                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 07-2235
                                 ___________

Juquan Demetrius Muhammad,            *
aka Willie Murry,                     *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Ricky McCarrell, Sgt., Varner         *
Super Max, ADC; James Murry, Lt.,     *
Varner Super Max, ADC;                *
John Doe, Dr., Southwest Hospital;    *
Jimmy Via, Captain, Varner Super      *
Max, ADC; Ransom Evans, Lt.,          *
Varner Super Max, ADC (originally     *
sued as Raven Evans); Joann           *
Burnett, LPN, Varner Super Max,       *
ADC (Originally sued as Pam Burnett), *
                                      *
            Appellees.                *
                                 ___________

                           Submitted: June 9, 2008
                              Filed: August 7, 2008(Corrected: 8/08/2008)
                               ___________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Juquan Demetrius Muhammad, an inmate at the Varner Supermax Unit
("Varner"), filed this 42 U.S.C. § 1983 action against Varner and several of its
officers, asserting a tort claim for battery and alleging that his Eighth Amendment
rights were violated when officers used excessive force to extract him from his cell.
The jury returned a defendants' verdict. Muhammad appeals, arguing that the district
court1 committed plain error (1) by not overturning the jury verdict in favor of the
defendants with regard to his Eighth Amendment and battery claims, and (2) in
allowing the defense to make certain statements during closing argument. We affirm.

                                   I. Background
       On March 8, 2002, Muhammad was unruly and caused a disturbance in his cell
block. Muhammad taunted an officer, Tina Buchannon, calling her names in an
apparent attempt to get out of his cell. Officer Buchannon reported the incident to
Sergeant Ricky McCarrell, the supervisor of Muhammad's cell block. Sergeant
McCarrell, in turn, passed the report along to Lieutenant Ransom Evans, his superior
officer.

       Lieutenant Evans attempted to handcuff Muhammad before seeking to remove
him from his cell, but Muhammad refused to cooperate. Muhammad stated his intent
to continue causing a disturbance "all day." Lieutenant Evans warned Muhammad that
the guards may use force should he fail to cooperate. Not heeding the warnings,
Muhammad persisted in noncompliance. Concerned Muhammad had a weapon,2
Lieutenant Evans testified at trial that he wanted to place Muhammad in handcuffs.
Lieutenant Evans ordered Muhammad several more times to submit, to no avail, so
he sprayed two bursts of pepper spray toward Muhammad's face. Lieutenant Evans


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      2
       A few weeks before this incident, Muhammad attacked another officer with a
handmade weapon. Lieutenant Evans had to help subdue Muhammad in the earlier
incident. Additionally, in the nine months prior to this incident, Muhammad had been
found guilty of committing 16 major disciplinary violations.

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alleged at trial that the spray had no discernible effect on Muhammad, so Evans left
the cell block and returned with his superior, Captain Jimmy Via and others.

       Because the officers knew that they would have to use force beyond pepper
spray, one of the officers who came to the scene brought a video camera to document
the incident. By this time, Muhammad had used his mattress to barricade his cell door.
Because Muhammad continued to disobey orders, Lieutenant Evans dispensed a No.
15 OC Stinger grenade3 into Muhammad's cell between the cell door and the mattress.
Most of the gas from the grenade escaped the cell without affecting Muhammad.

       After the Stinger grenade failed to achieve Muhammad's compliance, officers
tried tear gas, but it also failed.4 After the tear gas failed to subdue Muhammad,
Captain Via warned Muhammad that the officers would use a barricade round if he
did not submit to the restraints. When Muhammad continued to resist, the officers shot
a 37MM Ferret OC powder round—a round that is designed to break through a
barricade—at the cell wall, not at Muhammad. He still refused to comply. Then,
officers dispensed a 28b Stinger 37MM 60 Cal. rubber-ball round into the cell—this
attempt to subdue Muhammad also failed.

       Officer James Murry shot another Ferret OC powder round into Muhammad's
cell. This round went through the mattress and hit Muhammad in the groin area,
finally subduing him. Murry testified that he was not aiming at Muhammad. When
asked by Muhammad's counsel whether he told the warden that he planned to shoot
the round through the mattress at Muhammad, Murry answered affirmatively. He

      3
        The grenade is similar to a military style grenade, except it contains small
rubber balls that are surrounded by oleoresin capiscum gas. The grenade usually
inflicts only bruises and is used primarily for riot control.
      4
         The tear gas is packed into a projectile and shot using a handgun-type weapon.
On contact, the projectile explodes, allowing the gas to fill the air, causing skin
irritation and breathing difficulties.

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immediately clarified his answer to explain that he told the warden that he planned to
shoot the round through the mattress.

       According to Lieutenant Evans, initially, no weapon was found in Muhammad's
cell; however, Muhammad later admitted that a weapon was in his pocket. Officers
searched him and seized the weapon. Muhammad was found guilty of eight
disciplinary violations for his actions during this incident.

      The powder-round wound to Muhammad's leg required outpatient surgical
treatment. After surgery, Muhammad was transported back to the Department of
Corrections Infirmary.

      Muhammad sued Varner and several of the officers at the facility—Sergeant
McCarrell, Lieutenant Evans, Officer Murry, and Captain Via. Officer McCarrell was
dismissed from the case, and the case proceeded to trial as to the remaining
defendants.

      During closing argument, the defense attorney stated the following:

      It sounds pretty silly for me to stand here after you've listened to two
      days full of testimony to say this case is really simple, it comes down to
      the point of all he had to do was follow a direct order. But in all honesty,
      that's all it comes down to. All Mr. Muhammad had to do was follow a
      direct order.

And later in his argument, defense counsel stated that "[Muhammad] made no effort
to comply with any direct orders whatsoever and even at the end, didn't comply with
the direct order because that is what he chose to do."

       Ultimately, the jury returned a verdict for the defense. Muhammad appeals the
jury's verdict.

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                                     II. Discussion
       On appeal, Muhammad challenges the verdict, arguing that (1) the evidence was
insufficient to support a verdict for the defendants, and (2) the defense attorney's
comments during closing arguments unfairly prejudiced the jury. Muhammad did not
file any post-trial motions; therefore, we review his arguments for plain error. United
States v. Quintanilla, 25 F.3d 694, 698 (8th Cir. 1994).

                            A. Sufficiency of the Evidence
      Muhammad argues that there was insufficient evidence to support the jury
verdict and that the jury found for the defendants only because they disregarded the
law. We disagree.

       To prevail on his § 1983 action, Muhammad had to prove that officers used
excessive force—i.e. force was used "maliciously and sadistically for the very purpose
of causing harm." Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008). And under
Arkansas law, "[b]attery is a wrongful or offensive physical contact with another
through the intentional contact by the tortfeasor and without the consent of the victim,
the unpermitted application of trauma by one person upon the body of another
person." Costner v. Adams, 121 S.W.3d 164, 170 (Ark. App. 2003). The officers' use
of force in extracting Muhammad from his cell was the underlying factual predicate
for both claims, and in their defense, the officers asserted that force was only used to
secure Muhammad's compliance with their reasonable commands and to restore order
to the cell block.

      Muhammad does not challenge the accuracy of the jury instructions; he merely
contends that the only way for the jury to have found against him was for it to have
disregarded the court's instructions. There is no evidence in the record of such
misconduct, and unless given a reason for doubt, we must presume that the jury
followed the instructions as given. See City of Los Angeles v. Heller, 475 U.S. 796,
798 (1986) (stating that "the theory under which jury instructions are given by trial

                                          -5-
courts and reviewed on appeal is that juries act in accordance with the instructions
given them . . ."); see also Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S
474, 485 (1933) ("Appellate courts should be slow to impute to juries a disregard of
their duties, and to trial courts a want of diligence or perspicacity in appraising the
jury's conduct").

         Moreover, Muhammad's appeal is, in essence, an attack on the jury's credibility
determinations. Muhammad asks us to make a factual inference contrary to the jury's
findings regarding the officers' motives. Such an inference would contravene our
standard of review, and we thus decline. See Schooley v. Orkin Extermination, Co.,
Inc., 502 F.3d 759, 766 (8th Cir. 2007) (stating that in challenges to the sufficiency
of the evidence, "we must view the evidence in the light most favorable to the verdict
. . . "). We will not reverse the jury's verdict on these grounds. "It is well settled that
a district court's assessment of a witness's credibility is a judgment call and 'virtually
unassailable on appeal.'" United States v. King, 518 F.3d 571, 575 (8th Cir. 2008)
(quoting United States v. Marshall, 411 F.3d 891, 895 (8th Cir. 2005)).

                        B. Defense Attorney's Closing Argument
       Muhammad also argues that opposing counsel misstated the law during closing
arguments and that the comments so severely damaged Muhammad's ability to receive
a fair trial that it constituted plain error for the district court to have allowed the
statements. Specifically, Muhammad contends that the attorney asserted that
Muhammad had not proven an Eighth Amendment violation in this case because
Muhammad's conduct essentially asked for excessive force. The appellees assert that
defense counsel merely made the point that Muhammad's continued resistance caused
the force escalation, not that Muhammad asked for excessive force.

      We conclude that allowing the attorney's comments did not amount to plain
error on the part of the district court. Even assuming counsel's comments were
objectionable, Muhammad has not shown plain error. To secure a reversal under the

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plain error standard, Muhammad must show that defense counsel's comments caused
an error constituting a "manifest miscarriage of justice." Southern Pine Helicopters,
Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 840 (8th Cir. 2003). If the
plaintiff's attorney is given an opportunity to rebut an erroneous argument, this may
explain away any prejudicial effect. See Rogers v. Rulo, 712 F.2d 363, 367 n.3 (8th
Cir. 1983) (recognizing that a lawyer's comments during closing argument may
"explain[] away the alleged prejudicial effect" of the opposing parties' closing
argument comments). Here, Muhammad's attorney had an opportunity to address the
comments by the defense attorney and to explain that it is no defense to an Eighth
Amendment claim that a defendant was acting unruly. Therefore, even if we agreed
that the comments were improper, as characterized by Muhammad, there was no plain
error here because Muhammad's attorney had an adequate opportunity to address the
jury about any potential prejudicial effect.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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