NONPRECEDENTIAL DISPOSITION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 March 28, 2016*
Decided March 30, 2016
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15‐2140
GLENN VERSER Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 07‐cv‐3293
JEFFERY BARFIELD, et al., Thomas P. Schanzle‐Haskins,
Defendants‐Appellees. Magistrate Judge.
O R D E R
Glenn Verser, an Illinois inmate, appeals after a jury found for the defendants on
his claim of excessive force brought under 42 U.S.C. § 1983. Verser challenges the use of
his discovery deposition to impeach his trial testimony, the district court’s handling of
the jury poll, and the racial composition of the jury venire. But Verser has not provided
us with trial transcripts, which is reason enough to reject the first two contentions, and
the third claim is waived because he did not timely object to the venire. We thus affirm
the judgment.
* 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).
No. 15‐2140 Page 2
Verser alleged that four guards at the Western Illinois Correctional Center held
him down and punched him for “disrespecting” one of their colleagues. The case has
now been tried to a jury twice. The first time Verser represented himself and lost, but
we overturned that adverse verdict because the district court had excluded Verser from
the courtroom when the verdict was read and thus prevented him from polling the
jurors. See Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013). On remand a magistrate judge
presided by consent under 28 U.S.C. § 636(c),1 and Verser was represented by counsel.
Before returning its verdict, the jury sent a note to the court asking for permission to
make a statement when announcing the verdict. After consulting the parties, the court
responded that the foreperson could speak on behalf of the jury after the verdict was
announced, but when the time came, the foreperson did not make a statement. The
jurors then were polled, and, according to Verser, each answered affirmatively that the
verdict in favor of the defendants constituted that juror’s verdict, though one of them
appeared upset.
On appeal Verser argues that he was denied a fair trial because the defendants
impeached him with statements made during his discovery deposition. He also argues
that his right to poll the jury, see FED. R. CIV. P. 48(c), again was violated, this time
because the magistrate judge dismissed the jury without further inquiry after it was
polled. Verser contends that the court should have investigated the juror’s apparent
distress and also questioned why the foreperson had not made a statement despite the
earlier request from the jury.
But Verser has not complied with the requirements to order and arrange
payment for essential trial transcripts, see FED. R. APP. P. 10(b), which prevents
meaningful appellate review of these contentions, Hicks v. Avery Drei, LLC, 654 F.3d 739,
743–44 (7th Cir. 2011); Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011); RK Co. v.
See, 622 F.3d 846, 852–53 (7th Cir. 2010). Verser’s pro se status does not excuse his
failure to obtain transcripts, see Woods v. Thieret, 5 F.3d 244, 245 (7th Cir. 1993), and we
decline to exercise our authority to order Verser to supplement the record with
pertinent transcripts, see FED. R. APP. P. 10(e); Learning Curve Toys, Inc. v. PlayWood Toys,
1 We are satisfied that all parties consented to proceed before the magistrate
judge under § 636(c). The defendants had consented in writing, and Verser’s lawyer
then litigated the case without objection after being told that Verser could refuse to give
consent. See Roell v. Withrow, 538 U.S. 580, 590 (2003); Stevo v. Frasor, 662 F.3d 880, 884
(7th Cir. 2011).
No. 15‐2140 Page 3
Inc., 342 F.3d 714, 731 n.10 (7th Cir. 2003); LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir.
1995). The district court explained to Verser the need for transcripts, and after he had
filed his brief without obtaining them, the defendants in their own brief put Verser on
notice that failing to secure transcripts could doom his appeal.
Verser essentially contends that the defendants’ use of his deposition for any
purpose would have been inappropriate because, he says, the deposition was
conducted in an oppressive manner. See FED. R. CIV. P. 30(d)(3)(A). Verser explains that
he was deposed with his hands cuffed and restrained by a “black box” device, which,
he asserts, was prohibited by a medical restriction. Yet even if the circumstances gave
Verser reason to protest his treatment during the deposition, his remedy was to move
that the deposition be stopped or limited, not that all use be precluded. See FED. R.
CIV. P. 30(d)(3)(B). What is more, Verser concedes that he did not object when the
defendants used his deposition to impeach his trial testimony. See FED. R. EVID. 103(a);
Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 924 (7th Cir. 2015). And those
obstacles aside, without transcripts we cannot conclude that Verser was prejudiced by
the defendants’ use of the deposition, even if that use somehow was improper.
See Wilson v. City of Chicago, 758 F.3d 875, 881–82 (7th Cir. 2014) (noting that error in
admission of evidence is not ground for reversal unless prejudice resulted); Perry v. City
of Chicago, 733 F.3d 248, 252 (7th Cir. 2013) (same).
Similarly, we cannot meaningfully review Verser’s contention that the magistrate
judge should have directed the jury to resume deliberating or else ordered a new trial
because one of the jurors allegedly appeared “visibly upset” and was crying. According
to Verser, the juror’s appearance, combined with the earlier communication received
from the jury, required that the court employ one or the other remedy in Rule 48(c) of
the Federal Rules of Civil Procedure. We are skeptical of finding that a district court
would be required to inquire further, order further deliberations, or declare a mistrial
simply because a juror was crying and the jury never made a statement that it
previously had asked to make. See United States v. McClintock, 748 F.2d 1278, 1293 (9th
Cir. 1984) (applying identically worded Federal Rule of Criminal Procedure 31(d));
United States v. Aimone, 715 F.2d 822, 832–33 (3d Cir. 1983) (same). And because Verser
remained silent in response to the court’s handling of the polling, he must establish that
he was prejudiced by the lack of further action. See Verser, 741 F.3d at 742;
Ira Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 26 (1st Cir. 2014). That showing
isn’t possible without transcripts, and as the defendants point out, even Verser’s
assertion that one of the jurors implicitly voiced disagreement with the verdict is
impossible to evaluate without a transcript of the jury poll.
No. 15‐2140 Page 4
Finally, Verser asserts that he was deprived of a jury venire composed of a fair
cross section of the community because the pool was entirely white. Yet challenges to
the racial composition of a venire must be brought “before the voir dire examination
begins, or within seven days after the party discovered or could have discovered, by the
exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C. § 1867(c);
see Morro v. City of Birmingham, 117 F.3d 508, 518–19 (11th Cir. 1997). Verser does not
assert that he timely objected to the composition of the jury pool, so his appellate claim
is waived. See 28 U.S.C. § 1867(e) (“The procedures prescribed by this section shall be
the exclusive means by which … a party in a civil case may challenge any jury on the
ground that such jury was not selected in conformity with the provisions of this title.”).
AFFIRMED.