Lavell C. Herbert v. Elsworth Smith, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 26, 2015 *
Decided June 10, 2015
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-3405
LAVELL C. HERBERT,
Plaintiff-Appellant,
v.
ELSWORTH SMITH, JR., et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13 C 6122
Matthew F. Kennelly,
Judge.
O R D E R
Lavell Herbert appeals a final judgment entered upon a jury verdict for two
Chicago police officers and the City of Chicago in a suit filed under 42 U.S.C. § 1983
asserting claims of false arrest, excessive force, and malicious prosecution. Herbert
contends that he was denied a fair trial because the defendants lied on the stand and
fabricated evidence, but we cannot begin to assess that contention because Herbert has
not supplied a transcript of the trial. See FED. R. A PP. P. 10(b); Hicks v. Avery Drei, LLC, 654
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 14-3405 Page 2
F.3d 739, 743–44 (7th Cir. 2011); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d
714, 731 n.10 (7th Cir. 2003); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir. 1993). He asked the
district court for a copy of the transcript at public expense, but the district court
determined that Herbert had not satisfied his obligation to identify a colorable issue to
present on appeal. See 28 U.S.C. § 753(f) (indigent defendant entitled to free transcript if
judge certifies that appeal is not frivolous). And in any event Herbert does not point to
any specific evidence or statements produced at trial that he believes were improper.
Herbert also asserts that his lawyer in his § 1983 suit was constitutionally
ineffective and that the defendants withheld a video of his arrest that, he believes, they
were obligated to produce. But in this civil suit Herbert does not have a constitutional
right to effective assistance of counsel. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.
2001). And as a civil plaintiff he is not entitled to the video, particularly because he does
not assert that he ever requested it or that the defendants relied on it. See FED. R. C IV. P.
26(a); cf. Brady v. Maryland, 373 U.S. 83 (1963) (recognizing criminal defendant’s
constitutional right to receive exculpatory evidence from prosecutor).
We have considered Herbert’s remaining arguments and none has merit.
AFFIRMED.

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