NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2010*
Decided July 27, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 09‐1035
CEDRIC DUPREE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. 02‐cv‐1059‐DRH
EARLY LASTER, et al., David R. Herndon,
Defendants‐Appellees. Chief Judge.
O R D E R
Cedric Dupree, an Illinois inmate, sued employees of the Illinois Department of
Corrections under 42 U.S.C. § 1983, claiming that they had interfered with his right to
practice his religion in violation of the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc—cc‐5. The district court
initially dismissed the complaint at screening, and we remanded, concluding that Dupree’s
complaint sufficiently stated claims under the First Amendment and RLUIPA. Dupree v.
*
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. APP. P.
34(a)(2)(C).
No. 09‐1035 Page 2
Laster, 106 F. App’x 503 (7th Cir. 2004). On remand the district court recruited counsel to
represent Dupree and, after a three‐day jury trial, entered judgment in favor of the
defendants. Dupree appeals, but because he has failed to provide us with a trial transcript,
we are unable to consider many of his arguments. See FED. R. APP. P. 10(b)(2). Of those that
we are able to review, none has merit, and we affirm the judgment of the district court.
Dupree tried his First Amendment and RLUIPA claims before a jury and focused on
three incidents. He claimed that the defendants violated his right to religious exercise when
they suspended him from attending group church services while in segregation, and when
they disciplined him for having a Bible in the “chow hall” and for gathering inmates for
prayer in the dietary unit. After the jury returned a verdict for the defendants, Dupree filed
pro se a motion for a new trial or to set aside the jury verdict and three supplemental
motions for a new trial. The district court treated the first three of his filings as motions for
a new trial under Rule 59(a) and his last filing as a Rule 60(b) motion for relief from
judgment; the court denied each. See FED. R. CIV. P. 59(a); FED. R. CIV. P. 60(b). Dupree’s
attorney moved to withdraw, citing Dupree’s claim that he had received ineffective
assistance of counsel during the trial. The district court granted counsel’s request and later
denied Dupree’s motion for reappointment of counsel.
On appeal Dupree challenges the district court’s denial of his post‐trial motions. His
most substantive arguments for a new trial are that the district court erred in allowing the
defendants to introduce evidence of his prior convictions and prison discipline,
misinstructing the jury as to the burdens of proof for establishing a violation under
RLUIPA, and not overturning the jury’s verdict denying his claim that the defendants
prohibited him from attending group worship. Dupree also asserts that the court ignored
his complaints that he was not allowed to bring his legal documents to court, that on one
occasion the jury saw him in shackles as he exited the courtroom, and that he was not
allowed to present evidence that during the trial prison employees beat him in retaliation
for his lawsuit. Each of these purported errors, Dupree contends, prejudiced his case and
warrants a new trial.
Ordinarily our review of a district court’s denial of a motion for a new trial is for an
abuse of discretion. Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008). A
new trial may be granted only if the jury’s verdict is against the manifest weight of the
evidence, meaning “no rational jury” could have rendered the verdict. Id. (quoting King v.
Harrington, 447 F.3d 531, 534 (7th Cir. 2006)). At the outset, we note that Dupree has not
specified what his prior convictions or prison discipline were for, and thus we cannot
evaluate his claim that the district court should have excluded them at trial. Moreover, we
are unable to determine whether the verdict is against the manifest weight of the evidence
or whether the purported errors prejudiced Dupree because he has not included a trial
No. 09‐1035 Page 3
transcript in the record. Without the transcript, we are unable to verify his claims or
conduct any meaningful appellate review of his arguments for a new trial. See Learning
Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 731 n.10 (7th Cir. 2003); LaFollette v.
Savage, 63 F.3d 540, 544 (7th Cir. 1995). Federal Rule of Appellate Procedure 10(b)(2)
provides that “[i]f the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the appellant must include in
the record a transcript of all evidence relevant to that finding or conclusion.” FED. R. APP. P.
10(b)(2); see Learning Curve Toys, Inc., 342 F.3d at 731 n.10. Because Dupree’s arguments
require us to evaluate the trial evidence as well as steps taken by the district court to
minimize any prejudice, his failure to provide the transcript renders the arguments
forfeited. See Learning Curve Toys, Inc., 342 F.3d at 731 n.10. Dupree’s pro se status does not
prohibit this result. See Woods v. Thieret, 5 F.3d 244, 245 (7th Cir. 1993) (dismissing in part
the appeal of pro se plaintiff for failure to provide transcript).
We could order Dupree to supplement the record as authorized under Federal Rule
of Appellate Procedure 10(e), see LaFollette, 63 F.3d at 545, but we decline to do so here. In
their response brief, the appellees gave Dupree notice of his obligation to have the transcript
prepared and the consequences of his failure to do so. Despite this notice, Dupree has made
no attempt to secure a transcript. See Learning Curve Toys, Inc., 342 F.3d at 731 n.10;
LaFollette, 63 F.3d at 545‐46.
We can, however, address a few of Dupree’s arguments on their face. Dupree
complains that his recruited counsel was ineffective in failing to serve one of the defendants
who, Dupree contends, could have testified to support his claims. But as the district court
correctly explained when it denied his Rule 59(a) motion, there is no Sixth‐Amendment
right to effective assistance of counsel in a civil case, so his dissatisfaction with counsel’s
performance does not warrant a new trial. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.
2001).
Dupree also contends that after this court’s remand, the case should have been
reassigned to a new district judge. In his third supplemental motion for a new trial, he
relied upon Supreme Court Rule 36 in arguing that he was entitled upon remand to a
change of venue and hence a new judge. Supreme Court Rule 36, however, governs the
custody of prisoners in habeas corpus proceedings, and the district court correctly noted
that the rule does not apply to Dupree’s case. The court thus denied Dupree’s motion,
which it construed as a Rule 60(b) motion for relief from judgment because it was filed more
than ten days after the entry of judgment. See FED. R. CIV. P. 59(b) (2008) (amended Dec. 1,
2009); FED. R. CIV. P. 60(b); Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir.
2001). Perhaps Dupree intended to rely on our Circuit Rule 36, which provides that
“[w]henever a case tried in a district court is remanded by this court for a new trial, it shall
No. 09‐1035 Page 4
be reassigned by the district court for trial before a judge other than the judge who heard
the prior trial . . . .” But Dupree’s case had been dismissed upon screening, see 28 U.S.C.
§ 1915A(b)(1), and remanded for further proceedings. “Orders directing the district court to
undertake further proceedings are routinely heard by the district judge who entered the
order that was the subject of the appeal,” and Circuit Rule 36 does not require reassignment.
In re United States, 572 F.3d 301, 305 n.3 (7th Cir. 2009). Dupree further asserts that
reassignment was necessary because the judge’s prior dismissal of the complaint
demonstrated his prejudice against the case. Judicial rulings, however, rarely present a
valid basis to question a judge’s impartiality, Liteky v. United States, 510 U.S. 540, 555 (1994),
and Dupree has presented no reason why the judge could not fairly rule in his case
following remand, see Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009); see also Liteky, 510
U.S. at 551 (“It has long been regarded as normal and proper for a judge to sit in the same
case upon its remand, and to sit in successive trials involving the same defendant.”).
Finally, the district court did not abuse its discretion in denying Dupree’s post‐trial
request for reappointment of counsel. The court applied the correct legal standard and
based its decision on facts supported by the record. See Santiago v. Walls, 599 F.3d 749, 760‐
61 (7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc). The court
considered Dupree’s arguments regarding the complexity of his claims and his experience
with mental illness, but noted that Dupree had been able to adequately file two pro se post‐
trial motions. The court added that Dupree had found fault with each of the four lawyers
recruited to assist him and had simply been unable to maintain an attorney‐client
relationship. Under these circumstances, we conclude that the court’s decision to deny the
reappointment of counsel was reasonable. See Pruitt, 503 F.3d at 658‐59.
Accordingly, we AFFIRM the judgment of the district court.