Jerry Jellis v. Larry Hale

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2020*
Decided December 8, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3362
JERRY JELLIS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 3:15-cv-00630-GCS
LARRY HALE, et al., Gilbert C. Sison,
Defendants-Appellees. Magistrate Judge.
ORDER
Jerry Jellis, formerly an inmate at Menard Correctional Center, lost at trial on his
claim charging two prison officers with excessive force. On appeal he challenges several
evidentiary rulings made before and during trial. Because the district court’s rulings
reflect an appropriate exercise of discretion, we affirm.
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-3362 Page 2
This suit arose out of an incident that took place in Menard’s general-population
yard in 2013. After a gunshot rang out, Jellis defied an order by the warden to drop to
the ground. He was handcuffed and then escorted to the segregation wing by two
officers, Larry Hale and Donald Lindenburg. In Jellis’s telling, he was assaulted by the
officers on the way to segregation and in a holding cell, but we credit the version of the
facts that support the jury’s verdict. Gracia v. Sigmatron Int’l, Inc., 842 F.3d 1010, 1018
(7th Cir. 2016). The prison investigated Jellis’s assault claims but found them to be
unsubstantiated.
Jellis brought this suit under 42 U.S.C. § 1983 asserting claims under the Eighth
and Fourteenth Amendments. The case eventually proceeded to trial before a
magistrate judge, see 28 U.S.C. § 636(c), on Jellis’s claim that Hale and Lindenburg used
excessive force against him.1
Along the way, the court denied two motions in limine—rulings that, Jellis
believes, affected the trial’s outcome. First, the court denied his request that Hale and
Lindenberg be barred from presenting what he regards as irrelevant evidence—
evidence that he was familiar with the grievance process (having filed grievances in the
past) yet filed no grievance here with regard to the alleged assault. The court also
denied Jellis’s request to require the two officers to testify consistently with his
deposition testimony (included with their summary judgment motion) describing how
he was kicked and hit.
The court also granted the defendants’ motions in limine to exclude evidence
relating to video cameras or video surveillance of the alleged assault. Defendants
acknowledged the existence of cameras in the relevant area but asserted that one
camera was non-operational at the time and that footage from the other cameras had
since been deleted. Relatedly, the court later denied Jellis’s request for an
adverse-inference jury instruction based on spoliation of video evidence. As the court
explained, there was “little-to-no non-speculative evidence that an incriminatory video
ever existed,” let alone any evidence about what the video might have shown or that its
destruction took place for any reason other than the prison’s policy for retaining videos.
1 Jellis also was allowed to proceed—and lost—at trial on his claim that a
medical technician acted with deliberate indifference in delaying treatment. On appeal
he raises no argument about this claim, so we say nothing further about it.
No. 19-3362 Page 3
At trial, the court permitted Jellis’s counsel to inquire about the absence of video
evidence in the prison’s post-incident investigation. After the prison presented
testimony from an official who confirmed that one camera was non-operational, Jellis
asked to call Robert Woodall, a fellow prisoner, to testify about his role in installing
other video cameras near the location of the incident. But the court denied the request,
noting—based on its reading of Woodall’s declaration—that he could not “testify that
[the camera] was working,” and in any event he was a prisoner who was not under
subpoena.
The jury ultimately returned a verdict for the defendants.
On appeal, Jellis first argues that the district court abused its discretion in ruling
against him on the motions in limine. But our review of these rulings is hindered by
Jellis’s failure to order a transcript of the final pretrial conference, in which the district
court stated its reasons on the record. We cannot review a decision without knowing
the district court’s reasons. See FED. R. APP. P. 10(b)(2); Hicks v. Avery Drei, LLC, 654 F.3d
739, 743–44 (7th Cir. 2011) (review not possible when appellant did not request
transcription of oral arguments or bench ruling on motion in limine).
Jellis next argues that the district court abused its discretion when it denied his
motion for an adverse-inference instruction regarding the absence of video footage. An
adverse-inference instruction is appropriate when a party had a duty to preserve
evidence and the evidence is destroyed in bad faith. Bracey v. Grondin, 712 F.3d 1012,
1018–19 (7th Cir. 2013). Jellis infers bad-faith destruction of evidence from the
defendants’ responses to his discovery requests. First, in his view, the defendants
waffled in their timeline of how long video footage is retained: In one response, the
defendants stated that footage is destroyed after 90 days, but in another response they
changed that figure to 30 days for one area. Second, Jellis, for the first time, questions
the veracity of a statement in the prison’s investigation report that the pertinent video
camera was “nonoperational”; he recalls an investigator telling him that he knew the
identity of the officers “on camera.”
The court appropriately denied the motion on grounds that Jellis had not
introduced competent evidence that any video footage had been destroyed in bad faith.
A request for an adverse-inference instruction requires more than speculation that
evidence was destroyed to hide it. Id. at 1019–20. Jellis points to nothing in the record to
suggest the defendants intentionally destroyed any video evidence, or that its
destruction occurred outside the regular course of the prison’s retention policy. With
No. 19-3362 Page 4
regard to his argument that the defendants responded inconsistently about the length of
time that the prison retained video footage (be it 30 or 90 days), the precise duration is
immaterial here, given that any footage would have been destroyed by the time he filed
this lawsuit in 2015, nearly two years after the incident.2 As for Jellis’s other argument,
concerning the veracity of the investigation report, he not only waived the argument by
failing to raise it first in the district court, see Sauk Prairie Conservation All. v.
United States Dep't of the Interior, 944 F.3d 664, 674 (7th Cir. 2019), cert. denied sub nom.
Sauk Prairie Conservation All. v. United States Dep't of the Interior, 140 S. Ct. 2764 (2020),
but the court also aptly rejected his evidence as speculative.
Jellis next argues that the district court abused its discretion when it denied his
request to call Woodall as a witness at trial to testify that he installed the video cameras
and knew that they were operational. But the court exercised appropriate discretion in
denying the request because, as Jellis’s counsel conceded at the time, Woodall lacked
personal knowledge of whether the video cameras were operational when the incident
occurred. See FED. R. EVID. 401; Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am.,
849 F.3d 355, 371 (7th Cir. 2017).
Finally, Jellis challenges a protective order, entered on the eve of trial, concerning
photographs and the investigation report. He suggests that the order relieved the
defendants from, for instance, having to lay a foundation for certain witnesses who they
wanted to testify. But Jellis’s trial counsel waived this challenge by informing the court
that she did not object to entry of the order. See Hamer v. Neighborhood Hous. Servs. of
Chi., 897 F.3d 835, 840 (7th Cir. 2018).
AFFIRMED
2 To the extent Jellis believes that the prison should have anticipated litigation
involving footage from nearby operational camera sites, he has not explained how the
prison should have been on notice before this lawsuit of any allegations of excessive
force taking place in the surveillance area in question.