                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                  Fed. R. App. P. 32.1




                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted April 11, 2014*
                                 Decided April 11, 2014

                                         Before

                          KENNETH F. RIPPLE, Circuit Judge

                          MICHAEL S. KANNE, Circuit Judge

                          JOHN DANIEL TINDER, Circuit Judge

No. 12-2180

RICHARD J. CACCIOLA,                           Appeal from the United States District
     Plaintiff-Appellant,                      Court for the Central District of Illinois.

      v.                                       No. 08-4072

MATTHEW D. McFALL, et al.,                     Michael M. Mihm,
    Defendants-Appellees.                      Judge.

                                       ORDER

       Richard Cacciola contends in this suit under 42 U.S.C. § 1983 that a state trooper
used excessive force to arrest him and jail staff were deliberately indifferent to his
injuries. Cacciola challenges evidentiary and other procedural rulings, but the
challenges are all baseless, so we affirm.


      *
        After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 12-2180                                                                          Page 2

        Before Cacciola drove to Las Vegas to buy marijuana, he smoked some of the
drug and ingested heroin, alcohol, and the potent pain-killers Oxycontin and
methadone. As Cacciola was passing through Illinois, Trooper Matthew McFall saw him
change lanes without signaling, so McFall pulled him over and ordered him out of his
car. Cacciola had a gun and drugs in the car, had once served ten years in prison, and
knew that he had outstanding arrest warrants in Louisiana and Florida. So he ran.
McFall gave chase and eventually caught him. The parties dispute the details of the
ensuing struggle, but they agree that it ended after McFall hit Cacciola in the head with
a baton. Cacciola went to a hospital where tests confirmed that he had a cut on his scalp.
Doctors released him a day later to the Henry County Jail, where, he says, his pain was
not adequately treated. Cacciola eventually pleaded guilty in federal court to conspiring
to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1), and possessing a firearm as a felon,
18 U.S.C. § 922(g).

        The district court granted summary judgment on Cacciola’s claim of deliberate
indifference and sent the excessive-force claim to trial. Before trial, it ruled on three
evidentiary objections. First, it allowed evidence of Cacciola’s ten-year imprisonment
(ending in 2000, for cocaine trafficking), as it could explain why he fled and resisted
arrest. Second, to show further motive to run, the court permitted evidence that a gun
was found in the car. Cacciola maintained that, even though the gun was found after
the arrest, a jury might improperly think that the gun gave McFall reason to use force
before the arrest. To reduce the risk of that inference, the court offered to instruct the
jury that “it’s absolutely, positively, categorically inappropriate for you to consider [the
gun] for any other purposes” besides motive to run. After Cacciola expressed doubt
that the limiting instruction would help, the court permitted the gun evidence. Third,
Cacciola moved to exclude proposed testimony from Special Agent James Wolf, an
expert on use-of-force practices. Cacciola argued that Wolf’s testimony would tell the
jury what result to reach. The court allowed Wolf to testify about “proper police
practices,” but barred the defense from “addressing the application of those practices to
the facts in this case.”

       At trial Cacciola and McFall presented their competing versions of the
altercation. Cacciola admitted during direct examination that he had a gun in his car,
that he had been in prison, and that he had fled because he did not want to return to
prison. He then testified that as he ran McFall hit him in the back of the head
repeatedly, cutting his scalp. (Cacciola is 6'1" and weighs 280 pounds.) Even after he fell,
Cacciola said, McFall beat him some more, swearing at him and threatening to kill him.
No. 12-2180                                                                               Page 3

Eventually McFall pepper-sprayed his face, and Cacciola lost consciousness. On cross-
examination, Cacciola admitted that his prior prison sentence was for ten years.

      For his part, McFall (who is also 6'1" but weighs only 180 pounds) testified that
when he caught up with Cacciola, Cacciola refused orders to stop, roll over, and put his
hands behind his back. Instead, he kicked McFall, and ran again. McFall called for back
up and then continued the chase. During the chase, Cacciola lunged at McFall, and
McFall warned Cacciola that he would use a taser (though he had none). Ignoring this
warning, Cacciola continued to run until he fell. Cacciola did not comply with
commands to lie on his stomach, instead grabbing at McFall’s baton when he swung it.
McFall wrestled Cacciola onto his stomach and struck at the nerves between Cacciola’s
shoulder blades. He inadvertently hit Cacciola at least once in the head. Eventually
Cacciola tired, and McFall subdued him with pepper spray.

        Special Agent Wolf testified about the training of police officers on the use force
and explained the proper degrees of force calibrated to the suspect’s behavior. Proper
force depends on many factors, he continued, including the number of officers present,
the relative sizes of the officer and suspect, and their positions. If a suspect is more than
“verbally uncooperative” or passively resisting and is “physically combative,” police
officers are told that a baton strike may be proper. On cross examination Wolf opined
that it would not be “appropriate” to strike a suspect on the back of the head with a
baton if the suspect were non-combative, on his stomach, and on the ground.

       At the close of trial, the parties jointly proposed this court’s pattern jury
instructions for excessive-force claims. Using that pattern language, the judge
instructed: “You must decide whether Defendant’s use of force was unreasonable from
the perspective of a reasonable officer facing the same circumstances that Defendant
faced.” The jury returned a verdict for McFall.

       On appeal Cacciola first challenges the three evidentiary rulings. He begins with
the decision to allow Special Agent Wolf to testify about use-of-force practices. Cacciola
accepts Wolf’s credentials and the helpfulness of his expert testimony. But he argues
that Wolf went too far by intimating an opinion on the ultimate issue of reasonable force
and bolstering McFall’s credibility. He is incorrect. First, “[a]n opinion is not
objectionable just because it embraces an ultimate issue” to be decided by the jury. FED.
R. EVID. 704(a); see also Florek v. Village of Mundelein, Ill., 649 F.3d 594, 602 (7th Cir. 2011).
Second, in this case, Wolf merely explained the proper uses of force, which is
permissible. Kladis v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987); see also, e.g., Champion v.
No. 12-2180                                                                            Page 4

Outlook Nashville, Inc., 380 F.3d 893, 908–909 (6th Cir. 2004). He spoke about proper
police practices, and the factors relevant to the hypothetical uses of force, without
applying them to Cacciola’s case. Moreover, the testimony could have bolstered
Cacciola’s case as much as McFall’s: Wolf opined that an officer striking the back of a
suspect’s head who is lying on his stomach and non-combative (as Cacciola testified he
was) would not be appropriate. The jury still had to decide whether to believe Cacciola
or McFall. With these limits in place, the district court committed no error.
See Champion, 380 F.3d at 908–909 (approving expert testimony about police use-of-force
practice, rather than “about the proper actions of individual officers in one discrete
situation”).

        Cacciola next contests the district court’s decision to allow the evidence that he
had a gun in his car. But because Cacciola admitted on direct examination that he had a
gun, albeit to take the issue from the defense, he cannot object now. A party introducing
evidence cannot complain on appeal about its admission, even if the evidence was
introduced strategically to blunt the “sting” of the other side using it. Ohler v. United
States, 529 U.S. 753, 755–60 (2000); Clarett v. Roberts, 657 F.3d 664, 670–71 (7th Cir. 2011);
see also Bowoto v. Chevron Corp., 621 F.3d 1116, 1130 (9th Cir. 2010); Canny v.
Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 904 (8th Cir. 2006); 1 KENNETH S.
BROUN, MCCORMICK ON EVIDENCE § 55, at 388 (7th ed. 2013). In any event, because
McFall himself testified that he did not see the gun until after he subdued Cacciola, the
jury would not likely have viewed it as justifying McFall’s pre-arrest use of force.

       In his final evidentiary challenge, Cacciola contends that under Federal Rule of
Evidence 609(b) the district court should have barred the defense from questioning him
about the length of his ten-year prison sentence. He argues that the underlying
conviction (for cocaine trafficking) was more than ten years old and its probative value
did not substantially outweigh the prejudice of such a serious-seeming sentence. But
Rule 609 restricts evidence of prior convictions when used to impeach credibility. Here,
evidence of the ten-year sentence was elicited for another purpose: to explain that
Cacciola ran away to avoid returning to jail. See FED. R. EVID. 404(b) (“Evidence of other
crimes . . . [may be admissible] as proof of motive . . . .”). Furthermore, using Rules 401
and 403, the court properly balanced the incarceration’s probative value against the risk
of unfair prejudice. In so doing, it did not abuse its discretion in allowing the evidence.
See Gora v. Costa, 971 F.2d 1325, 1330–32 (7th Cir. 1992) (explaining that subject to Rules
401 and 403, district court has discretion to determine admissibility of prior
incarceration for non-impeachment purposes).
No. 12-2180                                                                             Page 5

       Cacciola next challenges two aspects of the jury instructions. First, he contends
that the district judge should have told the jury to limit its consideration of the gun and
his prior incarceration to his motive to run. But Cacciola never asked for these
instructions. Indeed, when the district court offered before trial a limiting instruction
about the gun, Cacciola doubted its benefit. Second, he argues that the judge should
have instructed the jury on the proper use of “deadly force.” But he proposed the
pattern reasonable-force instruction jointly with the defense. Having failed to preserve
these challenges, he can succeed on appeal only if he shows plain error, FED. R. CIV. P.
51(d), meaning that he “would surely have prevailed at trial” with different
instructions. Griffin v. Foley, 542 F.3d 209, 222 (7th Cir. 2008); Mesman v. Crane Pro Servs.,
512 F.3d 352, 357 (7th Cir. 2008). He has not even attempted to make this showing.

       Cacciola directs his final challenges to the grant of summary judgment on his
claim that jail officials were deliberately indifferent to his injuries after his arrest. The
record, construed in Cacciola’s favor, supports the following. After his struggle with
McFall, Cacciola went to the hospital, where doctors performed x-rays, computed
tomography (CT) analyses, and magnetic resonance imaging (MRI). They found no
injuries beyond a bruised arm and the cut on Cacciola’s scalp, which they stapled
closed. The next day Cacciola was able to walk and was discharged to the Henry
County Jail. The discharge report directed that Cacciola be returned to the hospital to
remove the staples (if this could not be done at the jail). That report did not order any
other follow-up tests or treatment, or note any medication to be provided. Other
hospital records include a prescription for Vicodin, but they do not reflect whether the
prescription was filled or passed on to the jail.

       Because of his injury, jail staff checked on Cacciola every 15 minutes. When
Dr. Stephen Cullinan examined Cacciola, he complained of pain, so Cullinan prescribed
Motrin. One staff member, Officer Julie Hill, stated that Cacciola never asked that she
help him get more medical treatment. Sheriff Gilbert Cady, who is in charge of the jail,
asserted that he delegates the jail’s day-to-day management to specialized jail
administrators and never saw Cacciola or even knew he was at the jail. Cacciola stated
that while at the jail he was in constant pain and should have received more medical
attention.

      In challenging the grant of summary judgment, Cacciola first argues that
Dr. Cullinan should have given him the Vicodin that he was prescribed at the hospital
and ordered more (unspecified) tests. Failing to follow instructions received from
outside experts can amount to deliberate indifference. See Gil v. Reed, 381 F.3d 649,
No. 12-2180                                                                          Page 6

663–64 (7th Cir. 2004); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). But the only
direction Dr. Cullinan received from the hospital was to send Cacciola back there to
have the staples on his scalp removed. After Dr. Cullinan examined Cacciola, he
exercised his professional medical judgment to prescribe Motrin. Cacciola’s desire for a
different pain medication and more tests merely reflects a difference of medical opinion,
which is not a ground for a claim of deliberate indifference. See Estelle v. Gamble, 429
U.S. 97, 107 (1976); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). (Cacciola also
raises concerns about an uncomfortable bed and untreated seizure disorder, but these
assertions on appeal are new, so we will not consider them when the district court has
not. See Healix Infusion Therapy, Inc. v. Heartland Home Infusions, Inc., 733 F.3d 700, 703
(7th Cir. 2013); Domka v. Portage Cnty., Wis., 523 F.3d 776, 783 n.11 (7th Cir. 2008).)

       Cacciola next challenges the grant of summary judgment to Cady, the sheriff. But
Cacciola points to nothing in the record that disputes Cady’s sworn statement that he
did not even know that Cacciola was in the jail and had no knowledge of his needs. This
unrebutted evidence supports the grant of summary judgment. See Gayton v. McCoy, 593
F.3d 610, 621 (7th Cir. 2010) (affirming summary judgment when sheriff did not know
of plaintiff’s incarceration). Cacciola replies that under Illinois law, 730 ILCS 125/2,
Cady was legally responsible for overseeing the jail. Whatever the law in Illinois, Cady
cannot be held liable on state-law grounds in a § 1983 suit. J.H. ex rel. Higgin v. Johnson,
346 F.3d 788, 793 (7th Cir. 2003); Windle v. City of Marion, Ind., 321 F.3d 658, 662–63 (7th
Cir. 2003); Estate of Novack v. Cnty. of Wood, 226 F.3d 525, 531–32 (7th Cir. 2000). Because
Cacciola has no evidence that Cady knew of an Eighth Amendment violation, his theory
boils down to supervisor liability, which does not apply to § 1983 suits. See Monell v.
Dep’t of Social Servs., 436 U.S. 658, 691 (1978); Matthews v. City of E. St. Louis, 675 F.3d
703, 708 (7th Cir. 2012).

       Finally, we note that Cacciola makes no argument in his appellate briefs about
Officer Hill’s liability. In any case, nothing in the record shows that Hill—a
layperson—should have known to do anything differently when professional doctors
had determined that Cacciola needed no further treatment. See Arnett v. Webster, 658
F.3d 742, 756 (7th Cir. 2011); Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). The
grant of summary judgment in her favor was correct.

                                                                              AFFIRMED.
