Case Information
*1 Before W OOD , Chief Judge , E ASTERBROOK H AMILTON , Circuit Judges .
W OOD Chief Judge
. Inmate Glenn brought suit pro se undеr U.S.C. § against four prison officials who allegedly held down punched him stomach during cell change. After returned ver dict favor defendants, might thought little left say. But court’s permission foreperson made statement record *2 indicating majority felt defendants “all had part play what happened to” Verser, but based on evidence “could not find defendants guilty.” Verser did hear this statement, nor did he learn some time, because at close evi dence district excluded him just from courtroom all contact proceedings, order return him Illinois Department Correc tions.
Represented recruited counsel, whom we thank, Verser now argues his total exclusion proceedings prevented him еxercising pursuant Federal Civil Procedure 48(c), and such might made difference. He asks us reverse court’s denial motion Despite deferential standard review applies such rulings, conclude entitled another trial, so reverse and remand case further proceedings.
I dispute underlying case simple. Verser, an inmate then housed Western Illinоis Correctional Center, began hunger strike September response what perceived unwarranted prison discipline levied against him. prison’s hunger strike protocols involve moving hunger striker separate cell after misses three meals; defendants here are security officers who moved around 3:00 a.m. September 2007. alleges defеndants Chris Davis Ryan Robinson deposited isolated cell, held him down while Jeffery Barfield Douglas Good *3 ing punched him the stomach. This outburst, according Verser, retaliation for hunger strike and previ ous filing an allegedly libelous grievance against another officer. defendants deny any such assault occurred. brought suit pro se under U.S.C. § alleging the violated Eighth Amendment (aрplicable the states through the Fourteenth Amend ment) be free the excessive use force. At the three day trial heard testimony Verser, four de fendants, mental health professional Western Illinois Correctional Center, and Verser’s cellmate move; latter two witnesses testified via video conference. After parties finished prеsenting their evidence instructed jury, court decided send back prison rather than keep house await verdict:
THE COURT: We will be recess wait re turn verdict. I’m going return Mr. Department Corrections. Here your writ. You guys are out here. All right. We will recess wait jury’s verdict. will let you know what is, Mr. Verser.
VERSER: All right. Thank you, Your Honor.
After deliberating about two hours, sent note asking there video cell change. court, consulting defense counsel, answered not. A little more than an hour later, sent note indicating come agreement; instructed them *4 could choose to come back next day, to deliberate further afternoon.
Less than hour later, indicated it had reached verdict, sent note to court asking, “Can juror ask question judge verdict read?” The court responded, “First, I verdict.” The then announced its verdict favor defendants; effort was made notify time.
The then asked what jury’s question was, responded:
JUROR: like make statement, could. This was very hard us. Many us—the majority feel all part play what happened Mr. Verser, but, because lack evidence, find defend ants guilty.
THE COURT: Responsible? Liable?
JUROR: Yes. Thank you. then discharged jury.
After received notification mail, moved He argued, among other things, total exclusion proceedings read prevented exercising jury. See F ED . R. C IV . P. 48(c). denied motion. Regarding involuntary ex clusion courtroom, wrote “[Verser] returned [prison] retired deliberate valid courthouse security reasons,” “was going keep courthouse chance calm *5 5 11 2091 acceptance an adverse ruling which predominant result this type case.” Finding was appro priately excluded courtroom, went on to explain “the verdict was clear and supported by evidence,” and so was no reason conduct poll. commented it not overturned verdict had gone favor, found polling claim did not support for
Still acting pro se, appealed on numerous grounds. In August 2012, rеcruited counsel for or dered further briefing whether he was deprived polled, whether required adopt alternative procedures allow involuntarily ex cluded pro se litigant poll jury, forfeited raising no objection excluded proceedings. We turn those questions now.
II purpose “to ascertain certainty each approves verdict as returned; has been coerced induced sign does fully assent.” Humphries v. District Co lumbia , U.S. 190, (1899). recognized meant ensure jurors’ accountability verdict, “creating individual responsibility” ferreting out dissent that, whatever reason, reflected announced. United States v. Shepherd , F.2d (7th Cir. 1978); see United States Sturman 1995). *6 6 11 2091
A civil litigant’s right to poll jury is established by Federal Rule Civil Procedure 48(c), which provides, “After a is returned but before is discharged, on а party’s request, or may on its own, poll individually.” F ED . R. C IV . P. 48(c). Rule 48(c) added to Federal Rules 2009 (well before trial, which took place April 2011), and modeled Feder al Rule Criminal Procedure 31(d), gives same polling right parties a criminal prosecution. See F ED . R. C IV . P. Committee Note. There is little caselaw terpreting Civil Rule 48(c), but both parties suggest, we agree, dеcisions applying Criminal Rule 31(d) are fully applicable its civil analogue. civil rule self consciously written extend right guaranteed by criminal rule into civil realm, little reason distinguish between two contexts. held right poll protected by Criminal 31(d) a substantial right, but a flowing constitutional rules criminal procedure. See Sturman , F.3d at 1282.
There doubt court’s refusal, even neglect, conduct poll upon timely request ground new Indeed, failure conduct properly requested serious error ordinarily requiring rever sal, see United States F.J. Vollmer & Co. , 1993); confirmed litigants “enjoy absolute … unless has been expressly waived,” id. (internal quotation marks emphasis omitted). Accordingly, remanded cases trial when refuses conduct upon request, see, e.g. id. ‐ cuts off рossibility timely polling proceeding too quickly announcement ver *7 7 ‐ dict matters that prejudice in a later poll, see United States v. Randle F.2d (7th Cir. 1992).
The do contest civil litigants have a the upon a timely request, nor do belit tle the importance of the right. They argue instead case differs from those ordered a The latter cases generally involve some variation the theme failure despite litigant’s timely request. Here, excluded from proceedings so ask for poll; his case therefore presents dis tinct question whether 48(c) requires en sure party somehow able make polling read.
III Defendants make much fact proper be excluded from courtroom read. quarrel point, as far goes, difference between removing some cоurtroom leaving him entirely unable participate case. Trial courts generally discretion determine inmate plaintiff must be excluded courtroom security reasons other good cause. Stone Morris, 1976). must balance “the interest plaintiff presenting testimony person against interest state main taining confinement plaintiff prisoner.” Id. When plaintiff acting pro se, however, take into account fact excluding courtroom nec essarily excludes “lawyer.” “orderly conduct trial jury, essential proper protection heard, entitles parties who attend purpose *8 8 11 2091 be present in person counsel at all proceedings from impaneled until it is discharged after rendering verdict.” Fillippon v. Albion Vein Slate Co., U.S. (1919); see Kulas Flores, F.3d ‐ 2001) (explaining Fillippon does not prohibit exclusion from courtroom disorderly pro se plaintiff, at least as temporary measure, his disorderly behavior threatens defendant’s fair trial).
Nevertheless, while constitutional an inmate be present at civil suit he has initiated, his status an inmate does not automatically mean can be ex ‐ cluded summarily. Stone 735. Instead, in deter mining an inmate pursuing civil litigation should be excluded from courtroom, balance “the interest plaintiff in presenting testimony in person against interest state in maintaining confinement plaintiff prisoner.” Id. record this case thin comes reasons why Verser had excluded courtroom verdict. explained “was not going keep Verser house chance calm ac ceptance adverse ruling which predominant re sult this type case.” But misbеhaved trial, record filled instances ac cepted adverse evidentiary rulings without incident. Verser, however, does now argue exclusion itself reversible error, so assume purposes appeal properly excluded room retired deliberate.
But suffered more than simple exclusion courtroom. He left incommunicadо, unable contrib *9 ute to questions arose while the jury was deliberating and unable to respond to the verdict with a request a poll. The crux the issue is whether this state affairs vio ‐ lated rights, and so, whether a trial is required. The argue because exclusion appropriate, deprived poll the jury. As they see it, nothing prevented raising re ‐ quest poll thе before removed the ‐ room, so the committed error failing conduct a poll sua sponte juror made trouble some remarks. The first question must address therefore deals when a litigant may, or must, request a poll.
The plain text 48(c) indicates request a poll made before is read would be premature. Recall rule says “ [a]fter a is returned be fore is dischаrged, party’s re quest … poll jurors individually.” F ED . R. C IV . P. 48(c) (emphasis added). It stretch, best, interpret word “after” mean “before or after.” limiting language first clause most naturally constrains every thing follows—both poll request. It would nonsensical read language address when permitted conduct poll, since matter simple logic impossible until delivered their verdict. question when rule either permits compels
litigant request slightly different ques tion take place. Specifically, issue litigant may make such before retires deliberate. In our view, both language rule functional considerations point same direc *10 11 ‐ 2091 tion: the request come after the verdict read. rule does contemplate automatiс poll after every verdict. Instead, makes a poll mandatory if a party requests one, and optional if the thinks desirable. We have explained that “the to poll a cannot be exercised intelligently until after the verdict has been announced, and a request prior thereto would be premature.” United States v. Marr , F.2d (7th Cir. 1970) (emphasis added). In deed, Marr , found a request to poll made bеfore the verdict was “abandoned” a litigant’s failure to reassert after verdict, therefore refused to upset conviction ground failed poll jury. Id. Marr shows both a litigant might rea sonably choose forgo a poll, decision poll meaningful after verdict has been returned. It quite unlikely a litigant would want a if rules her favor. If verdict unfavorable, litigant might mоre inclined ask a are indications a verdict may been unanimous or was otherwise tainted. never interpreted either civil criminal
rule way would make polling request raised anticipation verdict sufficient protect litigant’s right. In United States Randle remanded trial because two second interval between when verdict announced judge began read bond dеscribing defendant’s previous arrests “clear ly inadequate” move poll. ‐ 1992). If possibility pre request were adequate safeguard party’s jury, amount available raise read been immaterial. And United States *11 ex rel. SEC Billingsley 1985), ap proved a procedure by which the court obtained an advance waiver the right to poll the jury from a party who would voluntarily absent from the reading the verdict. Id. n.5. Obtaining such a waiver would have been unnecessary if counsel could simply have lodged a preemptive motion to poll before defendant departed. have no need to decide in case whether a court would err if it accepted a preemptive motion for a poll, even though it is under no obligation to do so. But is a different matter question whether rule permits make impossible litigant seek poll appropriate time. Because proper raise polling read before discharged, party’s right under 48(c) adequately protected by questionable possibility could have requested preemptively. suggest altеrnative
waived forfeited right by raising objection removed courtroom when retired deliberate. But, noted already, appropriately excluded question ask. Even if physical removal room done valid reasons, cannot imple ment removal way leaves party unable par ticipate remaining proceedings case. number options available, preserved ask poll. It could essentially done nothing, allowing remain courtroom (perhaps under enhanced security, risk outburst warranted such measure); *12 removed Verser from courtroom sent him a nearby holding cell, available called back quickly if something came up; could returned Verser prison but ensured that remained touch with court (perhaps using a guard’s cellphone) reach a video room prison presence were required. These measures, others suitable local conditions, were important purposes a poll. If, as happened Verser’s case, asks question, each party has provide judge with its views on that well. See, e.g., United States Neff, 1993); see F ED . R. C RIM . P. 43(a). When Verser’s asked whether video crucial event existed, judge fol lowed defense counsel’s suggestion responded that there not. This may even been accurate: know that video record, possible video existed that prison unwilling give unrepresented inmate.
Although has stressed fact total exclu sion proceedings prevented seeking under 48(c), just adverse consequence can arise litigant prevented communi cating while case before jury. We conclude erred by placing situa tion.
IV now determine abused its discretion denying motion argues should apply standard used where fails conduct timely re quest; such cases, argues, courts find denial *13 ‐ jury requires automatic reversal. de ‐ fendants retort that unlike express or implied refusal on request, litigant’s inability raise timely motion should subject harmless ‐ error review. consider first can show prejudice; can, no need us reach broader, structural issue.
Knowing question of prejudice was likely arise, asked parties at oral argument file supple ‐ mental memoranda discussing empirical analyses of ju ‐ ry polls they find. Our hope was this kind of scholarly research might shed light on situations polls are requested frequency with which polls reveal hidden splits among jurors. re sponded with brief statement indicating had found research addressing court’s question. Verser, through counsel, reported found just one study “loоsely touched” upon court’s request: May report Oregon Public Defense Services Commis sion, entitled “On Frequency Non ‐ Unanimous Felony Verdicts In Oregon,” available http://www.oregon.gov/ OPDS/docs/Reports/PDSCReportNonUnanJuries.pdf. This study found “[o]f sample cases [representing digent appeals pool 1,421 trials 2008], polling occurred 63%. In remaining 37%, eithеr polling requested defense counsel, con ducted secret, results part public rec ord. … Where record reflected vote, 65.5% all cases included non unanimous least count.” Because purpose study investigate Oregon’s non unanimous system, however, these re sults are neither surprising nor much use question *14 ‐ before us. therefore prоceed the basis of the facts be ‐ fore us case. defendants suggest that the error here was harmless
because was affirmative indication that indi ‐ vidual juror actually disagreed with the verdict. They char ‐ acterize the juror’s post verdict statement that “the majority feel that the defendants all had part play what hap ‐ pened Mr. Verser” merely expressing the jurors’ emo ‐ tional dissatisfaction with the outcome confirming that applied the appropriate evidentiary standard. This ar ‐ gument suffers two problems. First, statement was made by single juror. A poll, contrast, justified by notion that each juror speak herself, ensure that spokesperson’s report accurately re flects unanimity. Second, even defendants’ theory plausible, it not interpretation that be given events that accompanied reading verdict. point definitely or even likely would revealed unanimous. It would realized, had had some way knowing about circumstances attending announce ment verdict, might fruitful. A reasona ble party, taking into account jury’s initial indication deadlocked, speed with then re turned verdict, statement (not emphasized defend ants) majority felt “something do with what happened Mr. Verser,” juror’s mistaken use term “guilt” (usually associ ated reasonable doubt standard) rather than civil term “liability,” likely requested jury. unable observe otherwise learn *15 about these events. On these particular facts, we cannot say district court’s error harmless.
The defendants’ proposed standard finding prejudi ‐ cial error—that there signal “particular disagree ment” with juror—asks too much. The pur pose under Rule 48(c) discover unex pressed dissent, not reconfirm dissent already ap parent. circumstances here indicated elevated possi bility least one juror might not agree with read. This exactly why Rule 48(c) exists.
V As noted earlier, are number options avail able believes pro se litigant excluded courtroom. Although inability make timely serious consequence being cut off proceeding, one. Jurors sometimes ask questions; courts sometimes need craft supplemental instructions. litigant’s exclusion leaves unable provide judge views about these critical matters. Because exercise under 48(c) alternative measure safeguard put place, R EVERSE R EMAND