In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3017

Elijah Stanciel,

Plaintiff-Appellant,

v.

Richard B. Gramley, Captain Knight,
and Sergeant Eaton,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 94-C-1515--Michael M. Mihm, Judge.

Argued April 3, 2001--Decided September 20, 2001


  Before Posner, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. Plaintiff-
appellant Elijah Stanciel, who has been
in custody of the Illinois Department of
Corrections ("DOC") since 1988, filed
suit in federal district court pursuant
to 42 U.S.C. sec. 1983 alleging that the
Pontiac Correctional Center ("Pontiac")
and several DOC employees violated his
constitutional and statutory rights. The
district court dismissed fourteen of the
nineteen counts alleged in Stanciel’s
complaint and granted summary judgment
for the defendants on two additional
counts. At trial, the jury found for the
defendants on the three remaining claims.
On appeal, Stanciel urges us to find that
the district court erred in dismissing
several of his claims and by failing to
declare a mistrial in response to the
prejudicial statement of one of the
witnesses. He also asks us to find that
his attorney’s performance was so
deficient as to require a retrial. We
affirm.

I.   History
A.   Background

  Plaintiff, who has been legally blind
since birth, began serving a sixty-year
sentence for murder at the DOC’s maximum
security facility in Pontiac, Illinois in
1988. Upon recommendation of the Pontiac
medical director, Stanciel was initially
placed in a single cell because of his
disability. Some time in the fall of
1992, Stanciel was notified by a prison
guard that prison authorities planned to
assign another inmate to share his cell.
Stanciel was upset by this, so he filed a
grievance with the DOC claiming that he
was authorized by the medical director to
have a single cell. The grievance was
denied, and between March 1993 and May
1994 a number of different inmates were
housed with Stanciel. Stanciel claims
that these cellmates verbally assaulted,
physically abused, and stole from him and
that he was unable to defend himself or
his property because of his disability.
He believes that Pontiac authorities
specifically assigned dangerous inmates
with disciplinary records to share his
cell because they were angry at him for
filing a grievance with the DOC. Stanciel
also contends that Pontiac employees
retaliated against him by intentionally
leading him into objects such as gates,
doors, and rails while guiding him from
place to place. On March 24, 1993,
Stanciel filed an additional grievance
alleging that the DOC had violated the
Americans With Disabilities Act, 42
U.S.C. sec. 12131 et seq., ("ADA") by
failing to provide access to job
assignments and programs such as physical
therapy, classes to learn braille, and
college courses. The DOC rejected these
requests and informed Stanciel that his
disability had already been accommodated
to the extent possible.

B.   Procedural History

  On September 26, 1994, Stanciel, pro se,
filed suit in district court for the
Northern District of Illinois pursuant to
42 U.S.C. sec. 1983 alleging that twelve
DOC employees ("the DOC defendants")
violated his constitutional rights while
he was housed at the Pontiac facility. He
claimed that the named individuals denied
him: (1) the right to shower alone or
with just a few other prisoners; (2) a
class in braille; (3) college courses for
the blind; (4) law books in braille; (5)
a cane; (6) suitable job assignments; and
(7) assistance writing letters,
grievances, and commissary requests.
Stanciel’s case was subsequently
transferred to the Central District of
Illinois, and he refiled his complaint in
that court on February 9, 1995. On
January 11, 1996, Stanciel filed a first
amended complaint that deleted four of
the initial defendants and added two new
defendants. The DOC defendants moved to
dismiss the complaint, but while the
motion to dismiss was pending, the
district court appointed counsel to
represent Stanciel. With the assistance
of counsel, Stanciel then filed a second
amended complaint. The second amended
complaint asserted that Pontiac and eight
individual DOC employees/1 led Stanciel
into objects, revoked his single cell
privileges and shower permit, assigned
dangerous inmates to his cell, and failed
to accommodate his disability in
violation of state law, the ADA, and the
Eighth Amendment’s prohibition on cruel
and unusual punishment.

  The DOC defendants filed a motion to
dismiss Stanciel’s second amended
complaint on April 29, 1997. In the
motion to dismiss, defendants asserted
several defenses including Eleventh
Amendment immunity, qualified immunity,
and state law sovereign immunity.
Defendants’ motion also alleged that
Pontiac, Lowery, Kelly, and Reider were
not timely served, and that Massey was
not served at all. Stanciel did not
respond to defendants’ motion. On May 29,
1997, the district court issued a rule to
show cause why the defendants’ motion to
dismiss should not be granted. Although
Stanciel’s attorney did respond to the
rule to show cause, his response
addressed only the issue of whether
prisoners are covered by the ADA and did
not discuss the remaining issues raised
by defendants’ motion: whether service
was timely, whether the defendants sued
in their official capacities were immune
from suit, and whether the district court
had jurisdiction over plaintiff’s state
tort claims.

  On October 1, 1997, the district court
granted in part defendants’ motion to
dismiss. The district court found that,
pursuant to the Local Rule 7.1(B) of the
Central District of Illinois, Stanciel
had conceded that service on defendants
Lowery, Kelly, and Reider was improper by
failing to respond to the defendants’
contention that those individuals were
not timely served./2 The court also
invoked Rule 7.1(B) in dismissing
Stanciel’s official capacity and state
tort claims due to Stanciel’s failure to
respond to defendants’ arguments
concerning these issues. With respect to
its dismissal of these claims, the court
stated, "[i]n its rule to show cause, the
court already informed plaintiff’s
counsel that it would not perform his
legal research for him. In light of the
plaintiff’s failure to oppose the
defendants’ remaining challenges to the
second amended complaint, the motion to
dismiss will be deemed confessed in those
respects." Stanciel v. Peters, No. 94-
1515, slip op. at 3 (C.D. Ill. Oct. 1,
1997) (order granting in part and denying
in part defendants’ motion for
dismissal). Finally, on its own motion,
the district court dismissed plaintiff’s
claims against Pontiac on the basis that
the claims were barred by the Eleventh
Amendment.

  On June 11, 1998, the four remaining
defendants-- Peters, Gramley, Eaton, and
Knight/3--filed a motion for summary
judgment. The district court granted the
motion in part--all claims against Peters
were dismissed--but allowed Stanciel to
proceed with his claims against Gramley,
Eaton, and Knight. The district court
also vacated its October 1, 1997 order
dismissing Pontiac, ruling that Stanciel
would be allowed to proceed on his claim
that Pontiac violated the ADA. On
February 2, 1999, however, the district
court issued a rule to show cause why the
Illinois DOC--which had been substituted
for Pontiac--should not be dismissed
under the Eleventh Amendment. Stanciel
again failed to respond to the rule to
show cause, and the district court
dismissed the DOC on March 11, 1999.

  After all the dust had settled, only
three of Stanciel’s nineteen claims
remained for decision at trial: (1)
whether Captain Knight retaliated against
Stanciel for filing a grievance by
assigning dangerous inmates to share his
cell; (2) whether Sergeant Eaton
conspired with Knight to assign dangerous
inmates to Stanciel’s cell; and (3)
whether Gramley, as warden, had knowledge
of Knight’s and Eaton’s actions and
failed to remedy the situation. At trial,
Stanciel’s attorney called three of
Stanciel’s previous cellmates to testify.
All three testified via video
conferencing, and they each denied
assaulting or stealing from Stanciel. One
of the witnesses, Ronald Robinette, also
blurted out "that guy ate his kids" after
he finished testifying./4 Trial Tr. at
151. At that point, Stanciel’s attorney
indicated to the court that he had not
heard the witness’s statement but asked
to have it stricken from the record
"whatever it was." Id. The court obliged,
noting that he had not heard the
witness’s comment either. The district
judge did not ask the court reporter to
read the statement back to him, nor did
he attempt to ascertain whether any of
the members of the jury had heard the
statement. At the conclusion of the
evidence, the district court instructed
the jury "not to consider . . . testimony
or exhibits which were ordered stricken."
Id. at 266. On July 31, 1999, the jury
returned a verdict in favor of the
defendants on all claims. Stanciel now
appeals.

II.    Analysis

  On appeal, Stanciel presents several
issues which he contends warrant retrial.
First, he claims that the district judge
improperly dismissed several counts of
his complaint based upon his failure to
respond to the rule to show cause. Next,
he asserts that the district court should
have declared a mistrial sua sponte in
response to Robinette’s statement "that
guy ate his kids." Finally, he argues
that a retrial is necessary because his
attorney’s performance was so defective
as to deprive him of a fair opportunity
to present his case to the jury. We will
address each of his claims in turn.

A.    Dismissal of Claims

  The district court dismissed several
counts of Stanciel’s complaint pursuant
to Local Rule 7.1(B) of the Central
District of Illinois because Stanciel’s
attorney failed to respond to the
defendants’ motion to dismiss, even after
the district court issued a rule to show
cause why those counts should not be
dismissed. Stanciel now challenges these
rulings. Specifically, he claims that the
district court erred by dismissing: all
claims against Lowery, Kelly, and Reider
for lack of timely service; state law
claims against Reider and Eaton for lack
of supplemental jurisdiction; and the ADA
claim against the DOC because of Eleventh
Amendment immunity.
  Local Rule 7.1(B) of the Central
District of Illinois provides in relevant
part:

  Any party opposing [a] motion shall file
a response to the motion, including a
brief statement of the specific points or
propositions of law and supporting
authorities upon which the responding
party relies; with the exception of
motions for summary judgment under Rule
7.1(D)(2), the response shall be filed
within fourteen (14) days after service
of the motion and memorandum unless the
time is extended by the presiding judge
for good cause shown. If no response
memorandum is filed within the time
limit, the presiding judge will presume
that there is no opposition and may rule
on the motion without further notice to
the parties.

Our cases make it clear that a district
court’s "decision whether to apply [a
local] rule strictly or to overlook any
transgression is one left to the district
court’s discretion." Little v. Cox’s
Supermarkets, 71 F.3d 637, 641 (7th Cir.
1995); see also Rosemary B. v. Board of
Educ. of Cmty. High Sch. Dist. 155, 52
F.3d 156, 158-59 (7th Cir. 1995) (finding
that a district court has the power to
strike a response to a motion for summary
judgment for failure to comply with a
local rule). Thus, we review a district
court’s enforcement of its own rule for
abuse of discretion. See Borcky v. Maytag
Corp., 248 F.3d 691, 697 (7th Cir. 2001).

  In his opening brief, Stanciel does not
acknowledge that the district court
dismissed the counts in question pursuant
to Rule 7.1(B); he proceeds as if the
district court’s dismissal was on the
merits. Instead of presenting an argument
as to why the district court abused its
discretion, he argues that the district
court’s decision was substantively
incorrect and that we should review the
court’s decision de novo. Stanciel seems
to have recognized his error, however,
because he does argue in his reply brief
that the district court abused its
discretion by dismissing Lowery, Kelly,
and Reider for untimely service. At no
time, however, has Stanciel presented any
evidence that the district court’s
dismissal of his other claims--the state
law or ADA claims-- was an abuse of
discretion. Nor does our review of the
record reveal any evidence that the
district court improperly applied its own
local rule with respect to those claims.
On the contrary, it is clear that the
district court adequately warned Stanciel
of the consequences of failing to respond
to defendants’ motion. Thus, it was well
within the district court’s discretion to
dismiss Stanciel’s state law and ADA
claims.

  As indicated above, Stanciel has
presented an argument that the district
court abused its discretion by dismissing
defendants Lowery, Kelly, and Reider for
lack of timely service. He claims the
district court erred by invoking Local
Rule 7.1(B) to dismiss defendants for
improper service when they were, in fact,
timely served. Even if Stanciel is
correct, however, he waived the issue by
failing to object to the ruling in the
trial court. Moreover, we believe that
any error did not affect Stanciel’s
"substantial rights" and was therefore
harmless. Fed. R. Civ. P. 61; see also
Mason v. Southern Ill. Univ. at
Carbondale, 233 F.3d 1036, 1042 (7th Cir.
2000). The allegations against defendant
Reider were the same as the claims
against defendants Eaton and Knight, both
of whom the jury found not liable.
Similarly, Stanciel’s claims against
Lowery and Kelly were virtually identical
to his claims against Gramley, who the
jury also found not liable. Stanciel has
not even attempted to point to any
relevant legal or factual differences
between the three defendants dismissed
for untimely service and those that the
jury found not liable at trial. Thus, we
find that the district court’s decision
to dismiss Lowery, Kelly, and Reider for
untimely service was, at most, harmless
error.

B.   Failure to Declare a Mistrial

  Stanciel next argues that he is entitled
to a new trial because the district court
did not declare a mistrial in response to
witness Robinette’s statement "that guy
ate his kids" at the conclusion of his
testimony. We review a district judge’s
decision not to grant a mistrial for
abuse of discretion. See United States v.
Roe, 210 F.3d 741, 747 (7th Cir. 2000).
As indicated above, the record reflects
that neither Stanciel’s attorney nor the
judge heard Robinette’s statement at the
time it was made. The district judge did
not undertake--and Stanciel’s attorney
did not request--a determination of
whether any of the members of the jury
heard the remark. Even if the judge had
heard the statement, however, it would
not have been an abuse of discretion for
the district judge to issue a cautionary
instruction rather than grant a mistrial
in this case. See United States v. Fulk,
816 F.2d 1202, 1205-06 (7th Cir. 1987).
  First, it is highly unlikely that the
jurors heard the statement given the fact
that neither of the parties nor the judge
heard it. Furthermore, it is undisputed
that the district judge struck the
comment from the record immediately after
it was made. He also admonished the jury
before they began their deliberations
that all testimony stricken from the
record should be disregarded. We must
"presume [ ] that the jury will follow an
instruction to disregard inadmissible
evidence unless there is an overwhelming
probability that the jury will be unable
to follow the court’s instructions and a
strong likelihood that the effect of that
evidence would be devastating." Wilson v.
Groaning, 25 F.3d 581, 587 (7th Cir.
1994) (internal quotations omitted).
Here, we are not convinced that
Robinette’s statement--while certainly
inflammatory--was such that there is an
overwhelming possibility that the jury
was unable to disregard it. At the time
of Robinette’s statement, the jurors were
already aware that Stanciel had been
convicted of a felony and was housed in a
maximum security prison, and they had all
represented to the court that they would
not let that fact influence their
deliberations. In addition, whether or
what type of crime Stanciel had committed
was not at issue at trial. Therefore, we
find that it was not an abuse of
discretion for the judge to decide not to
grant a mistrial in this case because the
prejudicial effect of Robinette’s
statement, if any, was "sufficiently
cured" by the judge’s instruction to
disregard it.

C.   Attorney’s Deficient Performance

  Stanciel’s final argument is that we
should reverse and remand for a retrial
because his attorney’s performance was so
inadequate as to deprive him of "a fair
opportunity to present [his] case."
Thomas v. Pate, 493 F.2d 151, 158 (7th
Cir. 1974), vacated on other grounds sub
nom. Canon v. Thomas, 419 U.S. 813, 95 S.
Ct. 288, 42 L. Ed. 2d 39 (1974). Although
we do not challenge Stanciel’s assertion
that his attorney’s performance was
deficient in several respects-- counsel
failed to address all of the issues in
defendants’ motion to dismiss, respond to
the court’s order to show cause why DOC
should not be dismissed, and impeach
clearly false testimony of witnesses--we
cannot accept his argument that retrial
is a proper remedy for defective
representation in a civil action. Our
cases make it quite clear that there is
no Sixth Amendment right to effective
assistance of counsel in a civil case.
See Bell v. Eastman Kodak Co., 214 F.3d
798, 802 (7th Cir. 2000) (finding that
ineffective assistance of counsel is not
proper grounds for collaterally attacking
a civil judgment); Hutcherson v. Smith,
908 F.2d 243, 245 (7th Cir. 1990) ("[I]t
is a well-established principle of law
that there is, in general, no
constitutional or statutory right to
effective assistance of counsel in civil
cases."). The proper remedy for
inadequate representation in a civil case
lies not in dragging the opposing party
through another trial, but rather in a
malpractice action against the offending
attorney. See Pokuta v. Trans World
Airlines Inc., 191 F.3d 834, 840 (7th
Cir. 1999); Bell, 214 F.3d at 802.
Although it is certainly unfortunate that
Stanciel’s trial attorney failed to
provide vigorous representation of his
client, it is well established that an
attorney’s shortcomings do not entitle
his client to a new trial in a civil
case.

III.   Conclusion

  For the reasons stated above, we AFFIRM
the decision of the district court.

FOOTNOTES

/1 The second amended complaint named the following
DOC employees as defendants: Sergeant Patricia
Reider, Captain David Knight, Warden Howard
Peters, Warden Richard Gramley, Sergeant Michael
Eaton, Officer Massey, Assistant Warden Louis
Lowery, and Superintendent Daniel Kelly.

/2 The record reflects (and defendants agree) that
Lowery, Kelly, and Reider were, in fact, properly
served. Stanciel’s first amended complaint, which
added defendants Lowery and Kelly and corrected
the spelling of Reider’s name, was filed on
January 31, 1996. Lowery was served on February
6, 1996; Kelly was served on February 7, 1996;
and Reider was re-served on February 7, 1996;
therefore, service on all defendants was timely.
See Fed. R. Civ. P. 4(m).

/3 Defendant Massey was dismissed on the court’s own
motion because he had been sued in his official
capacity.

/4 Nothing appears in the record from the district
court to shed light on why such a statement was
made.
