Kevin West v. Sergeant Temple

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 13, 2019
• Docket: 17-10720
• Status: Unpublished

Opinion

Case: 17-10720 Date Filed: 02/13/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-10720 Non-Argument Calendar ________________________

D.C. Docket No. 5:14-cv-00086-MTT-MSH

KEVIN WEST,

Plaintiff - Appellant,

versus

SERGEANT TEMPLE, Dooly State Prison, NATHAN TURNER, CERT Team Officer, Dooly State Prison,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(February 13, 2019)

Before BRANCH, DUBINA and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-10720 Date Filed: 02/13/2019 Page: 2 of 5

This is an appeal from a district court’s judgment entered following a jury

verdict in a case brought by inmate Kevin West (“West”) against correctional

officers Derrick Temple (“Temple”) and Nathan Turner (“Turner”) (also referred

to as “defendants”) for use of excessive force. The district court denied summary

judgment for the defendants, and the case proceeded to trial. The issues presented

on appeal come verbatim from West’s brief:

1. Did the district court plainly err when leaving Mr. West in restraints

before the jury without giving any process to determine if the restraints

were necessary and without trying to minimize the restraints’ impact?

2. Did the district court abuse its discretion when making a record of, and

attempting to remedy, the excused juror’s misconduct?

3. Did the district court abuse its discretion when refusing to appoint

counsel to help Mr. West present his excessive-force claim?

(Appellant Br., p. 1.)

I.

Because West did not preserve his first issue on appeal, we review it for

plain error only. S.E.C. v. Diversified Corporate Consulting Group, 378 F.3d

1219, 1227 (11th Cir. 2004). “To find plain error, there must be: (1) error, (2) that

is plain, and (3) that has affected the defendant’s substantial rights.” United States

v. Kahn, 794 F.3d 1288, 1300 (11th Cir. 2015) (quoting United States v. Edmond,

2 Case: 17-10720 Date Filed: 02/13/2019 Page: 3 of 5

780 F.3d 1126, 1130 (11th Cir. 2015)). If we find that these conditions are met,

“we may exercise our discretion to recognize a forfeited error, ‘but only if the error

seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)

(per curiam) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770,

1776 (1993) (alteration in original)).

Specifically, West argues that he should not have been required to appear

before the jury in restraints. After reviewing the record and reading the parties

briefs, we conclude the district court did not plainly err in allowing West to be kept

in restraints because of the security concerns involved and the facts of the case.

Additionally, we conclude West was not prejudiced by appearing in front of the

jury in restraints because the instant case involved an allegation that the defendants

used excessive force against West while he was in restraints. West presented a

video showing him in restraints to support his claim against Temple and Turner

that he posed no threat to them because of the restraints, and they used excessive

force on him needlessly. The fact that West appeared before the jury in restraints

added nothing that was not already apparent to the jury. United States ex rel. Stahl

v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973)1 (finding no abuse of discretion

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 3 Case: 17-10720 Date Filed: 02/13/2019 Page: 4 of 5

by the court permitting the use of restraining devices on the defendant in light of

security measures in place due to defendant’s potential dangerousness).

Accordingly, because we see no error, plain or otherwise, we affirm the district

court’s decision to leave West in restraints during the jury trial.

II.

Concerning the second issue, we note that a district court has “broad

discretion” when dealing with matters of jury misbehavior, including substantial

discretion in determining how to investigate any allegations of misconduct and its

effects. United States v. Register, 182 F.3d 820, 839–40 (11th Cir. 1999). In this

case, the record demonstrates that when the jury came in to begin the second day

of trial, the district court informed them that a juror had been removed and asked

them if the dismissed juror “said or did anything that would prevent the remaining

six of you from being fair and impartial in this case.” (R. Doc. 213, p. 6.) The

jurors indicated that he had not. (Id.) The district court then explained how

important it was for the parties to receive a fair trial which depended on the jurors

remaining openminded and impartial. (Id.) The district court then reconfirmed

with the jurors that “nothing [the dismissed juror] said or did would have any

affect on your ability to be fair and impartial.” (Id. at 6-7) The jurors indicated

that this was so. (Id. at 7)

4 Case: 17-10720 Date Filed: 02/13/2019 Page: 5 of 5

After reviewing the record, we conclude that the district court did not abuse

its discretion in excusing the misbehaving juror, and in its remarks to the

remaining jurors about their ability to remain fair and impartial in considering the

case.

III.

Concerning the third issue, it is noteworthy that a plaintiff in a civil case

does not have the constitutional right to counsel. Bass v. Perrin, 170 F.3d 1312,

1320 (11th Cir. 1999). The district court has broad discretion to decide whether to

appoint counsel for an indigent defendant. Id. Here, the record shows that West

did not need the assistance of counsel. This was a simple, straightforward case

involving a single use of alleged excessive force. West ably conducted discovery

and capably presented his case at trial. West suffered no prejudice in representing

himself without counsel.

For the foregoing reasons, we affirm the district court’s judgment entered on

the jury’s verdict in favor of Temple and Turner.

AFFIRMED.