Mike Russell v. Timothy Bukowski, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6680338-1] [6680338] [14-3667]
Case: 14-3667
Document: 30
Filed: 07/24/2015
Pages: 5
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2015*
Decided July 24, 2015
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14‐3667
MIKE RUSSELL,
Plaintiff‐Appellant,
v.
TIMOTHY BUKOWSKI and
KENT SMITH,
Defendants‐Appellees.
Appeal from the
United States District Court for the
Central District of Illinois.
No. 13‐CV‐2005‐DGB
David G. Bernthal,
Magistrate Judge.
O R D E R
Mike Russell, a pretrial detainee in Illinois, sued corrections officials under
42 U.S.C. § 1983, alleging that they failed to protect him from attack by a fellow inmate.
A magistrate judge, trying the case by consent, ruled that the defendants were not
liable. Because the credibility findings and discretionary rulings are proper, we affirm.
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
Case: 14-3667
Document: 30
Filed: 07/24/2015
Pages: 5
No. 14‐3667
Page 2
This case concerns a fight between Russell and another inmate at the Kankakee
County Detention Center. The Center was Russell’s third pretrial location because,
fearing gang members, he had twice requested protective custody and received new
housing. A disciplinary committee ruled that Russell started the fight and disciplined
him with segregation. Russell then sued Sheriff Timothy Bukowski and Lieutenant Kent
Smith, asserting that they violated the Fourteenth Amendment by failing to protect him
from an inmate’s assault. See Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005).
Russell wanted assistance with his case. Initially a jailhouse lawyer helped
Russell, but when the jailhouse lawyer was transferred, Russell asked the court to
recruit counsel for him because he could not understand the defendants’ documents.
The court denied the request because Russell had not first attempted to find counsel on
his own as required by Pruitt v. Motte, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).
Russell twice renewed his request, elaborating that he needed counsel because he was
illiterate, had only a middle‐school education, and was unable to research in the law
library. The court again denied the requests because, despite its reminder, Russell still
had not attempted to find counsel on his own. It added that Russell’s asserted illiteracy
“has not impeded his efforts to obtain assistance in order to file various pleadings in his
case.”
At a bench trial, Russell presented his version of the fight. He testified that as he
was watching television in the dayroom on December 8, 2012, he argued with another
inmate named Rello over sports. Rello became aggressive, profane, and threatening.
Fearing for his life, Russell pushed the emergency intercom and asked for protective
custody. Lieutenant Smith answered the call, but according to Russell, Smith refused to
help him, warning him that he had “better learn how to fight son.” Russell then turned
around, saw Rello poised to attack, and then blacked out, later awakening in a pool of
his own blood. Officer Avalon Brown escorted Russell to the medical unit, which
transferred him to a hospital for stitches and staples.
Demarius Bridges, a fellow inmate, also testified about the fight. He said that he
heard Russell plead, “don’t kill me,” but conceded that he did not see the fight because
he was on the telephone.
Russell also attempted to present evidence that the defendants had destroyed a
video recording of the fight. He asked Officer Michael Downey to testify about the
day‐to‐day operations of the jail and its video cameras. (Downey testified in lieu of
Bukowski, who was recovering from surgery.) Downey explained that the common
areas of the jail were equipped with cameras that recorded events on a periodic basis,
Case: 14-3667
Document: 30
Filed: 07/24/2015
Pages: 5
No. 14‐3667
Page 3
but there was no recording of Russell’s attack. Moreover, all video recordings, Downey
added, are retained for only 30 days, at which point the storage medium is reused.
Downey also stated that an officer in the command center cannot point a camera to a
specific location when an inmate presses the emergency‐call button. Russell asked
Downey whether the detention center was “covering up” for Smith by “taping over”
the video recording of the fight. The court interrupted, pointing out that no testimony
suggested that the fight had ever been recorded. Downey then confirmed that he had
never seen any video of the December 8 fight, and he knew of no one at the jail who had
directed an officer to destroy any recording from December 8.
The defense witnesses contradicted Russell’s version of the fight. First,
Lieutenant Smith testified that although on December 8 he was in the command center,
he did not receive any emergency‐intercom calls about Russell’s attack. He learned of
the fight only when Brown brought Russell to the medical unit, adjacent to the
command center. Second, Rico Hargrove, another inmate, testified that Russell started
the fight by stabbing a different inmate, Kendrion Lomack, with a metal object. Russell
made a hearsay objection to this testimony, which the court overruled because
Hargrove was testifying about personal observations. Third, Officer Brown testified that
he found Russell bleeding after the fight and that he took him to the medical unit before
locking down the unit and finding the other participants.
The court ruled in favor of Bukowski and Smith, giving four reasons. First,
Russell did not establish that Bukowski played any role in failing to protect Russell
from an attack. Second, because the jail’s disciplinary committee found that Russell had
instigated the fight, his claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Third, the court found that even on Russell’s version of the events, he never told Smith
why or from whom he needed protective custody, and because the attack started
immediately after Russell says that he asked for protective custody, Smith had no
chance to intervene. Fourth, Smith’s testimony was more credible than Russell’s, and it
was corroborated by Hargrove’s.
On appeal Russell challenges the Heck bar and three other rulings. We can ignore
the argument about Heck because Russell loses on the merits anyway. He argues first
that because he cannot read, the district court abused its discretion in not recruiting him
counsel. But before a district court is required to consider recruiting counsel to assist a
litigant in a civil case, the litigant must make a reasonable attempt to secure counsel for
himself. See Pruitt, 503 F.3d at 654–55. The district court reasonably found that Russell
Case: 14-3667
Document: 30
Filed: 07/24/2015
Pages: 5
No. 14‐3667
Page 4
did not do so. His illiteracy, the court noted, did not prevent him from asking others to
assist him in filing papers with the court. Likewise, it did not prevent him from asking
someone to help him contact a lawyer.
Second, Russell argues that the district court should have ruled against the
defendants because they knowingly destroyed a video recording of Russell pushing the
emergency button to warn Smith of the impending attack. But nothing in the record
suggests that the event was recorded, let alone that a recording was destroyed to hide
evidence. See United States v. Andreas, 216 F.3d 645, 659–60 (7th Cir. 2000) (rejecting
similar contention when no credible evidence suggested that evidence was destroyed).
Downey testified that there was no video recording of this incident and that, in any
case, video storage is regularly wiped clean for reuse after 30 days. In light of this
uncontradicted testimony, nothing supports Russell’s contention of the bad‐faith
destruction of evidence of the fight. See Norman‐Nunnery v. Madison Area Technical Coll.,
625 F.3d 422, 428–29 (7th Cir. 2010); Trask‐Morton v. Motel 6 Operating L.P., 534 F.3d 672,
681 (7th Cir. 2008).
Third, Russell contends that the evidence does not support the verdict. He argues
that the court should have excluded as hearsay the testimony of Hargrove, the inmate
who said that Russell started the fight and stabbed Lomack. And in any case, he adds,
since Hargrove is friends with Lomack, Hargrove was less credible than Bridges, the
inmate who stated that Russell begged his attackers, “don’t kill me.”
The evidentiary ruling and verdict were proper. Hargrove’s testimony was not
hearsay because Hargrove testified about what he saw—Russell stabbing Lomack with
a metal object—and personal observations are not hearsay. See FED. R. EVID. 801;
United States v. Haynie, 179 F.3d 1048, 1051 (7th Cir. 1999); see also United States v.
Vosburgh, 602 F.3d 512, 539 n.27 (3d Cir. 2010); City of Tuscaloosa v. Harcros Chems., Inc.,
158 F.3d 548, 560–61 (11th Cir. 1998). The court was also entitled to decide which
witnesses were more credible. See Spurgin‐Dienst v. United States, 359 F.3d 451, 453 (7th
Cir. 2004); see also United States v. French, 291 F.3d 945, 951 (7th Cir. 2002). We will not
disturb those credibility determinations unless the district court “has credited patently
improbable testimony or its credibility assessments conflict with its other factual
findings.” Gicla v. United States, 572 F.3d 407, 414 (7th Cir. 2009). That is not the case
here. The court permissibly reasoned that because Bridges did not see the altercation,
Hargrove, who did see it, was more believable. In addition, because Smith gave credible
testimony that Russell made no intercom call warning him of an attack, the court
Case: 14-3667
Document: 30
Filed: 07/24/2015
Pages: 5
No. 14‐3667
Page 5
properly ruled that the defendants did not unreasonably fail to protect him from a
specific, known risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Tidwell v. Hicks, No. 14‐2365, 2015 WL 3937549, at *3 (7th Cir. June 26, 2015).
AFFIRMED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?