Justice, 622 F.3d 540, 553 (6th Cir. 2010). A district court has “broad discretion in imposing sanctions based оn spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir. 2009). The district court did not abuse its broad discretion in finding that an adverse inference was inappropriate here. It noted that Bradley‘s attorney stated that there were no video recordings of the incidents, Jennings presented no evidence to suggest that the attоrney was not truthful in this
III. CONCLUSION
We AFFIRM the decision of the district court.