In the
United States Court of Appeals
For the Seventh Circuit
No. 14‐3226
NATHANIEL JACKSON,
Plaintiff‐Appellant,
v.
LIEUTENANT DAVID WILLIS, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:12‐cv‐03023‐CSB‐DGB — Colin S. Bruce, Judge.
ARGUED NOVEMBER 8, 2016 — DECIDED DECEMBER 27, 2016
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Nathaniel Jackson, an inmate in the
custody of the Illinois Department of Corrections, filed a
complaint pursuant to 42 U.S.C. § 1983 alleging that his rights
under the Eighth Amendment were violated by prison officials.
He brought the lawsuit against David Willis, a Lieutenant at
2 No. 14‐3226
Logan Correctional Center, and Eddie J. Payne, a correctional
officer at Pinckneyville Correctional Center, in connection with
an incident that occurred at Logan on August 4, 2011, during
his transfer from Dixon Correctional Center to Pinckneyville.
Jackson alleged that he was unconstitutionally subjected to
excessive force and also alleged a failure to protect by the
refusal of his request to be placed in a prison in which he had
no known enemies. The details surrounding the Eighth
Amendment claim are of limited relevance to the issues in this
appeal. In brief, Jackson was scheduled to be transferred from
Logan to Pinckneyville, but when he arrived at Logan he
refused to transfer to Pinckneyville stating that he had made
enemies with correctional officers there. He asserted that he
had a right to refuse a transfer. In support of that contention,
he testified that he had witnessed other prisoners refuse
transfers from Logan, and they were placed in segregation and
issued a disciplinary ticket. He further asserted that in May
2007, he refused a transfer to Shawnee Correctional Center
while he was at Logan because prison employees were his
enemies there, and he was allowed to stay at Logan. In the
August 4, 2011, incident, Jackson’s refusal to transfer met with
a different reaction. He testified that a number of officers lifted
him over their heads and threw him, head first, into the van,
causing injury. The officers disputed his testimony as to the
manner in which he was transported. They testified that he
refused to walk to the van, and that they carried him there, but
that he stepped inside of his own accord and was not thrown
into it. They further asserted that once inside the van he never
claimed any injury, nor did he request any medical treatment.
No. 14‐3226 3
Following a trial, a jury returned a verdict in favor of the
defendants and against Jackson. On appeal, counsel for Jackson
argues that he is entitled to a new trial because the court
refused to grant a continuance when his attorney withdrew on
the eve of trial, the court improperly admitted a 7‐year‐old
disciplinary report without a limiting instruction or explana‐
tion, and the court abused its discretion in admitting a 12‐year‐
old burglary conviction as evidence of Jackson’s truthfulness.
None of those alleged errors rendered the trial unfair and
command a new trial.
As he proceeded with his case in the district court, Jackson
filed multiple requests seeking the appointment of pro se
counsel. The district court denied the appointment of counsel
numerous times, including in January and October of 2013, and
in June of 2014. Each time, the district court reasoned that
Jackson had experience litigating and that his pleadings
demonstrated a grasp of the relevant facts and law. The court
also noted that Jackson had personal knowledge of the alleged
excessive force and should be able to obtain medical records to
corroborate his injuries. The court concluded, in each instance,
that Jackson was competent to proceed pro se in light of the
relative simplicity of his claims. See Pruitt v. Mote, 503 F.3d 647,
654–55 (7th Cir. 2007) (setting forth the considerations in
determining whether to appoint counsel in civil litigation). On
August 26, 2014, the district court procured pro bono represen‐
tation for Jackson. At that time, the court also extended the
final pretrial conference date to September 26. The jury trial
dates of October 7–9 had been set by the court on May 9, and
at the status on August 26 the court made clear that the final
pretrial conference and jury trial dates were firm. Jackson’s
4 No. 14‐3226
appointed counsel, Bhairav Radia, appeared in person for the
September 26 pretrial conference, and Jackson appeared by
phone. At that conference, Jackson did not express any
concerns with Radia’s representation. Ten days later, on the
eve of trial in a case that had been pending for 32 months,
Jackson—appearing by phone—asked the court to dismiss
Radia and to grant him a continuance of the trial date. In
addition, at Jackson’s request, his attorney filed a motion to
withdraw in the case. After a discussion with the trial court at
which the court reiterated that the trial date was “firm” and
that Jackson would be disadvantaged if proceeding unrepre‐
sented, Jackson indicated a willingness to proceed with Radia,
but Radia stated that he wanted to proceed with his motion to
withdraw because his client disagreed with his trial strategy
and fundamentally distrusted him personally. The trial court
arranged for Jackson and Radia to have the use of the phone in
the courtroom without interruption for around 20 minutes in
order for them to discuss how they wanted to proceed. When
court reconvened, Radia informed the court that Jackson had
confirmed that he fundamentally distrusted Radia and that
they were in agreement that they could not work together as
attorney and client. The trial judge did not inquire of Jackson
separately whether he agreed with that characteriza‐
tion—which would have been preferable—but Jackson has
never asserted that Radia incorrectly characterized his position
in informing the court that they agreed that they could not
work together. At that time, the trial judge granted the motion
to withdraw, but in order to mitigate the adverse impact on
Jackson, the court first required Radia to remain as standby
counsel. The trial judge refused to continue the case, reasoning
No. 14‐3226 5
that: it was a relatively straightforward case; Jackson knew the
facts as well as anyone; it was late afternoon the day before
trial; it would be difficult to contact all of the prospective jurors
given that many worked in the fields on farms in the rural
area; and that many prospective jurors had arranged for time
off work already. The court also stated that it had contacted
many attorneys before finding one available to represent
Jackson the first time, and had no reasonable ability to obtain
additional counsel for him.
The court inquired as to whether Jackson had seen all of the
documents in the case, and Radia indicated that Jackson had
not seen a set of documents that were prepared as trial
exhibits. The court then altered the schedule for the next day
in order to give time for Jackson to review them with standby
counsel. Instead of proceeding with the trial the next day, the
court limited the proceedings to jury selection in the morning,
and made arrangements for Jackson to stay at the courthouse
all day that day to allow him to review the exhibits in the
Marshal Service area with Radia, or to take the documents back
to the correctional center.
Jackson recognizes that he had no right to counsel in his
civil proceeding, and does not argue that the court erred in
failing to obtain substitute counsel for him after Radia was
allowed to withdraw. His only claim is that the trial court
should have granted a continuance to allow him to either
obtain substitute counsel on his own or prepare to defend
himself pro se.
A district court’s decision to deny a continuance is re‐
viewed only for abuse of discretion, and we will reverse only
6 No. 14‐3226
if the record contains no evidence upon which the judge could
have rationally based his decision. Wasson v. Peabody Coal Co.,
542 F.3d 1172, 1175 (7th Cir. 2008). “This court has emphasized
that ‘district judges must be allowed considerable leeway in
scheduling civil cases, and therefore in denying continuances
that would disrupt their schedules … .’” Id. at 1175, quoting
Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 920 (7th Cir.
2002). Jackson argues that the court abused its discretion in
refusing the continuance because: this was his first and only
continuance in the 32‐month‐old case; the request was made in
good faith; he had not received all discovery in a timely
fashion; and having persuaded Jackson that he needed
experienced trial counsel, the court should not have permitted
appointed counsel to withdraw without granting a continuance
sufficient to allow Jackson to obtain substitute counsel or
prepare to try the case pro se. None of those arguments
establish an abuse of discretion here.
Jackson’s argument that it was his first request for a
continuance and that discovery was not timely received suffer
from the same defect, in that the continuance request was
made on the eve of trial. Jackson appeared by phone ten days
prior, and neither requested a continuance nor did he even
complain of his representation or the discovery concerns at that
time. The compressed time period in which to prepare to try
his case was a result of his failure to raise those concerns
earlier. Moreover, Jackson’s complaint that the court convinced
him of the need for counsel but then failed to grant him time to
prepare his case ignores the sequence of events on October 6,
the day before trial. Jackson initially agreed to retain his
counsel when questioned by the court and after the court made
No. 14‐3226 7
clear to him that no continuance to the trial would be granted;
nevertheless, after he was given time to consult privately with
his counsel, Radia informed the court that Jackson had con‐
firmed that he fundamentally distrusted Radia and that they
were in agreement that they could not work together as
attorney and client. Therefore, even with the knowledge that
the court would not continue the case, Jackson agreed that he
still wanted his counsel to withdraw.
The trial court attempted to minimize the adverse impact
of Jackson’s decision by requiring Radia to remain as standby
counsel. The court also altered the trial schedule for the next
day, so that jury instruction would end in the morning and
ensuring that Jackson had access to Radia and all trial exhibits
for the remainder of the day. Those provisions appeared to
have ameliorated the adverse impact of the denial, because the
court noted in a subsequent order that Radia had done an
admirable job as standby counsel and that Jackson consulted
with Radia frequently. Finally, the court had already deter‐
mined numerous times that Jackson was capable of handling
the litigation pro se, holding that he had experience litigating,
that his pleadings demonstrated a grasp of the relevant facts
and law, that he had personal knowledge of the facts, and that
the claims were relatively simple. The court expressed its
concern with the impact of such a last‐minute continuance on
the prospective jurors, who had arranged to take time off from
their work to appear the next day for the trial, and who could
not be easily contacted. Those are relevant considerations for
a court in determining whether to grant a continuance. In
conclusion, there was no abuse of discretion in the court’s
decision to deny the continuance given that it was made on the
8 No. 14‐3226
eve of trial in a case that had been pending for 32 months, a
continuance would not result in the appointment of new
counsel because the court did not believe it could reasonably
obtain additional representation, Jackson had demonstrated an
ability to litigate the case pro se, the court modified the trial
schedule to allow time for Jackson to familiarize himself with
the trial exhibits that had been prepared by appointed counsel,
and appointed counsel would remain as standby counsel.
Jackson next challenges the court’s evidentiary decision to
admit a 2007 disciplinary report. The trial court enjoys broad
discretion in determining whether to admit or exclude evi‐
dence, and therefore we will reverse such evidentiary determi‐
nations only for an abuse of discretion. Hall v. Flannery,
840 F.3d 922, 926–27 (7th Cir. 2016); Empress Casino Joliet Corp.
v. Balmoral Racing Club, Inc., 831 F.3d 815, 833 (7th Cir. 2016). At
trial, Jackson testified that based on his own personal experi‐
ence, he believed that he could refuse a transfer at the Logan
Correctional Center. He testified that on May 16, 2007, he had
arrived at Logan to be transferred to Shawnee, and he success‐
fully refused the transfer to Shawnee. He stated that rather
than being transferred, he was placed in segregation at Logan
and issued a disciplinary ticket. In response to that testimony,
the defendants cross‐examined Jackson as to that May 2007
incident. The defendants asked Jackson whether in May 2007
he had refused a direct order to get on the bus and had then
threatened to kill one of the officers at Shawnee if forced to go
there. Jackson responded that he did not remember making
that statement, and denied threatening the staff at Shawnee. At
that point, defendants’ counsel introduced the May 2007
No. 14‐3226 9
disciplinary report to impeach Jackson, in which Jackson was
found guilty of threatening correctional officers.
Jackson did not object to the introduction of that report and
therefore the admission of the report can be reviewed only for
plain error, which is available only in extraordinary cases. Fed.
R. Evid. 103; Boutros v. Avis Rent A Car System, 802 F.3d 918,
924 (7th Cir. 2015). Under that standard, Jackson must show
that exceptional circumstances exist, substantial rights are
affected, and a miscarriage of justice will result if review is
denied. Id. He cannot meet that burden here.
The evidence of the disciplinary report, though potentially
prejudicial, was relevant to rebut Jackson’s contention that he
was allowed to refuse the transfer in this case because he had
been allowed to do so in May 2007. The report demonstrated
that additional factors were present in the May 2007 incident,
in that the correctional officers believed that he had threatened
to kill officers at Shawnee in the May 2007 incident, which
rendered it a fundamentally different situation from the
transfer at issue here. Jackson himself rendered that evidence
relevant by relying on that incident, and the court did not
abuse its discretion in allowing it. See e.g. Gomez v. Ahitow, 29
F.3d 1128, 1139 (7th Cir. 1994) (upholding the admission of
threat evidence where the evidence was probative to an issue
other than credibility). In fact, the court attempted to minimize
the adverse impact by denying the defendants’ request for a
Gilbert instruction, which would have instructed the jury that
Jackson threatened prison staff as indicated in the report
despite his denial. Gilbert v. Cook, 512 F.3d 899, 902 (7th Cir.
2008). The court decided to admit the report rather than issue
the instruction in order to minimize the likelihood that the jury
10 No. 14‐3226
would unduly focus on that past incident. Jackson has failed to
demonstrate that his substantial rights are affected resulting in
a miscarriage of justice.
Jackson’s final argument is also without merit. He asserts
that the court erred in allowing defense counsel to ask whether
he was incarcerated for a felony, to which he replied “burglary,
yes.” Jackson never objected to that question, so once again
review is limited to the plain error standard, and requires a
showing that his substantial rights were violated and a
miscarriage of justice will result. Id. He cannot meet that
burden. Jackson had already revealed in his opening statement
that he was incarcerated for burglary, so there was no preju‐
dice to him from it. That is particularly true in a case such as
this challenging actions that occur during a prison transfer,
because the fact of his incarceration is already known, so the
risk of prejudicial impact is lower. Furthermore, Jackson has
failed to indicate how introduction of that evidence could have
affected his substantial rights. See Fed. R. Civ. P. 61.
Jackson filed a pro se brief in this appeal, raising a number
of additional issues, but those too are without merit. He alleges
that the defendants offered conflicting testimony, but it is the
province of the jury to weigh the credibility of the witnesses
and make the final determination. Perry v. New Hampshire,
132 S. Ct. 716, 723 (2012). Moreover, he asserts that he should
have been allowed to present evidence as to grievances he had
pursued against Pinckneyville prison officials, but that is not
relevant to the narrow issue before the court in this case as to
the excessive force claim. He also challenges the inability to
pursue additional discovery, but concerns about discovery
were pursued in the August 26, 2014 status hearing, and the
No. 14‐3226 11
court directed the defendants to ensure all discovery was
provided by September 2nd. The court began the status
hearing on September 26 by inquiring whether Radia had
received all discovery and Radia responded that he had and
agreed with the court that it was a “dead issue” now. Jackson
did not indicate any disagreement with that statement.
Accordingly, any such challenge raised in this appeal is
waived. Jackson has raised no meritorious challenge in this
appeal.
Accordingly, the decision of the district court is
AFFIRMED.