Sidney Collins v. Hughes Lochard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1915
S IDNEY C OLLINS,
Plaintiff-Appellant,
v.
HUGHES LOCHARD,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 11-3086 — Sue E. Myerscough, Judge.
____________________
S UBMITTED JUNE 26, 2015* — DECIDED J ULY 9, 2015
____________________
Before W OOD, Chief Judge, and F LAUM and HAMILTON ,
Circuit Judges.
HAMILTON , Circuit Judge. Sidney Collins, a civil detainee
in Illinois, appeals an adverse jury verdict in his deliberate-
indifference suit under 42 U.S.C. § 1983 against Hughes
Lochard, a facility physician. Collins argues that the district
* 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. App. P. 34(a)(2)(C).

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2 No. 14-1915
court should have declared a mistrial after Dr. Lochard vio-
lated a pretrial ruling by the court. He also challenges the
strength of the evidence supporting the jury’s verdict. We
affirm.
Collins is now 68 years of age. He was convicted of rape
in the mid-1980s. Upon expiration of his prison sentence in
2010, he was adjudicated a sexually violent person. Since
then he has been detained at the Treatment and Detention
Facility in Rushville, where Dr. Lochard is a physician. Col-
lins suffers from a number of medical conditions—carpal-
tunnel syndrome, pain in his hips and back lingering from
past injuries, flat feet, and ligament damage in one foot—
that, he says, prevent him from climbing to the top bunk in
his cell. Collins had a low-bunk permit during his prior in-
carceration at a Department of Corrections facility. But Dr.
Lochard refused his request to authorize a similar permit at
Rushville, which is operated by the Illinois Department of
Human Services. Unable to climb to the top bunk in his cell,
Collins says, he was forced to sleep on the floor.
After sleeping on the floor for seven and a half months,
Collins sued Dr. Lochard for deliberate indifference to his
serious health needs, invoking the Fourteenth Amendment
to the Constitution rather than the Eighth because he is a civ-
il detainee. See McGee v. Adams, 721 F.3d 474, 480 (7th Cir.
2013). (Collins also sued two supervisors. The district court
granted summary judgment for them because he produced
no evidence that they were personally involved in any con-
stitutional violation. Collins does not contest that ruling on
appeal.)
Before trial Collins, proceeding pro se, successfully
moved to exclude any reference to his three-decade old rape

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No. 14-1915 3
conviction. Collins also convinced the court to reserve any
ruling on whether, as Dr. Lochard proposed, to instruct the
jury that Collins had been “convicted of a crime” and that
his conviction was germane to the jury’s analysis of his cred-
ibility. After that, clinical attorneys from the University of
Illinois College of Law volunteered to represent Collins at
trial.
During the two-day trial, only Collins and Dr. Lochard
testified, addressing mainly Collins’s carpal-tunnel syn-
drome. Collins testified that upon arriving at Rushville he
informed Dr. Lochard of the numbness, tingling, and re-
duced grip strength he was experiencing in his left wrist and
hand. He also testified that he routinely complained to Dr.
Lochard about those symptoms, plus pain in his back and
hips. To corroborate this testimony, he tendered notes from
his medical record recounting his complaints. Despite these
complaints, he did not get a low-bunk permit until a special-
ist diagnosed him with carpal-tunnel syndrome more than
two years after he began complaining about his wrist. Col-
lins’s lawyers also decided to disclose to the jury that Collins
had been convicted of an unspecified felony. Collins conced-
ed, as well, that he regularly exercised by playing basketball,
lifting weights, or running.
Dr. Lochard defended his treatment decisions. He
acknowledged that Collins’s symptoms were commonly as-
sociated with carpal-tunnel syndrome, but said that he un-
derstood Collins’s request for a low-bunk pass to be based
upon pain in his hips and back. His treatment of Collins’s
hip and back pain, Dr. Lochard asserted, was consistent with
the treatment Collins received before arriving at Rushville.
Based on Collins’s complaints, Dr. Lochard said he initially

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4 No. 14-1915
suspected that Collins’s wrist pain might relate to a bout of
shingles Collins had in 2004 or might be a side effect of med-
ication Collins was taking for high cholesterol. But when it
became clear that Collins might have carpal-tunnel syn-
drome, Dr. Lochard referred him to a neurologist.
Dr. Lochard also read and interpreted reports from Col-
lins’s medical file, including a report of his physical exami-
nation of Collins upon arrival at the Rushville facility. While
reading his notes aloud for the jury, Dr. Lochard mentioned
that Collins had been incarcerated for 26 years. Collins’s
lawyers immediately objected, and the court promised to
give a curative instruction.
At the close of evidence, the court instructed the jury, as
Dr. Lochard had requested, that it could consider Collins’s
felony conviction only for the purpose of determining
whether Collins was credible, but added that the jury “may
not consider the length of plaintiff’s sentence in deciding
whether plaintiff’s testimony is truthful.” The jury ultimate-
ly returned a verdict for Dr. Lochard. Collins filed no post-
trial motions.
On appeal, Collins, again proceeding pro se, makes two
arguments for reversal. He first argues that Dr. Lochard’s
remark about the length of his sentence was so prejudicial
that no curative instruction could erase its effect on the trial.
The only proper remedy, he argues, would have been for the
judge to declare a mistrial sua sponte.
Collins’s claim implies that there are circumstances in
which a trial judge has a duty in a civil case to declare a mis-
trial even when no party has asked for it. We doubt that this
is correct. If the party wounded by an evidentiary harpoon

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No. 14-1915 5
or some other trial wrongdoing prefers to go forward with
the trial rather than start over, it is hard to see why the judge
should force a mistrial upon him. Even if we assumed for
the sake of argument that a judge might have such a duty,
she would surely enjoy broad discretion to conclude that a
trial incident did not so infect the proceedings with unfair-
ness that the only solution was to declare a mistrial that no
party sought. See Christmas v. City of Chicago, 682 F.3d 632,
638 (7th Cir. 2012).
Here the judge concluded that a limiting instruction
would suffice to cure any risk of prejudice. In the first place,
we presume that the jury followed the court’s directive and
disregarded Lochard’s remark. See Wilson v. City of Chicago,
758 F.3d 875, 884–85 (7th Cir. 2014). Moreover, the remark
itself did not add much to the evidence: The jury already
knew through Collins’s own testimony that he had been
convicted of a felony, that his medical issues dated back to
2002, and that for some time previously he had been a barber
at his jail. The jury could already infer that he had spent a
good deal longer than eight years in prison. Even if Collins
had asked for a mistrial, the court would not have abused its
discretion by denying it. There was no abuse of discretion in
not declaring a mistrial that Collins did not request.
Collins next asserts that the jury’s verdict is against the
manifest weight of the evidence, both as a general matter
and because he believes the documentary evidence in the
record discredits Dr. Lochard’s testimony. We cannot reach
this issue. Collins did not preserve this argument in a post-
trial motion under Federal Rule of Civil Procedure 50 for
judgment as a matter of law. Without such a post-trial mo-
tion, the Supreme Court held in Unitherm Food Systems, Inc.

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6 No. 14-1915
v. Swift–Eckrich, Inc., 546 U.S. 394, 405 (2006), appellate
courts are “powerless” to review challenges to the sufficien-
cy of the evidence supporting a civil jury verdict. See also
Consumer Prods. Research & Design, Inc. v. Jensen, 572 F.3d
436, 437–38 (7th Cir. 2009); Maher v. City of Chicago, 547 F.3d
817, 824 (7th Cir. 2008).
Although we treat pro se filings liberally, even excusing
technical mistakes when necessary to afford an uncounseled
litigant a full and fair hearing, e.g., Kaba v. Stepp, 458 F.3d
678, 687 (7th Cir. 2006), we cannot excuse Collins’s omission
here. We review the actions of judges, not juries, and the
Federal Rules of Civil Procedure require civil litigants to
speak up if they want a trial judge to resolve the factual suf-
ficiency of a claim as a matter of law. See Maxwell v. Dodd,
662 F.3d 418, 420–21 (6th Cir. 2011). Because Collins did not
ask the district judge to act, we have nothing to review.
AFFIRMED.

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