Case: 17-13439 Date Filed: 10/19/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13439 Non-Argument Calendar ________________________
D.C. Docket No. 0:15-cv-60209-WPD
MATTHEW A. PAGAN,
Plaintiff-Appellant,
versus
BROWARD COUNTY SHERIFF, OFFICER SCOTT ISRAEL, Broward Sheriff’s Office, ARMOR CORRECTIONAL HEALTH, INC., MEDICAL HEALTH CARE FOR BROWARD COUNTY JAIL, OLOSMAR, Commissary Company for Broward County Jail, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 19, 2018) Case: 17-13439 Date Filed: 10/19/2018 Page: 2 of 8
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Matthew Pagan, a prisoner proceeding pro se, appeals a jury verdict in favor
of the Broward County Sheriff’s Office in his 42 U.S.C. § 1983 action for violation
of his First Amendment right to access to the court. He raises five claims on
appeal, contending that the district court (1) violated his Sixth Amendment rights
by denying his request for recess or adjournment to allow his lawyers to review
voluminous, untimely discovery produced at trial, thereby constructively denying
him the effective assistance of counsel; (2) abused its discretion in denying the
recess; (3) erred by declining to give the jury a curative instruction after opposing
counsel discussed inadmissible evidence on cross-examination; (4) erred by failing
to question a juror who allegedly slept through part of the trial; and (5) gave jury
instructions that impermissibly deviated from applicable law. Having found no
reversible error, we affirm.
I
Pagan first contends that the district court should have granted his request to
recess for the day to allow his lawyers to “review several hundred pages of never
before seen documents submitted by the Appellee the day of trial”—specifically,
Pagan’s medical file, relevant personnel files, and contact logs kept by the
Sheriff’s office. The alleged error, Pagan contends, is serious enough to violate his
2 Case: 17-13439 Date Filed: 10/19/2018 Page: 3 of 8
Sixth Amendment rights, and also qualifies as an abuse of discretion by the district
court.
A plaintiff in a civil case has no constitutional right to counsel. Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Pagan’s § 1983 claim is a civil
action. Accordingly, the district court could not have (even constructively)
violated Pagan’s Sixth Amendment rights.
Pagan correctly recognizes that we review district courts’ decisions to
manage their dockets for abuse of discretion. Young v. City of Palm Bay, Fla., 358
F.3d 859, 863–64 (11th Cir. 2004). District courts have unquestionable authority
to control their own dockets and are afforded broad discretion in deciding how to
best manage the cases before them. Smith v. Psychiatric Sols., Inc., 750 F.3d 1253,
1262 (11th Cir. 2014). This discretion is not boundless, however, and we will find
an abuse where the objecting party shows “specific substantial prejudice.” United
States v. Jeri, 869 F.3d 1247, 1257 (11th Cir.), cert. denied, 138 S. Ct. 529 (2017).
Our decision in Jeri is instructive here, as it also involved a request to
review evidence received the day of trial. Id. at 1258. In that case, we found no
abuse of discretion when the district court denied the request for a short
continuance even when the defendant received a video that allegedly contained
exculpatory evidence. Id. Though we suggested that it “would have been wiser to
grant a continuance or at least short recess,” we nevertheless affirmed because the
3 Case: 17-13439 Date Filed: 10/19/2018 Page: 4 of 8
defendant had not shown “specific or substantial prejudice” caused by the denial.
Id. at 1257–58.
As in Jeri, even if we were to conclude that it would have been prudent for
the district court judge to grant Pagan’s request for a recess, he has not shown that
he was prejudiced by the denial. First, because two attorneys represented Pagan at
trial, one had the opportunity to review the documents during trial while the other
directly examined a witness. Second, and more importantly, Pagan has not
demonstrated that anything in those documents had the potential to change the
outcome of the trial. It thus appears that any error was harmless, as it did not affect
Pagan’s substantial rights. See Fed. R. Civ. P. 61.
II
Additionally, Pagan asserts that the district court erred by failing to give the
jury a curative instruction after opposing counsel asked Pagan’s only witness,
Semie Robinson, about the details of his prior murder conviction. Specifically,
after Robinson testified that he had been found guilty of first-degree murder,
opposing counsel asked “[a]nd that was shooting a cab driver?” The district court
sustained Pagan’s objection on relevance grounds, but it declined to give the jury a
curative instruction to disregard the question.
We give district courts considerable discretion to monitor and address
attorneys’ arguments and, absent an abuse of discretion, will not disturb their
4 Case: 17-13439 Date Filed: 10/19/2018 Page: 5 of 8
decisions doing so. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988).
We consider, among other things, the entire examination, the context of the
remarks, and the objection raised to determine whether the “remarks were such as
to impair gravely the calm and dispassionate consideration of the case by the jury.”
Id. (internal quotation marks omitted). We recognize that a district court is in the
best position to hear such remarks in context and to assess their effect on the jury.
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th
Cir. 1992).
Here, we cannot say that it is probable that the failure to give curative
instructions substantially influenced the jury’s verdict. Proctor v. Fluor Enters.,
Inc., 494 F.3d 1337, 1352 (11th Cir. 2007) (an error affects a party’s substantial
rights when it probably had a substantial influence on the jury’s verdict). Though
Robinson’s credibility, as Pagan’s only testifying witness, was important to this
case, the parties had already stipulated that he had five prior felony convictions,
including for first-degree murder. It is unlikely, then, that a single unanswered
question about the victim substantially influenced the jury’s verdict. Id.
Accordingly, we conclude that the district court did not reversibly err by not
providing the curative instructions here.
III
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Case: 17-13439 Date Filed: 10/19/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13439 Non-Argument Calendar ________________________
D.C. Docket No. 0:15-cv-60209-WPD
MATTHEW A. PAGAN,
Plaintiff-Appellant,
versus
BROWARD COUNTY SHERIFF, OFFICER SCOTT ISRAEL, Broward Sheriff’s Office, ARMOR CORRECTIONAL HEALTH, INC., MEDICAL HEALTH CARE FOR BROWARD COUNTY JAIL, OLOSMAR, Commissary Company for Broward County Jail, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 19, 2018) Case: 17-13439 Date Filed: 10/19/2018 Page: 2 of 8
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Matthew Pagan, a prisoner proceeding pro se, appeals a jury verdict in favor
of the Broward County Sheriff’s Office in his 42 U.S.C. § 1983 action for violation
of his First Amendment right to access to the court. He raises five claims on
appeal, contending that the district court (1) violated his Sixth Amendment rights
by denying his request for recess or adjournment to allow his lawyers to review
voluminous, untimely discovery produced at trial, thereby constructively denying
him the effective assistance of counsel; (2) abused its discretion in denying the
recess; (3) erred by declining to give the jury a curative instruction after opposing
counsel discussed inadmissible evidence on cross-examination; (4) erred by failing
to question a juror who allegedly slept through part of the trial; and (5) gave jury
instructions that impermissibly deviated from applicable law. Having found no
reversible error, we affirm.
I
Pagan first contends that the district court should have granted his request to
recess for the day to allow his lawyers to “review several hundred pages of never
before seen documents submitted by the Appellee the day of trial”—specifically,
Pagan’s medical file, relevant personnel files, and contact logs kept by the
Sheriff’s office. The alleged error, Pagan contends, is serious enough to violate his
2 Case: 17-13439 Date Filed: 10/19/2018 Page: 3 of 8
Sixth Amendment rights, and also qualifies as an abuse of discretion by the district
court.
A plaintiff in a civil case has no constitutional right to counsel. Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Pagan’s § 1983 claim is a civil
action. Accordingly, the district court could not have (even constructively)
violated Pagan’s Sixth Amendment rights.
Pagan correctly recognizes that we review district courts’ decisions to
manage their dockets for abuse of discretion. Young v. City of Palm Bay, Fla., 358
F.3d 859, 863–64 (11th Cir. 2004). District courts have unquestionable authority
to control their own dockets and are afforded broad discretion in deciding how to
best manage the cases before them. Smith v. Psychiatric Sols., Inc., 750 F.3d 1253,
1262 (11th Cir. 2014). This discretion is not boundless, however, and we will find
an abuse where the objecting party shows “specific substantial prejudice.” United
States v. Jeri, 869 F.3d 1247, 1257 (11th Cir.), cert. denied, 138 S. Ct. 529 (2017).
Our decision in Jeri is instructive here, as it also involved a request to
review evidence received the day of trial. Id. at 1258. In that case, we found no
abuse of discretion when the district court denied the request for a short
continuance even when the defendant received a video that allegedly contained
exculpatory evidence. Id. Though we suggested that it “would have been wiser to
grant a continuance or at least short recess,” we nevertheless affirmed because the
3 Case: 17-13439 Date Filed: 10/19/2018 Page: 4 of 8
defendant had not shown “specific or substantial prejudice” caused by the denial.
Id. at 1257–58.
As in Jeri, even if we were to conclude that it would have been prudent for
the district court judge to grant Pagan’s request for a recess, he has not shown that
he was prejudiced by the denial. First, because two attorneys represented Pagan at
trial, one had the opportunity to review the documents during trial while the other
directly examined a witness. Second, and more importantly, Pagan has not
demonstrated that anything in those documents had the potential to change the
outcome of the trial. It thus appears that any error was harmless, as it did not affect
Pagan’s substantial rights. See Fed. R. Civ. P. 61.
II
Additionally, Pagan asserts that the district court erred by failing to give the
jury a curative instruction after opposing counsel asked Pagan’s only witness,
Semie Robinson, about the details of his prior murder conviction. Specifically,
after Robinson testified that he had been found guilty of first-degree murder,
opposing counsel asked “[a]nd that was shooting a cab driver?” The district court
sustained Pagan’s objection on relevance grounds, but it declined to give the jury a
curative instruction to disregard the question.
We give district courts considerable discretion to monitor and address
attorneys’ arguments and, absent an abuse of discretion, will not disturb their
4 Case: 17-13439 Date Filed: 10/19/2018 Page: 5 of 8
decisions doing so. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988).
We consider, among other things, the entire examination, the context of the
remarks, and the objection raised to determine whether the “remarks were such as
to impair gravely the calm and dispassionate consideration of the case by the jury.”
Id. (internal quotation marks omitted). We recognize that a district court is in the
best position to hear such remarks in context and to assess their effect on the jury.
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th
Cir. 1992).
Here, we cannot say that it is probable that the failure to give curative
instructions substantially influenced the jury’s verdict. Proctor v. Fluor Enters.,
Inc., 494 F.3d 1337, 1352 (11th Cir. 2007) (an error affects a party’s substantial
rights when it probably had a substantial influence on the jury’s verdict). Though
Robinson’s credibility, as Pagan’s only testifying witness, was important to this
case, the parties had already stipulated that he had five prior felony convictions,
including for first-degree murder. It is unlikely, then, that a single unanswered
question about the victim substantially influenced the jury’s verdict. Id.
Accordingly, we conclude that the district court did not reversibly err by not
providing the curative instructions here.
III
Next, Pagan argues that the district court erred by making “no attempt to
5 Case: 17-13439 Date Filed: 10/19/2018 Page: 6 of 8
take curative action or conduct voir dire of [a] juror to find out if he [was] actually
sleeping.” We review cases of alleged juror misconduct on a case-by-case basis.
Garcia v. Murphy Pac. Marine Salvaging Co., 476 F.2d 303, 306 (5th Cir. 1973).
We will not lightly disturb the findings of the trial judge, who is in the “best
position to determine the extent of [a juror’s] inattention.” United States v.
Aguilar, 188 F. App'x 897, 900 (11th Cir. 2006). In particular, we give
considerable weight to a district court’s finding that a juror was not asleep, even if
it initially appeared that he or she was. See United States v. Hernandez, 921 F.2d
1569, 1577 (11th Cir. 1991) (finding that the district court was “well within its
discretion” not to further question a juror alleged to have been sleeping because
“each time the defense objected to the inattention of certain jurors, the trial judge
specifically found that no jurors had been asleep at trial”); United States v. Holder,
652 F.2d 449, 451 (5th Cir. Unit B 1981) (holding that the district court did not
abuse its discretion by failing to voir dire juror because “[t]he court’s remarks
demonstrate that the court had observed the juror in question and that it concluded
that the juror was not in fact asleep”).
Here, when informed of the possibility that the juror was sleeping, the
district court determined—after personally observing the juror—that he “closes his
eyes every now and then, but he’s not sleeping.” We decline to second-guess that
factual determination here, and therefore conclude that the district court did not err
6 Case: 17-13439 Date Filed: 10/19/2018 Page: 7 of 8
in declining to voir dire the allegedly sleeping juror. See Garcia, 476 F.2d at 306
(declining to disturb the district court’s judgement that a juror merely “kept her
eyes closed frequently” during the trial because “[t]here was no evidence offered
that the juror was in fact asleep or inattentive”).
IV
Finally, Pagan argues—for the first time on appeal—that the district court’s
instructions were “confusing” and thus “misled the jury.” Though we generally
review jury instructions de novo to determine whether they misstate the law,
Palmer v. Board of Regents of University System of Georgia, 208 F.3d 969, 973
(11th Cir. 2000), a jury instruction challenged for the first time on appeal is
reviewed for plain error. Maiz v. Virani, 253 F.3d 641, 676 (11th Cir. 2001).
Under plain error review, we will reverse only in exceptional cases where the error
is so fundamental as to result in a miscarriage of justice. Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1329–30 (11th Cir. 1999).
Even assuming that the district court plainly erred here, Pagan has waived
his opportunity to challenge the jury instructions under the doctrine of invited
error. “Federal courts generally will not find that a particular instruction
constitutes plain error if the objecting party invited the alleged error by requesting
the substance of the instruction given.” Wood v. President & Trs. of Spring Hill
Coll. in City of Mobile, 978 F.2d 1214, 1223 (11th Cir. 1992). Pagan filed the jury
7 Case: 17-13439 Date Filed: 10/19/2018 Page: 8 of 8
instruction ultimately used by the district court, and he objected neither to the
manner in which the district court gave the jury instruction nor to its content.
Because Pagan invited the alleged error, the district court did not reversibly err.
AFFIRMED.