Allen Payette v. BOB DICKMAN and SETH WISKOW

*After examining 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. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 28, 2010 *
Decided July 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09‐3291
ALLEN PAYETTE,
Plaintiff‐Appellant,
v.
BOB DICKMAN and SETH WISKOW,
Defendants‐Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07‐cv‐242‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Wisconsin inmate Allen Payette claimed that officials at Marathon County Jail in
Wausau, Wisconsin, were deliberately indifferent to his serious mental health needs. A jury
concluded otherwise. Payette appeals and we affirm.
Payette’s suit under 42 U.S.C. § 1983 arises from his confinement between March and
October 2006. As relevant here, we previously ruled that a trial was needed to resolve
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐3291 Page 2
Payette’s claim that jail administrator Bob Dickman and corrections supervisor Seth
Wiskow deliberately refused to provide Payette with recommended mental health
treatment. See Payette v. Hoenisch, 284 F. App’x 348 (7th Cir. 2008).
On remand, the district court held a two‐day trial, which focused on whether
Dickman and Wiskow deliberately ignored the health recommendations of any mental
health professional. Payette testified that he was examined by a psychologist after he was
hospitalized for swallowing a staple and other items from his cell. The psychologist noted
that Payette denied being suicidal and presented no immediate threat of suicide. The
psychologist recommended that, though in‐patient care was not needed, Payette should
remain in isolation at the jail on suicide watch. Payette returned to the jail the next day. In
response to the psychologist’s recommendation, Dickman promptly issued a memorandum
requiring Payette to remain in restraints at all times except when using the toilet. Dickman
also testified that, as the psychologist recommended, Payette remained in isolation during
his last days of confinement at the jail, with a suicide watch at least part of the time and in
restraints generally. Dickman further testified that he directed Wiskow to schedule an
appointment for Payette with the crisis staff, who regularly met with inmates on Thursdays.
Payette missed his appointment, though, because he was being treated off‐site for
swallowing a metal piece of the sink from his cell. Payette’s appointment with the crisis
staff was rescheduled for the following Thursday, but Payette was permanently transferred
to state prison before then. The jail passed on the psychologist’s recommendations when he
was transferred to the state prison.
At the close of the trial, the jury found that although Payette had a serious mental
health condition, neither Dickman nor Wiskow was deliberately indifferent to his needs.
Payette, who was represented by counsel during pretrial proceedings and at trial, appeals
both the trial verdict and his pro se posttrial motion for a new trial.
On appeal, Payette first challenges the admission of a partially unredacted copy of
his prison intake psychological report, which refers to his conviction for first‐degree sexual
assault. The district court had previously barred any reference to that conviction, but the
intake form shown in court and later submitted to the jury did contain unredacted
references to the conviction. (At no point did any witness or counsel reference the
convictions or call attention to their presence in the exhibit.) Payette’s counsel never
objected to the exhibit’s content; the defendants noticed that the document was not fully
redacted before it was sent to the jury room during deliberations and attempted to black out
references to the conviction (though the defendants missed some). Payette’s counsel was
again given the opportunity to review the redactions before it was sent to the jury, but again
made no objection. By failing to object to the exhibit after reviewing it, Payette waived any

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No. 09‐3291 Page 3
objection to its admission or the redactions. See King v. Harrington, 447 F.3d 531, 533‐34 (7th
Cir. 2006) (holding that failure to object to redactions waives appellate review).
Payette next challenges the district court’s decision barring any reference to
administrative rules prohibiting the prolonged use of restraints. In our original opinion, we
noted that the American Correctional Association, the Federal Bureau of Prisons, and the
Wisconsin Department of Corrections require close medical supervision of prisoners placed
in restraints for more than a brief time. Payette, 284 F. App’x at 352. But when the
defendants moved to bar introduction of the codes, Payette did not object. Again, the
failure to object at trial forfeits appellate review. See Naeem v. McKesson Drug Co., 444 F.3d
593, 610 (7th Cir. 2006).
Payette also argued in his pro se posttrial motion that the court should order a new
trial because documents, which he contends are newly discovered, show that the
defendants personally knew upon his return from the hospital that Payette needed
immediate psychiatric treatment. But Payette’s submission consists of documents that his
counsel had in his possession during the trial. Even if Payette himself only discovered them
after the trial, the records are not “newly discovered evidence” that would support a motion
for a new trial because his counsel had these documents and submitted some in support of
the summary judgment motions. See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 n.5
(2008) (noting motions under Rule 59 cannot be used to present evidence that could have
been presented prior to judgment); Egonmwan v. Cook County Sheriff’s Dep’t, 602 F.3d 845,
852 (7th Cir. 2010) (holding that evidence is not newly discovered when counsel is aware of
it); Cato v. Thompson, 118 F. App’x 93, 96 (7th Cir. 2004) (noting that lack of attorney
diligence is not grounds for a new trial under Rule 59).
Payette next contends that these three errors—the failure to object to the admission
of the unredacted exhibit, the acquiescence to the motion in limine, and the failure to follow
up on the evidence Payette discovered after trial—demonstrate that his counsel’s
performance was deficient, and accordingly he has been denied the effective assistance of
counsel. But Payette has no constitutional right to effective counsel in a civil suit, and so his
claim would not warrant a new trial. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.
2001); Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th Cir. 2000).
Finally, Payette contends that the verdict should be reversed because it was against
the weight of the evidence. We would reverse a judgment only if, viewing the evidence in
the light most favorable to the prevailing side, no rational jury could have rendered the
verdict. Tate v. Executive Mgmt. Servs., Inc., 546 F.3d 528, 531‐32 (7th Cir. 2008); Walker v. Bd.
of Regents of Univ. of Wis. Sys., 410 F.3d 387, 393 (7th Cir. 2005). But here there was a
reasonable basis in the record to support the verdict: the defendants followed the doctor’s

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recommendations for isolation and suicide watch; they arranged for medical care after the
suicide attempts; and they arranged for Payette to meet with mental health staff at the
regular Thursday appointments; it was only because Payette needed off‐site surgery for
swallowing a piece of metal and he was later transferred out of Marathon County Jail that
he did not attend the appointments. The defendants also acknowledged and provided
documentation of Payette’s condition and treatment when he was transferred to state
prison. This evidence was sufficient for a rational jury to conclude that despite Payette’s
serious mental health issues, the defendants were not deliberately indifferent to his needs.
Accordingly, we will not disturb the verdict.
AFFIRMED.

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