                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 11a0223n.06

                                            No. 09-1372

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                          FILED
FLOYD JENNINGS,                                                                        Apr 12, 2011
                                                                                 LEONARD GREEN, Clerk
          Plaintiff-Appellant,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
BRENT BRADLEY, et al.,                                      COURT FOR THE WESTERN
                                                            DISTRICT OF MICHIGAN
          Defendants-Appellees.


                                                        /

Before:          BATCHELDER, Chief Judge; MARTIN and SUTTON, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Floyd Jennings, a Michigan prisoner proceeding

pro se, sued a number of employees at Alger Maximum Correctional Facility under 42 U.S.C. §

1983. The district court granted summary judgment in favor of all the defendants except for one,

and the jury found in favor of the remaining defendant. Jennings appeals the district court’s grant

of summary judgment, its order denying him appointment of counsel, its decision requiring several

of his witnesses to testify via video teleconferencing, and its denial of his motion for a new trial. We

AFFIRM the decision of the district court.

                                         I. BACKGROUND

          Jennings sued the following employees of Alger Maximum Correctional Facility:

Corrections Officer Brent Bradley, Assistant Resident Unit Manager Thomas Salo, Resident Unit

Manager Curt Rife, Sergeant Donald MacDonald, Deputy Warden Lloyd Rapelje, Corrections
No. 09-1372
Jennings v. Bradley
Page 2

Officer Gary Schertz, Corrections Officer Robert Wickstrom, Sergeant Kevin Taskila, Lieutenant

Craig Taylor, and Lieutenant Jeffrey Stevens.1 Jennings alleged that they violated his Eighth

Amendment rights by putting human feces in his food; smearing feces on him; using various forms

of unwarranted or excessive force; forcing him to lie in his own waste; and denying him food, water,

and restroom breaks. Jennings also alleged that the defendants violated his procedural due process

rights and retaliated against him by placing him without notice on a “Cell Slot Management”

program, which required him to move to the back of his cell and assume a certain position when

receiving meals, mail, or medication. A full recounting of the factual background of this case is

available in the magistrate judge’s Report and Recommendation.

        Jennings filed two motions requesting that counsel be appointed to represent him and the

district court denied both motions. Before trial, the defendants moved for summary judgment. After

a de novo review of the magistrate judge’s Report and Recommendation, the district court adopted

it and granted summary judgment to all of the defendants except Bradley, who Jennings alleged had

served him a sandwich containing feces and used a feces-smeared shield against him. After a

two-day trial, the jury rendered a verdict in favor of Bradley. Jennings moved for a new trial, and

the district court denied the motion. Jennings now appeals, challenging the district court’s denial

of his motion for a new trial as well as several pre-trial and trial rulings.




        1
          The district court dismissed the claims against Taylor and Stevens because Jennings did not exhaust his
administrative remedies against them. Jennings does not challenge this decision.
No. 09-1372
Jennings v. Bradley
Page 3

                                           II. ANALYSIS

A. Motion for summary judgment

        We review the district court’s grant of summary judgment de novo. Ciminillo v. Streicher,

434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is appropriate where there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a).

        Jennings claims that the district court erred in granting Salo, Rife, MacDonald, Rapelje,

Schertz, and Wickstrom summary judgment based on qualified immunity as to his Procedural Due

Process claim and First Amendment retaliation claim. Under the doctrine of qualified immunity,

government officials performing discretionary functions are shielded from civil liability unless their

conduct violates clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Thus, a defendant is entitled to qualified immunity on summary judgment unless the facts,

when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that:

(1) the defendant violated a constitutional right; and (2) the right was clearly established. Pearson

v. Callahan, 555 U.S. 223, —, 129 S. Ct. 808, 815-16 (2009). A court of appeals may exercise its

discretion to decide which prong of the test to address first in light of the circumstances of the case.

Id. at 818.

1. Procedural Due Process

        Jennings claims that the district court erred in granting Salo, Rife, MacDonald, Rapelje,

Schertz, and Wickstrom summary judgment based on qualified immunity as to his Procedural Due

Process claim. To establish that the defendants violated a constitutional right, Jennings must
No. 09-1372
Jennings v. Bradley
Page 4

demonstrate that being placed on a Cell Slot Management program constitutes an atypical and

significant hardship. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that due process

liberty interests created by prison regulations are generally limited to freedom from restraint that

imposes “atypical and significant hardship on an inmate in relation to ordinary incidents of prison

life”). The district court correctly found that Jennings failed to make this showing. See, e.g., id. at

486 (holding that inmate’s thirty days in solitary confinement did not constitute an atypical and

significant hardship); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (noting that placement in

administrative segregation normally does not constitute an atypical and significant hardship).

Furthermore, the defendants introduced substantial evidence that Jennings’ segregation was not

atypical because it was based on his continuous violent conduct. Cf. id. (stating that it is not atypical

for a prisoner to be placed in segregation because of participation in violent conduct). Thus, we

AFFIRM the district court’s grant of summary judgment to the defendants on Jennings’ Procedural

Due Process claim.

2. Retaliation

        Jennings claims that the district court erred in granting summary judgment to Schertz and

Rife on his retaliation claim. He asserts that they retaliated against him by placing him on a Cell Slot

Management program because he testified against prison officials at another inmate’s trial. To state

a claim of retaliation, a plaintiff must establish that: (1) he engaged in protected conduct; (2) he

suffered an adverse action that would deter a person of ordinary firmness from continuing to engage

in the protected conduct; and (3) the adverse action was motivated, at least in part, by the protected

conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Furthermore, “[i]f the
No. 09-1372
Jennings v. Bradley
Page 5

defendant can show that he would have taken the same action in the absence of the protected activity,

he is entitled to prevail on summary judgment.” Id. at 399.

       Schertz and Rife presented substantial evidence that Jennings’ behavior justified his being

placed in a Cell Slot Management program. They presented evidence that Jennings assaulted prison

officials by throwing urine and feces, biting them, threatening them, and masturbating in front of

them. Thus, we AFFIRM the district court’s grant of summary judgment to Schertz and Rife on

Jennings’ retaliation claim.

B. Motion for Appointment of Counsel

       We review the district court’s order denying appointment of counsel for abuse of discretion.

Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Appointed counsel in civil suits is a

privilege only justified in exceptional circumstances, id. at 606, and Jennings did not present any

exceptional circumstances in this case. Thus, we hold that the district court did not abuse its

discretion by denying Jennings’ motion to appoint counsel.

C. Testimony Via Video Teleconferencing

       Jennings claims that the district court erred by requiring that four of his witnesses testify via

video teleconferencing. The Federal Rules of Civil Procedure provide that “[f]or good cause in

compelling circumstances and with appropriate safeguards, the court may permit testimony in open

court by contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a). The

district court determined that compelling circumstances justified requiring Jennings’ witnesses to

testify via video teleconferencing. The district court found that three witnesses presented security

threats because they were housed at maximum security prisons and had extensive disciplinary
No. 09-1372
Jennings v. Bradley
Page 6

records, and that the fourth witness was in a crisis stabilization program and would not have access

to proper mental health support if he were transported to another facility. Cf. Barnes v. Black, 544

F.3d 807, 810 (7th Cir. 2008) (noting that moving inmates “to a distant court entails cost and even

danger”). The district court also ensured that appropriate safeguards were instituted. The jury could

listen to the witnesses and observe their demeanor, Jennings could question them, and the

transmission was instantaneous.2 Thus, we hold that the district court did not err by requiring

Jennings’ witnesses to testify via video teleconferencing.

D. Motion for New Trial

         Jennings claims that the district court erred in denying his motion for a new trial. We review

a district court’s refusal to grant a motion for a new trial for abuse of discretion. Mike’s Train

House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006). A new trial may be granted “when

a jury has reached a seriously erroneous result as evidenced by . . . the trial being unfair to the

moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Id.

(internal quotation marks and citation omitted). For the reasons stated below, we AFFIRM the

district court’s denial of Jennings’ motion for a new trial.

1. “Worst of the Worst” Comments

         Jennings argues that Bradley and his attorney prejudiced his right to a fair trial by referring

to the inmates at Alger Maximum Correctional Facility as the “worst of the worst,” which

stereotyped all inmates as untruthful and dangerous. During opening argument, Bradley’s attorney


         2
          Although one of Jennings’ witnesses testified by telephone because of a technical problem, this fact is not
dispositive. See Jerden v. Amstutz, 430 F.3d 1231, 1238 n.7 (9th Cir. 2005) (stating that testimony in open court by
telephone is permitted by Rule 43(a)) .
No. 09-1372
Jennings v. Bradley
Page 7

told that jury that “you’re going to have to go inside a world that most of you, and probably none of

you, will ever experience. It’s a world in which the worst of the worst prisoners in the state of

Michigan are incarcerated.” Later, Bradley testified in response to a question about the prison’s

security level that “[i]t’s a Level V, the worst of the worst.”

        “Misconduct by an attorney that results in prejudice may serve as a basis for a new trial. The

burden of showing prejudice rests with the party seeking the new trial, and district courts have broad

discretion in deciding whether to grant a motion for a new trial.” Fuhr v. Sch. Dist. of Hazel Park,

364 F.3d 753, 759 (6th Cir. 2004) (internal quotation marks and citation omitted). Thus, Jennings

“must show both that the . . . argument was improper and that [he] was prejudiced by the

impropriety, that is, that there is a reasonable probability that the jury’s verdict was influenced by

the improper argument.” Id. at 760.

        Jennings has arguably shown that the “worst of the worst” comments were improper. See

Williams v. Drake, 146 F.3d 44, 48 (1st Cir. 1998) (affirming decision to exclude reference to

plaintiff’s prison as the “highest security prison in the State of Maine, housing the most dangerous

prisoners in the State of Maine” because it was unduly prejudicial). But we need not resolve the

point because we are not persuaded that Jennings has demonstrated that there is a reasonable

probability that the jury’s verdict was influenced by the improper argument. The statements

describing Alger Maximum Correctional Facility inmates as “the worst of the worst” were accurate.

Cf. Fuhr, 364 F.3d at 760 (holding that party failed to demonstrate a reasonable probability that the

jury was improperly influenced by a comment when it was accurate). Furthermore, the district court

instructed the jury that attorney comments are not evidence, and that “[t]his case is to be . . . decided
No. 09-1372
Jennings v. Bradley
Page 8

by you as an action between persons of equal standing in the community, of equal worth, holding

the same or similar stations in life. Prisoners and prison employees are entitled to the same fair

treatment at your hands as any private individual.” Thus, any prejudice resulting from the comments

was alleviated by the jury instructions. Cf. Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1047

(6th Cir. 1996) (holding that a motion for a new trial should be denied if prejudice is cured by jury

instructions); James v. Tilghman, 194 F.R.D. 408, 420-21 (D. Conn. 1999) (holding that inmate

failed to establish that “worst of the worst” statements warranted new trial when jury instructions

adequately redirected the jury’s attention). Because we cannot say that the arguably improper

statements adversely affected the fairness of Jennings’ trial, we hold that the district court did not

abuse its discretion in declining to grant a new trial on this ground.

2. Spoliation Instruction

       Jennings claims that his trial was unfair because the district court denied his request for a

spoliation instruction based on Bradley’s failure to produce certain videos of the incidents at issue.

Bradley’s attorney was ordered to make available for use at trial all video recordings of the incidents

at issue. He produced a video of Jennings being placed in restraints on June 18 and June 20, 2005,

but he did not produce a video of himself entering Jennings’ cell. We have held that a party seeking

a spoliation instruction based on the destruction of evidence must make a three-prong showing: (1)

the party having control over the evidence had a duty to preserve it; (2) the evidence was destroyed

with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or

defense. Beaven v. U.S. Dep’t Of Justice, 622 F.3d 540, 553 (6th Cir. 2010). A district court has

“broad discretion in imposing sanctions based on spoliated evidence.” Adkins v. Wolever, 554 F.3d
No. 09-1372
Jennings v. Bradley
Page 9

650, 653 (6th Cir. 2009). The district court did not abuse its broad discretion in finding that an

adverse inference was inappropriate here. It noted that Bradley’s attorney stated that there were no

video recordings of the incidents, Jennings presented no evidence to suggest that the attorney was

not truthful in this representation, and Jennings presented no evidence that Bradley had any control

over the videotape or duty to preserve it. Thus, we hold that the district court did not abuse its

discretion in declining to grant a new trial based on the lack of a spoliation instruction.

                                        III. CONCLUSION

       We AFFIRM the decision of the district court.
