Emmanuel Mensai Okai v. Lieutenant Kelly Verfuth, Robert Zachary

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3277
Emmanuel Mensai Okai,
Plaintiff-Appellant,
v.
Lieutenant Kelly Verfuth,
Robert Zachary, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-047--G. Patrick Murphy, Chief Judge.
Argued September 6, 2001--Decided December 21, 2001
Before Coffey, Kanne, and Evans, Circuit
Judges.
Coffey, Circuit Judge. Emmanuel Mensai
Okai filed suit under 42 U.S.C. sec. 1983
and 42 U.S.C. sec. 1985(3) alleging that
certain correctional officers at the
Federal Correctional Institute in
Greenville, Illinois, beat him while
transporting him between housing units on
October 25, 1995. Okai was moved after
other prisoners had rioted on October 20,
requiring that a number of prisoners be
relocated in order that the prison
authorities might repair the damage to
several cell blocks. Shortly after the
riot, Lieutenant Kelly Verfuth and
Officer Robert Zachary both were
suspended for reasons undisclosed in the
record. Okai was desiring of introducing
evidence of Verfuth’s and Zachary’s
suspensions from their prison guard
positions in order that he might
demonstrate their respective motives to
assault him, but the trial judge refused
to allow such evidence without a proper
showing of its relevancy. A jury returned
a verdict in favor of the defendants, and
the plaintiff-appellant Okai appeals,
arguing that he is entitled to a new
trial because the trial judge abused his
discretion when precluding him from
introducing evidence of Lieutenant
Verfuth’s and Officer Zachary’s

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suspensions following the riot. We
affirm.
I. Factual Background
On October 20, 1995, inmates at FCI-
Greenville rioted and damaged three cell
blocks--H3A, H3B and H2B. As a result,
prison officials shuffled housing
assignments in order that they might
facilitate the necessary repairs. Even
though Okai was housed in cell block H4A
and had not participated in the riots,
prison officials decided to reassign him
to the Special Housing Unit ("SHU"). Okai
alleged that the defendants, Lieutenant
Verfuth, Officer Zachary, Officer
Gilbert, Officer Martin, Case Manager
Pottios, and Officer Phillips beat him
without any justification while
transferring him to the SHU.
According to Okai, defendants Zachary,
Phillips, Pottios, and Gilbert entered
his cell on October 25, 1995, and
thereafter Officer Zachary slammed him
against the prison wall. Okai claimed
that Zachary stood behind him and taunted
him, repeating "I got you now." Okai
alleged that after the initial assault he
was handcuffed and walked down the steps
of the housing unit, where Lieutenant
Verfuth met the officers. Okai alleged
that Verfuth, upon being informed that
Okai had been resisting the officers’
efforts to relocate him, sprayed him with
mace or pepper spray causing him to fall
to the ground. Okai claimed that after he
fell to the ground, the officers began to
kick him. Okai claimed that the officers
repeatedly beat him on the way to the
SHU. That evening, Okai informed a
physician’s assistant in the SHU that he
needed a doctor to examine his alleged
injuries resulting from the assaults,
though he was not seen at that time./1
During discovery Okai learned that other
inmates had filed administrative charges,
and eventually lawsuits, against
Lieutenant Verfuth and Officer Zachary in
which they complained that Verfuth and
Zachary had engaged in improper conduct
against other inmates during the
relocation of prisoners after the October
20 riots. Okai also learned that Verfuth
and Zachary had been placed on home duty
with pay for approximately six months
following the riot. Further, Okai also
learned that Verfuth was suspended for 20

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days and Zachary for 30 days. Okai
believed that Verfuth’s and Zachary’s
suspensions were related to their
behavior during or after the riots and
sought to introduce evidence of the
suspensions at trial.
Prior to trial, the defendants moved in
limine to exclude all evidence related to
the suspensions of Lieutenant Verfuth and
Officer Zachary. The defendants argued
that suspensions for conduct not
involving Okai lacked relevance, except
for the improper purpose of suggesting
they treated him in conformity with their
misconduct involving other prisoners. In
support Verfuth and Zachary submitted
affidavits in which they admitted being
suspended after several inmates
complained of being abused during their
transfers from one prison unit to
another, but denied being involved in
Okai’s transfer at any time.
Okai responded, arguing that the
evidence was admissible to establish the
defendants’ motive to beat him, as well
as their identity, under Federal Rule of
Evidence 404(b). Okai speculated that his
history of filing administrative
complaints provided a motive for the
defendants to beat him and that during
the moves to the SHU the guards generally
retaliated against all prisoners they
suspected of having participated in the
riots. Furthermore, Okai contended that
evidence of the suspensions would be
proper to establish the identity of the
officers that had allegedly beaten him.
The trial court inquired of Okai as to
whether he could provide any evidence
that Lieutenant Verfuth and Officer
Zachary were disciplined as a result of
any of his complaints. Okai offered none,
but added that the defendants had yet to
satisfy his discovery requests for the
disciplinary reports underlying the
suspensions. The trial court asked
Verfuth’s and Zachary’s defense counsel
whether any complaint filed by the
plaintiff, Okai, factored into the
suspensions of Verfuth or Zachary and was
advised to the contrary. Okai never did
present the disciplinary reports to the
trial judge for an in camera review.
Accordingly, the trial judge excluded
evidence of Verfuth’s and Zachary’s
suspensions, ruling that they were not
relevant to establishing a matter at

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issue in trial.
During the three-day jury trial, Okai
called three inmates to testify that they
had witnessed the officers beat Okai
while transporting him to the SHU. In
response to the inmates’ testimony,
Officers Gilbert, Martin, Pottios and
Phillips all testified that they had
played no role in the transfer of Okai
form his cell in block H4A to the SHU. In
fact, the shift log revealed that Officer
Martin had not been on duty during the
evening of October 25 at the time Okai
claimed to have been beaten while being
transferred. Okai called an additional
inmate to rebut the defendants’ claim
that they had not taken part in his move.
After the three-day jury trial, the jury
returned a verdict in favor of the
defendants.
II. Issues
On appeal, Okai argues that the trial
court erred when it excluded evidence of
Lieutenant Verfuth’s and Officer
Zachary’s suspensions following the riot.
Okai again contends that evidence of
Lieutenant Verfuth’s and Officer
Zachary’s suspensions was relevant to
establish the motive, opportunity, and
identity of his attackers.
III. Analysis
We review a trial court’s evidentiary
ruling under Rule 404(b) excluding
evidence of other bad acts under the
abuse of discretion standard. Treece v.
Hochstetler, 213 F.3d 360, 363 (7th Cir.
2000). "’The district court’s
determination of the admissibility of
evidence is treated with great deference
because of the trial judge’s firsthand
exposure to the witnesses and the
evidence as a whole, and because of his
familiarity with the case and ability to
gauge the likely impact of the evidence
in the context of the entire proceedings.’"
United States v. Denberg, 212 F.3d 987,
992 (7th Cir. 2000) (quoting United
States v. Curry, 79 F.3d 1489, 1495 (7th
Cir. 1996)); see also United States v.
Moore, 115 F.3d 1348, 1354 (7th Cir.
1997); United States v. Lloyd, 71 F.3d
1256, 1264 (7th Cir. 1995). Because of
the special deference we give to the
trial judge’s evidentiary rulings, we
will not reverse unless "the record

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contains no evidence on which [the trial
judge] rationally could have based [his]
decision." United States v. Walton, 217
F.3d 443, 449 (7th Cir. 1999). "Only in
extreme cases are appellate judges
competent to second-guess the judgment of
the person on the spot, the trial judge,"
and this is not one of them. United
States v. Fawley, 137 F.3d 458, 466 (7th
Cir. 1998) (internal quotations omitted).
The Federal Rules of Evidence prohibit
the use of "other crimes, wrongs, or acts
. . . to prove the character of a person
in order to show action in conformity
therewith." Fed. R. Evid. 404(b). Such
acts, however, are admissible if offered
for other purposes, such as motive,
intent, plan, or opportunity. Fed. R.
Evid. 404(b); Treece, 213 F.3d at 363
n.7. Trial judges are to apply a four-
prong test to determine the admissibility
of other bad acts. Treece, 213 F.3d at
363. First, proof of the other act must
be directed towards establishing a matter
in issue other than the defendant’s
propensity to commit like conduct.
Second, the other act must be of recent
vintage and sufficiently similar to be
relevant to the matter in issue. Third,
there must be a sufficient amount of
evidence for the factfinder to conclude
that the similar act was committed. And
fourth, the probative value of the
evidence must not be outweighed by the
danger of unfair prejudice. Id.
With regard to the first prong, Okai
initially argues that evidence of
Lieutenant Verfuth’s and Officer
Zachary’s suspensions following the
October riot was admissible because it
serves to establish the defendants’
motive to retaliate against all of those
inmates they suspected had participated
in the riots or disliked for other
reasons, including Okai./2 Okai
speculates that the numerous grievances
he had filed before the riots caused the
officers to dislike him. According to
Okai’s theory, the officers took
advantage of the post-riot transfer
procedures as an opportunity to exact
revenge against him for the filing of
those grievances. In support of his
motion to admit the evidence, Okai
suggests that Rule 404(b) permits a
plaintiff in an excessive force action to
introduce at trial disciplinary reports
that concern prior instances of excessive

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force used by an officer. See Wilson v.
City of Chicago, 6 F.3d 1233, 1238 (7th
Cir. 1993); Edwards v. Thomas, 31 F.
Supp. 2d 1069 (N.D. Ill. 1999).
In Wilson, the trial judge excluded
evidence that officers had interrogated
another suspect using an electroshock
device nine days before the plaintiff
alleged that they had interrogated him in
that manner. Wilson, 6 F.3d at 1238. In
noting that the trial judge erred in
excluding evidence of the officer’s
previous interrogation methods, we noted
that 404(b) evidence is admissible to
establish "intent, opportunity,
preparation, and plan." Id. In Edwards,
the trial judge, relying primarily on
Wilson, allowed the plaintiff to use
evidence of a sustained excessive force
complaint against the defendant-police
officer in order to establish the
defendant-officer’s intent to use
excessive force during his interrogation
of the plaintiff. Edwards, 31 F. Supp. 2d
at 1074. In both cases, the plaintiffs
had actual evidence, in the form of
sustained complaints or potential witness
testimony, that they hoped to introduce.
But a reading of those cases reveals that
they do not stand for the proposed broad
and expanded principle that a trial judge
must allow a plaintiff to introduce
evidence of prior disciplinary reports
against an officer in the context of an
excessive force action. Rule 404(b)
involves a discretionary decision for
which the trial judge is best suited
because of "his familiarity with the case
and ability to gauge the likely impact of
the evidence in the context of the entire
proceeding." Denberg, 212 F.3d at 992;
see also Treece, 213 F.3d at 363.
In this case, the trial judge
specifically inquired of Okai’s counsel
whether he had any evidence in support of
his theory that the officers were
suspended for retaliating against various
prisoners, including Okai, after the
riot. Okai’s counsel responded that he
did not "know why they were suspended . .
. [and] whether [their suspensions]
involved [Okai]." Federal Rule of
Evidence 103 provides that "error may not
be predicated upon a ruling which . . .
excludes evidence unless a substantial
right of the party is affected" and "the
substance of the evidence [excluded] was
made known to the court by offer or was

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apparent from the context within which
questions were asked," and there is no
evidence that Okai met this standard.
Fed. R. Evid. 103(a)(2). A party who
complains about the exclusion of evidence
is required to demonstrate with an offer
of proof that the evidence would have
been helpful. J.H. Desnick, M.D. v.
American Broadcasting Co., Inc., 233 F.3d
514, 520 (7th Cir. 2000). Although a
party need not make a formal offer of
proof, he must at a minimum make known to
the trial judge the substance of the
evidence he hopes to present. United
States v. Jackson, 208 F.3d 633, 636-37
(7th Cir. 2000); Young v. Rabideau, 821
F.2d 373, 376 (7th Cir. 1987).
Unlike the plaintiffs in Wilson and
Edwards, Okai failed to make an offer of
proof detailing the substance of the dis
ciplinary reports, much less whether they
established that the officers improperly
retaliated against prisoners after the
riots. Indeed, Okai admitted that he did
not "know why they were suspended." See
Wilson, 6 F.3d at 1237-38; Edwards, 31 F.
Supp. 2d at 1074; see also Medcom Holding
Co. v. Baxter Travenol Lab., Inc., 106
F.3d 1388, 1395 (7th Cir. 1997)
(requiring plaintiff to file an offer of
proof in attempt to introduce 404(b)
evidence); United States v. Martinez, 988
F.2d 685, 700 (7th Cir. 1993) (holding
that trial court’s exclusion of 404(b)
evidence on grounds of failure to make a
proper offer of proof was justified);
United States v. Sullivan, 911 F.2d 2, 7
(7th Cir. 1990) (requiring government to
make an offer of proof concerning Rule
404(b) testimony); McCluney v. JOS.
Schlitz Brewing Co., 728 F.2d 924, 929
(7th Cir. 1984) (requiring plaintiff to
submit offer of proof in attempt to
introduce 404(b) evidence).
Okai suggests that he was not required
to make an offer of proof because the
officers admitted to having been
suspended. But merely because the
officers were disciplined fails to shed
any light upon the reasons for the
officers’ suspensions, and it certainly
does not compel one to conclude that the
officers were suspended because they
retaliated against inmates after the
prison riot, much less this particular
inmate. The officers could have been
suspended for any number of plausible
reasons. In other words, Okai failed to

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give any reason at all as to why the
officers were suspended or how those
suspensions might have been connected to
their motive to retaliate against him.
Without this information, the trial judge
had no way of determining whether the
officers’ suspensions would be relevant
to establish their motive to assault
Okai. Cf. United States v. Harvey, 959
F.2d 1371, 1374-75 (7th Cir. 1992)
(excluding evidence where party seeking
its admission made only vague response
regarding its admissibility).
Despite Okai’s failure to provide the
court with copies of the disciplinary
reports or any other reliable official
information regarding the basis for and
nature of the officers’ discipline, the
trial judge did undertake a careful
review of the applicable case law as
applied to the facts before him in an
attempt to assess the viability of Okai’s
theory. The only evidence regarding the
substance of the disciplinary reports and
the nature of the officers’ suspensions
came in the form of affidavits from
Lieutenant Verfuth and Officer Zachary.
In those affidavits, both officers
averred that their suspensions were
unrelated to anything that happened to
Okai. Although Okai suggests that his
failure to provide the trial judge with a
copy of the disciplinary reports was
caused by the defendants’ refusal to
produce them, the record reveals that
defendants informed Okai that the reports
were not in their possession but instead
were in the possession of the Bureau of
Prisons, and Okai never sought production
of them. In short, Okai, even after being
advised as to how to obtain the documents
he sought, never made a proper effort to
obtain copies of the disciplinary reports
in order that he might test the veracity
and merit of his theory. Without
knowledge of the substance and content of
the disciplinary reports, it is
impossible for Okai’s theory to be based
on anything but mere speculation. He
failed to present any evidence whatsoever
to establish why Verfuth and Zachary were
suspended. On the other hand, both
Verfuth and Zachary filed identical
affidavits in which they recite that they
were not involved in Okai’s transfer from
one cell unit to another. In the absence
of a scintilla of evidence to demonstrate
that the suspensions of Lieutenant
Verfuth and Officer Zachary were relevant

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to establish their motive for allegedly
beating the plaintiff, we conclude that
the trial judge did not abuse his
discretion in excluding the evidence of
the suspensions.
Okai also argues that the evidence of
the discipline given to Verfuth and
Zachary would be relevant to show
identity. This argument is also untenable
because there was no question as to the
identity of the officers who allegedly
assaulted him--Verfuth and Zachary never
presented the defense that Okai had
mistaken them for other officers. Rule
404(b) requires that the evidence be
directed at establishing a matter at
issue. Treece, 213 F.3d at 363; United
States v. Robinson, 161 F.3d 463, 467
(7th Cir. 1998).
IV. Conclusion
At trial, Okai failed to submit any
evidence to establish that the
suspensions of Lieutenant Verfuth and
Officer Zachary would have been relevant
to establish a matter at issue other than
their alleged propensity to commit
thealleged offense. Okai never provided
the trial judge with the opportunity to
assess the viability of Okai’s theory
that the officers were motivated by the
prison riot to exact revenge on inmates
they disliked. We are convinced the trial
judge made a principled exercise of
discretion in ruling to exclude evidence
of the officers’ suspensions.
AFFIRMED.
FOOTNOTES
/1 Okai’s medical records were made part of the
record. The records establish that Okai had made
numerous complaints about back pain since August
1994. On November 2, 1995, eight days after he
was allegedly assaulted, Okai was seen by a
prison nurse. Okai complained of lower back pain,
but made no allegation of having been assaulted.
On November 22, 1995, Okai was seen by a prison
physician because he complained that his back
pain had caused him to fall and to suffer a cut
and bruise above his left eye, but again made no
allegation of having been assaulted. Throughout
1996, Okai continued to complain of lower back
pain. On January 2, 1997, after he had been
transferred to FCI-Oxford, Okai told a prison
physician at that facility that he had been
experiencing depression, anxiety, and difficulty

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sleeping, all stemming from the alleged October
25, 1995, assault.
/2 We note that, even if Okai had presented evidence
to establish that Lieutenant Verfuth and Officer
Zachary were suspended as a result of improper
treatment of other inmates, Okai failed to pres-
ent any evidence that would link the suspensions
of the officers to any misconduct they allegedly
committed against Okai. Furthermore, Okai failed
to offer any explanation why the suspensions of
Verfuth and Zachary would be relevant to the
other defendants--Officers Gilbert, Martin, and
Phillips and Case Manager Pottios.

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