Cleother Tidwell v. Bryce Hicks

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2365
C LEOTHER TIDWELL,
Plaintiff-Appellant,
v.
BRYCE HICKS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 10-cv-974-JPG-PMF — J. Phil Gilbert, Judge.
____________________
S UBMITTED M AY 26, 2015* — DECIDED J UNE 26, 2015
____________________
Before WOOD, Chief Judge, and C UDAHY and R IPPLE, Cir-
cuit Judges.
W OOD, Chief Judge. Cleother Tidwell, an Illinois inmate,
brought this suit under 42 U.S.C. § 1983; in it, he contends
that three prison guards violated his Eighth Amendment
* After examining the briefs and record, we have concluded that oral
argument is unnecessary. The appeal is therefore submitted on the briefs
and record. See FED . R. A PP. P. 34(a)(2)(C).

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2 No. 14-2365
rights when they failed to protect him from attack by a fel-
low inmate and then subjected him to excessive force by re-
straining him during the attack. The district court granted
judgment as a matter of law for two of the guards, and a jury
returned a verdict in favor of the third. We affirm.
I
The underlying incident occurred on November 30, 2008,
at Pinckneyville Correctional Center, where Tidwell was
then confined. (He was later moved to Menard Correctional
Center.) Before that date, Tidwell had experienced several
run-ins with fellow inmate Levi Hoyle. The encounters were
becoming increasingly violent; one involved a scuffle in
which Tidwell says he was grabbed and held by one prison
guard while Hoyle punched him repeatedly.
Tidwell filed a form civil-rights complaint and promptly
moved to have counsel recruited for him. The district court
granted the motion, and Tidwell, through counsel, amended
his complaint to allege both excessive-force and failure-to-
protect claims under the Eighth Amendment. But communi-
cations between Tidwell and his attorneys broke down, and
eventually the court granted the attorneys’ motion to with-
draw. Nevertheless, Tidwell continued to ask the court for
assistance of counsel or an investigator to help him locate
former inmates to testify at trial. The court denied these re-
quests, but it directed that Tidwell be provided subpoena
forms, and it recruited standby counsel to assist him at trial.
Once trial began, however, Tidwell moved to discharge
standby counsel, and the court granted the motion.
At trial Tidwell testified that he had been in the segrega-
tion unit at Pinckneyville for only a short time when he came

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No. 14-2365 3
into conflict with Hoyle, an inmate-worker who delivered
meals in the segregation unit. According to Tidwell, his
problems with Hoyle began when Hoyle repeatedly threw
his food tray into his cell so roughly that food would spill on
the floor. Hoyle also taunted him by threatening to put his
genitals in Tidwell’s food. Tidwell complained to three
guards—Cory Harbison, Paul Johnson, and Bryce Hicks—
that he did not want Hoyle delivering his food, but Hoyle
was allowed to continue with the deliveries. One day Tid-
well, exasperated with Hoyle’s provocations, tried to hit
Hoyle with a container of urine that he tossed through the
slot in his cell door. The urine unfortunately splashed both
Hoyle and Johnson, who were nearby. Both quickly depart-
ed—Johnson to change his uniform and write up an incident
report, Hoyle to shower and change. Tidwell was told to
pack up his property because he was being transferred to
another segregation unit. His cellmate was moved first, leav-
ing Tidwell behind, alone in the cell.
The parties disputed what happened next. According to
Tidwell, the three prison guards had enlisted Hoyle to beat
him in retaliation for the urine-throwing incident. The plan,
Tidwell explained, was to send Hoyle into his locked cell,
where Tidwell—handcuffed—would be unable to resist as-
sault or even escape. Tidwell testified that Hicks, Harbison,
and a third guard (who Tidwell believed was Johnson) came
to his cell under the guise of transferring him, but he quickly
suspected a set-up once he spotted Hoyle in the hallway
through his partly open door. Fearing for his safety, Tidwell
burst through his unlocked cell door and preemptively tried
to kick Hoyle. As Tidwell bolted from his cell, Hicks grabbed
him and held him so that Hoyle could beat him.

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4 No. 14-2365
The defendants’ account is quite different. They denied
any wrongdoing and maintained that Tidwell ran out of his
cell and had to be restrained. Hicks was best positioned to
do so. Only Hicks and Harbison came to transfer Tidwell, all
three guards testified; they added that Johnson was away
writing his report on the urine-throwing incident. Hoyle was
visible to Tidwell only because he was mopping up the urine
in the hallway near Tidwell’s cell. When Tidwell darted out
of his cell door toward Hoyle, Hicks pulled him back, but
Tidwell slipped on the wet floor and bumped his head on
the doorjamb. Hicks then returned Tidwell to his cell but no-
ticed that his head was bleeding and took him to the show-
ers. A prison nurse examined him; later he was sent to an
outside hospital and received stitches for the cut on his head.
Hoyle’s account did not match either of the other two. He
testified that he crept back on his own volition to the hall-
way near Tidwell’s cell in order to retaliate against him for
throwing the urine. He denied being directed to do so by the
guards.
After Tidwell rested his case, the defendants moved for
judgment as a matter of law. On the failure-to-protect claim,
Johnson and Harbison argued there was no evidence that
they knew violence was about to take place or that there was
any opportunity to intervene. Hicks argued that the only
evidence of impending violence was Tidwell’s conclusory
statement that he was set up. For the excessive-force claim,
Johnson and Harbison contended that there was no evidence
they used any force; Hicks maintained that the force that he
used to control the situation was reasonable.
The district court granted judgment as a matter of law on
both claims for Johnson and Harbison. It concluded that

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No. 14-2365 5
there was no evidence that Johnson was present at the time
of the incident or that he set Tidwell up to be attacked. As
for Harbison, the court stated, the evidence showed only
that he was positioned behind Hicks. This was not enough to
permit a finding that he was involved in any alleged set-up.
It denied the motion as it applied to Hicks, finding conflict-
ing evidence with regard to his involvement.
During the jury instruction conference, Hicks requested
an instruction stating that “[t]he law does not require any
party to call as a witness every person who might have
knowledge of the facts related to this trial.” Tidwell objected
that this instruction was incomplete because it did not
acknowledge that the jury could draw a negative inference
against a party from a witness’s absence. He asked the court
to give Seventh Circuit Pattern Jury Instruction § 1.19, which
says “[Witness] was mentioned at trial but did not testify.
You may, but are not required to, assume that [Witness’s]
testimony would have been unfavorable to [Plaintiff] [De-
fendant].” The court noted Tidwell’s objection but decided
to give Hicks’s instruction rather than Tidwell’s. It did so be-
cause the only missing witness Tidwell had mentioned was
a prison doctor, and Tidwell could have called the doctor as
his own witness. The jury returned a verdict in favor of
Hicks on both claims.
II
On appeal, Tidwell argues that the district court should
not have granted judgment as a matter of law for Johnson
and Harbison on his failure-to-protect claim. The court
erred, he asserts, by thinking it critical that there was no evi-
dence that either Johnson or Harbison knew that violence
was about to occur. A failure-to-protect claim, he maintains,

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6 No. 14-2365
does not require a guard “to have prior knowledge or some
idea that violence is imminent.” It was enough, he says, that
Harbison and Johnson stood to the side while Hicks held
him up for Hoyle to attack him.
But Tidwell misapprehends his burden in establishing a
failure-to-protect claim. Tidwell had to show, either through
direct or circumstantial evidence, that the defendants had
actual knowledge that he was at serious risk of being
harmed. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). He has
not done so. In fact, Tidwell presented no evidence that
Johnson was even present. The defendants and Johnson’s
supervisor testified that Johnson was in another area of the
segregation unit writing an incident report. The record is
devoid of evidence that would allow a reasonable jury to
conclude Johnson had any knowledge of a set-up. Nor did
Tidwell present evidence that Harbison was aware of any
risk. Harbison was standing behind Hicks in a narrow hall-
way and would not have been able to move around Hicks to
intervene when the situation blew up.
Next Tidwell argues that the court abused its discretion
by failing to give the missing-witness Pattern Jury Instruc-
tion, § 1.19. The jurors should have been told, he urges, that
they could infer that a missing witness would have testified
unfavorably with respect to the party who failed to call him.
Perhaps recognizing the weak nature of his trial showing on
this point, Tidwell now argues for the first time that Hicks
should have called three former inmates who could have
confirmed the antagonism between Hoyle and Tidwell.
Tidwell’s failure to make this argument in the district
court, however, means that it is forfeited (if not waived)

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No. 14-2365 7
here. See Hahn v. Walsh, 762 F.3d 617, 639 (7th Cir. 2014);
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). In
any event, for his proposed instruction to apply, Tidwell had
to show that the former inmates were “peculiarly in the
power of the other party to produce.” Oxman v. WLS-TV, 12
F.3d 652, 661 (7th Cir. 1993). Tidwell presented no such evi-
dence. Tidwell’s recruited counsel tried unsuccessfully to
locate these former inmates, and the defendants’ counsel re-
ported that she searched the Illinois Department of Correc-
tions database but found no matches for the names Tidwell
provided. Nothing indicates that these possible witnesses
were within Hicks’s exclusive control.
Finally, Tidwell contends that the court erred when it re-
fused to recruit new counsel for him after his first set of law-
yers was allowed to withdraw. He needed a lawyer, he
maintains, because his confinement in jail prevented him
from locating witnesses, and prison policies prohibited him
from communicating with inmates or searching through its
records to identify prisoners who might have witnessed the
events.
As we have recognized when considering similar claims
by inmates, in many cases “sound resolution depends on ev-
idence to which the plaintiff in his distant lockup has no ac-
cess; and a plaintiff’s inability to investigate crucial facts by
virtue of his being a prisoner or of the remoteness of the
prison from essential evidence is a familiar ground for re-
garding counsel as indispensable to the effective prosecution
of the case.” Junior v. Anderson, 724 F.3d 812, 815 (7th Cir.
2013) (collecting cases); see also Schlemm v. Wall, 784 F.3d
362, 366 (7th Cir. 2015) (“Because resolving his claims may
require evidence that a prisoner will find it hard to obtain

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8 No. 14-2365
and present, the district court should seriously consider re-
cruiting counsel to assist Schlemm.”). Pruitt v. Mote, 503 F.3d
647, 655 (7th Cir. 2007) (en banc), directs the district court to
conduct an individualized inquiry considering this plaintiff,
litigating this particular case. The nature of the case and the
plaintiff’s circumstances and impediments, including the
consequences of his incarceration, are among the relevant
considerations.
We need not consider whether the district court misap-
plied the Pruitt standard, however, because we will reverse
only upon a showing of prejudice, 503 F.3d at 659, and Tid-
well has failed to make such a showing. He offers no reason
to think that new counsel or an investigator might have
turned up evidence that would have affected the outcome of
the case. See Olson v. Morgan, 750 F.3d 708, 712 (7th Cir.
2014); Snipes v. DeTella, 95 F.3d 586, 592–93 (7th Cir. 1996).
The witnesses whom he hoped to find were former inmates
who, he says, would have been able to corroborate parts of
his testimony (that he tried to submit a grievance about
Hoyle; that he complained to another guard—not party to
this suit—about Hoyle’s misconduct while delivering food
and the defendants’ lack of action; and that Harbison told
the inmate-workers to clear the segregation unit for his
transfer so that no one would be able to observe the beating
administered by Hoyle). But this testimony would at best
have duplicated Tidwell’s own testimony. Tidwell does not
assert that any of these potential witnesses saw the actual
incident. Moreover, as we noted, no one could find the pro-
posed witnesses he identified. This is too thin a reed to sup-
port reversal.
We A FFIRM the judgment of the district court.

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