Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 2891 - James B. Moran, Judge.
Before CUMMINGS and FLAUM, Circuit Judges, and GRANT, Senior District Judge.*fn*
GRANT, Senior District Judge. Plaintiff-Appellant Joseph Young filed a civil rights action under 42 U.S.C. § 1983 against two correctional officers, alleging use of excessive force against him and confinement in an uninhabitable control cell in violation of the Eighth Amendment standard of cruel and unusual punishment. The jury returned a verdict in favor of the defendants, Sergeant James Rabideau and Officer Stephen Washington, and the court entered judgment on the verdict on October 10, 1984. After his motion for a new trial was denied, Young filed this appeal on November 13, 1984, alleging improper admission of testimony about his disciplinary record and improper exclusion of testimony concerning prison rules. We affirm.
Joseph Young is an inmate at Stateville Correctional Center in Joliet, Illinois. The allegations of his § 1983 complaint are based upon a dispute and altercation that occurred on February 13, 1981, between the prisoner Young and the guard Washington on the way to the exercise yard. Their versions of the situation were quite different.
Young and three other inmates, each in handcuffs, were being escorted by Washington to the exercise area. Washington claimed that Young had refused to go into the yard, and that Washington had told him to go either into the yard or back to his cell. The guard then removed a chain from the yard gate to unlock it. Young testified that he became frightened by Washington's swinging of the chain, grabbed the chain to protect himself and then dropped it. Washington testified that Young had put his finger in Washington's face to intimidate the guard and had grabbed the chain, swinging it toward the officer's face. Each accused the other of the abuse language, provocative actions and initial attack that actually caused the fight. As a result of the scuffle, Young's left eye and wrists were cut.
The prisoner and corrections officer went to Sergeant Rabideau's desk. After temporary placement in a shower cell, Young was taken for medical treatment. Rabideau then placed the inmate in a control cell, where he remained from February 13 until the morning of February 17, 1981. Sergeant Rabideau was responsible for the prisoner's control cells.
Testimony at trial concerning the condition of the control cell was conflicting. According to Young's description, the cell was filthy and unheated; the sink, toilet, and light did not function; and he was not provided with sheets or toiletries. Rabideau testified that he did not recall the condition of the control cell on that date, but that it was standard practice for him for make rounds at least once a day to inspect the condition of empty cells. he stated that a cell was cleaned and equipped with sheets, blankets, soap and hygiene essentials before an inmate was placed in it, and was taken out of operation if major repairs were needed.
The jury found the evidence and testimony of the correctional officers more credible, and returned a verdict in their favor.
At trial, the court refused to admit Young's direct testimony concerning prison regulations about length of detention in a control cell, and allowed defense counsel to cross-examine him concerning his prior disciplinary record in the penitentiary. In this appeal, Young has raised two issues regarding these evidentiary determinations: whether it was reversible error for the district court to prevent Young from testifying that his confinement in a control cell for more than seventy-two hours violated prison rules, and whether evidence of his prior disciplinary violations was inadmissible under Rule 404(b) of the Federal Rules of Evidence.
During his direct testimony on the condition of the control cell, Young stated that he had been held in that cell for more than seventy-two hours. When his lawyer asked the significance of that time period, he started to explain: "According to prison rules, they can't keep . . . ." The objection to that statement was sustained. Appellant now claims that the court's disallowance of that testimony was reversible error.
In his appellate brief Young asserted that evidence of a prison rule about confinement in a control cell would have established Sergeant Rabideau's personal responsibility for Young's deprivation of his constitutional rights under the eighth amendment and would have helped to negate Rabideau's claim of immunity, a defense available to him as a state prison official under § 1983. The record indicates that appellant's counsel did not attempt either to explain the relevance of that evidence, when the objection was made, or to admit the evidence at another point in the trial.*fn1 At oral argument appellant's counsel apparently recognized the futility of pursuing this point, for he argued only the second issue.
First, let us make clear that, on procedural grounds, defendants' objection was permissible. Young's complaint bases its constitutional claim of cruel and unusual punishment on the uninhabitable conditions of the cell rather than on any violation of the prison's regulations. It was proper for defendants in this suit to object to evidence that has no basis in the pleadings. Collateral evidence is excluded by Fed. R. Evid. 403. United States v. Buljubasic, 808 F.2d 1260, 1268 (7th Cir. 1987).
Second, we note that the appellant had the opportunity to include evidence of prison rules before or during the trial. However, Young made no motion before trial to amend his complaint to conform the pleadings to the evidence he intended to present. Nor did he request an amendment to his pleadings at the time that the submitted evidence on the prison rule was objected to at trial. Pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, the court could have considered an amendment at that time.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence, would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
Now that the trial is over, appellant challenges the trial court's decision to exclude the evidence, and we must determine whether the issue can be considered on appeal.
The Federal Rules of Evidence clearly delineate the procedure to be followed in order to preserve a point for appeal, and the procedure was not followed by appellant. Rule 103(a)(2) requires 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 was made ...