NONPRECEDENTIAL DISPOSITION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 April 13, 2016*
Decided April 14, 2016
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐2346
BRIAN A. MAUS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 09‐C‐42
DIANE BAKER, et al., Charles N. Clevert, Jr.,
Defendants‐Appellees. Judge.
O R D E R
Brian Maus sued jail officers and other law enforcement personnel for using
excessive force against him while he was a pretrial detainee at the Langlade County Jail.
See 42 U.S.C. § 1983. His claims were tried to a jury, which found for the defendants.
Maus appeals, raising six arguments for a new trial. Because his trial was free of
prejudicial errors, we affirm the judgment of the district court.
* 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. 15‐2346 Page 2
The events underlying Maus’s claims took place in January and April 2007. In
January, while a pretrial detainee at the jail, Maus blocked the camera in his cell with
toilet paper. Two guards spoke to Maus after citing him for violating jail rules and
risking the safety of Maus, other inmates, and jail staff. They explained that he had to be
moved to a different cell so that they could clean the camera. After resisting briefly Maus
allowed the officers to escort him to a new cell. Almost immediately, however, Maus
blocked the camera in his new cell and used his mattress to cover the viewing window of
the cell’s door. Sergeant Thomas Hunter decided that the bedding had to be removed
from Maus’s cell to prevent him from obscuring the view into his cell, so he summoned
the assistance of two corrections officers, James Benishek and Bobby Jo LaBarge.
The three officers entered Maus’s cell, and a brief scuffle ensued. Hunter and
Benishek held Maus as LaBarge gathered his bedding. Once LaBarge removed the
bedding from the cell, Benishek ordered Maus to stand at the back of the cell while he
and Hunter left. Maus initially complied, but as Benishek was backing out of the cell
Maus lunged towards him. Benishek testified that he pushed against Maus’s chest to
direct him to the back of the cell. Maus replied that Benishek choked his throat for up to
30 seconds before Benishek and Hunter left the cell.
In April, Maus again blocked the camera and window of his cell. The jail
administrator, Diane Baker, along with three others (Joe Stegall, Heidi Walrath, and
Mark Hoerman) went to Maus’s cell to move him. Baker told Maus that, as before, he
must relocate to a different cell so that they could clear the obstructions. Maus grabbed
his bin full of legal papers and began to leave. But Baker told Maus that he could not take
his legal papers because he might use them to cover the camera in his new cell. When
Maus resisted, the team pried his fingers from the bin. Stegall and Hoerman then took
him to the new cell, but as Stegall backed out of that cell, Hoerman, Walrath, and Baker
saw Maus swing at Stegall. (Maus denied that he tried to hit Stegall.) Stegall dodged
Maus and left the cell. Then, to prevent the cell door from closing, Maus crammed his
chest, hands, and feet into the door jam. Walrath responded with an electrical stun
device that emitted a small electrical shock to Maus’s hand. Maus removed his hands
and body, allowing the officers to shut the cell door.
A short while later, Maus, having somehow acquired paper, once again covered
his cell’s camera. Concluding that Maus had to be moved to yet another cell to clear the
obstruction, recalling his previous resistance, and deciding that he needed to be searched
for paper, Baker called for backup. Several members of the Langlade County Sheriff’s
Department responded to the call. Sergeant Keith Svoboda went to Maus’s cell, and
No. 15‐2346 Page 3
when Maus refused to move, Svoboda and Deputy Sheriff Russell Cook grabbed Maus’s
arms and extracted him from the cell. They stabilized Maus against a wall in the hallway
so he could be searched. Several officers testified that Maus moved his mouth toward
Svoboda’s hand, which was on Maus’s shoulder. Svoboda exclaimed, “Are you trying to
bite me?” and Maus answered yes. (Maus denied that he tried to bite Svoboda.) Svoboda
testified that Maus, in attempting to bite him, chewed off the knuckle of the latex glove
he was wearing. Deputy Sheriff Mark Westen, standing a few feet away with his taser
drawn, fired it at Maus. With Maus incapacitated from the taser shot, Svoboda and Cook
lowered him to the ground where Hoerman discovered toilet paper stashed in Maus’s
sock. Svoboda and Cook then carried Maus into a new cell and placed him on the bed.
Stegall removed the taser probes from Maus’s back, and Walrath, who was standing
nearby, cleaned the small wound and covered it with a bandage.
Maus sued, alleging excessive force. He asserted that jail officers used excessive
force in January when they entered his cell and (according to Maus) Benishek choked
him. He also alleged that Svoboda, Cook, Stegall, and Westen used excessive force in
April when Svoboda and Cook removed him from his cell, they pushed him against the
wall, and Westen fired the taser. Finally, Maus accused other defendants of failing to
prevent the use of excessive force in April.
With recruited counsel, Maus’s suit proceeded to trial. A jury returned a verdict
against him, but we remanded for a new trial because the district judge had prejudiced
Maus by requiring him to wear prison garb and shackles before the jury. Maus v. Baker,
747 F.3d 926 (7th Cir. 2014). On remand Maus received new counsel, a new judge, and a
new trial. This time Maus appeared without restraints and in a business suit throughout
the three‐day jury trial. The jury once again returned a verdict in favor of the defendants.
Maus moved for a new trial raising arguments that he renews on appeal, and the district
judge denied the motion.
Maus raises six arguments on appeal. First, he contends that the jury’s verdict was
not fair because several officers committed perjury. Maus says that Svoboda lied when
he testified that Maus had tried to bite him; his testimony must be false, Maus explains,
because if Maus really had bitten him Svoboda would have sought medical attention.
Similarly, Maus continues, the testimony of Walrath, Westen, and Stegall—that they saw
the bite attempt—is a lie because he denied they could see him attempt to bite Svoboda
from where they stood. But Maus has merely presented an arguable conflict in the
evidence. It is the role of the jury and the adversarial use of cross‐examination to detect
and evaluate any supposed discrepancies within or between the testimonies of
No. 15‐2346 Page 4
witnesses. See Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012); Sanchez‐Rengifo v.
Caraway, 798 F.3d 532, 537 (7th Cir. 2015). Even if the witnesses’ accounts conflicted, that
would not necessarily mean that the jury’s verdict was based on perjured evidence.
See United States v. Freeman, 691 F.3d 893, 900–01 (7th Cir. 2012); United States v. Alcantar,
83 F.3d 185, 189–90 (7th Cir. 1996) (jury may still credit witness’s story even after
cross‐examination exposes inconsistencies). Accordingly the verdict is sound.
Second, Maus argues that the district court erred when on remand it refused his
pro se request to add four defendants whom he had voluntarily dismissed from his first
trial. The issue is waived. At the pretrial conference, his new attorneys said they did not
want to pursue Maus’s pro se request, and Maus agreed with them. He told the district
judge that instead of pursuing his case without the assistance of counsel, he would keep
his attorneys and withdraw the request. And waiver aside, once Maus was represented
by counsel, he could not pursue motions pro se. See Sheikh v. Grant Reg’l Health Ctr., 769
F.3d 549, 552 (7th Cir. 2014); United States v. Williams, 495 F.3d 810, 813 (7th Cir. 2007).
Thus the district court did not err in refusing to consider Maus’s pro se motion.
Third, Maus argues that the district court abused its discretion by suppressing a
“cell extraction manual” that Maus says was listed on the parties’ stipulated exhibit list.
But the record reflects that, while this document was on the exhibit list, his attorneys
never offered it into evidence. The district court cannot abuse its discretion by excluding
evidence no one sought to admit.
Next, Maus argues that he was prejudiced by clothing during trial. He argues that
he had to wear the same suit for the three‐day trial, and doing so implied that he was an
inmate; yet the defendants appeared in their uniforms, enhancing their credibility. But
Maus never objected to the appearance of the defendants in their uniforms, nor did he
complain to the judge that his own attire was compelled. Cf. Estelle v. Williams, 425
U.S. 501, 512–13 (1976) (“[T]he failure to make an objection to the court as to being tried
in [prison garb] . . . is sufficient to negate the presence of compulsion necessary to
establish a constitutional violation.”); United States v. Arellano, 137 F.3d 982, 986 (7th Cir.
1998) (same). Moreover the district judge—at the behest of the parties—appropriately
advised the jury “to disregard the clothing worn by law enforcement and correctional
officers who appeared before [it] in uniform.” Cf. Woods v. Thieret, 5 F.3d 244, 249
(7th Cir. 1993) (explaining that giving a limiting or curative instruction regarding use of
shackles is an “appropriate method[] of eliminating potential prejudice”). Finally Maus
merely speculates about prejudice from his attire. The jurors could have concluded that
Maus owned only one suit or he wore his favorite one. Thus no harmful error occurred.
No. 15‐2346 Page 5
Fifth, Maus argues that the presence of non‐testifying, uniformed corrections
officers in the courtroom prejudiced him because their visibility signaled to the jury that
he was a dangerous inmate. Again Maus’s argument misses the mark. The district court
has discretion to use reasonable measures to maintain order and safety in the courtroom.
See Illinois v. Allen, 397 U.S. 337, 343 (1970); United States v. Bell, Nos. 14‐3462 & 14‐3470,
2016 WL 629524, at *9–10 (7th Cir. Feb. 17, 2016). And it exercised its discretion
prudently. The judge explained that because Maus would not be shackled, corrections
officers would be strategically placed at the doorways to ensure that Maus stayed in the
courtroom. The judge kept those officers in the back, away from Maus. The court’s
regular security personnel stood near the witness stand, but did so for all witnesses
alike. And the jurors were never permitted to see corrections officers escort Maus to or
from the courtroom. Under these circumstances, locating the corrections officers in the
courtroom’s rear, where they were not adjacent to Maus, was not prejudicial error.
Finally, Maus argues that the district court abused its discretion when it allowed
one witness, a nurse, to testify with refreshed recollection. He is incorrect. The nurse
testified that the medical records (which she created) would help her recall the events of
January and April 2007. And Maus had a chance to review those records before the nurse
refreshed her recollection with them. See FED. R. EVID. 612(b). That is all the rules of
evidence require for the admissibility of refreshed recollection. See United States v.
Vasquez, 635 F.3d 889, 895 (7th Cir. 2011). Maus replies that, because she did not have his
consent to see these records, the jail violated his privacy rights and the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104‐191, 110 Stat. 1936,
when it gave them to her. He contends that the district court should have remedied this
violation by excluding her testimony. But “[f]ederal common law has not historically
recognized a privilege between patients and physicians” and “HIPAA did not give rise
to a physician‐patient or medical records privilege.” United States v. Bek, 493 F.3d 790,
801‐02 (7th Cir. 2007). In any case, the medical records were never admitted into
evidence. The district court therefore did not abuse its discretion in allowing the nurse’s
testimony.
AFFIRMED.