David Robert Bentz v. Donald Lindenberg

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 12, 2021*
Decided April 13, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2564
DAVID ROBERT BENTZ,
Plaintiff-Appellant,
v.
DONALD LINDENBERG, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:15-CV-121-NJR-MAB
Nancy J. Rosenstengel,
Chief Judge.
O R D E R
David Bentz, an Illinois prisoner, asserts in this suit under 42 U.S.C. § 1983 that
two correctional officers unlawfully attacked him in the medical unit and then denied
him medical care for his injuries. With the assistance of recruited counsel, Bentz’s case
went to trial, and Bentz lost. He unsuccessfully moved the district court for a new trial,
principally arguing that the defendants had wrongly withheld medical logs and video
* 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. APP. 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NONPRECEDENTIAL DISPOSITION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. 19-2564 Page 2
evidence of the incident and then lied about that evidence. Because the court did not
abuse its discretion in ruling that Bentz had not shown a discovery violation or perjury,
we affirm.
We begin with the pretrial proceedings. Bentz requested but did not receive from
the defendants two items: Sign-in logs from the medical unit (to identify witnesses) and
surveillance recordings of the incident. The defendants did, however, produce an
internal email stating that, in response to Bentz’s grievance about the incident, “all
available video footage was reviewed,” and his allegations were “unsubstantiated.”
Bentz did not move to compel further production. After discovery, the court entered
summary judgment for the defendants on the claims not at issue on appeal. The court
then allowed Bentz to proceed to trial on his Eighth Amendment claims for unlawful
force and deliberate indifference, for which the court sua sponte recruited counsel for
him.
The trial consisted of testimony supporting and denying Bentz’s allegations.
According to Bentz, he was waiting for a medical appointment in August 2014 when
Donald Lindenberg, a correctional officer, punched him and dragged him out of the
medical unit by his throat, where Virgil Smith, another officer, joined the attack. Then
they did not allow Bentz to receive prompt medical care for his injuries. For their part,
Lindenberg and Smith denied that the attack occurred, adding that they had no recall of
even interacting with Bentz at the medical unit. They also said that officers would face
serious discipline for the behavior that Bentz alleged, and that security cameras in the
hallway where Bentz said the attack occurred deterred it. They had not seen any video
recordings, though, because prison regulations barred them from watching recordings
about their own behavior. The jury returned verdicts for the defendants.
Proceeding pro se, Bentz moved for a new trial and sanctions on three grounds.
First, he accused the officers of withholding the sign-in log to prevent him from
identifying potential witnesses. Second, he faulted them for failing to produce video
surveillance of the attack. He cited the internal email stating that prison officials had
reviewed all “available” recordings. Although they said that none substantiated his
claims, he believed that withholding any available videos warranted relief. Finally, he
argued that the two officers had lied about the presence of misconduct-deterring
security cameras in the vicinity of the attack. He relied on affidavits from three inmates
swearing that no cameras operated in the hallway when the attack occurred.
The district court denied the motions. Bentz did not move to compel the sign-in
logs or video recordings, it reasoned, so he forfeited a challenge to a failure to produce

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No. 19-2564 Page 3
them. In any event, Bentz could not show prejudice because even without the logs, he
had identified a witness to testify on his behalf, and he did not rebut the defendant’s
assertion that video recordings no longer existed. Finally, the post-trial affidavits from
the inmates about the lack of operating cameras did not show perjury, because
Lindenberg and Smith could have genuinely believed that cameras were operational.
On appeal, Bentz first argues that the district court should have sanctioned the
defendants for their failure to produce the sign-in log and video recordings. We review
a district court’s rulings about discovery for abuse of discretion. Thermal Design, Inc. v.
Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 837
(7th Cir. 2014). The court reasonably declined to sanction the defendants because, as it
correctly observed, Bentz did not move to compel the production of these materials. As
a result, the court never ordered their production, so the defendants never
contemptuously disobeyed an order. See Prod. Specialties Grp., Inc. v. Minsor Sys., Inc.,
513 F.3d 695, 699 (7th Cir. 2008). And the court had no duty to compel the production of
the sign-in log or video recording without a request from Bentz. See Helping Hand
Caregivers, Ltd. v. Darden Rests., Inc., 900 F.3d 884, 891 (7th Cir. 2018) (“[w]here the
failure to secure discovery is due to a party’s own lack of diligence, the district court can
in its discretion hold the party to the consequences of its choice.”). Finally, nothing in
the record suggests that the defendants acted in bad faith, and without such evidence,
the decision to deny sanctions was further appropriate. Lewis v. McLean, 941 F.3d 886,
892 (7th Cir. 2019).
Bentz next argues that the absence of a video recording of the incident required
an instruction advising the jury to draw an adverse inference against Lindenberg and
Smith for destroying that evidence. For evidence of spoliation, he relies on the email in
which prison investigators confirmed that they reviewed all “available” recordings,
none of which substantiated Bentz’s claims. This argument has two fatal flaws. First,
Bentz did not timely request an adverse-inference instruction, so that argument is
waived. Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 403 (7th Cir. 2010). Second,
Bentz provides no proof that Lindenberg and Smith destroyed any video evidence, let
alone intentionally. To the contrary, they testified that they were not involved in the
investigation of the incident or ever saw it. Without proof of their personal involvement
in any destruction, no instruction was warranted. See Bracey v. Grondin, 712 F.3d 1012,
1018–19 (7th Cir. 2013) (affirming decision to decline an adverse-instruction request
because plaintiff lacked evidence that defendants had destroyed video).

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No. 19-2564 Page 4
Bentz also renews his contention that the district court should have ordered a
new trial. We review the denial of a request for a new trial for abuse of discretion. Fields
v. City of Chicago, 981 F.3d 534, 552 (7th Cir. 2020). He raises two arguments, but neither
persuades us that the court abused its discretion.
First, he maintains that the non-production of any logs and video recordings
necessitated a new trial. But just as the district court reasonably ruled that Bentz’s
failure to move to compel their discovery justified a denial of sanctions, Bentz’s failure
also meant that the discovery omissions did not compel a new trial. See Saathoff v. Davis,
826 F.3d 925, 930 (7th Cir. 2016).
Second, Bentz argues that the defendants’ “perjury” entitled him to a new trial.
He insists that “new” evidence—affidavits from inmates stating that no security
cameras worked in the hallway during the incident—shows that Lindenberg and Smith
lied about their belief that security cameras monitored the area. This argument has
multiple defects.
To begin, the evidence that Bentz wanted to use to prove perjury was reasonably
available during trial, so it does not necessitate a new trial. Obriecht v. Raemisch, 517 F.3d
489, 494 (7th Cir. 2008). Bentz knew that, during the defendants’ case, they testified that
they believed that cameras recorded events in the hallway, and he also knew that they
had not produced any such recordings. If Bentz believed that they were lying about the
presence of security cameras, then before the trial ended he had every reason to ask the
district judge to allow him to present rebuttal testimony from the inmates who could
testify about the absence of operational cameras. But Bentz does not even assert, let
alone explain, that he was unable to proffer that testimony during trial.
In any event, Bentz cannot show the absence of this “new” testimony prejudiced
him, as he must in order to receive a new trial. See Glickenhaus & Co. v. Household Int’l,
Inc., 787 F.3d 408, 414 (7th Cir. 2015); Whiting v. Westray, 294 F.3d 943, 944 (7th Cir.
2002). The proposed testimony of the absence of working security cameras does not
refute the testimony from Lindenberg and Smith that they believed that cameras in the
hallway worked and deterred misconduct. For it is possible that no cameras were active
in the hallway during the incident, but that the defendants did not know it then. The
court thus reasonably ruled that any apparent inconsistency about security cameras did
not prove perjury, establish prejudice to Bentz, or compel a new trial. See United States v.
Pierson, 925 F.3d 913, 919 (7th Cir. 2019) (“[T]he error must have been prejudicial: It
must have affected the outcome of the district court proceedings.”) (internal citations
omitted).

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We have considered Bentz’s remaining arguments, and none has merit.
AFFIRMED

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