Harper, George v. Albert, Lieutenant

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-2758
GEORGE HARPER and ROBERT PADILLA,
Plaintiffs-Appellants,
v.
LIEUTENANT ALBERT, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-775-CJP—Clifford J. Proud, Magistrate Judge.
____________
ARGUED JUNE 5, 2003—DECIDED MARCH 17, 2005
____________
Before FLAUM, Chief Judge, and COFFEY and MANION,
Circuit Judges.
COFFEY, Circuit Judge. On September 15, 1997 two pris-
oners, George Harper and Robert Padilla, confined at the
Menard Correctional Facility in Menard, Illinois, filed a com-
plaint in the United States District Court for the Southern
District of Illinois pursuant to 42 U.S.C. § 1983, claiming
that twelve prison guards and two supervisors, who are
members of the “Orange Crush” tactical team, violated their
Eighth Amendment right to be free from cruel and unusual
2 No. 00-2758
punishment when guards allegedly battered the two pris-
oners during a cell-transfer procedure. A jury trial ensued,
and following the presentation of the plaintiff’s case-in-chief
the defendants moved for judgment as a matter of law,
which was granted as to eight of the fourteen named
defendants. The jury subsequently found in favor of the re-
maining six defendants concluding that, during the time
frame when the assaults had allegedly taken place, no officer
used excessive force. Harper and Padilla now appeal the
district court’s decision to dismiss the eight defendants, al-
though they concede the validity of the jury’s verdict as to
the remaining six defendants. We affirm.
I. BACKGROUND
On August 4, 1996 the East Cellhouse at the Menard
Correctional Facility in Menard, Illinois (“Menard”) erupted
in violence with inmates throwing cans, burning rags, light
bulbs, bodily fluids and other liquids at officers. This out-
burst was apparently in retaliation for the “strip out,” or
complete search, of a cell on the block and continued to grow
more serious throughout the day.
Sometime during the disturbance the situation escalated
to near-riot proportions and Correctional Officer Goolsby
was struck in the back of his head with a can of soup, caus-
ing a contusion requiring medical attention. The ranking
officers on duty at the time, Captain Stanley and Lieutenant
Thomas, received reports from other correctional officers
and concluded shortly thereafter that the projectile can was
thrown from Harper and Padilla’s cell. Stanley and Thomas
subsequently approached the inmates’ cell and informed
Padilla that he and his cell-mate would be removed and
transferred to the segregation unit. Padilla immediately
protested claiming he had not thrown anything, while the
officers informed him that according to eyewitness accounts
someone in the cell had thrown the can. Harper overheard
No. 00-2758 3
the conversation and, in Padilla’s defense, admitted to throw-
ing the can that hit Goolsby and agreed that he would ac-
cept the transfer to segregation willingly. However, when
the officers informed the inmates that they both would be
going to segregation, regardless of who admitted throwing
the can, Padilla immediately refused and Harper joined him
and recanted his prior offer to go along peacefully. Never-
theless, after reconsidering, Harper and Padilla had a
change of heart and decided to cooperate with the officers
and called Stanley and Thomas to inform them.
Proceeding cautiously, Stanley again approached the cell,
and while questioning Padilla about the inmates’ new-found
intention to cooperate, he observed Harper moving towards
him with a bowl of hot water (which Padilla later claimed
he was heating to prepare soup). Stanley immediately
ordered Harper to set the bowl down, and when he refused
to do so Stanley sprayed him in the face with mace. Harper
reacted by throwing the scalding water at the officers,
hitting Thomas, who retreated down the corridor. Stanley
continued to spray Harper for a moment and then left the
cell and called for backup assistance.
Stanley called for the prison’s tactical unit, better known
by their nickname, the “Orange Crush.”1 The makeup of the
Orange Crush team consists of corrections officers who have
undergone specialized training and are called upon by
prison officials to assist in controlling unruly or violent in-
mates. Specifically, the team is also charged with the duty
of extracting, or removing, hostile, violent or non-coopera-
tive inmates from their cells and relocating them to other
areas of the prison such as the segregation unit, where they
1
As described in Fillmore v. Page, 358 F.3d 496, 500 (7th Cir.
2004), while executing their duties at the prison members of the
tactical team don shields, gloves, safety glasses and orange jump-
suits, ergo their nickname.
4 No. 00-2758
can be monitored more closely. Stanley decided to contact
the tactical unit to transfer the prisoners to the segregation
area in hopes that they would no longer pose a threat to
themselves or other correction officers.
The tactical team members were directed to assemble in
full riot gear and thereafter briefed. Cpt. Stanley gave the
order and they proceeded to the East Cell house where
Harper and Padilla were housed. Twelve (12) tactical team
members in all2 were assigned to transport Harper and
Padilla that night. One member of the team, Officer
Smithson, was assigned to videotape the maneuver, while
four other members were directed to hold shields and give
protection to the other officers by providing them cover from
flying debris and fluids. Marching in formation dressed in
full uniform, the tactical unit reached the East Cell house
where they encountered shouting, whistling, hollering and
taunts as well as a barrage of fluid and other objects being
thrown at them.3 Lieutenant Albert, the unit’s commanding
officer, led the unit through the melee to Harper and
Padilla’s cell. When the unit reached the cell area, Albert
approached and ordered the two prisoners to “cuff up,” or to
back up to the bars of the cell and place their hands behind
their backs and through the bars so that officers could
handcuff them.
2
Included in the group that night was Lieutenant Albert, the
commander of the tactical team, along with Lieutenant Townley,
Sergeant Hudsell and officers Ferrell, Scott, Smithson, Lawless,
Myers, Skoog, Tindall, Edmonds and Flowers, all of whom (along
with Captain Stanley) were defendants in this action.
3
Some of this fluid landed on Officer Smithson, causing the video
camera he was using to tape the transfer maneuver to cease
functioning. Therefore, no video record was produced of the cell
extraction procedure or the transport of Harper and Padilla to the
segregation area.
No. 00-2758 5
What happened next is in dispute. Padilla and Harper
claim they were brutally beaten by officers while being
transported to the segregation unit, while the defendants-
appellees, all twelve members of the tactical team along
with Captain Stanley, claim the force used was necessary
to safely convey and transfer the inmates to the designated
segregation area.
Padilla claims the abuse began shortly after he was cuffed
when—while waiting for the cell door to be opened—one of
the officers grabbed his ponytail and proceeded to bang his
head against the bars of the cell approximately three times,
then stopped and began to punch him. Once the cell door
was opened, Padilla was backed out with his hands cuffed
behind his back. One of the officers then placed a police
baton between his cuffs and his back so that his torso was
positioned parallel to the ground in order to assist in con-
trolling him while leading him out of the cell house to the
strip-search area. While en route to the area where he was
to be searched, Padilla claims various unidentified officers
intentionally and repeatedly slammed him into cell bars
and gates as well as punching, elbowing and kicking him
throughout the maneuver. Before reaching the strip-search
room officers allegedly stopped and asked Padilla if he
needed medical attention, to which Padilla answered “no.”4
Padilla was next taken into the strip-search room where he
states that officers, at this point, resumed kicking and
punching him while others stepped on his hands and neck.
Padilla claims he was bleeding profusely throughout the
procedure and lost consciousness on at least two occasions
before being stripped naked and led up a set of stairs to the
segregation unit. Padilla alleges that, among other things,
he was once again slammed into a gate and punched in the
4
Padilla claims he refused because he believed that he would be
subjected to a worse beating if he requested to be taken to the
hospital.
6 No. 00-2758
ribs before being forced into a cell. After a medical examina-
tion that night, it was concluded that Padilla had sustained
a swollen jaw along with a laceration to his head, for which
he received eight stitches.
Harper’s version of events is much the same as Padilla’s
in that he also alleges the officers went out of their way to
abuse and assault him while being escorted to a segregation
cell. Once he was backed out of the cell he shared with
Padilla, Harper alleged he was also positioned with his
hands cuffed behind his back and an officer along side him
using a baton for leverage to keep his shoulders and head
down parallel to the floor as they walked. Like Padilla,
Harper claims that during the journey to the strip-search
room he was slammed into various gates along the way and
to receiving numerous punches to the head and face. Harper
also claims that, at some point during the walk, an unidenti-
fied officer stopped and struck him on the back with a
baton, driving him to the ground. When the group resumed
walking, Harper described being kneed or punched at every
step by the officers in front and back of him. Immediately
before entering the strip-search area Harper states that he
was asked if he would like medical attention, but declined in
fear of a more severe beating. Before being strip searched5
Harper claims officers brutally beat him all over his body
and went on to verbally humiliate him by commenting on
his naked form while laughing and joking. Once reduced to
his boxer shorts Harper was led to his segregation cell, but
before reaching the cell he alleges that the officers went out
of their way to run him head-first into whatever metal
objects they came upon. When the officers finally delivered
him to the segregation cell Harper claims that he was
uncuffed and that one of the larger officers grabbed him by
the neck and propelled him into the cell causing him to
5
It is prison policy to strip search all prisoners before confining
them in segregation cells.
No. 00-2758 7
strike his head on the wall and lose consciousness. While in
segregation Harper refused a medical examination and it
was not until some two days later that he was examined and
was found to have a number of bruises and abrasions on his
back.
A. District Court Proceedings
On September 15, 1997, Harper and Padilla filed a
complaint in the District Court for the Southern District of
Illinois claiming that they had been deprived of their
Eighth and Fourteenth amendment rights when unidenti-
fied prison officials intentionally assaulted and battered
them with the use of excessive force during the transfer
procedure on August 4, 1996, and were thus entitled to re-
cover damages pursuant to 42 U.S.C. § 1983. The original
complaint identifies only Lt. Albert, the leader of the pris-
on’s tactical team, by name. The other defendants were sim-
ply referred to as “unknown correctional officers.” However,
following initial discovery disclosures pursuant to Rule
26(a)(1) of the Federal Rules of Civil Procedure, the prison-
ers amended their complaint and added the names of the
eleven previously unidentified members of the Menard
Tactical Unit who were present during the extraction and/
or transport of Harper and Padilla. The amended complaint
added the following parties as defendants: Lt. Townley, Sgt.
Hudsell and Officers Ferrell, Scott, Smithson, Lawless,
Myers, Skoog, Tindall, Edmonds, and Flowers, as well as
Cpt. Stanley and Lt. Thomas6 who the defendants claimed,
6
Lt. Thomas was voluntarily dismissed from the suit shortly
after the amended complaint was filed when plaintiffs discovered
that although Thomas was present during the beginning of the
incident, he departed the area before any of the alleged constitu-
tional violations took place.
8 No. 00-2758
along with Lt. Albert, acted in a supervisory role over the
alleged constitutional violations. Although their amended
complaint detailed the alleged instances of abuse that both
prisoners supposedly endured on August 4, 1996, and iden-
tified the guards present, the complaint failed to allege which
of the individual officers allegedly beat, kicked or otherwise
used excessive force against Harper and/or Padilla.7 The
defendants promptly filed an answer with the court denying
that they had violated any of Harper and Padilla’s constitu-
tional rights and raised a number of affirmative defenses.8
Upon completion of discovery, the parties commenced their
preparations for trial and consented to have Magistrate
Judge Proud hear their case. Thereafter, the magistrate
judge issued a “Final Pre-Trial Order” which described the
nature of the case as one dealing exclusively with claims of
excessive force.9
7
This is despite the fact that Harper and Padilla were provided
with discovery, before filing their amended complaint, in the form
of Department of Corrections incident reports and interviews that
identified the defendants by name who were present during each
phase of the alleged abuse.
8
The defendant guards claimed, among other things, that they
were protected by the doctrine of qualified immunity as state pris-
on employees. They also claimed that the use of force under the
circumstances was justified in this case and did not constitute a
violation of the law.
9
The judge stated: “Plaintiffs are inmates who, at the time, were
imprisoned at Menard Correctional Center, allege that their rights
were violated in that defendants, who are prison officers and guards,
maliciously, sadistically, and unnecessarily beat plaintiffs as they
were being moved from the East Cell House to the segregation
unit.” We note here that it is extremely clear that the magistrate
judge interpreted the plaintiffs’ legal claim as one alleging ex-
cessive force and not failure to intervene as the plaintiffs later
claimed.
No. 00-2758 9
The trial commenced on June 5, 2000, and during the
plaintiffs’ case-in-chief Harper and Padilla testified to es-
sentially the same course of events set out above, i.e., that
the Menard Tactical Unit used excessive force by beating,
kicking and generally abusing them in between the time-
frame when Padilla threw the can of soup at Officer Goolsby
and they were delivered to their segregation cells. Like
in their complaint, however, neither Harper nor Padilla
identified any individual guard who was abusive.
At trial, Lt. Albert was called to testify and stated that the
procedure used to transport Harper and Padilla was for the
most part routine. Albert testified that the two prisoners
refused to cooperate with the officers and had to be forcibly
restrained on two different occasions during the transfer;
when they refused to exit their cell, and when each of them
individually underwent the prison’s mandatory strip-search
procedure for each person prior to being admitted to the
segregation unit (at which time Albert stated that he was
forced to kneel on the backs of both prisoners in an attempt
to restrain them so that they could be thoroughly searched).
Indeed, Albert conceded that any injuries Harper sustained
to his back could, in all probability, be attributable to his
kneeling on Harper in the strip-search area after Harper
had refused to comply with the officers’ orders prior to and
during the strip-search procedure. Albert, on the other hand,
denied that any tactical unit member used excessive force,
at any time, while restraining and/or transporting Harper
and Padilla. Specifically, he testified that at no point did he
witness either of the prisoners come into contact with
anything (i.e., doors, walls or bars) while they were being
led by officers. In addition, he stated that he never saw any
guard strike (with a baton or fist), kick or punch either
Harper or Padilla during the entire encounter (from the time
they were forcibly removed from their cell until the moment
they were deposited in their individual segregation cells).
10 No. 00-2758
The Plaintiffs also called Officer Smithson, the officer who
was responsible for carrying the video camera10 on the day
of the alleged incident, to testify as to the reason why the
video camera malfunctioned. According to Smithson, he was
the last member of the unit to enter the floor where Harper
and Padilla’s cell was located and he and the camera were
immediately hit by a bag of urine which caused the camera
to cease operating. Smithson claimed that he attempted to
continue to operate and repair the camera, but that he was
unsuccessful because it was too badly damaged. He re-
mained with the unit until Padilla and Harper were
escorted out of the cell house, but instead of following them
to the strip-search or segregation area, he proceeded to Cpt.
Stanley’s office to report the problem and turn the camera
in.
In addition to the testimony of Harper, Padilla, Albert
and Smithson, a number of fellow inmates testified in an
attempt to corroborate the prisoners’ claims of abuse. This
testimony was introduced to describe the physical condition
of the inmates after the alleged abuse was allegedly visited
upon them. For example, fellow prisoner William Rudder
testified that as he witnessed Padilla being placed in the
segregation cell he observed that “he looked pretty beat up,”
and that there was “blood coming off his face.” Other
prisoners testified that, in addition to witnessing the phy-
sical condition of the prisoners, they actually viewed guards
hitting and kicking them. However, none of the prisoners
who testified were able to identify the specific guards that
they alleged were abusing Harper and Padilla.
After the prisoners completed presenting their case-in-
chief, the defendants moved for judgment as a matter of law
10
Ironically the purpose of using the video camera to record trans-
fer procedures such as this one is to insure that the guards are
protected from the very sort of liability that they faced in this
case.
No. 00-2758 11
pursuant to Rule 50(a)(1) of the Federal Rules of Civil
Procedure. Prior to ruling on the motion, the judge clarified
the nature of the case by asking plaintiffs’ counsel whether
this case indeed constituted “an 8th Amendment excessive
force case against the defendants based on these beatings
and related things like beatings that started with moving
the plaintiffs out of Cell 214 in the East Cellhouse and con-
tinuing all the way to the North Cellhouse Segregation . . .
where they were placed.” (Tr. VIII. p. 9). Counsel for Padilla
and Harper answered in the affirmative, acknowledging
that the claims presented were premised on excessive force
under the Eighth Amendment. In spite of this on-the-record
concession, plaintiffs’ counsel, for the first time in the
proceeding, interjected what they now claim to be a failure
to intervene argument. In addition, counsel for Harper and
Padilla continued to argue that joint and several liability
should apply in this case because all of the guards were
“participating in a joint action to beat the crap out of these
guys . . . [and] [a]s a result, they should all be found liable
if the jury believes all of our testimony.” (Tr. VIII p. 19) In
order to address plaintiffs’ counsel’s arguments, the trial
judge once again reiterated that this was an excessive force
case and did not encompass a failure to intervene claim,
and explained that when proceeding under an excessive force
theory “a plaintiff must establish a defendant’s personal
liability for the claimed deprivation of the constitutional
right . . . [t]he personal responsibility requirement is sat-
isfied if the official acts or fails to act, and here we are
dealing with acting, not failing to act.” Id. (emphasis
added). The judge went on to state that “[t]here is no joint
and several liability in an 8th Amendment case like this . . .
we only have individual liability where it has been shown
that each defendant did something to one . . . or both
plaintiffs that would be an 8th Amendment violation.”
Having framed the issue more precisely as one involving
excessive force (and specifically disallowing any argument
for failure to intervene), the magistrate judge proceeded to
12 No. 00-2758
rule on the defendants’ Rule 50(a)(1) motion by identifying
the individual officers which the evidence established could,
as a matter of law, be found to have used excessive force.
The magistrate judge concluded from his knowledge and
review of the evidence submitted during the plaintiffs’ case-
in-chief that only five of the thirteen named defendants had
actually been in physical contact with the plaintiffs and,
therefore, the other eight defendants should be dismissed.11
The court ruled that Lt. Albert, Officers Ferrell, Scott,
Lawless and Edmonds all assisted in restraining Harper
and/or Padilla in some fashion and therefore a reasonable
jury might conceivably conclude that they violated Harper
and Padilla’s constitutional rights by using excessive force.
Specifically, the judge went on to conclude that Lt. Albert
would remain in the case as to both Harper and Padilla. On
the other hand, he stated that only Ferrell and Scott would
remain in the case as defendants to Harper’s claims while
Edmonds and Lawless would remain in the case as defen-
dants to Padilla’s claims. However, the judge concluded that
Ferrell, Scott, Lawless and Edmonds could only be consid-
ered as defendants as to their actions during the events
which took place while the prisoners were being transferred
from the East Cellhouse to the strip-search area (and while
in the strip-search area), and not for the allegations of
abuse which allegedly took place during the transfer of the
prisoners from the strip-search area to segregation cells.
The trial resumed with only five of the defendants remain-
ing in the case. The defense presented its case-in-chief
11
As to defendants Stanley, Townley, Hudsell, Smithson, Myers,
Skoog, Tindall and Flowers, the magistrate judge found that
Harper and Padilla had failed to establish that those defendants
had made any physical contact with the inmates during the ex-
traction and transport maneuver and thus under the controlling
law a reasonable juror could not find them liable for an Eighth
Amendment violation.
No. 00-2758 13
and each of the defendants took the stand testifying that at
no time did they kick, hit, knee, or in any way injure the
plaintiffs nor did they see any other officer engage any
actions that were not necessary to safely restrain and trans-
port the prisoners. In addition, the nurse who examined
Padilla and Harper testified as to the contents of the pris-
oners’ medical records, which reflected that after the transfer
Padilla had some swelling on his face and shoulders, had
complained of jaw and rib pain (x-rays on both were negative
for fracture) and had received stitches to close a 1/4” lacer-
ation on his head. The record also notes that Harper did not
seek medical attention until two days after the alleged
abuse and was subsequently examined by the prison nurse
who determined that Harper had bruising and some minor
abrasions on his back.
Following the close of evidence, the plaintiffs moved for
reconsideration of the court’s Rule 50 judgment based on
their interpretation of the evidence uncovered during the
defense’s case which they claim demonstrated that Officer
Scott had physical contact with Harper on the way from the
strip-search area to the segregation cell and that Lawless
had control over Padilla during the same period of time.
Relying on Mayer v. Gary Partners and Co. Ltd., 29 F.3d
330 (7th Cir. 1994), the judge denied the motion stating
that the evidence the plaintiffs were relying upon was sub-
mitted after the court’s Rule 50 motion, which was proper
at the time and which he still believed to be correct.
(Tr. VIII. p. 256). The judge stated that “[t]he fact that we
have now found out later that certain of the defendants still
in the case were escorting one or more of the plaintiffs to
their actual Segregation cells from the [strip-search] room . . .
doesn’t change anything . . . [s]o I will deny the motion.”
(Tr. VII. p. 257). Also, the remaining defendants renewed
their motions and the court took them under advisement
pending the verdict of the jury.
14 No. 00-2758
B. The Jury Verdict
After deliberating for less than half-an-hour the jury
found in favor of the remaining defendants on both Harper
and Padilla’s Eighth Amendment excessive force claims.
Also, the jury answered two special interrogatories that
read as follows:
Do you find that any of the force used against Plaintiff
Harper by any prison employee, while transporting him
from his cell in the East Cellhouse to the [strip-search]
room or while in the [strip-search room], constituted
cruel and unusual punishment as that term is defined
elsewhere in the instructions?
and
Do you find that any of the force used against Padilla
by any prison employee, while transporting him from
his cell to the East Cellhouse to his final destination in
the North Cellhouse, constituted cruel and unusual
punishment, as that term is defined elsewhere in the
instructions?
(Tr. IX. p. 37-38). Jurors answered “No” to both of these
special interrogatories and then reiterated their ruling in
favor of each of the five remaining defendants when polled
by the judge.
II. Discussion
Although Harper and Padilla concede that the jury verdict
was proper in all respects, they allege that the magistrate
judge improperly granted the defendants’ Rule 50 motion at
the close of their case-in-chief dismissing defendants
Stanley, Townley, Hudsell, Smithson, Myers, Skoog, Tindall
and Flowers. In addition, they claim that they should have
been allowed to present a theory of the case that would
have allowed the jury to conclude that all of the defendants
were jointly and severally liable for violating Harper and
Padilla’s Eighth Amendment rights by using excessive force
No. 00-2758 15
or failing to intervene while a constitutional violation (cruel
and unusual punishment by the use of excessive force) was
occurring. In conjunction with these claims, the appellees
also claim that the magistrate judge gave the jury instruc-
tions that erroneously limited the facts which the jury could
consider when determining whether a constitutional
violation had occurred (i.e., the judge would not let them
present facts which would establish their joint and several
liability argument) and that the court’s decision to advise
the jury regarding the defendants’ indemnification was in
error. We disagree.
A. Rule 50 Dismissal as a Matter of Law
We review a district judge’s, or in this case a magistrate
judge’s, decision to grant a party judgment as a matter of
law de novo, while viewing all the evidence in the light most
favorable to the nonmoving parties, Harper and Padilla.
Rule 50 of the Federal Rules of Civil Procedure prescribes
that judgment as a matter of law is proper when “a party
has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for
that party on that issue.” Fed. R. Civ. P. 50(a)(1); Mut. Serv.
Cas. Ins. Co. v. Elizabeth State Bank, 265 F.3d 601, 612
(7th Cir. 2003). We will uphold a trial court’s grant of
judgment as a matter of law only if, after viewing all the
evidence, no reasonable jury could have found for Harper
and/or Padilla on each essential element of their claim. See
Campbell v. Peters, 256 F.3d 695, 699 (7th Cir. 2001).
1. Events Covered by the Jury’s Verdict
Harper and Padilla claim that the trial judge incorrectly
granted the defendants’ Rule 50 motion because, under a
theory of joint and several liability, a reasonable jury could
have found in their favor, i.e., but for the dismissal the jury
16 No. 00-2758
could have found that the eight defendants that were
dismissed had violated Harper and Padilla’s constitutional
rights on a joint and several liability theory. Their argu-
ment is misplaced in great part.
Joint and several liability is a theory of recovery which
requires that the plaintiffs, in an action alleging tortious or
constitutionally repugnant conduct by multiple actors,
establish that each defendant acted in concert to “produce
a single, indivisible injury.” Watts v. Laurent, 774 F.2d 168,
179 (7th Cir. 1985). In their brief, appellants cite a number
of cases for the proposition that joint tort-feasors may be
held jointly and severally liable when “several persons act
pursuant to a common plan or design to commit a tortious
act.” In re Uranium Antitrust Litigation, 473 F.Supp. 382,
387 (N.D. Ill. 1979); Watts v. Laurent, 774 F.2d 168 (7th Cir.
1985); McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.
1984); Smith v. Eli Lilly & Co., 527 N.E.2d 333 (Ill. 1988).
However, the underlying legal theory upon which all the
cases that Harper and Padilla cite is that in order for
defendants to be held jointly and severally liable, all of the
named defendants must have visited some manner of wrong
(here a constitutional violation) on the plaintiff. Indeed, in
the § 1983 cases cited by the appellees, Watts v. Laurent,
and McKinnon v. City of Berwyn, we considered the applica-
bility of joint and several liability only after a jury had
found all the named defendants liable for concurrently
violating the plaintiff’s constitutional rights. On a number
of occasions we have specifically held that in order for
liability to attach under § 1983, “an individual must have
personally caused or participated in the alleged constitu-
tional deprivation.” See Palmer v. Marion Co., 327 F.3d 588,
594 (7th Cir. 2003), accord Zimmerman v. Tribble, 226 F.3d
568, 574 (7th Cir. 2000). Thus, applying this principle to the
case at hand; for joint and several liability to have any
application here, under the Rule 50 standard, the plaintiffs’
case should have been dismissed as a matter of law unless,
No. 00-2758 17
viewing the evidence in the light most favorable to Harper
and Padilla, a reasonable jury could have concluded that all
thirteen of the original defendants violated each prisoner’s
Eighth Amendment rights during the cell transfer and
transport procedure. See id. However, the evidence Harper
and Padilla submitted at trial, as evinced by the jury’s ver-
dict and answers to the special interrogatories, failed to
establish that any of the defendants violated either Harper
or Padilla’s constitutional rights. Indeed, Harper and Padilla
failed to even establish that each and every one of the
defendants ever touched the plaintiffs, much less that any
of the guards used excessive force against them. Thus, the
appellants claim must fail because, under their own pres-
entation of the case, as well as the evidence submitted to the
jury at trial it would not have been possible for a reasonable
jury to find that all thirteen defendants used excessive force
against both Harper and Padilla.12
In a futile attempt to bolster their claim, Harper and
Padilla later argued that although not all of the defendants
used excessive force, the remainder of the defendants were
nonetheless culpable for a related constitutional violation;
failure to intervene. The first time the plaintiffs articulated
this failure to intervene claim was in their answer to the
defendants’ Rule 50 motion. The defendants argue that this
constitutes a waiver on Harper and Padilla’s part due to
their failure to raise any such failure to intervene claim in
the pleadings.
Pursuant to Seventh Circuit and Supreme Court prece-
dent, it is inaccurate for the defendants-appellees to char-
acterize Harper and Padilla’s late introduction of this new
theory of liability in the case, failure to intervene, as a
12
Indeed, the record establishes that some of the thirteen
defendants were not even present during the time frames when
Harper and Padilla claim excessive force was used.
18 No. 00-2758
waiver.13 Rather, such an untimely assertion is properly
classified as a forfeiture. This is because, as the Supreme
Court described in United States v. Olano, “forfeiture is the
failure to make the timely assertion of a right, [while]
waiver is the ‘intentional relinquishment or abandonment
of a known right.’ ” 507 U.S. 725, 733 (1993) (citations
omitted). In the magistrate judge’s pretrial order, he
specifically identified the sole legal issue in the case as one
involving only excessive force, not failure to intervene. This
is significant considering “the parties rely on the pretrial
conference to inform them precisely what is in controversy
[and] the pretrial order . . . establishes the issues to be
considered at trial.” Gorlikowski v. Tolbert, 52 F.3d 1439,
1443-44 (7th Cir. 1995). In order for a pretrial order to have
any value as a procedural mechanism and to protect against
the possibility of either of the parties being taken by
surprise at trial, the parties must be held to the issues set
forth in that order. Therefore, this court has consistently
enforced a strict rule of forfeiture in a situation where a
party seeks to introduce a new legal theory to the litigation
after the pretrial order has issued. See Nagy v. Riblet Prods.
Corp., 79 F.3d 572, 575 (7th Cir. 1996). As mentioned
above, the plaintiffs first asserted their failure to intervene
claim after the defendants moved for judgment as a matter
of law. At that time the district judge properly refused to
allow the defendants to interject this claim, specifically
clarifying the sole issue in the case as “dealing with acting,
not failure to act.”14 For purposes of this appeal we will
13
Both parties, in their briefs, mischaracterize this issue as one
involving waiver. However, because the record is instructive on
this issue and because the issue does not ultimately affect the
outcome of the case, we have proceeded sua sponte and analyze
this issue in the proper context of a forfeiture, as discussed infra.
14
Due to the fact that the trial judge interjected and clarified the
issues of the case immediately after plaintiffs’ counsel advanced
(continued...)
No. 00-2758 19
treat this definitive ruling as the denial of a motion to
modify the pretrial order under Rule 16 of the Federal
Rules of Civil Procedure. See Gorlikowski, 52 F.3d at 1445.
While it is true that a pretrial order may be modified, such
modification is only permissible under very limited circum-
stances and only in those cases where failure to do so would
result in “manifest injustice,” Fed. R. Civ. P. 16(e), and we
review a district court’s refusal to modify a pretrial order only
for abuse of discretion. Gorlikowski, 52 F.3d at 1444.
Harper and Padilla had numerous opportunities prior to
trial to amend their complaint or to petition the court to add
a failure to intervene claim to the litigation. As the record
establishes, at various times throughout the proceedings as
well as in the pretrial order, the trial judge clarified the
issues in the trial as only dealing with excessive force and
not failure to intervene so as to avoid any confusion for
either party. Harper and Padilla offer no reason why the
judge’s refusal to allow such a claim would constitute
“manifest injustice.” Instead, they concede that they “in-
tentionally did not bring a separate failure to protect claim.”
Appellants’ Reply Brief at 11. Thus, we hold that the district
court did not abuse its discretion in barring the plaintiffs
from litigating their failure to intervene claim. Hotaling v.
Chubb Sovereign Life Ins. Co., 241 F.3d 572 (7th Cir. 2001);
Durr v. Intercounty Title Co. of Illinois, 14 F.3d 1183, 1187
(7th Cir. 1994). Nonetheless, even if we were to assume
arguendo that the Harper and Padilla’s failure to intervene
14
(...continued)
his novel failure to intervene claim, Harper and Padilla are pre-
cluded from claiming that the defendants consented to the trial of
this issue. In essence, the trial judge preserved their objection by
ruling on what was essentially a motion to amend the pretrial
order before any objection could be made. See generally Camden
v. Circuit Court of Second Judicial District, 892 F.2d 610, 615 (7th
Cir. 1989).
20 No. 00-2758
claim was not forfeited, the jury’s verdict answered and
foreclosed this argument entirely for Padilla and for the
majority (i.e., from the moment he was taken from the cell
he shared with Padilla until he left the strip-search room)
of the transport maneuver for Harper.15
It is true that this court has recognized in the past
that “police officers who have a realistic opportunity to step
forward and prevent a fellow officer from violating a
plaintiff’s right through the use of excessive force but fail to
do so” may be held liable. Miller v. Smith, 220 F.3d 491, 495
(7th Cir. 2000) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th
Cir. 1994)); see also Fillmore, 358 F.3d at 505-06. This is
what has become known as a “failure to intervene” basis for
a constitutional violation under the Eighth Amendment, a
principle which this circuit has long recognized. Fillmore,
358 F.3d at 506; Crowder v. Lash, 687 F.3d 996, 1005 (7th
Cir. 1982), accord Spence v. Staras, 507 F.2d 554, 557 (7th
Cir. 1974). In order for there to be a failure to intervene, it
logically follows that there must exist an underlying consti-
tutional violation, as we recently articulated in Fillmore v.
Page, 358 F.3d 496 (7th Cir. 2004). In Fillmore, a case strik-
ingly similar to the one at bar, the plaintiff, also a prisoner
at the Menard Correctional Center, could not succeed on his
failure to intervene claim because he had failed to establish
that guards used excessive force in violation of his Eighth
Amendment rights. Fillmore, 358 F.3d 505-06.
Most importantly, like the plaintiff in Fillmore, Harper
and Padilla have failed to establish an underlying consti-
tutional violation that would allow them to prevail on a
failure to intervene claim. See id. In special interrogatories
submitted by the magistrate judge, the jurors unanimously
concluded that: (a) Padilla had not been subjected to exces-
sive force at any time during the transport maneuver; and
15
See infra Part II. A. 2.
No. 00-2758 21
that (b) no excessive force had been used against Harper
from the time he was removed from his cell in the East
Cellhouse until he left the strip-search area.16 Thus, because
the jury found that no excessive force was used against
Padilla by any guard, at any time, and because an under-
lying constitutional violation is a primary concern when at-
tempting to establish a failure to intervene claim, Padilla
cannot possibly establish joint and several liability and thus
his claim that the judge erred in granting the defendants’
Rule 50 motion is based on a foundation of quicksand. How-
ever, Harper’s claim, at least in part, endures and requires
that we examine whether he provided sufficient evidence to
resist a Rule 50 motion as to the events of August 4, 1996,
while he was en route from the strip-search room to his
segregation cell in the North Cellhouse.
2. Events Not Covered by the Jury’s Verdict
Harper’s claim must be given separate consideration be-
cause the jury’s verdict does not cover that specific period
of time beginning when Harper left the strip-search area
and ending when he arrived at his segregation cell in the
North Cellhouse. Harper’s specious claim is based on the
fact that it is conceivably possible, although most improba-
ble, for him to demonstrate to this court that a reasonable
jury could have found that, during that short time period,
each and every one of the defendants committed an Eighth
Amendment violation against him.
The Eighth Amendment, applicable to the States through
the Due Process clause of the Fourteenth Amendment, pro-
hibits “cruel and unusual punishments” and has been inter-
preted by the United States Supreme Court to encompass the
16
See supra pp. 13-14 for the complete text of the special interrog-
atories.
22 No. 00-2758
“unnecessary and wanton infliction of pain” upon prisoners
in a correctional institution. Wilson v. Seiter, 501 U.S. 294,
296 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976) (emphasis added)). In determining whether a prison
official has violated the parameters of this prohibition, part of
our task is to “inquire into [the] prison official’s state of mind”
to determine whether a constitutional violation has occurred;
for, “[i]f the pain inflicted is not formally meted out as pun-
ishment by the statute or the sentencing judge, some mental
element must be attributed to the inflicting officer before it
can qualify.” Id. at 300. In Wilson v. Seiter, the Supreme
Court explained that, in order for a constitutional violation
to exist, plaintiffs in a § 1983 action must establish that
prison officials acted wantonly or, stated another way “mali-
ciously and sadistically for the very purpose of causing
harm.” Wilson, 501 U.S. at 296. Indeed, “negligence or even
gross negligence is not enough; rather the plaintiffs must
show actual intent or deliberate indifference on the part of
state actors in order to make out an eighth amendment
claim.” James v. Milwaukee Co., 956 F.2d 696, 699 (7th Cir.
1992) (emphasis in original); see also Walker v. Benjamin,
293 F.3d 1030, 1037 (7th Cir. 2003) (same); Delgado-Brunet
v. Clark, 93 F.3d 339, 345 (7th Cir. 1996). Even objectively
serious injuries suffered by prisoners, without the requisite
mens rea on the part of prison officials, will not comprise a
constitutional injury. See Wilson, 501 U.S. at 301. In a case
such as this, “where prison officials are accused of using
excessive physical force in violation of the Cruel and
Unusual Punishments Clause, the core judicial inquiry
is . . . whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadisti-
cally cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992). To illustrate this subjective requirement, there are
a number of factors that a court must consider in deter-
mining whether excessive physical force has been used such
as “the need for an application of force, the relationship
between that need and the force applied, the threat reason-
No. 00-2758 23
ably perceived by the responsible officers, the efforts made
to temper the severity of the force employed, and the extent
of the injury suffered by the prisoner.” Id. In sum, it is
Harper’s burden to supply us with a human being or “mind”
which we may examine to determine whether specific officers
acted “with a knowing willingness that [a constitutional vio-
lation would] occur.” Id.The problem Harper faces, and has faced throughout the
factual and legal presentation of the case, is that he has
failed to identify any individual guards that violated his
constitutional rights with the use of excessive force at any
point during the transfer. More importantly, as to this ap-
peal he has likewise failed to identify any particular officer
who harmed him as he was being transferred from the strip-
search area to the segregation unit in the North Cellhouse.
See K.F.P. v. Dane County, 110 F.3d 516, 519 (7th Cir. 1997).
In order for courts to satisfy the mandate to inquire into the
state of mind of prison officials who have allegedly caused
a constitutional violation, see Wilson, 501 U.S. at 299, it is
most imperative that we are provided with “identified
culprits”; for “[w]ithout minds to examine, we cannot con-
duct an individualized inquiry.” K.P.F., 110 F.3d at 519. It
was Harper’s burden to identify, either through discovery
(which was completed to the satisfaction of both parties) or
through evidence submitted at trial, those guards that al-
legedly violated his constitutional rights during the time
frame in question; his failure to do so is fatal to the claim
and thus it was entirely proper for the district court to
grant the defendant’s Rule 50 motion.
Indeed, the only guard that Harper established was even
present while he was being taken from the strip-search
room to the North Cellhouse is Lt. Townley.17 Townley
17
The plaintiffs claim that the evidence in the record established
that, in addition to Lt. Townley, Officer Scott “escorted
(continued...)
24 No. 00-2758
stated in part of his testimony at the internal investigation
that he “helped escort HARPER to [segregation] Cell #8-42,”
but that he had “no contact with HARPER or PADILLA.”
Appendix to Appellant’s Brief at A-40. This evidence falls
far short of satisfying the mandate of Wilson v. Seiter and
Hudson v. McMillian for establishing an Eighth Amendment
violation.18 Townley’s “mere presence” during Harper’s trans-
fer from the strip-search area to a segregation cell does not,
without more, rise to the level of violation of Harper’s
constitutional rights, and is not sufficient evidence to
withstand a Rule 50 motion. Fillmore, 358 F.3d at 506.
Furthermore, in his buckshot approach to this litigation
Harper has failed to identify any particular guard, either in
his pleadings or through the evidence submitted to the jury
at any point during the trial, that used excessive force
against him during his transfer. Thus, absent any evidence
or even an allegation which could establish a constitution-
ally cognizable claim for excessive force against any of the
defendants (e.g., identification of the individual guard(s) who
used excessive force against him during the transfer pro-
cedure) Harper cannot possibly establish bystander liability
17
(...continued)
Mr. Harper from the East Cellhouse to the segregation unit.”
Appellant’s Brief at 17. However, it was reasonable for the trial
judge to conclude otherwise in refusing to reconsider his Rule 50
motion, see supra pp. 15-16, considering that, even when taken in
the light most favorable to Harper, the “Internal Investigation
Interview Sheet” falls far short of establishing that Scott escorted
Harper to his segregation cell, much less used excessive force in
doing so. See Appendix to Appellant’s Brief at A-47.
18
Indeed, the only possible application of this evidence would be
to establish a failure to intervene claim. However, as we state
supra, without establishing an underlying constitutional violation
(as the plaintiffs have failed to do) it would be impossible for a
failure to intervene claim, as a matter of law, to succeed. See
Fillmore, 358 F.3d at 505-06.
No. 00-2758 25
as to Townley or anyone else for failure to intervene, and
his claim must fail. See id.; cf. Miller, 220 F.3d at 494-96.19
19
In Miller v. Smith, 220 F.3d 495 (7th Cir. 2000) this court re-
versed the district court’s grant of summary judgment in favor of
three police officers accused of using excessive force against a
motorist whose van was mistaken for that of a fleeing robbery
suspect. In that case, Miller alleged that three officers violated his
constitutional rights, one by using excessive force and the other
two by failing to intervene. We held that the fact that Miller could
not identify the specific officer that beat him was not fatal to his
claim because, taking his allegations as true, whichever officer did
not directly beat him could be held responsible for failing to
intervene.
Miller is distinguishable for a number of reasons. First, the
plaintiff in Miller had a much stronger legal basis for his claim,
for he was able to identify, by name, the three officers whom
allegedly violated his constitutional rights. What’s more, Miller
alleged that one of two officers (either Smith or Brower) was the
one that actually used excessive force. By process of elimination
therefore, the other two (if the constitutional violation were estab-
lished at trial) could be held responsible for failing to intervene.
As we stated in Miller, “if [the plaintiff] can show at trial that an
officer attacked him while another officer ignored a realistic
opportunity to intervene, he can recover.” Miller, 220 F.3d at 495.
However, Harper never identified in his pleadings the particular
officer(s) that allegedly violated constitutional rights during his
transfer from the strip-search area to his segregation cell. Also, in
this case Harper has already had an opportunity to “show at trial”
that one of the officers attacked him, but could not. There is no
controversy for a jury to decide here; for Harper has simply failed
as a matter of law to establish or even allege that any individual
officer even touched him while he was being moved, much less
violated his constitutional rights. Accordingly there is no basis for
a failure to intervene claim either.
Also, it should be noted that the Miller case was reviewed before
discovery had been completed or trial had begun, where as Harper
has been given full discovery as well as their case-in-chief at trial
(continued...)
26 No. 00-2758
Without weighing the evidence or making credibility
determinations, we have examined the record and drawn all
reasonable inferences in Harper’s favor as required under
Rule 50. However, even in light of this generous standard we
hold that Harper has failed to “present a legally sufficient
evidentiary basis for a reasonable jury to find” in his favor
and thus the trial judge did not commit a reversible error
19
(...continued)
to identify the officer(s) that allegedly used excessive force against
him, which he failed to do. Under Rule 50, “where a party has
been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on
that issue” judgment as a matter of law is proper. Fed. R. Civ. P.
50(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150-51 (2000). Although, the method of analysis is essentially iden-
tical when reviewing the grant of a motion for summary judgment
and when reviewing a grant of a motion under Rule 50, they come
at different points in the proceedings. Therefore, the disposition
of this case may well have been different if we were reviewing a
grant of summary judgment and Harper would still have trial to
bear out facts supporting his claim; however, after the presenta-
tion of his case-in-chief (or during the entire trial) Harper failed
to offer any legal basis for a reasonable jury to find that any
constitutional violation had occurred.
Finally, Miller is distinguishable from this case for yet another,
more fundamental reason. Miller’s claim was premised on the
Fourth Amendment, and such claims are analyzed under a
standard of objective reasonableness. See Graham v. Connor, 490
U.S. 386, 397 (1989). Thus, Miller was not required, at the
summary judgment stage to identify a particular officer who used
excessive force as long as he had produced sufficient evidence that
one or all of the officers’ behavior was objectively unreasonable.
However, Harper’s claims are premised under the Eighth
Amendment which, as noted above, requires that the plaintiff
establish subjective intent by identifying a particular “mind to
examine.” Wilson, 501 U.S. at 300; see supra pp. 24-26. Harper
has failed to do so and therefore his claim must fail.
No. 00-2758 27
when granting the defendants’ Rule 50 motion dismissing
eight of the thirteen defendants. Fed.R.Civ.P. 50(a)(1); see
Sarkes v. Tarzian, Nos. 03-2994, 03-3098 (7th Cir. Feb. 14,
2005); Fillmore, 358 F.3d at 504; Kossman v. Northeast
Illinois Reg’l Commuter R.R. Corp., 211 F.3d 1031, 1036
(7th Cir. 2000).
B. Jury Instructions
Harper and Padilla also claim that the jury instructions
given to the jury by the magistrate judge (concerning the
five defendants not dismissed pursuant to Rule 50) erro-
neously limited their theory of recovery. Specifically, the
appellants argue that instruction 18A was “extremely lim-
ited” because it allowed the jury to consider only the actions
of the remaining five defendants when deciding whether or
not to impose liability for the alleged use of excessive force.20
20
Instruction 18A states, in pertinent part:
The plaintiff ’s complaint consists of two counts. The issues to
be decided by you under Count I of the complaint are as
follows:
Plaintiff George Harper claims that he was injured and sus-
tained damage and that defendants Duane Albert, Richard
Ferrell, and Todd Scott violated plaintiff ’s right to be free
from cruel and unusual punishment in the following respects:
Defendants Richard Ferrell and Todd Scott while escorting
plaintiff Harper between the East Cellhouse and the North
Cellhouse banged and or rammed plaintiff Harper against one
or more stationary objects.
Defendant Duane Albert, in supervising the other members
of the tactical unit and allowing with his knowledge and con-
sent those tactical members to punch, kick, beat and ram
plaintiff Harper into stationary objects from the time he left
cell in the East Cellhouse until the completion of the strip
search.
(continued...)
28 No. 00-2758
In essence, this is quite simply another attack on the
judge’s decision to grant the defendants’ Rule 50 motion.
We review jury instructions for an abuse of discretion
only, and will approve “instructions that fairly and accu-
rately summarize the law and have support in the record.”
United States v. Messino, 382 F.3d 704, 710 (7th Cir. 2004)
(quoting United States v. Jefferson, 334 F.3d 670, 672 (7th
20
(...continued)
The plaintiff claims that one or more of the foregoing was a
proximate cause of his injuries.
The defendants deny doing the things claimed by the plaintiff
and deny that they acted maliciously and sadistically.
The defendants further deny that plaintiff was injured or
sustained damages to the extent claimed.
Turning now to Count II of the complaint, the issues to be
decided by you under that Count are as follows:
Plaintiff Robert Padilla claims that he was injured and sus-
tained and damages and that defendants Duane Albert, Tom
Lawless and Joseph Edmonds violated plaintiff ’s right to be
free from cruel and unusual punishment in the following
respects:
Defendants Tom Lawless and Joseph Edmonds while escort-
ing plaintiff Padilla between Cell 2-14 in the East Cellhouse
and the North Cellhouse banged and or rammed plaintiff
Padilla against one or more stationary objects.
Defendant Duane Albert, in supervising the other members
of the tactical unit and allowing with his knowledge and
consent those tactical members to punch, kick, beat and ram
plaintiff Padilla in stationary objects.
The plaintiff claims that one or more of the foregoing was a
proximate cause of his injuries.
Defendants deny doing the things claimed by the plaintiff and
deny that they acted maliciously and sadistically.
Defendants further deny that plaintiff was injured or sus-
tained damages to the extent claimed.
No. 00-2758 29
Cir. 2003)). In view of the fact that we have previously
determined that the magistrate judge did not err when he
granted the defendants’ Rule 50 motion we are likewise
unmoved at what is essentially a collateral attack on that
ruling. The plaintiffs’ joint and several liability argument
lacks a foundation in either fact or law and therefore did
not merit submission to the jury. Also, it is worth noting that,
as discussed above, the special interrogatories submitted to
the jury asked the jurors whether any of the guards used
excessive force for the majority of the transfer procedure for
both prisoners, to which they unanimously answered “no.”
In addition, Harper and Padilla waived the specific ob-
jection to jury instruction 18A that they raise on appeal
because their objection at trial was on another, more con-
fined, basis.21 See Shobert v. Ill. Dept. Of Transport, 304
F.3d 725, 730 (7th Cir. 2002); Coulter v. Vitale, 882 F.2d
1286, 1290 (7th Cir. 1989).
C. Evidence of Indemnification
In their final unavailing assignment of error, Harper and
Padilla argue that the trial judge erred when he refused to
allow them to introduce evidence of the defendants’ indem-
nification by the State of Illinois for acts committed within
the scope of their official duties. Evidentiary rulings are
21
At trial Harper and Padilla objected on grounds that the jury
instruction did not contain information about specific guards, i.e.,
that Ferrell and Scott could be potentially held liable for restrain-
ing the inmates “in a way that was intended to inflict pain and
injury to their wrists.” However, on appeal they argue that the
instruction should have encompassed a joint and several liability
theory. There is no question that these are two substantively
separate and distinct grounds for objections and therefore, the
argument advanced here is waived. See Shobert, 304 F.3d at 730;
Coulter, 882 F.2d at 1290.
30 No. 00-2758
reviewed for abuse of discretion only, and will not be over-
turned unless we were to conclude, which we do not, that
the judge’s ruling was both erroneous and affected the out-
come of the case. See Cooper-Schut v. Visteon Auto. Sys.,
361 F.3d 421, 429 (7th Cir. 2004). However, because the jury
found in favor of the defendants and because we have deter-
mined that it was not error for the judge to dismiss the other
eight defendants, Harper and Padilla were not entitled to
any recovery in this case and, thus, the issue of damages
has been rendered moot. See Hoffman v. Caterpillar, Inc.,
368 F.3d 709, 720 (7th Cir. 2004); Knapp v. Eagle Prop.
Mgmt. Corp., 54 F.3d 1272, 1281 (7th Cir. 1995). Appellants
“could not have been prejudiced by the erroneous exclusion
of any evidence relating to damages,” and therefore there
could be no error in precluding evidence relating to the
defendants’ indemnification status.
III. Conclusion
The decision of the district court is
AFFIRMED.
FLAUM, Chief Judge, concurring in part and concurring in
the judgment. While I agree with the result reached by the
majority and join much of its reasoning, I write separately
to explain one point on which I disagree. As the Court
explains, the jury’s verdict forecloses all of plaintiffs’ claims
except those brought by Harper arising between the time he
left the strip-search room and when he arrived at his
segregation cell. Harper contends that during this last leg
No. 00-2758 31
of his transfer, an unidentified officer or officers attacked
him. I agree with the conclusion that Harper’s inability to
point out which officers struck him defeats his excessive
force claim because, absent evidence implicating particular
defendants, the jury could have imposed liability in this case
only by resort to speculation. Moreover, all three judges on
this panel are in accord that Harper forfeited his failure to
intervene claim by not timely raising it below. This provides
a sufficient basis to affirm on all counts.
I respectfully disagree, however, with the majority’s alter-
nate holding regarding Harper’s failure to intervene claim
against Lt. Townley. The Court reaches the merits of this
claim and concludes that it too fails as a matter of law be-
cause Harper does not know which officers beat him. The
majority equates Harper’s failure to identify specific culprits
with a finding that there was no underlying constitutional
violation, and therefore no duty to intervene.
In my view, Harper’s inability to pin the excessive force
claim on anyone in particular does not preclude the possi-
bility that the attack occurred. To the contrary, given that
we are reviewing the grant of judgment as a matter of law,
we must accept as true Harper’s testimony that, while being
moved from the strip-search room to his segregation cell,
“officers went out of their way to run him head-first into
whatever metal objects they came upon,” and that when he
arrived at the cell, “one of the larger officers grabbed him by
the neck and propelled him into the cell causing him to
strike his head on the wall and lose consciousness.” See
Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.
1999) (“Judgments as a matter of law are reviewed by
appellate courts in the same fashion as summary judgment
motions.”). If believed, this testimony shows that some offi-
cer or officers used excessive force in violation of Harper’s
Eighth Amendment rights. Moreover, prison records confirm
that Lt. Townley helped escort Harper from the strip-search
room to the segregation cell. While there is no evidence that
32 No. 00-2758
Lt. Townley laid so much as a finger on Harper, the lieuten-
ant would have been duty-bound to attempt to prevent an
attack by his fellow officers if he had reason to know that
excessive force was being used and a realistic opportunity
to prevent it. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.
1994). Harper’s testimony combined with prison records
showing that Lt. Townley was present at the time of the
alleged beating establish a jury issue on this claim.
I believe that the majority’s reasoning creates at least
some tension with our holding in Miller v. Smith, 220 F.3d
491 (7th Cir. 2000). The plaintiff in Miller alleged that, after
being mistaken for a fleeing armed felon, he was arrested
by Indiana state troopers, handcuffed, and ordered to lie on
the ground. While he laid there, one of two troopers—the
plaintiff could not say which—kicked him in the back,
stepped on his face, and yanked him around by his hair. Id.
at 493. The plaintiff was able to identify specifically a third
officer who looked on but did nothing to stop the attack. He
sued all three officers for excessive use of force and failure
to intervene. The district court granted summary judgment
in favor of the defendants, reasoning that the plaintiff’s
inability to identify which officer attacked him precluded
his failure to intervene claims against all of the officers. Id.
at 495. We reversed: “If, as we are required to do at this
point in the case, Miller’s allegations are taken as true,
whichever officer was not directly responsible for the
beating was idly standing by.” Id. As in Miller, the evidence
viewed in the light most favorable to Harper establishes
that he was brutalized and that an identified law enforce-
ment officer who had a good chance to stop the attack did
nothing. Miller’s inability to say who landed the offending
blows did not defeat his failure to intervene claims; Harper’s
similar lack of evidence should not be treated any differ-
ently. Nevertheless, because I agree that Harper forfeited
this claim, I join the result reached by the majority.
No. 00-2758 33
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-05