Verser v. Barfield

641 F. App'x 583
Court of Appeals for the Seventh Circuit·Decided March 30, 2016·No. No. 15-2140·Published·Cited by 2 cases

Opinion

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),1 and Verser was represented by counsel. Before returning its verdict, the jury sent a note to the court asking for permission to make a statement when announcing the verdict. After consulting the parties, the court responded that the foreperson could speak on behalf of the jury after the verdict was announced, but when the time came, the foreperson did not make a statement. The jurors then were polled, and, according to Verser, each answered affirmatively that the verdict in favor of the defendants constituted that juror’s verdict, though one of them appeared upset.

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.

[585] United States, 653 F.3d 522, 529 (7th Cir.2011); RK Co. v. See, 622 F.3d 846, 852-53 (7th Cir.2010). Verser’s pro se status does not excuse his failure to obtain transcripts, see Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993), and we decline to exercise our authority to order Verser to supplement the record with pertinent transcripts, see Fed. R.App. P. 10(e); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n. 10 (7th Cir.2003); LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir.1995). The district court explained to Ver-ser the need for transcripts, and after he had filed his brief without obtaining them, the defendants in their own brief put Ver-ser on notice that failing to secure transcripts could doom his appeal.

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).

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Verser v. Barfield, 641 F. App'x 583 (7th Cir. 2016).

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