Michael McIntosh v. Christopher Lindsey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2022 *
Decided December 22, 2022
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21‐1736
MICHAEL MCINTOSH,
Plaintiff‐Appellant,
v.
CHRISTOPHER LINDSEY,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:16‐cv‐927‐DWD
David W. Dugan,
Judge.
O R D E R
Michael McIntosh, an Illinois prisoner, appeals the jury verdict in his failure‐to‐
protect suit against a correctional officer. We affirm.
McIntosh was attacked in 2016 at the Menard Correctional Center by a cellmate,
who bit off part of his thumb in the attack. As relevant here, McIntosh sued correctional
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21‐1736 Page 2
officer Christopher Lindsey under the Eighth Amendment for failing to protect him.
The case proceeded to trial.
During voir dire, both McIntosh (who was represented at the trial) and Lindsey
questioned the venirepersons. After the questioning had ended, McIntosh objected to
the composition of the venire because it was not racially diverse. The district court
delayed ruling on the objection. McIntosh and Lindsey then moved to strike potential
jurors for cause or through use of peremptory challenges. McIntosh did not object to
any of Lindseyʹs peremptory challenges. Before opening statements began, the judge
invited McIntosh to elaborate on his prior objection to the racial composition of the
venire. McIntosh conceded, however, that he lacked evidence of systemic exclusion of
racial minorities in the jury‐selection process. The judge in turn denied the objection.
The next day, correctional officer Michael Adams testified as a witness for
Lindsey. Adams, who was on duty the day McIntosh was attacked, responded to
reports of a fight in McIntosh’s cell. Adams testified that when he arrived on the scene,
McIntosh had his cellmate in a chokehold. Adams then was cross‐examined by
McIntosh, who sought to highlight an inconsistency between Adams’s testimony that
he saw the chokehold and a report he wrote soon after the incident that did not mention
a chokehold. Adams added on cross‐examination that he did not know who had
instigated the fight, or if McIntosh had acted in self‐defense.
After closing arguments, both parties moved for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a). The district court denied these motions.
The jury returned a verdict in Lindsey’s favor, and the district court entered
judgment.
On appeal, McIntosh argues for the first time that Lindsey used peremptory
challenges to remove the only two Black jurors because of their race. See Batson v.
Kentucky, 476 U.S. 79, 86 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630
(1991) (extending Batson to civil suits). But because McIntosh did not object in the
district court to Lindsey’s peremptory challenges, he forfeited this argument. See
United States v. Heron, 721 F.3d 896, 901–02 (7th Cir. 2013). We would review this
forfeited argument for plain error and grant relief only if McIntosh can show that “(1)
exceptional circumstances exist; (2) substantial rights are affected; and (3) a miscarriage
of justice will occur if plain error review is not applied.” Henry v. Hulett, 969 F.3d 769,
786 (7th Cir. 2020) (en banc). On plain error review, however, we can find a Batson
violation only if “discrimination is plain on the face of the party’s justification” in the

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No. 21‐1736 Page 3
district court, United States v. Willis, 523 F.3d 762, 767 (7th Cir. 2008), and McIntosh
offers no evidence to show that the peremptory challenges were racially motivated.
Next, McIntosh generally challenges the jury verdict, arguing that the jury
should not have credited Adams’s testimony because it included details not mentioned
in Adams’s incident report and implicitly fingered him as the aggressor. To the extent
McIntosh challenges the sufficiency of the evidence, he failed to preserve that challenge
because he did not file a post‐verdict motion for judgment as a matter of law. See FED. R.
C IV. P. 50(b); Brown v. Smith, 827 F.3d 609, 614 (7th Cir. 2016). And even if McIntosh had
preserved the issue for appeal, an inconsistency of the sort he identifies requires a
credibility determination of a witness—a determination that falls within the province of
the jury. See Whitehead v. Bond, 680 F.3d 919, 925–26 (7th Cir. 2012).
The judgment of the district court is AFFIRMED.

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