Lavell Herbert v. E.J. Smith, Jr.

Seventh Circuit

Lavell Herbert v. E.J. Smith, Jr.

607 F. App'x 576

CourtCourt of Appeals for the Seventh Circuit

DecidedJune 10, 2015

Docket14-3405

StatusUnpublished

This text of 607 F. App'x 576 (Lavell Herbert v. E.J. Smith, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lavell Herbert v. E.J. Smith, Jr., 607 F. App'x 576 (7th Cir. 2015).

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Opinion

ORDER

Lavell Herbert appeals a final judgment entered upon a jury verdict for two Chicago police officers and the City of Chicago in a suit filed under 42 U.S.C. § 1983 asserting claims of false arrest, excessive force, and malicious prosecution. Herbert contends that he was denied a fair trial because the defendants lied on the stand and fabricated evidence, but we cannot begin to assess that contention because Herbert has not supplied a transcript of the trial. See Fed. R.App. P. 10(b); Hicks v. Avery Drei, LLC, 654 F.3d 739, 743-44 (7th Cir.2011); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n. 10 (7th Cir.2003); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993). He asked the district court for a copy of the transcript at public expense, but the district court determined that Herbert had not satisfied his obligation to identify a color-able issue to present on appeal. See 28 U.S.C. § 753(f) (indigent defendant entitled to free transcript if judge certifies that appeal is not frivolous). And in any event Herbert does not point to any specific evidence or statements produced at trial that he believes were improper.

Herbert also asserts that his lawyer in his § 1983 suit was constitutionally ineffective and that the defendants withheld a video of his arrest that, he believes, they were obligated to produce. But in this civil suit Herbert does not have a constitutional right to effective assistance of counsel. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001). And as a civil plaintiff he is not entitled to the video, particularly because he does not assert that he ever requested it or that the defendants relied on it. See Fed.R:Civ.P. 26(a); cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (recognizing criminal defendant’s constitutional right to receive exculpatory evidence from prosecutor).

We have considered Herbert’s remaining arguments and none has merit.

AFFIRMED.

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ORDER

Lavell Herbert appeals a final judgment entered upon a jury verdict for two Chicago police officers and the City of Chicago in a suit filed under 42 U.S.C. § 1983 asserting claims of false arrest, excessive force, and malicious prosecution. Herbert contends that he was denied a fair trial because the defendants lied on the stand and fabricated evidence, but we cannot begin to assess that contention because Herbert has not supplied a transcript of the trial. See Fed. R.App. P. 10(b); Hicks v. Avery Drei, LLC, 654 F.3d 739, 743-44 (7th Cir.2011); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n. 10 (7th Cir.2003); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993). He asked the district court for a copy of the transcript at public expense, but the district court determined that Herbert had not satisfied his obligation to identify a color-able issue to present on appeal. See 28 U.S.C. § 753(f) (indigent defendant entitled to free transcript if judge certifies that appeal is not frivolous). And in any event Herbert does not point to any specific evidence or statements produced at trial that he believes were improper.

Herbert also asserts that his lawyer in his § 1983 suit was constitutionally ineffective and that the defendants withheld a video of his arrest that, he believes, they were obligated to produce. But in this civil suit Herbert does not have a constitutional right to effective assistance of counsel. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001). And as a civil plaintiff he is not entitled to the video, particularly because he does not assert that he ever requested it or that the defendants relied on it. See Fed.R:Civ.P. 26(a); cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (recognizing criminal defendant’s constitutional right to receive exculpatory evidence from prosecutor).

We have considered Herbert’s remaining arguments and none has merit.

AFFIRMED.

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607 F. App'x 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavell-herbert-v-ej-smith-jr-ca7-2015.

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