Donald Richardson v. Scott Masteller

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0458n.06
No. 19-2233
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DONALD RICHARDSON,
Plaintiff-Appellant,
v.
SCOTT MASTELLER,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. Donald Richardson claimed that Deputy U.S. Marshal Scott
Masteller used excessive force during the execution of a warrant to arrest him. A jury rejected
Richardson’s claim, and he appealed. We reject his arguments and affirm.
One night in May 2015, Masteller and a group of officers went to Richardson’s house to
arrest him for a parole violation. When they arrived, the officers surrounded the house. Several
of them banged on the front door, announced that they had a warrant, and demanded that
Richardson come out.
Masteller was near the back of the house. He heard a clunking sound while the other
officers were banging on the door, so he drew his sidearm and went to investigate. Around the
side of the house, Masteller saw that Richardson had pushed back the screen of a first-floor window
and was squeezing through the opening, head-first. Masteller shouted “police” and repeatedly told
Richardson to freeze, but Richardson kept crawling out, holding a black object in his hand. When

-- 1 of 2 --

No. 19-2233, Richardson v. Masteller
-2-
Richardson got free of the window, he looked at Masteller and started to raise the object. Masteller,
thinking that Richardson had a gun, fired a single round that struck Richardson in the back.
The officers quickly arrested Richardson and discovered that Richardson had been holding
a black cell phone rather than a gun. An ambulance took Richardson to a hospital, where doctors
removed the bullet from his back.
Richardson thereafter filed a Bivens action against Masteller, alleging that Masteller had
used excessive force in violation of the Fourth Amendment. See generally Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). At the end of a trial, a jury
rejected Richardson’s claim and found in favor of Masteller. This appeal followed.
Richardson argues that the jury pool in his trial did not represent a “cross-section” of the
community. But Richardson never objected to the composition of the jury pool. Hence that
argument is forfeited. See United States v. Ovalle, 136 F.3d 1092, 1108 n.17 (6th Cir. 1998).
Second, Richardson argues that the verdict form submitted to the jury incorrectly stated the
requirements for finding Masteller liable. But the specific language to which Richardson now
objects was proposed to the court by Richardson himself, and he did not object to its use below.
This argument is therefore waived. See Puckett v. United States, 556 U.S. 129, 134–35 (2009);
United States v. Demmler, 655 F.3d 451, 458–59 (6th Cir. 2011); see also Fed. R. Civ. P. 51(c);
Libbey-Owens-Ford Co. v. Ins. Co. of N. Am., 9 F.3d 422, 428 (6th Cir. 1993).
The district court’s judgment is affirmed.

-- 2 of 2 --