Russell v. Bukowski
Russell v. Bukowski
Opinion of the Court
ORDER
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.
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. Mote, 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 Relio over sports. Relio 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 Relio 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, 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 De
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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 Har-grove’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 reason-v able attempt to secure counsel for himself. See Pruitt, 503 F.3d at 654-55. The district court reasonably found that Russell 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 ease, 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.”
AFFIRMED.
Reference
- Full Case Name
- Mike RUSSELL v. Timothy BUKOWSKI and Kent Smith
- Cited By
- 3 cases
- Status
- Published