Bernard Jemison v. Robert Simmons

Case: 12-14763 Date Filed: 05/16/2013 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-14763
Non-Argument Calendar
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D.C. Docket No. 4:09-cv-00796-RDP-HGD

BERNARD JEMISON,

Plaintiff - Appellant,

versus

ROBERT SIMMONS,
GARY MALONE,
KENNETH HEFLIN,
BRYAN CHAPMAN,
STANLEY BATTLES,

Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 16, 2013)

Before HULL, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:
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Bernard Jemison, an Alabama prisoner proceeding pro se under 42 U.S.C.

§ 1983, sued Officers Bryan Chapman and Stanley Battles, Sergeant Kenneth

Heflin, Lieutenant Gary Malone, and Captain Robert Simmons (collectively, the

Defendants 1), alleging retaliation and excessive force in violation of his First and

Eighth Amendment rights. Jemison was represented by counsel at a bench trial 2

where the parties agreed that he sustained certain injuries following his removal to

a prison exercise yard on April 21, 2009, but disagreed about how and why

Jemison came to be injured. The district court found in favor of the Defendants

because it found their version of events more credible. Jemison now appeals.

I. FACTS AND PROCEDURAL HISTORY

Much of the evidence presented at trial was not in dispute. Bernard Jemison

is an Alabama prisoner with a history of filing lawsuits against prison guards and

other employees of the Alabama Department of Corrections. On April 21, 2009,

while he was in the Segregation Unit at the St. Clair Correctional Facility,

Jemison’s cell flooded. Prison records introduced by Jemison indicate that prison

staff noticed the flooding at approximately 12:26 p.m., and shut off the water to

Jemison’s side of the cell block four minutes later, at 12:30. At 12:46, prison staff

1
The Defendants are each employees (or former employees) of the Alabama Department of
Corrections and worked at the St. Clair Correctional Facility in Springville, Alabama, the prison
where Jemison alleged the constitutional violations to have occurred.
2
Jemison prepared his complaint pro se, but acquired counsel prior to trial. He dismissed his
counsel immediately after the district court delivered its judgment and is proceeding pro se on
appeal.
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arrived to supervise the clean-up of Jemison’s side of the cell block. At 12:54, a

maintenance worker isolated the water shutoff to Jemison’s cell, and turned the

water back on to the rest of the cell block. Records further indicate that

“[d]isciplinary action was taken on . . . Jemison” for having caused the flooding,

but that he was nonetheless allowed to remain in his cell at that time.

However, more than two hours later, at around 3:00 p.m., Captain Simmons

ordered that Jemison be removed from his cell. The records show that at 3:10,

Lieutenant Malone, Sergeant Heflin, and Officers Chapman and Battles, arrived at

Jemison’s cell, handcuffed him, shackled him in leg irons, and led him to the

exercise yard. The guards did not take Jemison to the exercise yard nearest his

cell; instead they walked him to the yard outside cell block A. In the exercise yard,

the guards forced Jemison to lie on the ground. Sometime later, the guards left the

yard, leaving Jemison behind. Jemison remained in the exercise yard, handcuffed

and unattended, for approximately four hours.

All parties agreed that prior to leaving the cell block, Jemison had no visible

injuries. The same was not true when Sergeant James Marsh (a prison guard not

named in Jemison’s complaint) recovered Jemison from the exercise yard four

hours later. Before returning him to his cell, Marsh took Jemison to the prison

infirmary, where a nurse examiner prepared a body chart at 7:00 p.m. documenting

“whelps [and] bruises” around each of Jemison’s wrists and ankles, and a “swollen

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area” under his right eye. The body chart also indicated that Jemison informed the

nurse that the guards “beat him down [and] in the ribs.” The chart did not indicate,

however, whether the nurse visually inspected Jemison’s torso for signs of a

beating.

One week later, on April 28, a prison doctor prescribed Jemison pain

medicine to treat his “left low[er] rib pain.” This prescription followed an

examination prompted by Jemison’s complaints of significant pain in his “middle

rib cage” due to an “altercation [with] Officer[s]” on April 21. The doctor noted

“[t]enderness” on the exam form, but once again did not indicate whether

Jemison’s torso was inspected for signs of abuse.

Although the parties agreed that Jemison suffered injuries on April 21, they

disagreed significantly about the source of, and motivation behind, those injuries.

Jemison stated in his complaint—executed on April 22, the day after the alleged

attack—and testified at trial, that the Defendants removed him from his cell and

took him to the exercise yard where they “hogtied” him by connecting his

handcuffs and leg shackles to a “belly chain,” and then beat him around the torso.

According to Jemison, the beating occurred at the direction of Captain Simmons,

who was frustrated by the “complaints that [Jemison] filed.” Jemison explained

that the officers attempted to conceal their abuse by taking him to an exercise yard

that could not be seen from his cell block, and by limiting their punches to his

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torso, and claimed that the swelling around his eye was caused by “a wild punch”

that inadvertently went too high. Jemison further explained that the guards hid the

fact that they hogtied him by sending an unidentified “white, male officer” to

remove his leg shackles and belly chain shortly before Sergeant Marsh discovered

him in the yard. 3 Jemison testified that the nurse that examined him the day of the

attack did not mark down the injuries to his torso because she saw him for only

“two minutes” and never lifted his shirt, telling him instead, “I’ll document what

you tell me.”

The Defendants had a different account of the source of Jemison’s injuries

on April 21. To the last man the Defendants denied involvement in an attack, and

even that an attack occurred. The Defendants also denied that Jemison was

hogtied. To explain why Jemison was removed from his cell more than two hours

after flooding was initially observed, the Defendants each testified that at 3:00 p.m.

“a large volume of water” remained in Jemison’s cell and that Jemison was taken

to the exercise yard so that the water could be cleaned up. The Defendants agreed

with Jemison that they took him to exercise yard A because that yard is not visible

from his cell block, though they stated that yard A is still fully visible by prisoners

in other areas of the prison (specifically, cell block A). The Defendants justified

their decision by explaining that in yard A Jemison was less likely to create a

3
Sergeant Marsh, called to testify by the Defendants, stated that Jemison was not hogtied,
shackled, or in pain when he found him in the exercise yard.
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“problem” by “agitat[ing] the other inmates” than if he were left in the yard nearest

his cellbock.

Because the Defendants left Jemison unattended in the yard for four hours,

they could not offer a definitive explanation regarding the source of his injuries.

However, as part of Jemison’s redirect examination, Captain Simmons speculated

that the bruising to Jemison’s wrists and ankles was caused when Jemison “pulled

against the handcuffs and leg irons,” and that the swelling to his eye was caused by

“fall[ing] into something.” Finally, the Defendants argued that the nurse examiner

did not indicate injuries to Jemison’s torso because there were none to be found

following a full examination, which included Jemison lifting his shirt.

After Jemison rested, the Defendants moved for judgment as a matter of law.

The district court denied the motion because the issues in the case “turn[ed] on the

credibility of the witnesses.” The Defendants renewed their motion following a

brief defense case (limited to the testimony of Sergeant Marsh), which the district

court again denied, for the same reason. After closing arguments, the parties

submitted the case.

The district court adjourned to deliberate Jemison’s case and returned a

verdict in favor of the Defendants. Emphasizing that “th[e] case boil[ed] down to a

very simple, straightforward credibility match between the Plaintiff on the one side

and the correctional officers on the other,” the court credited the version of events

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recounted by the Defendants. Specifically, the court found that Jemison was

removed to the yard at the direction of Captain Simmons because water remained

in his cell and needed to be cleaned up. Noting that the exercise yard was clearly

visible from the windows in cell block A, and that the attack was alleged to have

occurred during the daylight hours, the court simply did not believe Jemison’s

account. The court also discredited Jemison’s version of his initial nurse’s

examination as having been cursory and unprofessional, explaining “I don’t think

that all the things that were documented on the medical chart could have been

accomplished in two minutes.” Finally, the court indicated that it “was particularly

impressed with the testimony of . . . Lieutenant Malone, who very firmly said he

would not allow [the beating] to happen; that is against their policy, and he would

not permit that to occur,” and that the minor inconsistencies in the remaining

Defendants’ testimony tended to corroborate Malone’s account because such

inconsistences indicated “heartfelt, credible answers,” rather than “robotic

answers.”4

4
It is not disputed that Jemison was left handcuffed and unattended in the exercise yard for four
hours. The district court determined that this was due merely to the Defendants’ negligence and
was not sufficient, of itself, to create a constitutional violation. Jemison does not contest this
point on appeal, and therefore he has abandoned any challenge to this determination. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant
are deemed abandoned.”).
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This pro se appeal followed. While his appeal was under review, Jemison

filed with this court a motion for a preliminary injunction to prevent further

mistreatment by the Defendants pending the outcome of his case.

II. DISCUSSION

“We read liberally briefs filed pro se.” Lorisme v. I.N.S., 129 F.3d 1441,

1444 n.3 (11th Cir. 1997). So read, Jemison’s briefs raise two cognizable issues on

appeal. First he argues that the trial court erred in admitting prejudicial character

evidence. Second he argues that the district court’s judgment was against the

weight of the evidence. We address each argument in turn.5

A.

Jemison’s first argument is that the trial court erred by admitting improper

character evidence when it allowed Lieutenant Malone to testify that Jemison has a

5
Other issues that Jemison raises in his appeal are either not cognizable or have been waived.
Jemison’s claim that his trial counsel’s performance was so substandard that it “deprived him of
the right to receive a fundamental[ly] fair trial” fails because “there is no constitutional or
statutory right to effective assistance of counsel on a civil case.” Mekdeci v. Merrell Nat’l Labs.,
711 F.2d 1510, 1522 & n.19 (11th Cir. 1983) (quotation marks omitted). Similarly, Jemison’s
argument that the district court violated his Sixth Amendment right to confrontation when it
limited his redirect examination of Lieutenant Malone fails because “[t]he Sixth Amendment is
limited by its very terms to criminal prosecutions,” Little v. City of N. Miami, 805 F.2d 962, 968
(11th Cir. 1986), and the record does not otherwise indicate that the district court unreasonably
restricted Jemison’s questioning of Malone, see Fed. R. Evid. 611(a); Akouri v. Fla. Dep’t of
Transp., 408 F.3d 1338, 1346 (11th Cir. 2005). Finally, Jemison’s argument that the district
court “committed plain error b[y] refusing to allow [him] to receive a trial by jury despite his
request[] in [his] complaint” is waived because neither he nor his trial counsel objected to a
bench trial despite: 1) having received ample notice that his case would be tried without a jury;
and 2) having actively participated in the bench trial. See Southland Reship, Inc. v. Flegel, 534
F.2d 639, 645 (5th Cir. 1976) (“[I]n a civil case a waiver (of right to jury after demand) is shown
by mere acquiescence, when the party or his counsel is present and not objecting.” (quotation
marks omitted)).
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history of flooding his cell, setting fires in his cell, and throwing feces at prison

staff, and is generally known to have “a negative attitude.” The district court

admitted this testimony over Jemison’s objection “for the limited purpose of . . .

explain[ing] what [Malone] understood he was walking into when he was tasked

with going into the cell.” In its findings of fact, the district court relied on this

evidence as the basis for why Malone and the other guards handcuffed and

shackled Jemison, and removed him to exercise yard A while they cleaned his cell.

We review a district court’s evidentiary rulings for abuse of discretion and

will not reverse an evidentiary decision unless the ruling is “manifestly erroneous.”

Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092,

1103 (11th Cir. 2005) (quotation marks omitted). “Evidence of a person’s

character or character trait is not admissible to prove that on a particular occasion

the person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1).

Likewise, “[e]vidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). Finally, “[t]he court may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.” Fed. R. Evid. 403.

We are not convinced that the district court’s decision to admit evidence of

Jemison’s prior behavioral problems was “manifestly erroneous.” Cook, 402 F.3d

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at 1103. Malone’s testimony was not admitted to prove that Jemison was acting

out on April 21. Instead, as explained by the district court, the evidence was

admitted to explain why Lieutenant Malone and the other guards restrained

Jemison and removed him to yard A during the cleanup. The district court relied

on Malone’s testimony for precisely this purpose. Thus, Jemison’s argument that

the district court’s judgment must be reversed because the trial judge admitted

improper character evidence fails.6

B.

Next, Jemison argues that the district court’s judgment was against the

weight of the evidence. In particular, he contends that the documentary evidence

he introduced at trial clearly contradicted the Defendants’ testimony, which was

predictably “fabricated” and self-serving, and that the trial court’s decision to

credit the Defendants’ testimony over his exhibits and his own testimony

“create[d] a manifest injustice.”

We review a district court’s bench trial findings of fact for clear error, and

its conclusions of law de novo. O’Ferrell v. United States, 253 F.3d 1257, 1265

(11th Cir. 2001). When, as here, fact findings are based on credibility

6
Additionally, even if we were to assume this evidence was inadmissible, “[i]n bench trials,
judges routinely hear inadmissible evidence that they are presumed to ignore when making
decisions.” Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 465 (1981); see also Gulf States
Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A 1981) (indicating that “Rule 403
has no logical application to bench trials” because in a bench trial, the judge can exclude from
his mind improper inferences drawn from inadmissible evidence in reaching a decision).
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determinations we must give “even greater deference to the trial court’s findings;

for only the trial judge can be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding of and belief in what is

said.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct.

1504, 1512 (1985). When a district court’s judgment “is based on his decision to

credit the testimony of one of two or more witnesses, each of whom has told a

coherent and facially plausible story that is not contradicted by extrinsic evidence,

that finding, if not internally inconsistent, can virtually never be clear error.” Id.

The district court did not commit clear error in crediting the Defendants’

testimony over Jemison’s. Contrary to Jemison’s assertions, the documentary

evidence introduced at trial did not contradict the Defendants’ accounts of what

occurred on April 21. The best that can be said about the extrinsic evidence is that

it is incomplete, insofar as it does not indicate whether water remained in

Jemison’s cell when he was removed to the yard, or whether Jemison had injuries

to his torso when he was examined by the nurse after being recovered from the

yard. As such, the extrinsic evidence can be read to support both Jemison’s and

the Defendants’ accounts, thus creating the “classic credibility fight between the

two sides” identified by the district court. The district court’s resolution of this

credibility fight in the Defendants’ favor was based upon the witnesses’ “body

language [on] the stand, eye contact during questions, . . . mannerisms while

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testifying, and . . . what may or may not be perceived inconsistencies between the

stories or within the stories.”

We are hard-pressed to second-guess the district court’s decisions to credit

the Defendants’ version of events, and to discredit Jemison’s. See Anderson, 470

U.S. at 575, 105 S. Ct. at 1512. On this record we simply cannot say that the trial

court clearly erred in determining that water remained in Jemison’s cell when the

Defendants removed him to exercise yard A, and that he was not beaten while he

was there.7 O’Ferrell, 253 F.3d at 1265. Thus, reviewed de novo, the evidence

was sufficient to support the judgment for the Defendants. Id.

III. CONCLUSION

For these reasons, the judgment of the district court is AFFIRMED.

Jemison’s request for injunctive relief pending the outcome of this appeal is

DENIED AS MOOT.

AFFIRMED.

7
Neither are we persuaded by Jemison’s assertion that the district court’s “fail[ure] to issue a
determination as to how [he] received his injuries,” standing alone, constitutes reversible error.
First, such a finding was not necessary to the conclusion that the Defendants did not attack
Jemison in the yard. Second, the only documented injuries in the record are the bruises around
Jemison’s wrists and ankles, and the swelling under his right eye. As stated, Captain Simmons
provided a plausible explanation for the source of these injuries upon questioning by Jemison,
and no extrinsic evidence contradicted this testimony.
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