United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 26, 2019*

Decided February 26, 2019 

Before 

MICHAEL B. BRENNAN, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge 

AMY J. ST. EVE, Circuit Judge

No. 17-1422 

KEVIN BIRDO, 

Plaintiff-Appellant, 

 v. 

 

DAVE GOMEZ, et al., 

 Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 13-CV-6864 

John Robert Blakey, 

Judge. 

O R D E R 

Kevin Birdo went on a protracted hunger strike while incarcerated at Stateville 

Correctional Center. He brought suit under 42 U.S.C. § 1983, alleging that the responses 

to his hunger strike by correctional officers, medical professionals, and administrative 

officials were unlawful. He lost some claims at summary judgment, others after a 

motion for judgment as a matter of law, and the remaining claims after a jury verdict. 

 

*

 We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

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

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 17-1422 Page 2 

Birdo principally devotes his appeal to arguing that the district judge was biased 

against him. The record contains no evidence of bias, so we affirm. 

Birdo began a hunger strike in 2012 that lasted for 190 days. To force-feed him, 

officers entered his cell at times and, Birdo says (though the defendants contradict him), 

sometimes assaulted him. In early 2013, Birdo complained to prison administrators 

about his treatment, to no avail. The next month, after Birdo again refused to eat, a 

tactical team entered his cell to help the medical staff. One officer slammed his shield 

against Birdo and broke his finger. Birdo then met with a prison psychologist, who, 

after conferring with the tactical-team leader and another psychologist, recommended 

that Birdo be placed on suicide watch. Before entering the suicide-watch cell, Birdo 

asserts, officers took his personal property, and later taunted him, strip searched him, 

and forced him to remain naked for a time after the search. The defendants deny doing 

anything improper. Within a week, Birdo was transferred to another institution. 

Birdo turned to federal court for relief, where the district court sua sponte 

recruited counsel for him. With counsel’s help, Birdo sued prison administrators, 

officers, and medical personnel, alleging federal and state-law theories of recovery. In 

partially granting summary judgment to the defendants, the court concluded that 

sovereign immunity blocked some claims, qualified immunity barred others, and 

insufficient evidence doomed still more. The rest of the case proceeded to a jury trial. 

After Birdo’s case-in-chief, the remaining defendants moved for judgment as a matter of 

law pursuant to Federal Rule of Civil Procedure 50(a). The court granted the motion for 

some claims and let the jury decide the surviving ones. The jury returned a verdict for 

the defendants. Later, over Birdo’s objection of indigency, the court granted the 

non-medical defendants’ request for $2,184 in costs. The medical staff, after adjusting 

their requested costs downward, received $6,134. 

On appeal, Birdo primarily argues that he is entitled to a new trial because the 

district judge was biased against him. He first contends that the bias arose simply 

because Birdo is an inmate and the judge is a former prosecutor. An impermissible risk 

of bias arises if the judge “had significant, personal involvement as a prosecutor in a 

critical decision regarding the defendant’s case.” Williams v. Pennsylvania, 136 S. Ct. 

1899, 1905 (2016). But no authority suggests that a judge cannot hear a civil case brought 

by an inmate merely because of the judge’s former job as a prosecutor. 

Birdo’s other arguments about bias are also meritless. He asserts that the judge 

“continually disrupte[d] the trial,” by sustaining the defendants’ objections “over and 

over.” But a judge must rule on evidentiary objections, even if those rulings interrupt a 
No. 17-1422 Page 3 

witness’s testimony, and Birdo has not pointed to any objections that he believes were 

wrongly sustained. Next, Birdo contends that the judge “yelled” at his attorney; but an 

expression of “impatience, dissatisfaction, annoyance, and even anger” is not evidence 

of bias. See Liteky v. United States, 510 U.S. 540, 555–56 (1994). Finally, Birdo faults the 

judge for allowing the defendants to testify in narrative form while refusing to let him 

do so. But the defendants repeatedly objected to Birdo’s narrative testimony, whereas 

Birdo’s counsel objected only once and that objection was sustained. Arguing 

unfairness by pointing to instances in which the opposing side followed the proper 

steps and the complaining party did not “does not indicate that the trial judge was 

biased ... [but] that [the complaining party] tried to sidestep the rules of evidence, and 

failed.” United States v. Mitan, 966 F.2d 1165, 1174 (7th Cir. 1992). 

Birdo also challenges the award of costs, arguing that the judge improperly 

awarded the defendants nearly $9,000 in costs when their adjusted request sought only 

$5,000. But Birdo mischaracterizes the record. The non-medical defendants asked for 

around $2,200 and the medical defendants requested about $6,100, so the judge 

properly calculated a total award of just over $8,300. Because Birdo identifies no other 

problems with the award, we see no reason to disturb the presumption that the 

prevailing parties may recover their costs. See Beamon v. Marshall & Ilsley Tr. Co., 411 

F.3d 854, 864 (7th Cir. 2005). 

Finally, Birdo argues that this court erred in refusing to recruit him an attorney 

on appeal. Before briefing proceeded on appeal, Birdo asked us four times to recruit a 

lawyer for him. He argued that his case had complex issues, more than 4,000 pages in 

the record, and had been ongoing for over 3 years. We denied each motion. Birdo now 

repeats his earlier requests for counsel on appeal, but he gives us no new reason to 

revisit our previous rulings. Even if we considered the request de novo, we would deny 

it. Birdo does not specify which issues (other than the ones already developed in his 

brief) counsel might have pursued, and a lawyer could not have made a substantial 

argument about bias or improper costs. With no reason to believe that recruited counsel 

would likely have made a difference on appeal, we decline to overturn our earlier 

rulings. 

AFFIRMED