Cunningham v. Falmier

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY J. CUNNINGHAM, SR., )

)

Plaintiff, )

)

v. ) Case No. 17-cv-126-RJD

)

MARCUS JENKINS, et al., )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

Plaintiff Timothy J. Cunningham, Sr., an inmate in the custody of the Illinois Department

of Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983, the Americans with

Disabilities Act, and the Rehabilitation Act. Plaintiff’s claims arose from his incarceration at

Pinckneyville Correctional Center and Lawrence Correctional Center. Following entry of an

order on Defendants’ motion for summary judgment, Plaintiff was assigned counsel (see Doc. 74).

Plaintiff proceeded to trial on the following claims:

Count 8: Rehabilitation Act claim against the Illinois Department of Corrections for

denial of access to telephone privileges on a comparable basis to

non-disabled inmates while Plaintiff was incarcerated at Pinckneyville

Correctional Center and Lawrence Correctional Center.

Count 10: Eighth Amendment claim against Defendant Jenkins for failing to

accommodate Plaintiff’s disability pursuant to the ADA when he

transported him on February 10, 2015 and March 28, 2015, causing

Plaintiff to wet himself and suffer humiliation1.

Following trial, the jury rendered a verdict in favor of Defendants on both counts. The

1 Following entry of the Court’s Order on Defendants’ motion for summary judgment, Plaintiff was allowed to

proceed on an additional claim designated as Count 11, a First Amendment retaliation claim. Plaintiff voluntarily

dismissed this claim on June 29, 2021 (see Docs. 145 and 160).

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Court entered final judgment in this matter in favor of Defendants on July 15, 2021.

On August 12, 2021 Plaintiff filed a Motion for a New Trial (Doc. 181) that is now before

the Court. Defendants filed a response (Doc. 190), and Plaintiff filed a reply (Doc. 220). For the

reasons set forth below, the Motion is DENIED.

Legal Standard

Plaintiff does not identify with particularity any Federal Rule by which he seeks relief.

The Court finds that based on his request for relief, Rule 59 is appropriate. Rule 59 allows the

Court to grant a new trial on all or some of the issues, for any reasons for which a new trial has

been granted in federal court. FED. R. CIV. P. 59(a)(1)(A). “In ruling on a motion for a new trial

under Rule 59(a), the Court must determine whether the jury verdict was against the weight of the

evidence or if the trial was unfair to the moving party.” Purtell v. Mason, No. 04 C 7005, 2006

WL 2037254, at 3 (N.D. Ill. July 18, 2006) (citing Kapelanski v. Johnson, 390 F.3d 525, 530 (7th

Cir. 2004)).

In deciding whether a new trial is appropriate on fairness grounds, the Court must be

guided by the principle that “civil litigants are entitled to a fair trial, not a perfect one,” and “a new

trial will not be ordered unless there was an error that caused some prejudice to the substantial

rights of the parties.” Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993).

Further, Rule 59(e) provides a basis for relief where a party challenges the Court’s

application of the law to the facts of the case. See Osterneck v. Ernst & Whinney, 489 U.S. 169,

174-76 (1989) (concluding that Rule 59(e) was intended to apply to the reconsideration of matters

encompassed within the merits of a judgment). While Rule 59(e) permits a district court to

exercise its discretion to correct its own errors, sparing the time and expense of further proceedings

at the appellate level, Divane v. Krull Elec. Co. Inc., 194 F.3d 845, 848 (7th Cir. 1999),

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“ill-founded requests for reconsideration of issues previously decided … needlessly take the

court’s attention from current matters.” Berger v. Xerox Ret. Income Guar. Plan, 231 F.Supp.2d

804, 820 (S.D. Ill. 2002). Typically, Rule 59(e) motions are granted upon a showing of either

newly discovered evidence not previously available or evidence in the record that clearly

establishes a manifest error of law or fact. Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511-12

(7th Cir. 2007); Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n.3 (7th Cir. 2001).

“[M]anifest error is not demonstrated by the disappointment of the losing party. It is the

wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v.

Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal citations omitted). A

proper motion to reconsider does more than take umbrage and restate the arguments that were

initially rejected during the summary judgment phase. County of McHenry v. Ins. Co. of the West,

438 F.3d 813, 819 (7th Cir. 2006); Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004); Oto, 224

F.3d at 606.

Discussion

In his motion for a new trial, Plaintiff includes numerous arguments and additional

background facts. Upon careful review of the motion, the Court finds Plaintiff sets forth the

following issues. The Court discusses each issue as set forth below.

Admission of April 2014 Grievance

Plaintiff asserts his April 2014 grievance that requests an accommodation for the

telephones should have been admitted and asserts that because it was not published to the jury he

was deprived of a straightforward presentation of his case.

Plaintiff articulates that the grievance evidenced that the IDOC had notice of the failure to

accommodate and the body of his complaint should have been admitted under the “present sense

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impression” exception to the prohibition on hearsay. Plaintiff also asserts his grievance contains

“admissions by a party-opponent” and is considered a “business record” and, for these reasons, the

entirety of the grievance was admissible. In his reply, Plaintiff also asserts this grievance was

necessary to show he notified IDOC of his phone issues.

For clarification, Plaintiff’s April 7, 2014 grievance was admitted and provided to the jury

(see Doc. 177-1 and Doc. 206 at 17-18)2. However, the institutional responses to the grievance

were not admitted. In his reply, Plaintiff asserts this was an error. At the trial, counsel for

Defendants argued that although the grievance itself was a business record and they had agreed to

the same, they had not agreed that the content of the responses was a business record as the

response contained hearsay statements. Counsel for Plaintiff did not set forth any basis on which

the responses would be excepted from the general hearsay rule of prohibition. Moreover,

Plaintiff was able to testify about the institution’s response, and indicated that IDOC denied his

request for an accommodation. Because the jury was made aware of the grievance and the

institution’s response, there is no basis to find the jury’s inability to actually see the response

warrants a new trial.

Admission of February 2015 and March 2015 Grievances

Plaintiff asserts he should have been allowed to enter his February 11 and March 27, 2015

grievances concerning Defendant Jenkins’ actions during the transports at issue into evidence.

Plaintiff asserts these grievances gave notice of the unacceptable treatment he received.

There was no attempt to admit the entirety of these grievances into the record at trial.

Defendant Jenkins was questioned about the grievances by Plaintiff’s attorney, and admitted that

2 The Exhibit List indicates the grievance is dated April 4, 2014. However, the grievance at issue was dated April 7,

2014 and was correctly identified as such during the trial. The Court finds the misnomer of the date of this grievance

on the Exhibit List to be immaterial and not dispositive of any issue in this case.

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he responded to the February 11, 2015 grievance, and was aware of Plaintiff’s bladder issues prior

to the second, March 2015 trip because he had to respond to the February 2015 grievance. These

grievances were also subject to the Court’s motions in limine ruling, in which the Court indicated

that grievances are generally inadmissible hearsay, but such records may be admissible if they are

relevant and are not being offered for the truth of the matter asserted. Finally, the Court notes that

portions of Defendant Jenkins’ response to the March 2015 grievance were admitted for the

purpose of setting forth prior consistent statements.

The jury was made aware of the filing of these grievances and their general content, and the

Court finds that there is no basis for a new trial related to the non-admission of these grievances.

Bar on “Scope” Objections

Plaintiff complains that the Court’s bar to “scope” objections and calling each witness only

once deprived him of the opportunity to properly cross-examine witnesses on re-direct. In

particular, Plaintiff complains that this process allowed ADA Coordinator Lorie Cunningham to

testify to two incompatible defenses: (1) that she was not aware of any request for accommodation

by Plaintiff; and (2) that Plaintiff’s request for accommodation was fulfilled, but not how Plaintiff

wanted.

First, the parties agreed prior to trial that objections to scope would be waived for the sake

of efficiency and to allow each witness to be called only one time. Counsel still had opportunity

to direct and re-direct and cross and re-cross as necessary. There was no objection at trial by

counsel as to this process. With respect to Ms. Cunningham in particular, the Court has reviewed

Ms. Cunningham’s testimony and does not find the inconsistency described by Plaintiff.

However, even if there was an inconsistency in her testimony, it should have been addressed

during trial and Plaintiff’s counsel had time and opportunity to address any purported

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inconsistencies. For these reasons, the testimony of Lorie Cunningham and the waiver of scope

for witnesses present no basis on which to grant Plaintiff a new trial.

In his reply brief, Plaintiff asserts it was an abuse of discretion for the Court to excuse

witnesses Christine Brown, Adam Puckett, and Lorie Cunningham before allowing Plaintiff’s

counsel to question them following Defendant’s counsel’s questioning. Again, the parties agreed

prior to trial that objections to scope would be waived, and counsel still had opportunity to direct

and re-direct and cross and re-cross as necessary. Counsel had the discretion to re-cross and it

was not an error on the part of the Court if counsel determined not to take this action.

Evidence of Restraints Used for Transport

Plaintiff complains he was unable to present evidence concerning the type of restraints

used when he was transported by Defendant Jenkins. It appears Plaintiff takes issue with the

Court’s determination that Plaintiff’s criminal record could be discussed at trial if Plaintiff was

allowed to elicit testimony from Defendant Jenkins concerning why he used a black box restraint

as opposed to a waist restraint for Plaintiff during transport. In the Court’s ruling on Plaintiff’s

motion in limine, the undersigned found that the probative value of Plaintiff’s criminal convictions

was generally outweighed by the danger of unfair prejudice. However, the Court agreed with

Defendants that if Plaintiff introduced evidence or put the appropriateness of his black box

restraints at issue, Defendants would be allowed to introduce evidence of Plaintiff’s criminal

convictions to the extent the convictions were relevant to the decision to use particular restraints

for transport (see Doc. 162 at 2-3). Thus, by agreement, the parties determined that if Plaintiff did

not discuss the appropriateness of the restraints used during transport, then Defendants would not

attempt to enter into evidence Plaintiff’s criminal convictions. Plaintiff did not make any

objection to this issue during trial. For these reasons, the issue concerning Plaintiff’s criminal

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convictions and transport security does not warrant a new trial.

In his reply, Plaintiff asserts the decision related to this issue occurred at the final pretrial

conference and asserts it is “unfair” that the Court denied his request for transcripts of the final

pretrial conference. The decision concerning this issue is memorialized in the Court’s order on

motions in limine (Doc. 162), and the parties agreed to the same. The Court reiterates its previous

finding that Plaintiff has failed to demonstrate that the transcript of the final pretrial conference

supports an issue he has or seeks to appeal as no decision on the issue of restraints was rendered

during the conference. The decision was issued in the Court’s order on the parties’ motions in

limine (which is already in the record).

Marcus Jenkins Testimony

Plaintiff complains that his attorney was improperly prevented from impeaching

Defendant Jenkins with prior inconsistent statements at trial. In his reply, Plaintiff complains that

the Court advised counsel that “we are not going to rehash deposition testimony.” Plaintiff’s

complaint lies with the Court’s statements made during Mr. Martin’s questioning of Defendant

Jenkins on July 13, 2021, wherein the undersigned indicated Mr. Martin’s line of questioning was

not proper impeachment because it was not clear that Jenkins had said something during his trial

testimony contrary to what he testified to during his deposition. Mr. Martin understood and

continued to question Defendant Jenkins. The Court has reviewed the transcript and finds no

error in its advisement to counsel. Because the undersigned did not attack Mr. Martin’s

credibility, no curative instruction was necessary and this issue does not warrant a new trial.

Restraints at Trial

Plaintiff asserts he is entitled to a new trial because he was shackled in view of some jury

members at the hands and waist during jury selection. Plaintiff asserts he had limited time to

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bring this to his attorney’s attention, and was only able to do so after the first day of trial. Plaintiff

correctly asserts that his attorney moved for a mistrial on this basis.

Plaintiff is correct insofar as his hands were restrained by handcuffs during jury selection

while he was seated at a table. The use of hand restraints during this time was in contravention of

the Court’s ruling on motions in limine, which indicated that security permitting, Plaintiff would

not be handcuffed during the course of the trial. After jury selection, the issue of the restraints

was brought to the undersigned’s attention by counsel for Plaintiff and redressed before the jury

was empaneled and opening statements began.

In his motion for new trial, Plaintiff cites Lemons v. Skidmore, 985 F.2d 354 (7th Cir.

1993). In Lemons, the Seventh Circuit remanded a prisoner’s case for a new trial because the trial

judge failed to determine whether restraints on the inmate-plaintiff were necessary (the magistrate

delegated the decision to shackle the inmate to the Department of Corrections rather than making

the determination himself). Lemons is clearly distinguishable from the circumstances presented

here. First, in Lemons, the plaintiff was placed in handcuffs and leg irons for the duration of the

trial, including while he was testifying. Here, Plaintiff was in handcuffs for a brief period of time

— only during jury selection. Notably, Plaintiff was not handcuffed while testifying. Further, in

Lemons, the court remarked that although the plaintiff was already a convicted felon, a central

issue to his case was whether or not he was a dangerous person and prone to outbursts of violence.

This was not an issue in the case at bar.

In a recent decision by the Seventh Circuit, Wilber v. Hepp, -- F.4th-- , 2021 WL 5027514

(7th Cir. 2021), the Court granted a writ of habeas corpus, finding that the trial court failed to

justify a need for visible restraints during closing arguments for a criminal defendant. The

undersigned finds that this case is also clearly distinguishable from the case at bar. The court

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based its decision on the fact that the court failed to address why visible restraints were necessary

when the court had taken efforts up to that point to ensure restraints were out of the jury’s view.

Id. at 23. In this instance, the use of hand restraints was in contravention of the Court’s ruling on

motions in limine. With regard to prejudice, the court in Wilber found there was the “possibility

that the restraints had a substantial adverse effect on the verdict.” Id. In making this

determination, the court emphasized that the defendant’s visible confinement during closing

arguments is the “stage of the trial that a jury is most likely to be focused on the defendant, as it

considers the charge, weighs the evidence and arguments marshaled by counsel, and begins to

ponder the defendant’s fate.” Id. The court also noted that because the defendant was accused of

a violent crime, “his sudden appearance in multiple sets of manacles can only signal that the court

believes he presents a danger to those in the courtroom.” Id. The prejudices noted in Wilber are

simply not present here. Plaintiff’s restraints were removed before a jury was empaneled and

before any evidence was presented. Even if a member of the venire had seen Plaintiff in

restraints, the fact that they were removed for the entirety of the trial following jury selection

would only signal that the Court did not believe Plaintiff presented a danger to those in the

courtroom.

Based on a review of the totality of the circumstances and in consideration of the brief

period of time Plaintiff was handcuffed in view of only some jury panel members, the Court finds

no prejudice resulted and this issue does not warrant a new trial.

Conferring with Counsel

In his reply, Plaintiff interjects a new issue and asserts he had insufficient time to confer

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with counsel3. Plaintiff also asserts that he did not have his hearing aids and, as a result, he could

not hear counsel’s “whispers.” Based on a review of the trial transcript, Plaintiff clearly had notes

and was able to communicate with counsel by way of note-taking. The Court also afforded

numerous breaks throughout trial, and Plaintiff could have conferred with counsel during these

times. If Plaintiff was having difficulty conferring with counsel, he should have brought it to the

Court’s attention during trial, but he did not (Plaintiff did, however, confer with the Court about

other issues he had during trial). The Court finds this issue does not warrant a new trial.

Cumulative Error

Although Plaintiff did not specifically argue there was cumulative prejudicial error, the

Court finds it necessary to address the same due to the number of errors Plaintiff cites in his

motion. To prevail on a cumulative effect argument, a plaintiff must show: (1) multiple errors

occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have

rendered the trial fundamentally unfair. United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001).

In consideration of the reasons already stated regarding the issues presented by Plaintiff, the

undersigned does not find any error at trial. Moreover, there is no basis for a finding that the trial

was fundamentally unfair.

Conclusion

Based on the foregoing, Plaintiff’s Motion for a New Trial (Doc. 181) is DENIED.

IT IS SO ORDERED.

DATED: November 18, 2021

3 In his initial motion, Plaintiff only indicated he had limited time to speak with his attorney regarding the restraint

issue as an explanation for why counsel only moved for a mistrial on the second day of trial, after Christine Brown’s

testimony.

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s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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