Verser v. Barfield
Opinion of the Court
ORDER
Glenn Verser, an Illinois inmate, appeals after a jury found for the defendants on his claim of excessive force brought under 42 U.S.C. § 1983. Verser challenges the use of his discovery deposition to impeach his trial testimony, the district court’s handling of the jury poll, and the racial composition of the jury venire. But Verser has not provided us with trial transcripts, which is reason enough to reject the first two contentions, and the third claim is waived because he did not timely object to the venire. We thus affirm the judgment.
Verser alleged that four guards at the Western Illinois Correctional Center held him down and punched him for “disrespecting” one of their colleagues. The case has now been tried to a jury twice. The first time Verser represented himself and lost, but we overturned that adverse verdict because the district court had excluded Verser from the courtroom when the verdict was read and thus prevented him from polling the jurors. See Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013). On remand a magistrate judge presided by consent under 28 U.S.C. § 636(c),
On appeal Verser argues that he was denied a fair trial because the defendants impeached him with statements made during his discovery deposition. He also argues that his right to poll the jury, see FE0.R.Crv.P. 48(c), again was violated, this time because the magistrate judge dismissed the jury without further inquiry after it was polled. Verser contends that the court should have investigated the juror’s apparent distress and also questioned why the foreperson had not made a statement despite the earlier request from the jury.
But Verser has not complied with the requirements to order and arrange payment for essential trial transcripts, see Fed. R.App. P, 10(b), which prevents meaningful appellate review of these contentions, Hicks v. Avery Drei, LLC, 654 F.3d 739, 743-44 (7th Cir. 2011); Morisch v.
Verser essentially contends that the defendants’ use of his deposition for any purpose would have been inappropriate because, he says, the deposition was conducted in an oppressive manner. See Fed. R.Civ.P. 30(d)(3)(A). Verser explains that he was deposed with his hands cuffed and restrained by a “black box” device, which, he asserts, was prohibited by a medical restriction. Yet even if the circumstances gave Verser reason to protest his treatment during the deposition, his remedy was to move that the deposition be stopped or limited, not that all use be precluded. See Fed.R.Civ.P. 30(d)(3)(B). What is more, Verser concedes «that he did not object when the defendants used his deposition to impeach his trial testimony. See FedR.Evid. 103(a); Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 924 (7th Cir. 2015). And those obstacles aside, without transcripts we cannot conclude that Verser was prejudiced by the defendants’ use of the deposition, even if that use somehow was improper. See Wilson v. City of Chicago, 758 F.3d 875, 881-82 (7th Cir. 2014) (noting that error in admission of evidence is not ground for reversal unless prejudice resulted); Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013) (same).
Similarly, we cannot meaningfully review Verser’s contention that the magistrate judge should have directed the jury to resume deliberating or else ordered a new trial because one of the jurors allegedly appeared “visibly upset” and was crying. According to Verser, the juror’s appearance, combined with the earlier communication received from the jury, required that the court employ one or the other remedy in Rule 48(c) of the Federal Rules of Civil Procedure. We are skeptical of finding that a district court would be required to inquire further, order further deliberations, or declare a mistrial simply because a juror was crying and the jury never made a statement that it previously had asked to make. See United States v. McClintock, 748 F.2d 1278, 1293 (9th Cir. 1984) (applying identically worded Federal Rule of Criminal Procedure 31(d)); United States v. Aimone, 715 F.2d 822, 832-33 (3d Cir. 1983) (same). And because Verser remained silent in response to the court’s handling of the polling, he must establish that he was prejudiced by the lack of further action. See Verser, 741 F.3d at 742; Ira Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 26 (1st Cir. 2014). That showing isn’t possible without transcripts, and as the defendants point out, even Verser’s assertion that one of the jurors implicitly voiced disagreement with the verdict is impossible to evaluate without a transcript of the jury poll.
Finally, Verser asserts that he was deprived of a jury venire composed of a fair cross section of the community because the pool was entirely white. Yet challenges to the racial composition of a venire must be brought “before the voir dire examination begins, or within seven days after the party discovered or could
AFFIRMED.
. We are satisfied that all parties consented to proceed before the magistrate judge under § 636(c). The defendants had consented in writing, and Verser’s lawyer then litigated the case without objection after being told that Verser could refuse to give consent. See Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003); Stevo v. Frasor, 662 F.3d 880, 884 (7th Cir. 2011).
Reference
- Full Case Name
- Glenn VERSER v. Jeffery BARFIELD
- Cited By
- 2 cases
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- Published