George HARPER and Robert Padilla, Plaintiffs-Appellants, v. Lieutenant ALBERT, et al., Defendants-Appellees.
No. 00-2758.
United States Court of Appeals, Seventh Circuit.
Argued June 5, 2003. Decided March 17, 2005.
400 F.3d 1052
Deborah L. Ahlstrand (argued), Mary E. Welsh, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.
Before FLAUM, Chief Judge, and COFFEY and MANION, Circuit Judges.
COFFEY, Circuit Judge.
On September 15, 1997 two prisoners, George Harper and Robert Padilla, confined at the Menard Correctional Facility in Menard, Illinois, filed a complaint in the United States District Court for the Southern District of Illinois pursuant to
I. BACKGROUND
On August 4, 1996 the East Cellhouse at the Menard Correctional Facility in Menard, Illinois (“Menard“) erupted in violence with inmates throwing cans, burning rags, light bulbs, bodily fluids and other liquids at officers. This out-burst was apparently in retaliation for the “strip out,” or complete search, of a cell on the block and continued to grow more serious throughout the day.
Sometime during the disturbance the situation escalated to near-riot proportions and Correctional Officer Goolsby was struck in the back of his head with a can of soup, causing a contusion requiring medical attention. The ranking officers on
Proceeding cautiously, Stanley again approached the cell, and while questioning Padilla about the inmates’ new-found intention to cooperate, he observed Harper moving towards him with a bowl of hot water (which Padilla later claimed he was heating to prepare soup). Stanley immediately ordered Harper to set the bowl down, and when he refused to do so Stanley sprayed him in the face with mace. Harper reacted by throwing the scalding water at the officers, hitting Thomas, who retreated down the corridor. Stanley continued to spray Harper for a moment and then left the cell and called for backup assistance.
Stanley called for the prison‘s tactical unit, better known by their nickname, the “Orange Crush.”1 The makeup of the Orange Crush team consists of corrections officers who have undergone specialized training and are called upon by prison officials to assist in controlling unruly or violent inmates. Specifically, the team is also charged with the duty of extracting, or removing, hostile, violent or non-cooperative inmates from their cells and relocating them to other areas of the prison such as the segregation unit, where they can be monitored more closely. Stanley decided to contact the tactical unit to transfer the prisoners to the segregation area in hopes that they would no longer pose a threat to themselves or other correction officers.
The tactical team members were directed to assemble in full riot gear and thereafter briefed. Cpt. Stanley gave the order and they proceeded to the East Cell house where Harper and Padilla were housed. Twelve (12) tactical team members in all2 were assigned to transport Harper and Padilla that night. One member of the team, Officer Smithson, was assigned to videotape the maneuver, while four other members were directed to hold shields and give protection to the other officers by providing them cover from flying debris and fluids. Marching in formation dressed in full uniform, the tactical unit reached the East Cell house where they encountered shouting, whistling, hollering and taunts as well as a barrage of fluid and
What happened next is in dispute. Padilla and Harper claim they were brutally beaten by officers while being transported to the segregation unit, while the defendants-appellees, all twelve members of the tactical team along with Captain Stanley, claim the force used was necessary to safely convey and transfer the inmates to the designated segregation area.
Padilla claims the abuse began shortly after he was cuffed when—while waiting for the cell door to be opened—one of the officers grabbed his ponytail and proceeded to bang his head against the bars of the cell approximately three times, then stopped and began to punch him. Once the cell door was opened, Padilla was backed out with his hands cuffed behind his back. One of the officers then placed a police baton between his cuffs and his back so that his torso was positioned parallel to the ground in order to assist in controlling him while leading him out of the cell house to the strip-search area. While en route to the area where he was to be searched, Padilla claims various unidentified officers intentionally and repeatedly slammed him into cell bars and gates as well as punching, elbowing and kicking him throughout the maneuver. Before reaching the strip-search room officers allegedly stopped and asked Padilla if he needed medical attention, to which Padilla answered “no.”4 Padilla was next taken into the strip-search room where he states that officers, at this point, resumed kicking and punching him while others stepped on his hands and neck. Padilla claims he was bleeding profusely throughout the procedure and lost consciousness on at least two occasions before being stripped naked and led up a set of stairs to the segregation unit. Padilla alleges that, among other things, he was once again slammed into a gate and punched in the ribs before being forced into a cell. After a medical examination that night, it was concluded that Padilla had sustained a swollen jaw along with a laceration to his head, for which he received eight stitches.
Harper‘s version of events is much the same as Padilla‘s in that he also alleges the officers went out of their way to abuse and assault him while being escorted to a segregation cell. Once he was backed out of the cell he shared with Padilla, Harper alleged he was also positioned with his hands cuffed behind his back and an officer along side him using a baton for leverage to keep his shoulders and head down parallel to the floor as they walked. Like Padilla, Harper claims that during the journey to the strip-search room he was slammed into various gates along the way and to receiving numerous punches to the head and face. Harper also claims that, at some point during the walk, an unidentified officer stopped and struck him on the back with a baton, driving him to the ground. When the group resumed walking, Harper described being kneed or punched at every step by the officers in
A. District Court Proceedings
On September 15, 1997, Harper and Padilla filed a complaint in the District Court for the Southern District of Illinois claiming that they had been deprived of their Eighth and Fourteenth amendment rights when unidentified prison officials intentionally assaulted and battered them with the use of excessive force during the transfer procedure on August 4, 1996, and were thus entitled to recover damages pursuant to
The trial commenced on June 5, 2000, and during the plaintiffs’ case-in-chief Harper and Padilla testified to essentially the same course of events set out above, i.e., that the Menard Tactical Unit used excessive force by beating, kicking and generally abusing them in between the time-frame when Padilla threw the can of soup at Officer Goolsby and they were delivered to their segregation cells. Like in their complaint, however, neither Harper nor Padilla identified any individual guard who was abusive.
At trial, Lt. Albert was called to testify and stated that the procedure used to transport Harper and Padilla was for the most part routine. Albert testified that the two prisoners refused to cooperate with the officers and had to be forcibly restrained on two different occasions during the transfer; when they refused to exit their cell, and when each of them individually underwent the prison‘s mandatory strip-search procedure for each person prior to being admitted to the segregation unit (at which time Albert stated that he was forced to kneel on the backs of both prisoners in an attempt to restrain them so that they could be thoroughly searched). Indeed, Albert conceded that any injuries Harper sustained to his back could, in all probability, be attributable to his kneeling on Harper in the strip-search area after Harper had refused to comply with the officers’ orders prior to and during the strip-search procedure. Albert, on the other hand, denied that any tactical unit member used excessive force, at any time, while restraining and/or transporting Harper and Padilla. Specifically, he testified that at no point did he witness either of the prisoners come into contact with anything (i.e., doors, walls or bars) while they were being led by officers. In addition, he stated that he never saw any guard strike (with a baton or fist), kick or punch either Harper or Padilla during the entire encounter (from the time they were forcibly removed from their cell until the moment they were deposited in their individual segregation cells).
The Plaintiffs also called Officer Smithson, the officer who was responsible for carrying the video camera10 on the day of the alleged incident, to testify as to the reason why the video camera malfunctioned. According to Smithson, he was the last member of the unit to enter the floor where Harper and Padilla‘s cell was located and he and the camera were immediately hit by a bag of urine which caused the camera to cease operating. Smithson claimed that he attempted to continue to operate and repair the camera, but that he was unsuccessful because it was too badly damaged. He remained with the unit until Padilla and Harper were escorted out of the cell house, but instead of following them to the strip-search or segregation area, he proceeded to Cpt. Stanley‘s office
In addition to the testimony of Harper, Padilla, Albert and Smithson, a number of fellow inmates testified in an attempt to corroborate the prisoners’ claims of abuse. This testimony was introduced to describe the physical condition of the inmates after the alleged abuse was allegedly visited upon them. For example, fellow prisoner William Rudder testified that as he witnessed Padilla being placed in the segregation cell he observed that “he looked pretty beat up,” and that there was “blood coming off his face.” Other prisoners testified that, in addition to witnessing the physical condition of the prisoners, they actually viewed guards hitting and kicking them. However, none of the prisoners who testified were able to identify the specific guards that they alleged were abusing Harper and Padilla.
After the prisoners completed presenting their case-in-chief, the defendants moved for judgment as a matter of law pursuant to Rule 50(a)(1) of the Federal Rules of Civil Procedure. Prior to ruling on the motion, the judge clarified the nature of the case by asking plaintiffs’ counsel whether this case indeed constituted “an 8th Amendment excessive force case against the defendants based on these beatings and related things like beatings that started with moving the plaintiffs out of Cell 214 in the East Cellhouse and continuing all the way to the North Cellhouse Segregation ... where they were placed.” (Tr. VIII. p. 9). Counsel for Padilla and Harper answered in the affirmative, acknowledging that the claims presented were premised on excessive force under the Eighth Amendment. In spite of this on-the-record concession, plaintiffs’ counsel, for the first time in the proceeding, interjected what they now claim to be a failure to intervene argument. In addition, counsel for Harper and Padilla continued to argue that joint and several liability should apply in this case because all of the guards were “participating in a joint action to beat the crap out of these guys ... [and][a]s a result, they should all be found liable if the jury believes all of our testimony.” (Tr. VIII p. 19) In order to address plaintiffs’ counsel‘s arguments, the trial judge once again reiterated that this was an excessive force case and did not encompass a failure to intervene claim, and explained that when proceeding under an excessive force theory “a plaintiff must establish a defendant‘s personal liability for the claimed deprivation of the constitutional right ... [t]he personal responsibility requirement is satisfied if the official acts or fails to act, and here we are dealing with acting, not failing to act.” Id. (emphasis added). The judge went on to state that “[t]here is no joint and several liability in an 8th Amendment case like this ... we only have individual liability where it has been shown that each defendant did something to one ... or both plaintiffs that would be an 8th Amendment violation.” Having framed the issue more precisely as one involving excessive force (and specifically disallowing any argument for failure to intervene), the magistrate judge proceeded to rule on the defendants’ Rule 50(a)(1) motion by identifying the individual officers which the evidence established could, as a matter of law, be found to have used excessive force.
The magistrate judge concluded from his knowledge and review of the evidence submitted during the plaintiffs’ case-in-chief that only five of the thirteen named defendants had actually been in physical contact with the plaintiffs and, therefore, the other eight defendants should be dismissed.11 The court ruled that Lt. Albert,
The trial resumed with only five of the defendants remaining in the case. The defense presented its case-in-chief and each of the defendants took the stand testifying that at no time did they kick, hit, knee, or in any way injure the plaintiffs nor did they see any other officer engage any actions that were not necessary to safely restrain and transport the prisoners. In addition, the nurse who examined Padilla and Harper testified as to the contents of the prisoners’ medical records, which reflected that after the transfer Padilla had some swelling on his face and shoulders, had complained of jaw and rib pain (x-rays on both were negative for fracture) and had received stitches to close a 1/4” laceration on his head. The record also notes that Harper did not seek medical attention until two days after the alleged abuse and was subsequently examined by the prison nurse who determined that Harper had bruising and some minor abrasions on his back.
Following the close of evidence, the plaintiffs moved for reconsideration of the court‘s Rule 50 judgment based on their interpretation of the evidence uncovered during the defense‘s case which they claim demonstrated that Officer Scott had physical contact with Harper on the way from the strip-search area to the segregation cell and that Lawless had control over Padilla during the same period of time. Relying on Mayer v. Gary Partners and Co. Ltd., 29 F.3d 330 (7th Cir.1994), the judge denied the motion stating that the evidence the plaintiffs were relying upon was submitted after the court‘s Rule 50 motion, which was proper at the time and which he still believed to be correct. (Tr. VIII. p. 256). The judge stated that “[t]he fact that we have now found out later that certain of the defendants still in the case were escorting one or more of the plaintiffs to their actual Segregation cells from the [strip-search] room ... doesn‘t change anything ... [s]o I will deny the motion.” (Tr. VII. p. 257). Also, the remaining defendants renewed their motions and the court took them under advisement pending the verdict of the jury.
B. The Jury Verdict
After deliberating for less than half-an-hour the jury found in favor of the remaining defendants on both Harper and Padilla‘s Eighth Amendment excessive force claims. Also, the jury answered two special interrogatories that read as follows:
and
Do you find that any of the force used against Padilla by any prison employee, while transporting him from his cell to the East Cellhouse to his final destination in the North Cellhouse, constituted cruel and unusual punishment, as that term is defined elsewhere in the instructions?
(Tr. IX. p. 37-38). Jurors answered “No” to both of these special interrogatories and then reiterated their ruling in favor of each of the five remaining defendants when polled by the judge.
II. Discussion
Although Harper and Padilla concede that the jury verdict was proper in all respects, they allege that the magistrate judge improperly granted the defendants’ Rule 50 motion at the close of their case-in-chief dismissing defendants Stanley, Townley, Hudsell, Smithson, Myers, Skoog, Tindall and Flowers. In addition, they claim that they should have been allowed to present a theory of the case that would have allowed the jury to conclude that all of the defendants were jointly and severally liable for violating Harper and Padilla‘s Eighth Amendment rights by using excessive force or failing to intervene while a constitutional violation (cruel and unusual punishment by the use of excessive force) was occurring. In conjunction with these claims, the appellees also claim that the magistrate judge gave the jury instructions that erroneously limited the facts which the jury could consider when determining whether a constitutional violation had occurred (i.e., the judge would not let them present facts which would establish their joint and several liability argument) and that the court‘s decision to advise the jury regarding the defendants’ indemnification was in error. We disagree.
A. Rule 50 Dismissal as a Matter of Law
We review a district judge‘s, or in this case a magistrate judge‘s, decision to grant a party judgment as a matter of law de novo, while viewing all the evidence in the light most favorable to the nonmoving parties, Harper and Padilla.
1. Events Covered by the Jury‘s Verdict
Harper and Padilla claim that the trial judge incorrectly granted the defendants’ Rule 50 motion because, under a theory of joint and several liability, a reasonable jury could have found in their favor, i.e., but for the dismissal the jury could have found that the eight defendants that were dismissed had violated Harper and Padilla‘s constitutional rights on a joint and several liability theory. Their argument is misplaced in great part.
Joint and several liability is a theory of recovery which requires that the plaintiffs, in an action alleging tortious or constitutionally repugnant conduct by mul-
In a futile attempt to bolster their claim, Harper and Padilla later argued that although not all of the defendants used excessive force, the remainder of the defendants were nonetheless culpable for a related constitutional violation; failure to intervene. The first time the plaintiffs articulated this failure to intervene claim was in their answer to the defendants’ Rule 50 motion. The defendants argue that this constitutes a waiver on Harper and Padilla‘s part due to their failure to raise any such failure to intervene claim in the pleadings.
Pursuant to Seventh Circuit and Supreme Court precedent, it is inaccurate for the defendants-appellees to characterize Harper and Padilla‘s late introduction of this new theory of liability in the case, failure to intervene, as a waiver.13 Rather,
For purposes of this appeal we will treat this definitive ruling as the denial of a motion to modify the pretrial order under Rule 16 of the Federal Rules of Civil Procedure. See Gorlikowski, 52 F.3d at 1445. While it is true that a pretrial order may be modified, such modification is only permissible under very limited circumstances and only in those cases where failure to do so would result in “manifest injustice,”
Harper and Padilla had numerous opportunities prior to trial to amend their complaint or to petition the court to add a failure to intervene claim to the litigation. As the record establishes, at various times throughout the proceedings as well as in the pretrial order, the trial judge clarified the issues in the trial as only dealing with excessive force and not failure to intervene so as to avoid any confusion for either party. Harper and Padilla offer no reason why the judge‘s refusal to allow such a claim would constitute “manifest injustice.” Instead, they concede that they “intentionally did not bring a separate failure to protect claim.” Appellants’ Reply Brief at 11. Thus, we hold that the district court did not abuse its discretion in barring the plaintiffs from litigating their failure to intervene claim. Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d 572 (7th Cir.2001); Durr v. Intercounty Title Co. of Illinois, 14 F.3d 1183, 1187 (7th Cir.1994). Nonetheless, even if we were to assume
It is true that this court has recognized in the past that “police officers who have a realistic opportunity to step forward and prevent a fellow officer from violating a plaintiff‘s right through the use of excessive force but fail to do so” may be held liable. Miller v. Smith, 220 F.3d 491, 495 (7th Cir.2000) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994)); see also Fillmore v. Page, 358 F.3d 496, 505-06 (7th Cir.2004). This is what has become known as a “failure to intervene” basis for a constitutional violation under the Eighth Amendment, a principle which this circuit has long recognized. Fillmore, 358 F.3d at 506; Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982), accord Spence v. Staras, 507 F.2d 554, 557 (7th Cir.1974). In order for there to be a failure to intervene, it logically follows that there must exist an underlying constitutional violation, as we recently articulated in Fillmore v. Page. In Fillmore, a case strikingly similar to the one at bar, the plaintiff, also a prisoner at the Menard Correctional Center, could not succeed on his failure to intervene claim because he had failed to establish that guards used excessive force in violation of his Eighth Amendment rights. Fillmore, 358 F.3d at 505-06.
Most importantly, like the plaintiff in Fillmore, Harper and Padilla have failed to establish an underlying constitutional violation that would allow them to prevail on a failure to intervene claim. See id. In special interrogatories submitted by the magistrate judge, the jurors unanimously concluded that: (a) Padilla had not been subjected to excessive force at any time during the transport maneuver; and that (b) no excessive force had been used against Harper from the time he was removed from his cell in the East Cellhouse until he left the strip-search area.16 Thus, because the jury found that no excessive force was used against Padilla by any guard, at any time, and because an underlying constitutional violation is a primary concern when attempting to establish a failure to intervene claim, Padilla cannot possibly establish joint and several liability and thus his claim that the judge erred in granting the defendants’ Rule 50 motion is based on a foundation of quicksand. However, Harper‘s claim, at least in part, endures and requires that we examine whether he provided sufficient evidence to resist a Rule 50 motion as to the events of August 4, 1996, while he was en route from the strip-search room to his segregation cell in the North Cellhouse.
2. Events Not Covered by the Jury‘s Verdict
Harper‘s claim must be given separate consideration because the jury‘s verdict does not cover that specific period of time beginning when Harper left the strip-search area and ending when he arrived at his segregation cell in the North Cellhouse. Harper‘s specious claim is based on the fact that it is conceivably possible, although most improbable, for him to demonstrate to this court that a reasonable jury could have found that, during that short time period, each and every one of the defendants committed an Eighth Amendment violation against him.
The problem Harper faces, and has faced throughout the factual and legal presentation of the case, is that he has failed to identify any individual guards that violated his constitutional rights with the use of excessive force at any point during the transfer. More importantly, as to this appeal he has likewise failed to identify any particular officer who harmed him as he was being transferred from the strip-search area to the segregation unit in the North Cellhouse. See K.F.P. v. Dane County, 110 F.3d 516, 519 (7th Cir.1997). In order for courts to satisfy the mandate to inquire into the state of mind of prison officials who have allegedly caused a constitutional violation, see Wilson, 501 U.S. at 299, 111 S.Ct. 2321, it is most imperative that we are provided with “identified culprits“; for “[w]ithout minds to examine, we cannot conduct an individualized inquiry.” K.P.F., 110 F.3d at 519. It was Harper‘s burden to identify, either
Indeed, the only guard that Harper established was even present while he was being taken from the strip-search room to the North Cellhouse is Lt. Townley.17 Townley stated in part of his testimony at the internal investigation that he “helped escort HARPER to [segregation] Cell #8-42,” but that he had “no contact with HARPER or PADILLA.” Appendix to Appellant‘s Brief at A-40. This evidence falls far short of satisfying the mandate of Wilson v. Seiter and Hudson v. McMillian for establishing an Eighth Amendment violation.18 Townley‘s “mere presence” during Harper‘s transfer from the strip-search area to a segregation cell does not, without more, rise to the level of violation of Harper‘s constitutional rights, and is not sufficient evidence to withstand a Rule 50 motion. Fillmore, 358 F.3d at 506. Furthermore, in his buckshot approach to this litigation Harper has failed to identify any particular guard, either in his pleadings or through the evidence submitted to the jury at any point during the trial, that used excessive force against him during his transfer. Thus, absent any evidence or even an allegation which could establish a constitutionally cognizable claim for excessive force against any of the defendants (e.g., identification of the individual guard(s) who used excessive force against him during the transfer procedure) Harper cannot possibly establish bystander liability as to Townley or anyone else for failure to intervene, and his claim must fail. See id.; cf. Miller, 220 F.3d at 494-95.19
B. Jury Instructions
Harper and Padilla also claim that the jury instructions given to the jury by the magistrate judge (concerning the five defendants not dismissed pursuant to Rule 50) erroneously limited their theory of recovery. Specifically, the appellants argue that instruction 18A was “extremely limited” because it allowed the jury to consider only the actions of the remaining five defendants when deciding whether or not to impose liability for the alleged use of excessive force.20 In essence, this is quite simply another attack on the judge‘s decision to grant the defendants’ Rule 50 motion.
We review jury instructions for an abuse of discretion only, and will approve “instructions that fairly and accurately summarize the law and have support in the record.” United States v. Messino, 382 F.3d 704, 710 (7th Cir.2004) (quoting United States v. Jefferson, 334 F.3d 670, 672 (7th Cir.2003)). In view of the fact that we have previously determined that the magistrate judge did not err when he granted the defendants’ Rule 50 motion we are likewise unmoved at what is essentially a collateral attack on that ruling. The plaintiffs’ joint and several liability argument lacks a foundation in either fact or law and therefore did not merit submission to the jury. Also, it is worth noting that, as
C. Evidence of Indemnification
In their final unavailing assignment of error, Harper and Padilla argue that the trial judge erred when he refused to allow them to introduce evidence of the defendants’ indemnification by the State of Illinois for acts committed within the scope of their official duties. Evidentiary rulings are reviewed for abuse of discretion only, and will not be overturned unless we were to conclude, which we do not, that the judge‘s ruling was both erroneous and affected the outcome of the case. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir.2004). However, because the jury found in favor of the defendants and because we have determined that it was not error for the judge to dismiss the other eight defendants, Harper and Padilla were not entitled to any recovery in this case and, thus, the issue of damages has been rendered moot. See Hoffman v. Caterpillar, Inc., 368 F.3d 709, 720 (7th Cir.2004); Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272, 1281 (7th Cir.1995). Appellants “could not have been prejudiced by the erroneous exclusion of any evidence relating to damages,” and therefore there could be no error in precluding evidence relating to the defendants’ indemnification status.
III. Conclusion
The decision of the district court is AFFIRMED.
FLAUM, Chief Judge, concurring in part and concurring in the judgment.
While I agree with the result reached by the majority and join much of its reasoning, I write separately to explain one point on which I disagree. As the Court explains, the jury‘s verdict forecloses all of plaintiffs’ claims except those brought by Harper arising between the time he left the strip-search room and when he arrived at his segregation cell. Harper contends that during this last leg of his transfer, an unidentified officer or officers attacked him. I agree with the conclusion that Harper‘s inability to point out which officers struck him defeats his excessive force claim because, absent evidence implicating
I respectfully disagree, however, with the majority‘s alternate holding regarding Harper‘s failure to intervene claim against Lt. Townley. The Court reaches the merits of this claim and concludes that it too fails as a matter of law because Harper does not know which officers beat him. The majority equates Harper‘s failure to identify specific culprits with a finding that there was no underlying constitutional violation, and therefore no duty to intervene.
In my view, Harper‘s inability to pin the excessive force claim on anyone in particular does not preclude the possibility that the attack occurred. To the contrary, given that we are reviewing the grant of judgment as a matter of law, we must accept as true Harper‘s testimony that, while being moved from the strip-search room to his segregation cell, “officers went out of their way to run him head-first into whatever metal objects they came upon,” and that when he arrived at the cell, “one of the larger officers grabbed him by the neck and propelled him into the cell causing him to strike his head on the wall and lose consciousness.” See Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.1999) (“Judgments as a matter of law are reviewed by appellate courts in the same fashion as summary judgment motions.“). If believed, this testimony shows that some officer or officers used excessive force in violation of Harper‘s Eighth Amendment rights. Moreover, prison records confirm that Lt. Townley helped escort Harper from the strip-search room to the segregation cell. While there is no evidence that Lt. Townley laid so much as a finger on
I believe that the majority‘s reasoning creates at least some tension with our holding in Miller v. Smith, 220 F.3d 491 (7th Cir.2000). The plaintiff in Miller alleged that, after being mistaken for a fleeing armed felon, he was arrested by Indiana state troopers, handcuffed, and ordered to lie on the ground. While he laid there, one of two troopers—the plaintiff could not say which—kicked him in the back, stepped on his face, and yanked him around by his hair. Id. at 493. The plaintiff was able to identify specifically a third officer who looked on but did nothing to stop the attack. He sued all three officers for excessive use of force and failure to intervene. The district court granted summary judgment in favor of the defendants, reasoning that the plaintiff‘s inability to identify which officer attacked him precluded his failure to intervene claims against all of the officers. Id. at 495. We reversed: “If, as we are required to do at this point in the case, Miller‘s allegations are taken as true, whichever officer was not directly responsible for the beating was idly standing by.” Id. As in Miller, the evidence viewed in the light most favorable to Harper establishes that he was brutalized and that an identified law enforcement officer who had a good chance to stop the attack did nothing. Miller‘s inability to say who landed the offending blows did not defeat his failure to intervene claims; Harper‘s similar lack of evidence should not be treated any differently. Nevertheless, because I agree that Harper forfeited this claim, I join the result reached by the majority.