                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0647n.06

                                          No. 14-2013

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                FILED
                                                                                 Sep 16, 2015
MARIO SIMMONS,                                          )                    DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
DIANNA NAPIER, MUSA MAHOI, and DAVID                    )       COURT FOR THE EASTERN
VILLEROT,                                               )       DISTRICT OF MICHIGAN
                                                        )
       Defendants-Appellees.                            )
                                                        )

BEFORE:        BOGGS and BATCHELDER, Circuit Judges; and HUCK, District Judge.*

       BOGGS, Circuit Judge. In 2011, Plaintiff-Appellant Mario Simmons filed a lawsuit

against three Wayne State University police officers under 42 U.S.C. § 1983 and Michigan law,

alleging, inter alia, excessive force, assault and battery, and false arrest and imprisonment in

connection with his June 2010 arrest. After a trial was held from April 8 to April 17, 2014, the

jury found in favor of the defendant officers on all counts. Simmons filed a motion for a new

trial, which the district court denied on July 7, 2014. For the reasons given below, we affirm the

district court’s judgment.

                                                I

                                                A

       Mario Simmons was arrested by Wayne State University Police Officers Dianna Napier

and Musa Mahoi on June 30, 2010, after Simmons had an argument with the clerks at a Mobil

*
 The Honorable Paul C. Huck, Senior United States District Judge for the Southern District of
Florida, sitting by designation.
No. 14-2013
Simmons v. Napier

gas station. The officers responded to a call from dispatch stating that there was an armed man

threatening to shoot the clerks. According to the officers, they encountered Simmons near the

gas station and, at gunpoint, commanded him to stop. After Simmons refused their commands,

Officer Napier took Simmons to the ground. Officers Napier and Mahoi then handcuffed

Simmons and patted him down, finding a boxcutter. The officers used verbal warnings, physical

force, and ultimately pepper spray to complete the arrest when Simmons refused to get into the

police car.

       Following the arrest, Officers Mahoi and Napier brought Simmons to the Wayne State

University Police Department for booking, where they were joined by Officer David Villerot.

The officers then brought Simmons to Detroit Receiving Hospital for an examination and to have

his eyes flushed of pepper spray. Simmons was ultimately transported to the Detroit Police

Department, where he remained until he was released without charge the following day.

       After he was released from police custody, Simmons went to Henry Ford Hospital, where

he was diagnosed with numerous bulging and herniated discs in his spine. Simmons underwent a

spinal fusion soon after.

       Simmons alleged that he was cooperative throughout the encounter and that the officers

used violent and excessive force that caused his spinal injuries.       He also suffers from

psychological and emotional problems, which he alleged were caused by his encounter with the

officers. The officers disputed these allegations.

                                                 B

       On August 4, 2011, Simmons filed a complaint under 42 U.S.C. § 1983 and Michigan

law in the United States District Court for the Eastern District of Michigan, alleging that

Defendants-Appellees Napier, Mahoi, and Villerot deprived him of his rights by using excessive


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force that caused physical injuries and psychological trauma. On June 28, 2013, the district court

granted in part and denied in part the motion for summary judgment filed by the defendant

officers. The court applied sovereign immunity to dismiss Simmons’s claims against the officers

in their official capacities and granted summary judgment to the officers on Simmons’s claims of

intentional infliction of emotional distress and gross negligence. The court denied summary

judgment and refused to apply qualified immunity with respect to Simmons’s claims of

excessive force, assault and battery, and false arrest and imprisonment. The parties proceeded to

a jury trial on these remaining claims.

       After a trial was held from April 8 to April 17, 2014, the jury found in favor of the

officers on all counts. On May 22, 2014, Simmons filed a motion for a new trial, pursuant to

Federal Rules of Civil Procedure 50 and 59. Simmons raised seven grounds for relief: 1) the

failure of the district court to conduct meaningful voir dire of the jury; 2) the failure to allow

questioning regarding Officer Mahoi’s alleged past history of aggressive behavior; 3) the failure

to exclude allegedly improper expert testimony asserting that Simmons was intoxicated during

the arrest; 4) the failure to grant a mistrial after Officer Mahoi improperly testified that one of

Simmons’s witnesses was incarcerated; 5) the failure to instruct the jury on Simmons’s theory

regarding the officers’ unlawful failure to intervene; 6) the failure to conduct a proper,

individualized poll of the jury as requested at the conclusion of the case; and 7) that the jury

verdict was against the great weight of the evidence.

       The district court denied the motion on July 7, 2014, after holding that Simmons failed to

establish that any of the purported errors likely affected the outcome of the trial or that the jury’s

verdict was unreasonable. Order, Simmons v. Napier, No. 11-cv-13403 (E.D. Mich. July 7,

2014) (“Order”). Simmons appeals from that decision, raising the same grounds for relief.


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                                                    II

        “[A] motion for a new trial will not be granted unless the moving party suffered

prejudice.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004). “The burden

of showing harmful prejudice rests on the party seeking the new trial.” Tobin v. Astra Pharm.

Prods., Inc., 993 F.2d 528, 541 (6th Cir. 1993). To demonstrate prejudice stemming from

evidentiary error, it is not sufficient merely to show that the district court made a mistake in

admitting or excluding certain evidence. Kendel v. Local 17-A United Food & Commercial

Workers, 512 F. App’x 472, 479 (6th Cir. 2013). Rather, the moving party must demonstrate

that the evidentiary error “amounted to more than harmless error.” Field v. Trigg Cty. Hosp.,

Inc., 386 F.3d 729, 736 (6th Cir. 2004). In this context, the harmless-error standard requires that

the court lack “a ‘fair assurance’ that the outcome of a trial was not affected by evidentiary

error” before disturbing the verdict. Beck v. Haik, 377 F.3d 624, 635 (6th Cir. 2004), overruled

on other grounds by Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc); see also Slayton

v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (“A [r]eversal based on

improper admission of evidence is appropriate only when the admission interfere[s] with

substantial justice.” (alterations in original)).

        We review a district court’s denial of a motion for a new trial for abuse of discretion.

Decker v. GE Healthcare Inc., 770 F.3d 378, 388 (6th Cir. 2014). Under this standard, we will

reverse the decision “only if we have ‘a definite and firm conviction that the trial court

committed a clear error of judgment.’” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d

815, 820 (6th Cir. 2000) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790

(6th Cir. 1989)).




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Simmons v. Napier

                                                III

       In this appeal, Simmons offers seven independent grounds for reversing the jury’s verdict

and the district court’s judgment. Cf. Fifth Third Mortg. Co. v. Chi. Title Ins. Co., 692 F.3d 507,

509 (6th Cir. 2012) (“When a party comes to us with nine grounds for reversing the district

court, that usually means there are none.”); Gagan v. Am. Cablevision, Inc., 77 F.3d 951, 955

(7th Cir. 1996) (“Losers in a trial can go hunting for relief on appeal with a rifle or a shotgun.

The rifle is better. . . . [T]he shotgun approach may hit the target with something but it runs the

risk of obscuring significant issues by dilution.”). We address them all in turn.

                                           A. Voir Dire

       Simmons argues that the district court erred by conducting its own voir dire of the jury

and by failing “to ask numerous questions [that were] specifically requested.” Appellant Br. 35.

This argument is easily rejected.

                                                 1

       Federal Rule of Civil Procedure 47(a) provides that a “court may permit the parties or

their attorneys to examine prospective jurors or may itself do so.” (emphasis added). The Rule

thus places the decision as to whether to have the parties or the judge conduct voir dire firmly in

the discretion of the district court. See, e.g., Csiszer v. Wren, 614 F.3d 866, 875 (8th Cir. 2010)

(“Federal Rule of Civil Procedure 47(a) expressly permits a district court to conduct voir dire

itself.”); Morrissey v. B.G. Danis Co., No. 84-3701, 1985 WL 13810, at *1 (6th Cir. Oct. 31,

1985) (“Under Federal Rule of Civil Procedure 47(a), the district court has broad discretion to

control and conduct the examination of prospective jurors during voir dire.”). Rule 47(a) further

provides that, “[i]f the court examines the jurors, it must permit the parties or their attorneys to

make any further inquiry it considers proper, or must itself ask any of their additional questions


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Simmons v. Napier

it considers proper.” (emphases added); see also Eisenhauer v. Burger, 431 F.2d 833, 836 (6th

Cir. 1970) (“The scope of questions permitted to be asked on voir dire examination is generally a

matter addressed to the sound discretion of the court.”).

       In this case, the district court allowed the parties to suggest questions and asked the

prospective jurors many of those questions. Order at 3. The court did “declin[e] to ask certain

questions offered by both parties because the questions were argumentative and improper,” and

Simmons raised no arguments challenging that determination. Ibid. Indeed, even on appeal,

Simmons fails to identify any specific questions that the district court failed to ask during voir

dire that caused him prejudice. Moreover, in making the bald assertion that “voir dire was

effectively useless” because, for example, it did not “delve into the natural bias of persons” in

favor of police officers, Appellant Reply Br. 5, Simmons simply ignores the extensive

questioning conducted by the district court on that very topic, which resulted in at least one

potential juror being dismissed for cause.

                                                 2

       Simmons cites the Fifth Circuit’s 1977 decision in United States v. Ledee and alludes to

various legal scholarship in support of the argument that refusing attorneys “the right” to conduct

voir dire harms “the judicial system” because it leaves attorneys and their clients “feeling

helpless and disenfranchised” and because attorneys are better able to expose potential juror bias

than judges. Appellant Br. 33–34. These arguments, which would more appropriately be

presented to legislators or in a law journal, do not change the outcome.

       In Ledee, the Fifth Circuit did observe that “voir dire examination in both civil and

criminal cases has little meaning if it is not conducted by counsel for the parties” because “[a]

judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys


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Simmons v. Napier

entrusted with the preparation of the case.” 549 F.2d 990, 993 (5th Cir. 1977). Despite this

observation made in dictum, however, the Ledee court itself made clear that “[i]n the federal

courts questioning is generally done by the judge and counsel may submit questions for the jury

which the judge may or may not use.” Ibid. (contrasting the “‘federal’ method” of “having the

judge carry the burden of questioning” with the “‘state’ method” of “affording counsel

reasonable opportunity for direct questioning of jurors individually”). Indeed, the Fifth Circuit

ultimately found no error with the trial court’s refusal to ask certain requested questions during

voir dire after recognizing that the criminal analog of Civil Rule 47 “allows the trial judge wide

discretion as to the scope and conduct of voir dire examination.” Id. at 992.

       Simmons’s conclusory assertion that the district court’s “failure to allow counsel to

conduct voir dire” and “refus[al] to ask numerous questions” denied him “a full opportunity to

determine the biases of the possible jurors,” Appellant Br. 32, 35–36, is simply insufficient to

demonstrate prejudice in this context. Cf. Lips v. City of Hollywood, 350 F. App’x 328, 339

(11th Cir. 2009) (“We will not reverse a district court’s decision based on the voir dire that it

conducted unless it is shown with specificity that the voir dire did not provide a reasonable

assurance that the jurors’ prejudices could be discovered.” (emphasis added)). The district court

here “conducted voir dire in accordance with Rule 47 and within the bounds of its broad

discretion.” Csiszer, 614 F.3d at 875.

                                         B. Prior Bad Acts

       Simmons next argues that the district court improperly prevented him from questioning

Officer Mahoi and introducing certain portions of the deposition testimony of a former officer,

Gregory Gladden, regarding Officer Mahoi’s alleged “use of excessive force in the course of his

[prior] arrests.” Appellant Br. 27. The district court excluded this evidence because it was


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overly prejudicial and because it was barred by Federal Rule of Evidence 404, which provides

that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1); see also Fed. R. Evid. 404(a)(1) (“Evidence of a person’s character or

character trait is not admissible to prove that on a particular occasion the person acted in

accordance with the character or trait.”).

                                                1

       In an attempt to circumvent Rule 404’s bar, Simmons claims that he sought to introduce

evidence of Officer Mahoi’s past conduct “not on [sic] an attempt to show that . . . Mahoi acted

in a certain way in this instance involving Mr. Simmons, based on his past behavior, but to show

that he acted with intent and a lack of mistake and/or accident in acting aggressively toward

[Simmons] in the course of his arrest.” Appellant Br. 27. This assertion is suspect.

       The district court was convinced—and for good reason—that Simmons’s real purpose for

the evidence was to attempt to “prove that Mahoi had a character trait of being violent and,

during the incident at issue, he acted in accordance with that trait.” Order at 5. The court

reached this conclusion based in part on Simmons’s own assertion that “proof that Mr. Mahoi

had previously engaged in . . . being overly aggressive with citizens in the past would be strong

evidence that he was aware that his actions were deemed inappropriate but that he continued to

use unnecessary and unreasonable force.” Pl.’s Mot. for New Trial at 10. “This is precisely the

sort of propensity reasoning Rule 404(b) forbids.” Helfrich v. Lakeside Park Police Dep’t,

497 F. App’x 500, 507 (6th Cir. 2012) (affirming the exclusion of proposed bad-act evidence that

“would go to prove” that the defendant officer “is the sort of person who would unjustifiably tase

someone, which tends to show that his tasing of [the plaintiff] is also unjustified”); see also


                                                -8-
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Simmons v. Napier

Franklin v. Messmer, 111 F. App’x 386, 388 (6th Cir. 2004) (“[The plaintiff] wished to introduce

evidence, such as a disciplinary complaint, that [the defendant officer] had engaged in excessive

force in the past, including his use of pepper spray. . . . As [the plaintiff] wanted to enter [the

officer’s] prior conduct to demonstrate his underlying intent in arrests, i.e., his propensity for

excessive force, the evidence was properly excluded” under Rule 404(b).); Turner v. Scott,

119 F.3d 425, 430 (6th Cir. 1997) (suggesting that a defendant officer’s “past history [of

misbehaving] would not have been admissible at trial” under Rule 404(b)).

                                                 2

       Even if we were to accept Simmons’s assertions on appeal regarding the purpose of the

proposed evidence, his claim would still fail. Demonstrating intent or the absence of mistake or

accident is indeed a permissible purpose under Rule 404(b).          See Fed. R. Evid. 404(b)(2)

(Evidence of a crime, wrong, or other act under (b)(1) “may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.”). In determining whether certain evidence is admissible under

Rule 404(b), a district court will employ the following three-part test:

               First, the district court must decide whether there is sufficient
               evidence that the other act in question actually occurred. Second,
               if so, the district court must decide whether the evidence of the
               other act is probative of a material issue other than character.
               Third, if the evidence is probative of a material issue other than
               character, the district court must decide whether the probative
               value of the evidence is substantially outweighed by its potential
               prejudicial effect.

United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013). To satisfy the second part of this test,

the evidence must be offered for a permissible purpose; that purpose must be material or “in

issue” in the case; and the evidence must be probative with regard to that purpose. United States

v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011).

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       The district court properly applied this framework to exclude the evidence at issue here.

As an initial point, Simmons failed to demonstrate that any mistake or accident by Officer Mahoi

was at issue in this case. In fact, the officers did not seek to justify their actions on the basis of

mistake or accident at any point. See United States v. Bell, 516 F.3d 432, 442 (6th Cir. 2008)

(For evidence regarding mistake or accident to be relevant, “the defendant must assert a defense

based on some type of mistake or accident.”). Rather, they maintained throughout that they used

appropriate force based on Simmons’s lack of cooperation and the severity of the alleged crime

to which they were responding. See, e.g., Defs.’ Mot. for Summ. J. at 10 (asserting that the

officers “used a reasonable amount of force to effectuate the arrest” of Simmons).

       Moreover, Simmons’s “claim that the evidence goes to [Officer Mahoi’s] intent fares

little better” because “[a]n excessive-force claim under federal law requires the factfinder to

decide whether the force the officer used was objectively reasonable” and “the officer’s actual

motives in using a particular degree of force are irrelevant.” Helfrich, 497 F. App’x at 507; see

also Tanberg v. Sholtis, 401 F.3d 1151, 1168 (10th Cir. 2005) (“[E]vidence tending to show [an

officer’s] subjective state of mind is irrelevant to the jury’s proper inquiry” in an excessive-force

case under federal law.). Indeed, when instructing the jury regarding the excessive-force claim,

the district court correctly observed that the jury “must not consider whether a defendant’s

intentions were good or bad” but rather “must decide whether a defendant’s use of force was

unreasonable from the perspective of a reasonable officer.”

       Even if Officer Mahoi’s intent were relevant to Simmons’s state-law claims of assault

and battery or false arrest and imprisonment, which is an issue that we need not resolve here, the

district court properly rejected the evidence. First, the vague references in Gladden’s deposition

testimony to Officer Mahoi’s “no-nonsense” or “aggressive” demeanor are simply insufficient to


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demonstrate that any prior acts of excessive force or misconduct of any kind actually occurred.

See Adams, 722 F.3d at 810 (“[T]he district court must decide whether there is sufficient

evidence that the other act in question actually occurred” before admitting the evidence.). In

addition, because Gladden was an unavailable witness, he would not have been able to expand

upon or clarify at trial his statements regarding Officer Mahoi’s alleged aggressiveness. As a

result, the district court’s determination that the prejudicial effect of admitting the available

testimony would outweigh its probative value—a conclusion that is entitled to “very broad”

deference, United States v. Fisher, 648 F.3d 442, 449 (6th Cir. 2011)—was not unreasonable.

Cf. Helfrich, 497 F. App’x at 508–09 (affirming the exclusion of testimony regarding a prior act

of force by a police officer, even if potentially relevant to intent, because its “probative value

was slight” and “it created a substantial danger of undue delay, unfair prejudice, and confusing

the jury,” id. at 509). Finally, in light of Gladden’s further deposition testimony that he regarded

Officer Mahoi as “very professional” and “a great officer,” and that he never saw Officer Mahoi

beat an arrestee unnecessarily, use a choke hold, or even use excessive profanity, Simmons

cannot demonstrate that excluding portions of Gladden’s testimony caused him prejudice.

                                      C. Improper Expert Testimony

       Simmons next argues that the district court improperly allowed the defense to present

expert deposition testimony to the jury asserting that Simmons was intoxicated during the

relevant course of events, and that defense counsel improperly repeated this assertion during

closing arguments.    In his deposition, the emergency-room physician who initially treated

Simmons after his arrest testified that Simmons presented with “acute alcohol intoxication.”

Simmons asserts that this observation was unsupported by medical evidence, such as a blood or

urine test, and thus constitutes improper lay testimony that invaded the province of the jury.


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        The deposition testimony presented to the jury makes clear that, while the testifying

physician did not conduct a blood or urine test, his opinion that Simmons was intoxicated was

“based on [his] clinical assessment and [Simmons’s] self reported history of drinking alcohol

that evening.” While the physician did note that his ability to identify intoxication was based in

part on his life experiences (as one might expect), he also explained that his medical training

equipped him to understand when a person is intoxicated and to identify the “common

presentation of alcohol intoxication.”

        In the alternative, if the physician’s statements regarding Simmons’s purported

intoxication are considered to be lay testimony, courts have held that such testimony can

properly be admitted. See, e.g., United States v. Denny, 48 F. App’x 732, 737 (10th Cir. 2002)

(police officer’s testimony that the defendant was “extremely intoxicated” based on his slurred

speech and unsteady gait was proper lay testimony); Durant v. United States, 551 A.2d 1318,

1324 (D.C. 1988) (“Whether a patient is ‘well under the influence of alcohol’ is not a matter

about which competent physicians are likely to differ. Indeed, because alcohol intoxication is

considered to be a matter of common knowledge, lay witnesses may render opinion testimony

regarding alcohol intoxication.”); cf. 1 McCormick on Evid. § 11 (7th ed.) (“Lay witnesses have

been permitted to express opinions on extremely varied topics. The topics include . . .

intoxication. . . . [C]ourts assume that most American adults are competent to testify about

alcohol intoxication . . . .”).

        In any event, even if the testimony were improper, Simmons cannot demonstrate that its

admission amounted to more than harmless error. As stressed by the district court, “Simmons’[s]

alcohol intoxication was not a significant issue in the case,” Order at 8, and it did not go to an

ultimate issue in resolving Simmons’s claims. Indeed, Simmons himself observes that “none of


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the Defendants indicated that [Simmons] was intoxicated nor that intoxication had anything to do

with [Simmons’s] actions, reactions or his arrest.”1 Appellant Br. 39. There is, therefore, a fair

assurance that the ultimate outcome of the trial “was not affected by evidentiary error.” Beck,

377 F.3d at 635.

       Similarly, Simmons cannot demonstrate prejudice with regard to defense counsel’s

closing arguments, in which counsel repeated the physician’s diagnosis of acute intoxication.

Simmons’s own counsel had the opportunity to rebut this argument, and the district court

consistently instructed the jury that “the lawyers’ opening statements and closing arguments . . .

were not evidence.”     On this basis, and considering the minor relevance of Simmons’s

intoxication in comparison to the other evidence at issue, there is not “a reasonable probability

that the jury’s verdict was influenced by” the argument. Fuhr v. Sch. Dist. of City of Hazel Park,

364 F.3d 753, 760 (6th Cir. 2004); see also Troyer v. T.John.E. Prods., Inc., 526 F. App’x 522,

525 (6th Cir. 2013) (“Plaintiffs’ assertions alone are not enough to establish a reasonable

probability of improper influence. . . . To the extent there was any potential prejudice from the

comments or actions, it was cured by the district court’s instruction to the jury” that “[t]he

lawyers’ statements and arguments are not evidence.”).

                             D. Improper Impeachment Testimony

       Simmons next challenges the district court’s failure to grant a mistrial after Officer

Mahoi improperly testified that one of Simmons’s proposed witnesses, Gregory Gladden, was




1
 As the district court noted, “Simmons’[s] alcohol intoxication was not a significant issue in the
case and he did not dispute the hospital records that showed that he tested positive for opiates
and cannabinoids after the incident at issue.” Order at 8.
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“incarcerated.”2 After Mahoi made the reference to Gladden’s incarceration, the district court

immediately remonstrated with Mahoi on the witness stand, struck the testimony from the

record, and instructed the jury to ignore the statement. Outside the hearing of the jury, the

district court later described the testimony as “highly inflammatory, irrelevant, unimpeached and

totally without basis and foundation” and the resulting “misconduct to be knowing, intentional

and completely violative of the rules.” Nevertheless, the court did not find prejudice and denied

Simmons’s request for a mistrial. In considering Simmons’s motion at the conclusion of the

trial, the district court again found no prejudice and refused to grant a new trial, observing that

Gladden was a peripheral witness and that the court instructed the jury to ignore the improper

testimony. Order at 7.

       Simmons does not make any arguments on appeal that undermine the district court’s

reasoned conclusions. The district court correctly observed that Gladden’s testimony was of

minor relevance, as he was a peripheral witness (at best) who was not present during the relevant

course of events. The district court’s recognition that there was not “a whole lot in [Gladden’s

testimony] that’s helpful” to Simmons’s case, even absent the effect of Mahoi’s improper

testimony, accords with our observation above that it was unlikely that Gladden’s testimony

affected the outcome of the trial. Indeed, Simmons himself maintains that it is impossible to

determine “[h]ow much of an impact” Mahoi’s improper testimony regarding Gladden’s

incarceration “had on the jury’s deliberations,” Appellant Br. 37, and thus he cannot meet his

burden to demonstrate prejudice. We therefore cannot say that Officer Mahoi’s extremely “brief




2
  At the time of Officer Mahoi’s testimony, Gladden’s deposition testimony had not yet been
presented to the jury. Excerpts from Gladden’s deposition were later introduced into evidence
without any reference to his incarceration.
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testimony” was “so prejudicial as to warrant a new trial” or that “substantial justice” requires

reversal on this basis. Slayton, 206 F.3d at 677.

                                 E. Failure-to-Intervene Instruction

       Simmons argues that the district court erred by failing to grant his request to instruct the

jury on a failure-to-intervene theory. In his complaint, Simmons claimed that the defendant

officers each failed in their duties to prevent the use of excessive force and the false arrest by the

other defendants. At trial, Simmons requested “at the last minute,” Order at 10 n.3, that the jury

be instructed with Seventh Circuit Pattern Jury Instruction 7.16 on failure to intervene. The

district court did not give the requested instruction.

       We review “a district court’s refusal to give a requested jury instruction under an abuse

of discretion standard.” Tompkin, 362 F.3d at 901. “A district court’s refusal to give a jury

instruction constitutes reversible error if (1) the omitted instruction is a correct statement of the

law, (2) the instruction is not substantially covered by other delivered charges, and (3) the failure

to give the instruction impairs the requesting party’s theory of the case.” Ibid. Even then, the

resulting verdict will “be reversed only if the instructions, viewed as a whole, were confusing,

misleading, or prejudicial.” Ibid. Thus, the failure to give even a properly requested jury

instruction will not constitute reversible error if the error were harmless. See, e.g., Jordan v.

Paccar, Inc., 37 F.3d 1181, 1185 (6th Cir. 1994); Kendel, 512 F. App’x at 479 (“We will not

vacate a jury verdict based on . . . improper jury instructions unless the . . . improper jury

instructions amounted to more than harmless error.”).

       The district court did not dispute that the requested jury instruction “is a correct statement

of the law and was not substantially covered by other delivered instructions.” Order at 9.

Nevertheless, the court held that the failure to give the requested instruction “did not impair


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Simmons’[s] theory of the case” and constituted harmless error. Id. at 9–10. Additionally, the

court observed that Simmons’s counsel did not submit proposed jury instructions, failed to object

to the omission of a failure-to-intervene instruction during the court’s initial charge conference,

and only made his request on the morning that the jury was being charged. Id. at 10 n.3.

       Even assuming it were erroneous, the district court’s refusal to instruct on Simmons’s

failure-to-intervene theory was harmless because the jury’s verdict on the primary-liability

claims demonstrates that Simmons could not have prevailed on his secondary-liability theory.

The jury did not find that any of the defendant officers used excessive force or engaged in a false

arrest or assault and battery of Simmons. See Seventh Circuit Pattern Jury Instruction 7.16

(noting that the plaintiff must prove each element of a failure-to-intervene claim, including an

underlying primary constitutional violation); cf. Turner, 119 F.3d at 429 (noting that “police

officers can be held liable for failure to protect a person from the use of excessive force”

(emphasis added)). Thus, the jury’s verdict established that there was no conduct that any of the

defendant officers had the obligation to stop or prevent, and they simply could not have been

found liable for failing to prevent unlawful conduct that did not occur.3 Cf. Pucci v. Nineteenth

Dist. Court, 596 F. App’x 460, 473 (6th Cir. 2015) (suggesting that a “district court’s failure to

instruct the jury on a valid claim [can be] harmless [where] the jury’s verdict on a separate claim

demonstrated that the plaintiff would not have prevailed on the omitted claim”); Wilson v. City of

Chicago, 758 F.3d 875, 881 (7th Cir. 2014) (any error in jury instructions regarding a “doomed”

wrongful-death claim was harmless because the jury’s rejection of a related excessive-force


3
  Simmons himself argues that the “instruction was necessary as the evidence showed that
Defendants Napier and Villereal [sic] would have been able to stop the Defendant Mahoi from
using excessive force against [Simmons] but failed to do so.” Appellant Br. 46. The jury’s
verdict, however, established that Officer Mahoi did not actually use excessive force, thus
obviating the need for the failure-to-intervene instruction under Simmons’s own theory.
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claim necessarily meant that the plaintiff did not prove that the defendant officers’ actions were

without legal justification); Knight v. Caldwell, 970 F.2d 1430, 1433 (5th Cir. 1992) (any error in

failing to give certain jury instructions regarding an excess-force claim was harmless because

“once the jury answered ‘no’ to the ‘injury’ question” regarding the defendant officers’ liability,

“it could go no further with the other questions in the charge”).

                                            F. Jury Poll

       Simmons also takes issue with the district court’s poll of the jury at the conclusion of the

trial. Federal Rule of Civil Procedure 48(c), which was added by amendment in 2009 and is

modeled on Federal Rule of Criminal Procedure 31(d), provides that: “After a verdict is returned

but before the jury is discharged, the court must on a party’s request, or may on its own, poll the

jurors individually.” Simmons did indeed request a jury poll at the close of the case. On appeal,

Simmons asserts that the district court erred by allowing the jurors to respond collectively to the

poll, thus preventing the court reporter and the parties from determining the individual responses

of each juror.

       The trial transcript contains the following exchange:

                 THE COURT: All right. We’re going to ask you individually
                 whether you agree with the verdicts as stated and would you like to -
                 THE JURORS: (Collectively) I agree.
                 THE COURT: Okay. Very fine. . . .

The transcript does not, however, contain any objection to the court’s poll or any indication

whatsoever of dissent or disagreement by any juror in response to the court’s question. We hold

that the unobjected-to failure of the district court to secure individual responses of each juror

under such circumstances does not constitute reversible error. An examination of the relevant

case law supports this conclusion.




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                                                    1

       The Supreme Court addressed civil jury polls in Humphries v. District of Columbia, a

case that predates the passage of Civil Rule 48(c) by more than a century. In that case, the Court

of Appeals of the District of Columbia initially overturned a jury verdict as “an absolute nullity”

because one of the jurors failed to participate in a requested jury poll as he was bedridden.

174 U.S. 190, 192–93 (1899). At the outset of its opinion reversing the Court of Appeals, the

Supreme Court observed that “the right to poll a jury exists” and “[i]ts object is to ascertain for a

certainty that each of the jurors approves of the verdict as returned; that no one has been coerced

or induced to sign a verdict to which he does not fully assent.” Id. at 194. The Court also noted,

however, that polling the jury “is not a matter which is vital, is frequently not required by

litigants; and while it is an undoubted right of either, it is not that which must be found in the

proceedings in order to make a valid verdict.” Ibid. Indeed, the Court ultimately determined that

that an error in conducting a jury poll—and even the failure to conduct a poll under some

circumstances, such as “when it is clear that the verdict has received the assent of all the

jurors”—does not necessarily “render the verdict a nullity.” Id. at 196; see also id. at 194

(suggesting that the denial of a request for a poll where a verdict is returned in the presence of

the jury without dissent would not “render the proceedings absolutely null and void”). The Court

therefore reinstated the overturned jury verdict.

                                                    2

       Over the following century, a “prevailing rule” developed in the criminal context “that a

failure to poll the jury after a timely request constitutes per se reversible error.” Ira Green, Inc.

v. Military Sales & Serv. Co., 775 F.3d 12, 25 (1st Cir. 2014). Simmons urges us to adopt this

rule and hold that the failure of the district court in this civil case to poll the jurors individually


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similarly requires reversal.    See Appellant Br. 49–50.       While there is some support for

Simmons’s position in the sparse case law addressing jury-poll claims under Civil Rule 48(c),

the doctrine ultimately points against him.

       In Verser v. Barfield, the Seventh Circuit considered a claim raised by a pro se

incarcerated plaintiff that his total exclusion from the proceedings in his civil case prevented him

from exercising his right to poll the jury under Civil Rule 48(c). 741 F.3d 734, 736–37 (7th Cir.

2013). Before the jury’s deliberations in that case, the trial judge ordered that the plaintiff be

returned to prison, where he was left totally incommunicado and without means of participating

in the proceedings. The plaintiff was completely absent when the jury’s adverse verdict was

delivered, and he thus was unable to request a poll. He also was unaware that one of the jurors

made a statement on the record that: “This was very hard for us. Many of us—the majority feel

that the defendants all had a part to play in what happened to [the plaintiff], but, because there

was a lack of evidence, we could not find the defendants guilty.” Id. at 737.

       On appeal, the Seventh Circuit first observed that Civil Rule 48(c) was “modeled on

Federal Rule of Criminal Procedure 31(d), which gives the same polling right to the parties to a

criminal prosecution.” 741 F.3d at 738.4 The court then determined that the case law applying

Criminal Rule 31(d) was “fully applicable” to the civil context under Civil Rule 48(c). Id. at

739. The court made this determination because the text of Civil Rule 48(c) is nearly identical to


4
  The right to poll in a criminal case “is a substantial right” based upon Criminal Rule 31(d), “not
a right flowing from any of the constitutional rules of criminal procedure.” Verser, 741 F.3d at
738. Criminal Rule 31(d) provides:

               Jury Poll. After a verdict is returned but before the jury is
               discharged, the court must on a party’s request, or may on its own,
               poll the jurors individually. If the poll reveals a lack of unanimity,
               the court may direct the jury to deliberate further or may declare a
               mistrial and discharge the jury.
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its criminal analog and because “there is little reason to distinguish between the two contexts.”

Id. at 738; see also Fed. R. Civ. P. 48 Committee Note (“Jury polling is added as new

subdivision (c) [of Civil Rule 48], which is drawn from Criminal Rule 31(d) with minor

revisions . . . .”). In dictum, the court observed that a litigant’s right to poll the jury is absolute

unless waived, and thus a “district court’s refusal, or even neglect, to conduct a jury poll upon a

timely request is ground for a new trial.” Verser, 741 F.3d at 738.

       The Verser court considered the defendants’ argument that the error in not allowing the

plaintiff the opportunity to request a poll “was harmless because there was no affirmative

indication that any individual juror actually disagreed with the verdict.” Id. at 742. This

argument failed to convince the court for two reasons. First, the court stressed that the purpose

of jury polls is to have each juror speak for himself “to discover unexpressed dissent, not to

reconfirm dissent that is already apparent.” Id. at 743. To require that the protesting party

demonstrate “a signal of ‘particular disagreement’” in order to show prejudicial error from the

failure to conduct a poll would conflict with this central function. Ibid. Second, the court

reasoned that, had he been present during the announcement of the verdict, the plaintiff in Verser

plausibly may have interpreted the juror’s statement that a majority of the jurors believed that the

defendants had “something to do with what happened,” and the juror’s use of the term “guilt”

rather than “liability” or “responsibility,” to mean that a poll of the jury “might be fruitful.” Id.

at 742–43. Thus, “[o]n th[ose] particular facts,” where “[t]he circumstances . . . indicated an

elevated possibility that at least one juror might not agree with the verdict as read,” the Seventh

Circuit could not “say that the district court’s error was harmless.” Id. at 743.

       The Seventh Circuit’s Verser decision was distinguished somewhat in the First Circuit’s

more recent decision in Ira Green, Inc. v. Military Sales & Service Co. In Ira Green, the jury


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returned a multi-part take-nothing verdict in a civil dispute between rival companies. 775 F.3d at

24. After the verdict was read, the trial court inquired whether any party wished to poll the

jurors individually.   One of the plaintiff’s attorneys responded in the affirmative and also

informed the court that the jury had failed to announce its answer to one of the pending questions

on the verdict form. The court asked the jury foreperson to announce the jury’s answer to that

question, and once the announcement was made, the court dismissed the jury. None of the

plaintiff’s attorneys reminded the court about the pending request for a poll. Ibid.

       On appeal, the plaintiff asserted that the failure to poll the jury constituted per se

reversible error. In considering this claim, the First Circuit first examined the Seventh Circuit’s

conclusion in Verser that the case law interpreting Criminal Rule 31(d), and the underlying

principle that the failure to conduct a jury poll upon request constitutes per se reversible error,

was “fully applicable” to the civil context under Civil Rule 48(c). Verser, 741 F.3d at 739. The

First Circuit reasoned that the Verser court’s position was commendable in light of the near

identical text of the criminal and civil rules, but noted that the issue was “open to legitimate

question.” Ira Green, 775 F.3d at 25; see also Wiseman v. Armstrong, 989 A.2d 1027, 1040–41

(Conn. 2010) (holding that the failure to poll the jury upon request requires automatic reversal in

criminal cases but not in civil cases because of the inherent distinctions between the two

contexts). The Ira Green court did not need to resolve the issue, however, because counsels’

failure to renew the request for a poll—like the failure of Simmons’s counsel to object to the poll

at issue here—took the case “outside the mainstream.” Ira Green, 775 F.3d at 25.

       After stressing that “the law ministers to the vigilant, not to those who sleep upon their

rights,” ibid., the First Circuit in Ira Green determined that the failure of plaintiff’s counsel to

renew the request for a poll, despite having “ample opportunity to act,” constituted a waiver of


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Simmons v. Napier

that request. Id. at 26. Thus, the court held that “a party who requests a jury poll must act

reasonably to preserve its rights and, in the circumstances of this case, [the plaintiff] did not do

so.” Id. at 16. In the alternative, the court reasoned that, even if the failure to renew the request

constituted an involuntary forfeiture, the plaintiff would only be able to prevail by demonstrating

plain error. In order to demonstrate plain error in this context, the Ira Green court determined

that a plaintiff would need to make “some showing that the verdict was rendered under

circumstances indicating a possible lack of unanimity or assent.” Id. at 27. In that case, the

plaintiff was unable to do so because the trial court had emphasized in its charge that the verdict

must be unanimous; the jurors “collectively responded in the affirmative” when asked by the

court if they reached a unanimous verdict; and there was “nothing in the jurors’ demeanor or

behavior to suggest that any one of them did not agree with the verdict.” Ibid. (internal quotation

marks omitted).

                                                 3

       The circumstances of Simmons’s case are nearly identical to those at issue in Ira Green

(and are distinguishable from the circumstances in Verser). The district court below did indeed

stress in its jury instructions that the “verdict, whether for or against the parties, must be

unanimous.” The jurors collectively responded “I agree” when asked if they agreed with the

verdict as stated in response to Simmons’s request for a poll. And Simmons points to nothing in

the record that would “suggest to even the most wary observer that the jurors were not all of one

mind.” Ibid. In Verser, by contrast, there was no opportunity for a poll to be requested and thus

no reasonable opportunity for the plaintiff to assert his rights or to discover unexpressed dissent.

741 F.3d at 743. Moreover, there was in fact an affirmative indication by at least one juror of

potential unease with the verdict in that case. See ibid. No such circumstances are present here.


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          On the particular facts of this case, any flaw in the jury poll falls on the harmless-error

side of “[t]he line of demarcation between those rulings which are simply erroneous and those

which vitiate the result.” Humphries, 174 U.S. at 194. Allowing an attorney to request a jury

poll and then sit in silence in the face of a potential (and easily correctable) flaw in that poll, only

to raise the issue later in an attempt to seek automatic reversal on appeal, “would place a

premium on agreeable acquiescence to perceivable error as a weapon of appellate advocacy.”

Ira Green, 775 F.3d at 27 (quoting Reilly v. United States, 863 F.2d 149, 161 (1st Cir. 1988)).

Ultimately, Simmons cannot demonstrate that any deficiency in the court’s poll affected his

substantial rights and thus his claim fails.

                                      G. Weight of the Evidence

          In his final attempt to undermine the result of the trial below, Simmons argues that the

district court erred by not finding that the jury’s verdict was against the great weight of the

evidence. Simmons maintains that he offered uncontroverted proof to the jury on all elements of

his claims, and that the defendant officers failed to offer any evidence to dispute his version of

events.

          When a party requests a new trial on the ground that the verdict is against the weight of

the evidence, “we will uphold the jury verdict if it is one the jury reasonably could have reached;

we cannot set it aside simply because we think another result is more justified.” Innovation

Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 534 (6th Cir. 2014). In this case, the district

court correctly determined that:

                 Based on all of the testimony and documentary evidence received
                 at trial, the jury could have reasonably believed that the defendants
                 did not falsely arrest Simmons, did not use excessive force against
                 him, did not assault him, and did not batter him, notwithstanding
                 the evidence he presented regarding his alleged injuries. Simmons
                 fails to explain what acts of which defendants caused the injuries

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               and does not allow for the possibility that other acts may have led
               to them.

Order at 11–12. To the extent that Simmons argues differently based on the officers’ failure to

offer an alternative explanation for his injuries, the district court rightly stressed that the officers

had no such burden. Rather, it was Simmons’s burden to establish by a preponderance of the

evidence that the officers caused his injuries unlawfully.

       There was substantial testimony in the record suggesting that the officers did not use

excessive force or arrest Simmons improperly. For example, Officer Napier testified that: she

stopped and attempted to detain Simmons based on the call from dispatch about an armed man at

the gas station; Simmons repeatedly disobeyed her commands to stop and get on the ground; she

took Simmons to the ground when he refused to comply and she struggled to get him into

handcuffs; Simmons’s head never struck the ground during the encounter; she used pepper spray

in accordance with department policy when Simmons refused to get into the police car; and she

did not observe any injuries to Simmons beyond his reaction to the pepper spray. Officer Mahoi

also testified that: Simmons refused to obey Officer Napier’s commands; no officer used a choke

hold on Simmons; Simmons was pushing, thrashing, and screaming throughout the encounter;

and the officers ensured that Simmons’s head did not hit the ground during the struggle. While

we have no doubt that Simmons vehemently disagrees with this version of events, the jury

certainly was entitled to credit this testimony. Ultimately, the jury’s determination that the

officers did not use excessive force or falsely arrest Simmons is reasonable in light of such

evidence.

                                                  IV

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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