         Case: 11-13507   Date Filed: 07/08/2014   Page: 1 of 17


                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 11-13507
                     ________________________

                 D.C. Docket No. 4:07-cv-00428-WCS

DARREL CUMMINGS,

                                                         Plaintiff - Appellant,

                                versus

DEPARTMENT OF CORRECTIONS,
et al.,

                                                                   Defendants,
MATTHEW T. WHIDDON,
Sgt.,
TAYLOR CI WARDEN,
R.L. DURHAM,
Officer,
MATT FOUNTAIN,
Officer,
                                                      Defendants - Appellees.
                     ________________________

              Appeal from the United States District Court
                  for the Northern District of Florida
                    ________________________

                             (July 8, 2014)
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Before TJOFLAT, WILSON, and RIPPLE, ∗ Circuit Judges.

TJOFLAT, Circuit Judge:

       This case is about a sleeping juror. Darrel Cummings filed a complaint

against four prison officials at the Taylor Correctional Institution, alleging

violations of his First, Eighth, and Fourteenth Amendment rights and seeking

money damages under 42 U.S.C. § 1983. 1 The case was tried to a jury before a

Magistrate Judge. 2 During the afternoon of the first day of trial, one of the jurors

fell asleep off-and-on for two hours. The Magistrate Judge questioned the juror in

camera, with neither party present, and concluded that the juror could remain on

the jury. Neither party objected to this decision, nor did they request that the

Magistrate Judge explain his ruling.




       ∗
         Honorable Kenneth Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.
       1
           42 U.S.C. § 1983, provides, in relevant part:
       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the
       jurisdiction thereof to the deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for redress . . . .
       2
         “Upon the consent of the parties, a full-time United States magistrate judge or a part-
time United States magistrate judge who serves as a full-time judicial officer may conduct any or
all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,
when specially designated to exercise such jurisdiction by the district court or courts he serves.”
28 U.S.C. § 636(c).

                                                  2
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       The jury returned a verdict for the defense, at which point Cummings filed a

motion for a new trial, arguing that the sleeping juror should have been removed

from the jury. The Magistrate Judge granted the motion. The defendants moved

the court to reconsider the ruling, arguing that Cummings waived any objection to

the court’s decision allowing the juror to remain on the jury. The Magistrate Judge

granted the motion for reconsideration and denied Cummings’s motion for a new

trial. Cummings appeals the decision. We affirm.

                                                I.

                                                A.

       In his fifth amended pro se complaint,3 Cummings alleged that at 5:00 a.m.

on September 19, 2007, he was in the dining hall of the Taylor Correctional

Institution with twenty-three other inmates when Sergeant Matthew Whiddon told

the inmates to “get [your] Goddamn asses up and move,” adding, “You Muslim

son of bitches think you[’re] special.” Doc. 88, at 5 (internal quotation marks

omitted). According to the complaint, supervisors in the kitchen had authorized

Cummings and the other inmates to use the kitchen for eating and prayer during

the Islamic month of Ramadan. 4 Sergeant Whiddon continued to verbally berate


       3
       Cummings filed his initial pro se complaint on October 4, 2007. He filed a fifth
amended complaint, on which the case was tried, on February 17, 2009.
       4
           During the month of Ramadan, Muslims are obligated to fast during the daylight hours.

                                                 3
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Cummings and forced him to face the wall. While Cummings faced the wall,

Sergeant Whiddon allegedly slammed his shoulder into Cummings, tightly

handcuffed one of Cummings’s wrists, and then pulled up. According to

Cummings, this action caused permanent injury to his arm and lower back.

Cummings filed multiple informal and formal grievances with the jail, which,

according to Cummings, led to more assaults and verbal abuse at the hands of

Sergeant Whiddon, as well as Officers R.L. Durham and Matt Fountain.

       Cummings’s complaint raised three claims under 42 U.S.C. § 1983. First,

Cummings alleged that the defendants denied his First Amendment right to

criticize the state without retaliation.5 Second, Cummings claimed that he was

denied his right to be free from cruel and unusual punishment, in violation of the

Eighth Amendment.6 Finally, he claimed that the defendants were deliberately

indifferent to his health and safety, also in violation of the Eighth Amendment.

Cummings named as defendants Warden Dufie Harrison, Sergeant Matthew




       5
         The First Amendment is made applicable against the states through the Fourteenth
Amendment’s due process clause. Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146,
150, 84 L. Ed. 155 (1939).
       6
        The Eighth Amendment prevents the government from inflicting “cruel and unusual
punishment,” U.S. Const. amend. VIII, and is made applicable to the States via the Due Process
Clause of the Fourteenth Amendment, Wilson v. Seiter, 501 U.S. 294, 296, 111 S. Ct. 2321,
2323, 115 L. Ed. 2d 271 (1991).

                                               4
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Whiddon, Officer R.L. Durham, and Officer Matt Fountain. 7 Defendant Matt

Fountain answered the fifth amended complaint and denied liability. 8

                                              B.

       Trial began on March 28, 2011. Cummings represented himself pro se;

Senior Assistant Attorney General Joe Belitzky and Assistant Attorney General

Mark J. Hiers represented the defendants. The case was tried to a jury of seven

before the Magistrate Judge. During the afternoon of the first day of trial, the

Magistrate Judge noticed one of the jurors—Juror Linn—appeared to be sleeping,

whereon the following occurred in the absence of the jury:

              THE COURT: I would like to take a break at this point. We’ll
       take a 15-minute break.
       (A recess was taken at 4:06 p.m.)
              Please have a seat.
              Counsel, would you come forward with Mr. Cummings?

       (Conference held at the bench.)
              THE COURT: Juror Number 1, Ms. [Linn], has slept for the
       last two hours.

              MR. CUMMINGS: She’s been out of it.

       7
         Prior to the parties’ consent to the trial of the case before the Magistrate Judge,
defendants Harrison, Whiddon, and Durham moved the District Court for summary judgment.
At the time the motion was filed, Fountain had not been served with the complaint. The court
denied the motion on February 7, 2010.
       8
         The other three defendants had answered prior versions of Cummings’s complaint, but
they did not file an answer to the Fifth Amended Complaint

                                               5
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             THE COURT: I don’t think she’s going to be sufficiently
      attentive to finish the trial. The court reporter, my law clerk, the
      deputy clerk, have been watching, and I have repeated messages about
      her. She’s unable to stay awake.

            I’m thinking we should excuse her at this point, because
      otherwise – that leaves us with only six, but I think that’s the thing to
      do.
            MR. BELITZKY: I rely on Your Honor’s observation.

            THE COURT: Have you noticed?
            MR. CUMMINGS: I tried to wake her one time.

           THE COURT: I hit the gavel, and I’m embarrassed to do that
      anymore. So how should we do this?
            MR. BELITZKY: She’s the first lady?
             THE COURT: I think I should clear the courtroom and ask her
      to – tell her I need to excuse her for the record.
            MR. BELITZKY: I think the alternate –
            THE COURT: There are no alternates. They are all jurors.

            MR. BELITZKY: Okay.
             THE COURT: There are no alternates. We are just down to
      six; and, if we lose one more, we have to try the case again.
            I think what I will do is bring her in chambers.
            MR. BELITZKY: That sounds appropriate, Your Honor.

           THE COURT: My chambers right here. Judge Mickle’s
      chambers. Okay.

      (A recess was taken at 4:08 p.m.)
Doc. 224, at 104–05.

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      The Magistrate Judge then called Juror Linn into chambers. Neither

Cummings nor defense counsel was present. The Magistrate Judge confronted the

juror about his concern that she had missed important testimony:

            THE COURT: Sorry. I hate to ask you, but –

            JUROR LINN: Where would you like me to sit?
            THE COURT: Just right here.

            JUROR LINN: What are you concerned about?

             THE COURT: Well, what I’m concerned about is that during
      the last two hours that you have been nodding off and sleeping, and
      I’ve been there.

            JUROR LINN: No. I have been taking – I haven’t really been
      sleeping. Do you want me to tell you what’s been stated? It may
      have looked like I’ve been sleeping.
            THE COURT: Your head is down and –

             JUROR LINN: Yes. My head will sometimes go down. It’s an
      old teacher habit.
            THE COURT: Uh-huh.

            JUROR LINN: Have you noticed that I’ve also been taking
      copious notes?

            THE COURT: No, I haven’t.

            JUROR LINN: Well, I have.

            THE COURT: So do you feel that you can continue?

            JUROR LINN: Oh, absolutely. Absolutely.
            THE COURT: All right.


                                        7
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     JUROR LINN: If I did not feel I could not, I would
immediately tell you that.

         THE COURT: Okay.

       JUROR LINN: Now, it’s – I will not hesitate to tell you that
there was one time [I] became cognizant that I might have gone to
sleep for maybe 10 or 15 seconds, but that was about it.

         THE COURT: Okay. Well, I will hold – would you do me this
favor?

         JUROR LINN: Of course.

         THE COURT: No teacher tricks.

         JUROR LINN: O[h] darn it.
      THE COURT: Don’t close your eyes, don’t lower your head,
keep your eyes open, so I can see for sure you’re there.
         JUROR LINN: All right.
       THE COURT: And there is – there’s no embarrassment here,
but I do – I have to finish the trial knowing that every juror was
attentive; and, if I don’t do it that way with every juror attentive, I
have to do another trial. I have to do it all over again.
     JUROR LINN: Oh, we don’t want you to do that. I will keep
my eyes open. It is a teacher trick, by the way.
         THE COURT: Me neither. So your teacher trick, don’t trick
me.
       JUROR LINN: All right. I thought you were going to
reprimand me for my – when we returned after lunch, and you made
the statement about it being wet.
      THE COURT: No, no. But I am going to need to see you make
eye contact on a regular basis, okay? That’s right, I’m going to be
looking –

                                     8
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             JUROR LINN: You want me to look at you, not the witness or
      the attorney, but you?

            THE COURT: No. I just want you to make sure that you’re not
      –

            JUROR LINN: I’m here. By the way, I –

            THE COURT: And if I hear you snore –
           JUROR LINN: Oh, no. I was about to say, if I were to become
      unconscious or sleeping, that is exactly what I do.
            THE COURT: Okay.

           JUROR LINN: But I appreciate it, that you’re sensitive to that.
      You’re doing a great job, in case no one has told you.
            THE COURT: Okay. I will not –
            JUROR LINN: Don’t worry about that.

            THE COURT: I will not, but, again, I will have no choice, if –
            JUROR LINN: My clothes are still wet.
            THE COURT: – your eyes are down, I will have no choice but
      to excuse you.

            JUROR LINN: I understand that.
            THE COURT: Okay.
              JUROR LINN: That’s why I’m drinking hot water. Should I
      tell them why I was in here?

            THE COURT: No, you shouldn’t. You’re not supposed to talk
      to them about the case.

      (Conference concluded at 4:14 p.m.)
Doc. 212, at 2–5.

                                        9
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      The Magistrate Judge returned to the courtroom, where he informed the

parties that he had “decided to take no action at this point on the matter that we just

discussed.” Doc. 224, at 105. Cummings did not object to the Magistrate Judge’s

decision, nor did the defense. Neither party asked the Magistrate Judge why, after

indicating prior to interviewing Juror Linn that he would remove her, he changed

his mind and allowed her to stay. Nor did they request leave to have the court

reporter read her shorthand notes of the conversation between the Magistrate Judge

and the juror or ask the Magistrate Judge to summarize the conversation. The trial

then continued.

      On the third day of trial, as the court broke for lunch, a different juror

informed a court security officer that he knew the witness who had been testifying

for the defense. They worked together at the Leon County Jail. The Magistrate

Judge called the witness into the courtroom, whereupon he, Cummings, and

defense counsel asked the juror whether he could be impartial. The juror indicated

that he had formed a positive opinion of the witness through their professional

dealings but said he could be unbiased. The Magistrate Judge concluded that the

juror should be excused, and he was. The defense objected, but the Magistrate

Judge overruled the objection. The trial continued with six jurors.




                                          10
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                                                C.

       The jury returned a verdict for the defense. The sleeping juror served as the

foreperson of the jury.

       Pursuant to Federal Rule of Civil Procedure 59, 9 Cummings filed a motion

for a new trial, arguing that the Magistrate Judge should have excused Juror Linn

as he indicated he would before meeting with the juror in camera. Had Linn been

dismissed, the jury would have fallen to five people after the juror who knew the

witness was dismissed, which Cummings argued would have required the

Magistrate Judge to declare a mistrial. The defendants opposed Cummings’s

motion, arguing that the court was within its discretion to retain Juror Linn and

suggesting that Cummings waived his argument by not seasonably objecting

before the trial resumed with Linn in the jury box.

       On May 26, 2011, the Magistrate Judge granted Cummings’s motion for a

new trial. The court concluded that the juror had in fact fallen asleep, missed parts

of Cummings’s case that, in hindsight, the court recognized were critical, and, as




       9
          Federal Rule of Civil Procedure 59 provides, “The court may, on motion, grant a new
trial on all or some of the issues—and to any party— . . . after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ.
P. 59(a)(1).


                                                11
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such, could not remain true to her oath to conscientiously and fairly decide the

case.

        The defendants moved the court to reconsider its decision granting a new

trial. Specifically, they noted that Cummings did not object at the time the

Magistrate Judge informed the parties that he would not dismiss the sleeping juror.

Therefore, Cummings waived any right to raise the issue in a motion for a new

trial. Despite Cummings’s arguments against reconsideration, the Magistrate

Judge granted the defendants’ motion for reconsideration and denied Cummings’s

motion for a new trial after agreeing that he had waived any argument about the

sleeping juror by failing to contemporaneously object to her remaining on the jury.

After the court entered judgment for the defendants in accordance with the jury’s

verdicts, Cummings appealed, challenging the Magistrate Judge’s order denying

his motion for a new trial.

                                          II.

        On appeal, Cummings asserts multiple errors, all based on the court’s

decision allowing Juror Linn to remain on the jury. First, he claims that the court

abused its discretion by not informing the parties of the details of the in camera

conversation it had with Juror Linn. Second, he argues that the court abused its

discretion by failing to dismiss the juror. Third, he contends that the court abused

its discretion by being overly concerned about the possibility of a mistrial if the
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jury fell below six jurors. And finally, he asserts that the court abused its

discretion in granting the defendants’ motion for reconsideration and denying his

motion for a new trial.

       Cummings did not present the first three objections to the Magistrate Judge.

“This Court has repeatedly held that an issue not raised in the district court and

raised for the first time in an appeal will not be considered by this court.” Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (internal

quotation marks omitted). 10 Because he failed to contemporaneously object,

Cummings has waived any argument regarding the Magistrate Judge’s handling of

the sleeping juror and his decision to allow her to remain on the jury.

       That leaves us only with Cummings’s fourth argument: the Magistrate Judge

erred in granting the defendants’ motion for reconsideration. Cummings argues

that the Magistrate Judge should not have granted the motion after finding in the

earlier order granting a new trial that he was denied a fair trial because of Juror

       10
          Although Cummings represented himself at trial, his pro se status does not absolve him
of the requirement that he object to the Magistrate Judge’s ruling. As the Fifth Circuit explained:
       The right of self-representation does not exempt a party from compliance with
       relevant rules of procedural and substantive law. One who proceeds pro se with
       full knowledge and understanding of the risks involved acquires no greater rights
       than a litigant represented by a lawyer, unless a liberal construction of properly
       filed pleadings be considered an enhanced right. Rather, such a litigant
       acquiesces in and subjects himself to the established rules of practice and
       procedure.
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981) (per curiam) (citations omitted).


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Linn’s conduct. He further contends that because the Magistrate Judge was aware

that Juror Linn slept through a portion of the trial, he was not required to object

when she was allowed to remain on the jury.

      First, we must determine whether the Magistrate Judge abused his discretion

by granting the motion for reconsideration. See Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 957 (11th Cir. 2009) (“A district court has sound discretion

whether to alter or amend a judgment pursuant to a motion for reconsideration, and

its decision will only be reversed if it abused that discretion.”); see also Hardin v.

Hayes, 52 F.3d 934, 938 (11th Cir. 1995) (“[A]n order granting a new trial is an

interlocutory order, the district court has plenary power over it and may therefore

reconsider, revise, alter or amend that order at any time prior to final judgment.”

(citations omitted) (internal quotation marks omitted)). “A motion for

reconsideration cannot be used to ‘relitigate old matters, raise argument or present

evidence that could have been raised prior to the entry of judgment.’” Id. (quoting

Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.

2005)).

      Here, the Magistrate Judge granted the defendants’ motion for

reconsideration because Cummings failed to contemporaneously object to his

decision allowing Juror Linn to remain on the jury. The defendants had raised

Cummings’s failure to object in their response to Cummings’s motion for a new
                                           14
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trial, but the Magistrate Judge misapprehended the defendants’ point at that time.

On reconsideration, he determined that the defendants were correct and that

Cummings’s had waived his objection. Because the defendants’ motion for

reconsideration did not present arguments the defendants could have presented in

their opposition to Cummings’s motion for a new trial, we cannot say that the

Magistrate Judge improperly exercised his discretion in granting the motion.

      Having concluded that the Magistrate Judge did not abuse his discretion in

granting the defendants’ motion for reconsideration, we must determine whether

his denial of Cummings’s motion for a new trial was proper. “We review a district

court’s denial of a motion for a new trial for an abuse of discretion.” St. Luke’s

Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1200 n.16 (11th Cir.

2009).

      Our decision in United States v. Bolinger, 837 F.2d 436 (11th Cir. 1988),

squarely forecloses Cummings’s argument that the Magistrate Judge committed an

error of law by granting the motion for reconsideration and denying his motion for

a new trial. In Bollinger, we said,

      A motion for new trial based on juror misconduct is a form of new
      trial motion for newly discovered evidence. As such, the motion must
      be supported by proof that the evidence of misconduct was not
      discovered until after the verdict was returned. In the particular
      context of juror misconduct, this rule serves to ensure that the trial
      court is given every available opportunity to attempt to salvage the
      trial by ridding the jury of prejudicial influences. Thus, where the
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      defendant or defense counsel knows of juror misconduct or bias
      before the verdict is returned but fails to share this knowledge with the
      court until after the verdict is announced, the misconduct may not be
      raised as a ground for a new trial.

Id. at 439. Cummings argues that Bolinger is distinguishable because in the

present case the Magistrate Judge was aware of the juror misconduct prior to the

return of the jury’s verdicts, whereas in Bolinger the court was not. But that

distinction is not material to the larger takeaway of Bolinger: a motion for a new

trial is not a vehicle for sandbagging an opposing party after the jury returns an

unfavorable verdict.

      As the Magistrate Judge explained, parties are free to waive most trial errors

in the interest of trial strategy, and Cummings’s failure to object could have been

such a strategy. Cummings was aware that Juror Linn appeared to be sleeping, or

at the very least was inattentive. He should have objected when the Magistrate

Judge permitted her to remain on the jury. The Magistrate Judge explained in his

order granting the defendants’ motion for reconsideration that had either party

objected at trial, he would have been squarely confronted with the issue and

probably would have dismissed Juror Linn. Because Cummings was aware of

Juror Linn’s purported misconduct and declined to object to her retention on the

jury, he cannot now “get a second bite of the apple” after the jury returned an




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unfavorable verdict. Garcia v. Murphy Pac. Marine Salvaging Co., 476 F.2d 303,

306 n.2 (5th Cir. 1973). 11

                                             III.

       The judgment of the District Court is, therefore, AFFIRMED.

       SO ORDERED.




       11
         Cummings does not argue that the Magistrate Judge’s denial was based on a clearly
erroneous factual finding. And our review of the record confirms that it was not.

                                             17
