Lampley, Tommy E. v. McBride, Daniel

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2006*
Decided November 2, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2527
TOMMY E. LAMPLEY, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
South Bend Division
v.
No. 3:03 CV 338
DANIEL R. McBRIDE, et al.,
Defendants-Appellees. Andrew P. Rodovich,
Magistrate Judge.
ORDER
Indiana inmate Tommy Lampley filed this pro se suit under 42 U.S.C. § 1983,
bringing various Eighth Amendment and retaliation claims against employees of
the Indiana Department of Correction. Following a three-day bench trial, a
magistrate judge presiding with the parties’ consent entered judgment in favor of
the defendants. Lampley appeals, but because he has failed to provide us with a
trial transcript, we must dismiss his appeal. See Fed. R. App. P. 10(b)(2).
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2527 Page 2
Lampley’s amended complaint alleged three incidents, each involving
different prison employees. First, Lampley claimed that prison employees were
deliberately indifferent to his safety on June 19, 2002 by failing to secure a
door—thereby allowing an inmate to attack him—and then by not treating his
injuries. Second, Lampley claimed that guards used excessive force and retaliated
against him for filing complaints and lawsuits when a guard bit his finger during an
altercation on June 28, 2002. Finally, Lampley claimed that on July 12, 2003,
guards retaliated against him when they removed—and did not return—personal
property from his cell after his cell was smeared with feces. In an order dated
August 18, 2006, the magistrate judge observed that he had rejected as incredible
virtually all of Lampley’s evidence on these claims.
Lampley argues on appeal that the judge should have believed his witnesses
rather than the defendants’. Lampley also argues in general terms that “exhibits
that were entered into evidence to back up [his] allegations . . . were ignored by the
Magistrate Judge during trial and during the decision at the end of trial.”
We will not disturb a district court’s factual and credibility determinations
unless they are clearly erroneous. See Fed. R. Civ. P. 52(a); Gaffney v. Riverboat
Servs. of Ind., Inc., 451 F.3d 424, 447 (7th Cir. 2006); Cerros v. Steel Techs., Inc.,
288 F.3d 1040, 1044 (7th Cir. 2002). But Lampley’s appeal faces another obstacle:
we cannot conduct any meaningful appellate review of the trial record and the
district court’s findings because Lampley has not included a trial transcript in the
record. See Piggie v. Cotton, 342 F.3d 660, 663 (7th Cir. 2003); LaFollette v. Savage,
63 F.3d 540, 544 (7th Cir. 1995). Federal Rule of Appellate Procedure 10(b)(2)
provides that “[i]f the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion.” Fed. R. App. P. 10(b)(2); see Learning Curve Toys, Inc. v.
PlayWood Toys, Inc., 342 F.3d 714, 731 n.10 (7th Cir. 2003). Without the
transcript, “we are unable to evaluate the evidence submitted in this case.”
Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d 572, 581 (7th Cir. 2001)
(citation omitted).
Since all of Lampley’s arguments require us to evaluate the evidence
presented at trial, all of his arguments are forfeited by virtue of his failure to supply
us with a transcript, and we may therefore dismiss his appeal. See LaFollette, 63
F.3d at 544 (“dismissal is the appropriate course if the absence of a complete record
precludes meaningful appellate review”); Woods v. Thieret, 5 F.3d 244, 245-46 (7th
Cir. 1993) (dismissing appeal of pro se plaintiff for failure to provide transcript).
Lampley asked the district court to provide a transcript at public expense,
but that is not required if the district court believes the appeal is frivolous, as the
judge so certified here when he denied Lampley’s request. See 28 U.S.C. § 753(f);
No. 06-2527 Page 3
United States v. MacCollom, 426 U.S. 317 (1976). And we agree with the judge’s
stated reasons that any challenge to the district court’s credibility determinations
would be frivolous because we do not re-weigh such determinations on appeal.
Lampley did not renew his request to receive a free copy of the transcript before this
court or otherwise argue that the district court’s order regarding the transcript was
erroneous.
Accordingly, his appeal is DISMISSED.