Mickey Miller v. Michael Ninkovic

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 16, 2018*
Decided March 20, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-1937
MICKEY MILLER,
Plaintiff-Appellant,
v.
MICHAEL NINKOVIC, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 14-cv-1603
Nancy Joseph,
Magistrate Judge.
O R D E R
Mickey Miller sued several staff members of the Milwaukee County Jail for using
excessive force in violation of his constitutional rights. A jury found in favor of the
officers, and the district court denied Miller’s motions to alter the judgment and for a
new trial. Because Miller’s challenges on appeal are meritless, we affirm.
* We have agreed to decide this 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. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17-1937 Page 2
Miller alleges that five officers at the Milwaukee County Jail assaulted him on
December 5, 2013. He asserts that they brutally beat him, first on an elevator ride during
his move from the booking room to the 4D maximum security section of the jail, and
then again on the “dogwalk” of 4D. Miller testified that he suffered severe injuries,
including abrasions, torn-out dreadlocks, and “knots” on his forehead. The day of the
beating, staff psychologist Melinda Andrzejewski visited Miller for an evaluation. In her
report Andrzejewski did not record any physical signs of injury, but she did include
Miller’s assertion of emotional trauma because officers “beat him up again.”
Miller, acting pro se, then filed this suit under 42 U.S.C. § 1983 alleging violations
of his Eighth Amendment rights. Early on he filed a successful motion requesting
recruitment of counsel, and was represented by two attorneys. At trial a jury found that
none of the defendants had used excessive force against Miller. The magistrate judge
(presiding by consent, 28 U.S.C. § 636(c)), then entered judgment in favor of the
defendants. She later denied Miller’s post-trial motions.
On appeal Miller offers undeveloped arguments and cites no legal authority to
support his assertions. See FED. R. A PP. P. 28(a)(8); Yasinskyy v. Holder, 724 F.3d 983, 989
(7th Cir. 2013). But we read his brief as generously as we can to address the arguments
that we can fairly discern. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
Miller argues first that he was prejudiced at trial because the magistrate judge
denied his request for a jury instruction on spoliation of evidence. A judge may instruct
the jury to infer that destroyed evidence contained incriminating content if a party
intentionally destroyed the evidence in bad faith. See Crabtree v. National Steel Corp.,
261 F.3d 715, 721 (7th Cir. 2001). Miller contends that the instruction was appropriate
because he believes the defendants destroyed surveillance recordings from the elevator
and the dogwalk where they allegedly beat him. But the magistrate judge found the
spoliation instruction inapplicable because the dogwalk was not captured in
surveillance footage and the footage from the elevator was not destroyed in bad faith;
rather, it was automatically recorded over by a jail technician when storage capacity
had been reached.
The magistrate judge did not abuse her discretion in rejecting the spoliation
instruction. See United States v. Rebolledo-Delgadillo, 820 F.3d 870, 878 (7th Cir. 2016)
(reviewing jury instruction for abuse of discretion). As the moving party, Miller bore
the burden of demonstrating that the defendants destroyed the surveillance footage
“for the purpose of hiding adverse information.” Bracey v. Grondin, 712 F.3d 1012, 1019

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No. 17-1937 Page 3
(7th Cir. 2013) (quoting Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.
1998)). Without evidence of any monitoring of the dogwalk, or that defendants
destroyed footage of the elevator in bad faith, the judge reasonably assessed that Miller
did not meet his burden. See id. at 1019–20 (affirming that prison’s video surveillance
recorded on a loop was not destroyed in bad faith).
Miller next argues that the magistrate judge misapplied her own ruling on a
motion in limine. In his motion Miller requested the exclusion of character evidence,
including evidence of Miller’s multiple grievances and lawsuits against other
correctional officers involving similar claims of excessive force. The magistrate judge
granted this motion, but also stated in her oral decision that the defendants could elicit
testimony from Andrzejewski about her contact with Miller in October 2013—after
which she documented a bandage on Miller’s forehead—as long as she did not mention
that he had identified correctional officers as the source of his injury. The defendants
offered the testimony to demonstrate Andrzejewski’s detailed recordkeeping to support
an inference that she would have noted serious physical injuries, if any, in
December 2013. Miller challenges the judge’s decision to allow Andrzejewski’s
testimony because he believes it was inconsistent with the ruling barring evidence of his
former claims of excessive force.
Evidence of a crime, wrong, or other act is not admissible to prove a person's
character or propensity to act a certain way. See FED. R. EVID. 404(b)(1). In this vein the
magistrate judge granted Miller’s motion to exclude evidence of his past claims of
excessive force and his general litigious nature. And the defendants never violated the
ruling. Andrzejewski testified about her report detailing Miller’s bandage for an
unspecified injury without tying the injury to an alleged attack on Miller. To the extent
that Miller is attempting to argue that Andrzejewski’s testimony also was inadmissible
propensity evidence, he waived the argument because he did not timely object to the
testimony at trial. See FED. R. EVID. 103; Christmas v. City of Chicago, 682 F.3d 632, 640
(7th Cir. 2012).
One matter remains. Miller asserts that he received ineffective assistance of his
recruited counsel. But the Sixth Amendment right to effective assistance of counsel does
not apply in a civil case. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001). His
argument is therefore frivolous.
AFFIRMED

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