Stanciel, Elijah v. Gramley, Richard B.

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3017

Elijah Stanciel,

Plaintiff-Appellant,

v.

Richard B. Gramley, Captain Knight,

and Sergeant Eaton,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 94-C-1515--Michael M. Mihm, Judge.

Argued April 3, 2001--Decided September 20, 2001

Before Posner, Kanne, and Rovner, Circuit

Judges.

Kanne, Circuit Judge. Plaintiff-

appellant Elijah Stanciel, who has been

in custody of the Illinois Department of

Corrections ("DOC") since 1988, filed

suit in federal district court pursuant

to 42 U.S.C. sec. 1983 alleging that the

Pontiac Correctional Center ("Pontiac")

and several DOC employees violated his

constitutional and statutory rights. The

district court dismissed fourteen of the

nineteen counts alleged in Stanciel’s

complaint and granted summary judgment

for the defendants on two additional

counts. At trial, the jury found for the

defendants on the three remaining claims.

On appeal, Stanciel urges us to find that

the district court erred in dismissing

several of his claims and by failing to

declare a mistrial in response to the

prejudicial statement of one of the

witnesses. He also asks us to find that

his attorney’s performance was so

deficient as to require a retrial. We

affirm.

I. History

A. Background

Plaintiff, who has been legally blind

since birth, began serving a sixty-year

sentence for murder at the DOC’s maximum

security facility in Pontiac, Illinois in

1988. Upon recommendation of the Pontiac

medical director, Stanciel was initially

placed in a single cell because of his

disability. Some time in the fall of

1992, Stanciel was notified by a prison

guard that prison authorities planned to

assign another inmate to share his cell.

Stanciel was upset by this, so he filed a

grievance with the DOC claiming that he

was authorized by the medical director to

have a single cell. The grievance was

denied, and between March 1993 and May

1994 a number of different inmates were

housed with Stanciel. Stanciel claims

that these cellmates verbally assaulted,

physically abused, and stole from him and

that he was unable to defend himself or

his property because of his disability.

He believes that Pontiac authorities

specifically assigned dangerous inmates

with disciplinary records to share his

cell because they were angry at him for

filing a grievance with the DOC. Stanciel

also contends that Pontiac employees

retaliated against him by intentionally

leading him into objects such as gates,

doors, and rails while guiding him from

place to place. On March 24, 1993,

Stanciel filed an additional grievance

alleging that the DOC had violated the

Americans With Disabilities Act, 42

U.S.C. sec. 12131 et seq., ("ADA") by

failing to provide access to job

assignments and programs such as physical

therapy, classes to learn braille, and

college courses. The DOC rejected these

requests and informed Stanciel that his

disability had already been accommodated

to the extent possible.

B. Procedural History

On September 26, 1994, Stanciel, pro se,

filed suit in district court for the

Northern District of Illinois pursuant to

42 U.S.C. sec. 1983 alleging that twelve

DOC employees ("the DOC defendants")

violated his constitutional rights while

he was housed at the Pontiac facility. He

claimed that the named individuals denied

him: (1) the right to shower alone or

with just a few other prisoners; (2) a

class in braille; (3) college courses for

the blind; (4) law books in braille; (5)

a cane; (6) suitable job assignments; and

(7) assistance writing letters,

grievances, and commissary requests.

Stanciel’s case was subsequently

transferred to the Central District of

Illinois, and he refiled his complaint in

that court on February 9, 1995. On

January 11, 1996, Stanciel filed a first

amended complaint that deleted four of

the initial defendants and added two new

defendants. The DOC defendants moved to

dismiss the complaint, but while the

motion to dismiss was pending, the

district court appointed counsel to

represent Stanciel. With the assistance

of counsel, Stanciel then filed a second

amended complaint. The second amended

complaint asserted that Pontiac and eight

individual DOC employees/1 led Stanciel

into objects, revoked his single cell

privileges and shower permit, assigned

dangerous inmates to his cell, and failed

to accommodate his disability in

violation of state law, the ADA, and the

Eighth Amendment’s prohibition on cruel

and unusual punishment.

The DOC defendants filed a motion to

dismiss Stanciel’s second amended

complaint on April 29, 1997. In the

motion to dismiss, defendants asserted

several defenses including Eleventh

Amendment immunity, qualified immunity,

and state law sovereign immunity.

Defendants’ motion also alleged that

Pontiac, Lowery, Kelly, and Reider were

not timely served, and that Massey was

not served at all. Stanciel did not

respond to defendants’ motion. On May 29,

1997, the district court issued a rule to

show cause why the defendants’ motion to

dismiss should not be granted. Although

Stanciel’s attorney did respond to the

rule to show cause, his response

addressed only the issue of whether

prisoners are covered by the ADA and did

not discuss the remaining issues raised

by defendants’ motion: whether service

was timely, whether the defendants sued

in their official capacities were immune

from suit, and whether the district court

had jurisdiction over plaintiff’s state

tort claims.

On October 1, 1997, the district court

granted in part defendants’ motion to

dismiss. The district court found that,

pursuant to the Local Rule 7.1(B) of the

Central District of Illinois, Stanciel

had conceded that service on defendants

Lowery, Kelly, and Reider was improper by

failing to respond to the defendants’

contention that those individuals were

not timely served./2 The court also

invoked Rule 7.1(B) in dismissing

Stanciel’s official capacity and state

tort claims due to Stanciel’s failure to

respond to defendants’ arguments

concerning these issues. With respect to

its dismissal of these claims, the court

stated, "[i]n its rule to show cause, the

court already informed plaintiff’s

counsel that it would not perform his

legal research for him. In light of the

plaintiff’s failure to oppose the

defendants’ remaining challenges to the

second amended complaint, the motion to

dismiss will be deemed confessed in those

respects." Stanciel v. Peters, No. 94-

1515, slip op. at 3 (C.D. Ill. Oct. 1,

1997) (order granting in part and denying

in part defendants’ motion for

dismissal). Finally, on its own motion,

the district court dismissed plaintiff’s

claims against Pontiac on the basis that

the claims were barred by the Eleventh

Amendment.

On June 11, 1998, the four remaining

defendants-- Peters, Gramley, Eaton, and

Knight/3--filed a motion for summary

judgment. The district court granted the

motion in part--all claims against Peters

were dismissed--but allowed Stanciel to

proceed with his claims against Gramley,

Eaton, and Knight. The district court

also vacated its October 1, 1997 order

dismissing Pontiac, ruling that Stanciel

would be allowed to proceed on his claim

that Pontiac violated the ADA. On

February 2, 1999, however, the district

court issued a rule to show cause why the

Illinois DOC--which had been substituted

for Pontiac--should not be dismissed

under the Eleventh Amendment. Stanciel

again failed to respond to the rule to

show cause, and the district court

dismissed the DOC on March 11, 1999.

After all the dust had settled, only

three of Stanciel’s nineteen claims

remained for decision at trial: (1)

whether Captain Knight retaliated against

Stanciel for filing a grievance by

assigning dangerous inmates to share his

cell; (2) whether Sergeant Eaton

conspired with Knight to assign dangerous

inmates to Stanciel’s cell; and (3)

whether Gramley, as warden, had knowledge

of Knight’s and Eaton’s actions and

failed to remedy the situation. At trial,

Stanciel’s attorney called three of

Stanciel’s previous cellmates to testify.

All three testified via video

conferencing, and they each denied

assaulting or stealing from Stanciel. One

of the witnesses, Ronald Robinette, also

blurted out "that guy ate his kids" after

he finished testifying./4 Trial Tr. at

151. At that point, Stanciel’s attorney

indicated to the court that he had not

heard the witness’s statement but asked

to have it stricken from the record

"whatever it was." Id. The court obliged,

noting that he had not heard the

witness’s comment either. The district

judge did not ask the court reporter to

read the statement back to him, nor did

he attempt to ascertain whether any of

the members of the jury had heard the

statement. At the conclusion of the

evidence, the district court instructed

the jury "not to consider . . . testimony

or exhibits which were ordered stricken."

Id. at 266. On July 31, 1999, the jury

returned a verdict in favor of the

defendants on all claims. Stanciel now

appeals.

II. Analysis

On appeal, Stanciel presents several

issues which he contends warrant retrial.

First, he claims that the district judge

improperly dismissed several counts of

his complaint based upon his failure to

respond to the rule to show cause. Next,

he asserts that the district court should

have declared a mistrial sua sponte in

response to Robinette’s statement "that

guy ate his kids." Finally, he argues

that a retrial is necessary because his

attorney’s performance was so defective

as to deprive him of a fair opportunity

to present his case to the jury. We will

address each of his claims in turn.

A. Dismissal of Claims

The district court dismissed several

counts of Stanciel’s complaint pursuant

to Local Rule 7.1(B) of the Central

District of Illinois because Stanciel’s

attorney failed to respond to the

defendants’ motion to dismiss, even after

the district court issued a rule to show

cause why those counts should not be

dismissed. Stanciel now challenges these

rulings. Specifically, he claims that the

district court erred by dismissing: all

claims against Lowery, Kelly, and Reider

for lack of timely service; state law

claims against Reider and Eaton for lack

of supplemental jurisdiction; and the ADA

claim against the DOC because of Eleventh

Amendment immunity.

Local Rule 7.1(B) of the Central

District of Illinois provides in relevant

part:

Any party opposing [a] motion shall file

a response to the motion, including a

brief statement of the specific points or

propositions of law and supporting

authorities upon which the responding

party relies; with the exception of

motions for summary judgment under Rule

7.1(D)(2), the response shall be filed

within fourteen (14) days after service

of the motion and memorandum unless the

time is extended by the presiding judge

for good cause shown. If no response

memorandum is filed within the time

limit, the presiding judge will presume

that there is no opposition and may rule

on the motion without further notice to

the parties.

Our cases make it clear that a district

court’s "decision whether to apply [a

local] rule strictly or to overlook any

transgression is one left to the district

court’s discretion." Little v. Cox’s

Supermarkets, 71 F.3d 637, 641 (7th Cir.

1995); see also Rosemary B. v. Board of

Educ. of Cmty. High Sch. Dist. 155, 52

F.3d 156, 158-59 (7th Cir. 1995) (finding

that a district court has the power to

strike a response to a motion for summary

judgment for failure to comply with a

local rule). Thus, we review a district

court’s enforcement of its own rule for

abuse of discretion. See Borcky v. Maytag

Corp., 248 F.3d 691, 697 (7th Cir. 2001).

In his opening brief, Stanciel does not

acknowledge that the district court

dismissed the counts in question pursuant

to Rule 7.1(B); he proceeds as if the

district court’s dismissal was on the

merits. Instead of presenting an argument

as to why the district court abused its

discretion, he argues that the district

court’s decision was substantively

incorrect and that we should review the

court’s decision de novo. Stanciel seems

to have recognized his error, however,

because he does argue in his reply brief

that the district court abused its

discretion by dismissing Lowery, Kelly,

and Reider for untimely service. At no

time, however, has Stanciel presented any

evidence that the district court’s

dismissal of his other claims--the state

law or ADA claims-- was an abuse of

discretion. Nor does our review of the

record reveal any evidence that the

district court improperly applied its own

local rule with respect to those claims.

On the contrary, it is clear that the

district court adequately warned Stanciel

of the consequences of failing to respond

to defendants’ motion. Thus, it was well

within the district court’s discretion to

dismiss Stanciel’s state law and ADA

claims.

As indicated above, Stanciel has

presented an argument that the district

court abused its discretion by dismissing

defendants Lowery, Kelly, and Reider for

lack of timely service. He claims the

district court erred by invoking Local

Rule 7.1(B) to dismiss defendants for

improper service when they were, in fact,

timely served. Even if Stanciel is

correct, however, he waived the issue by

failing to object to the ruling in the

trial court. Moreover, we believe that

any error did not affect Stanciel’s

"substantial rights" and was therefore

harmless. Fed. R. Civ. P. 61; see also

Mason v. Southern Ill. Univ. at

Carbondale, 233 F.3d 1036, 1042 (7th Cir.

2000). The allegations against defendant

Reider were the same as the claims

against defendants Eaton and Knight, both

of whom the jury found not liable.

Similarly, Stanciel’s claims against

Lowery and Kelly were virtually identical

to his claims against Gramley, who the

jury also found not liable. Stanciel has

not even attempted to point to any

relevant legal or factual differences

between the three defendants dismissed

for untimely service and those that the

jury found not liable at trial. Thus, we

find that the district court’s decision

to dismiss Lowery, Kelly, and Reider for

untimely service was, at most, harmless

error.

B. Failure to Declare a Mistrial

Stanciel next argues that he is entitled

to a new trial because the district court

did not declare a mistrial in response to

witness Robinette’s statement "that guy

ate his kids" at the conclusion of his

testimony. We review a district judge’s

decision not to grant a mistrial for

abuse of discretion. See United States v.

Roe, 210 F.3d 741, 747 (7th Cir. 2000).

As indicated above, the record reflects

that neither Stanciel’s attorney nor the

judge heard Robinette’s statement at the

time it was made. The district judge did

not undertake--and Stanciel’s attorney

did not request--a determination of

whether any of the members of the jury

heard the remark. Even if the judge had

heard the statement, however, it would

not have been an abuse of discretion for

the district judge to issue a cautionary

instruction rather than grant a mistrial

in this case. See United States v. Fulk,

816 F.2d 1202, 1205-06 (7th Cir. 1987).

First, it is highly unlikely that the

jurors heard the statement given the fact

that neither of the parties nor the judge

heard it. Furthermore, it is undisputed

that the district judge struck the

comment from the record immediately after

it was made. He also admonished the jury

before they began their deliberations

that all testimony stricken from the

record should be disregarded. We must

"presume [ ] that the jury will follow an

instruction to disregard inadmissible

evidence unless there is an overwhelming

probability that the jury will be unable

to follow the court’s instructions and a

strong likelihood that the effect of that

evidence would be devastating." Wilson v.

Groaning, 25 F.3d 581, 587 (7th Cir.

1994) (internal quotations omitted).

Here, we are not convinced that

Robinette’s statement--while certainly

inflammatory--was such that there is an

overwhelming possibility that the jury

was unable to disregard it. At the time

of Robinette’s statement, the jurors were

already aware that Stanciel had been

convicted of a felony and was housed in a

maximum security prison, and they had all

represented to the court that they would

not let that fact influence their

deliberations. In addition, whether or

what type of crime Stanciel had committed

was not at issue at trial. Therefore, we

find that it was not an abuse of

discretion for the judge to decide not to

grant a mistrial in this case because the

prejudicial effect of Robinette’s

statement, if any, was "sufficiently

cured" by the judge’s instruction to

disregard it.

C. Attorney’s Deficient Performance

Stanciel’s final argument is that we

should reverse and remand for a retrial

because his attorney’s performance was so

inadequate as to deprive him of "a fair

opportunity to present [his] case."

Thomas v. Pate, 493 F.2d 151, 158 (7th

Cir. 1974), vacated on other grounds sub

nom. Canon v. Thomas, 419 U.S. 813, 95 S.

Ct. 288, 42 L. Ed. 2d 39 (1974). Although

we do not challenge Stanciel’s assertion

that his attorney’s performance was

deficient in several respects-- counsel

failed to address all of the issues in

defendants’ motion to dismiss, respond to

the court’s order to show cause why DOC

should not be dismissed, and impeach

clearly false testimony of witnesses--we

cannot accept his argument that retrial

is a proper remedy for defective

representation in a civil action. Our

cases make it quite clear that there is

no Sixth Amendment right to effective

assistance of counsel in a civil case.

See Bell v. Eastman Kodak Co., 214 F.3d

798, 802 (7th Cir. 2000) (finding that

ineffective assistance of counsel is not

proper grounds for collaterally attacking

a civil judgment); Hutcherson v. Smith,

908 F.2d 243, 245 (7th Cir. 1990) ("[I]t

is a well-established principle of law

that there is, in general, no

constitutional or statutory right to

effective assistance of counsel in civil

cases."). The proper remedy for

inadequate representation in a civil case

lies not in dragging the opposing party

through another trial, but rather in a

malpractice action against the offending

attorney. See Pokuta v. Trans World

Airlines Inc., 191 F.3d 834, 840 (7th

Cir. 1999); Bell, 214 F.3d at 802.

Although it is certainly unfortunate that

Stanciel’s trial attorney failed to

provide vigorous representation of his

client, it is well established that an

attorney’s shortcomings do not entitle

his client to a new trial in a civil

case.

III. Conclusion

For the reasons stated above, we AFFIRM

the decision of the district court.

FOOTNOTES

/1 The second amended complaint named the following

DOC employees as defendants: Sergeant Patricia

Reider, Captain David Knight, Warden Howard

Peters, Warden Richard Gramley, Sergeant Michael

Eaton, Officer Massey, Assistant Warden Louis

Lowery, and Superintendent Daniel Kelly.

/2 The record reflects (and defendants agree) that

Lowery, Kelly, and Reider were, in fact, properly

served. Stanciel’s first amended complaint, which

added defendants Lowery and Kelly and corrected

the spelling of Reider’s name, was filed on

January 31, 1996. Lowery was served on February

6, 1996; Kelly was served on February 7, 1996;

and Reider was re-served on February 7, 1996;

therefore, service on all defendants was timely.

See Fed. R. Civ. P. 4(m).

/3 Defendant Massey was dismissed on the court’s own

motion because he had been sued in his official

capacity.

/4 Nothing appears in the record from the district

court to shed light on why such a statement was

made.