Kevin Birdo v. Dave Gomez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 26, 2019 *
Decided February 26, 2019
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17-1422
KEVIN BIRDO,
Plaintiff-Appellant,
v.
DAVE GOMEZ, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13-CV-6864
John Robert Blakey,
Judge.
O R D E R
Kevin Birdo went on a protracted hunger strike while incarcerated at Stateville
Correctional Center. He brought suit under 42 U.S.C. § 1983, alleging that the responses
to his hunger strike by correctional officers, medical professionals, and administrative
officials were unlawful. He lost some claims at summary judgment, others after a
motion for judgment as a matter of law, and the remaining claims after a jury verdict.
* 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NONPRECEDENTIAL DISPOSITION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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17-1422 Page 2
Birdo principally devotes his appeal to arguing that the district judge was biased
against him. The record contains no evidence of bias, so we affirm.
Birdo began a hunger strike in 2012 that lasted for 190 days. To force-feed him,
officers entered his cell at times and, Birdo says (though the defendants contradict him),
sometimes assaulted him. In early 2013, Birdo complained to prison administrators
about his treatment, to no avail. The next month, after Birdo again refused to eat, a
tactical team entered his cell to help the medical staff. One officer slammed his shield
against Birdo and broke his finger. Birdo then met with a prison psychologist, who,
after conferring with the tactical-team leader and another psychologist, recommended
that Birdo be placed on suicide watch. Before entering the suicide-watch cell, Birdo
asserts, officers took his personal property, and later taunted him, strip searched him,
and forced him to remain naked for a time after the search. The defendants deny doing
anything improper. Within a week, Birdo was transferred to another institution.
Birdo turned to federal court for relief, where the district court sua sponte
recruited counsel for him. With counsel’s help, Birdo sued prison administrators,
officers, and medical personnel, alleging federal and state-law theories of recovery. In
partially granting summary judgment to the defendants, the court concluded that
sovereign immunity blocked some claims, qualified immunity barred others, and
insufficient evidence doomed still more. The rest of the case proceeded to a jury trial.
After Birdo’s case-in-chief, the remaining defendants moved for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a). The court granted the motion for
some claims and let the jury decide the surviving ones. The jury returned a verdict for
the defendants. Later, over Birdo’s objection of indigency, the court granted the
non-medical defendants’ request for $2,184 in costs. The medical staff, after adjusting
their requested costs downward, received $6,134.
On appeal, Birdo primarily argues that he is entitled to a new trial because the
district judge was biased against him. He first contends that the bias arose simply
because Birdo is an inmate and the judge is a former prosecutor. An impermissible risk
of bias arises if the judge “had significant, personal involvement as a prosecutor in a
critical decision regarding the defendant’s case.” Williams v. Pennsylvania, 136 S. Ct.
1899, 1905 (2016). But no authority suggests that a judge cannot hear a civil case brought
by an inmate merely because of the judge’s former job as a prosecutor.
Birdo’s other arguments about bias are also meritless. He asserts that the judge
“continually disrupte[d] the trial,” by sustaining the defendants’ objections “over and
over.” But a judge must rule on evidentiary objections, even if those rulings interrupt a

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No. 17-1422 Page 3
witness’s testimony, and Birdo has not pointed to any objections that he believes were
wrongly sustained. Next, Birdo contends that the judge “yelled” at his attorney; but an
expression of “impatience, dissatisfaction, annoyance, and even anger” is not evidence
of bias. See Liteky v. United States, 510 U.S. 540, 555–56 (1994). Finally, Birdo faults the
judge for allowing the defendants to testify in narrative form while refusing to let him
do so. But the defendants repeatedly objected to Birdo’s narrative testimony, whereas
Birdo’s counsel objected only once and that objection was sustained. Arguing
unfairness by pointing to instances in which the opposing side followed the proper
steps and the complaining party did not “does not indicate that the trial judge was
biased … [but] that [the complaining party] tried to sidestep the rules of evidence, and
failed.” United States v. Mitan, 966 F.2d 1165, 1174 (7th Cir. 1992).
Birdo also challenges the award of costs, arguing that the judge improperly
awarded the defendants nearly $9,000 in costs when their adjusted request sought only
$5,000. But Birdo mischaracterizes the record. The non-medical defendants asked for
around $2,200 and the medical defendants requested about $6,100, so the judge
properly calculated a total award of just over $8,300. Because Birdo identifies no other
problems with the award, we see no reason to disturb the presumption that the
prevailing parties may recover their costs. See Beamon v. Marshall & Ilsley Tr. Co., 411
F.3d 854, 864 (7th Cir. 2005).
Finally, Birdo argues that this court erred in refusing to recruit him an attorney
on appeal. Before briefing proceeded on appeal, Birdo asked us four times to recruit a
lawyer for him. He argued that his case had complex issues, more than 4,000 pages in
the record, and had been ongoing for over 3 years. We denied each motion. Birdo now
repeats his earlier requests for counsel on appeal, but he gives us no new reason to
revisit our previous rulings. Even if we considered the request de novo, we would deny
it. Birdo does not specify which issues (other than the ones already developed in his
brief) counsel might have pursued, and a lawyer could not have made a substantial
argument about bias or improper costs. With no reason to believe that recruited counsel
would likely have made a difference on appeal, we decline to overturn our earlier
rulings.
AFFIRMED

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