Argued Sept. 10, 2013.
[Copyrighted Material Omitted]
Steven D. Schwinn, Attorney, John Marshall Law School, Chicago, IL, for Plaintiff-Appellant.
Carl J. Elitz, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.
Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
WOOD, Chief Judge.
Inmate Glenn Verser brought this suit pro se under 42 U.S.C. § 1983 against four prison officials who allegedly held him down and punched him in the stomach during a cell change. After the jury returned a verdict in favor of the defendants, one might have thought that there was little left to say. But with the court's permission the foreperson made a statement on the record after the verdict indicating that a majority of the jury felt that the defendants " all had a part to play in what happened to" Verser, but based on the evidence " could not find the defendants guilty." Verser did not hear this statement, nor did he learn of the verdict for some time, because at the close of the evidence the district court had excluded him not just from the courtroom but also from all contact with the proceedings, in order to return him to the Illinois Department of Corrections.
Represented by recruited counsel, whom we thank, Verser now argues that his total exclusion from the proceedings prevented him from exercising his right to poll the jury pursuant to Federal Rule of Civil Procedure 48(c), and that such a poll might have made a difference. He asks us to reverse the district court's denial of his motion for a new trial. Despite the deferential standard of review that applies to such rulings, we conclude that Verser is
entitled to another trial, and so we reverse the district court and remand his case for further proceedings.
The dispute underlying this case is simple. Verser, an inmate then housed at Western Illinois Correctional Center, began a hunger strike in September 2007, in response to what he perceived as unwarranted prison discipline levied against him. The prison's hunger strike protocols involve moving a hunger striker to a separate cell after he misses three meals; the defendants here are the security officers who moved Verser at around 3:00 a.m. on September 2, 2007. Verser alleges that after defendants Chris Davis and Ryan Robinson deposited him in an isolated cell, they held him down while defendants Jeffery Barfield and Douglas Gooding punched him in the stomach. This outburst, according to Verser, was in retaliation for his hunger strike and his previous filing of an allegedly libelous grievance against another officer. The defendants deny that any such assault occurred.
Verser brought suit pro se under 42 U.S.C. § 1983, alleging that the defendants violated his Eighth Amendment right (applicable to the states through the Fourteenth Amendment) to be free from the excessive use of force. At the three-day trial the jury heard testimony from Verser, the four defendants, the mental health professional at Western Illinois Correctional Center, and Verser's cellmate at the time of the move; the latter two witnesses testified via video-conference. After the parties finished presenting their evidence and the district court instructed the jury, the court decided to send Verser back to the prison rather than keep him in the court-house to await the verdict:
THE COURT: We will be in recess and wait for the return of the verdict. I'm going to return Mr. Verser to the Department of Corrections. Here is your writ. You guys are out of here. All right. We will be in recess and wait for the jury's verdict. We will let you know what it is, Mr. Verser.
VERSER: All right. Thank you, Your Honor.
After deliberating for about two hours, the jury sent a note to the court asking whether there was any video of Verser's cell change. The court, consulting only with defense counsel, answered that there was not. A little more than an hour later, the jurors sent a note indicating that they could not come to an agreement; the court instructed them that they could choose to come back the next day, or to deliberate further that afternoon.
Less than an hour later, the jury indicated that it had reached a verdict, but it sent a note to the court asking, " Can a juror ask a question to the judge after the verdict is read?" The court responded, " First, I have to have a verdict." The jury then announced its verdict in ...