# 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

J ohn Robert Blakey, J udge

.

O R D E R

Kevin Birdo went on a protracted hunger st rike 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 office rs, medical professionals, and administrative officials were unlawful. He lost some cl aims 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 an d legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1 NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 17-1422 Page 2

Birdo principally devotes his appeal to arg uing that the distri ct 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, Bird o 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 me dical staff. One officer slammed his shield against Birdo and broke his finger. Birdo th en met with a prison psychologist, who, after conferring with the ta ctical-team leader and another psychologist, recommended that Birdo be placed on suicide watch. Be fore 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 wa s 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 fede ral 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 de fendants moved for judgment as a matter of law pursuant to Federal Rule of Civil Proced ure 50(a). The court granted the motion for some claims and let the jury decide the surv iving ones. The jury returned a verdict for the defendants. Later, over Birdo’s object ion of indigency, the court granted the non-medical defendants’ request for $2,184 in co sts. The medical staff, after adjusting their requested costs downward, received $6,134.

On appeal, Birdo primarily argues that he is entitled to a n ew 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 sust aining the defendants’ objections “over and over.” But a judge must rule on evidentiary ob jections, even if those rulings interrupt aNo. 17-1422 Page 3

witness’s testimony, and Birdo has not pointe d 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 testif y in narrative form while refusing to let him do so. But the defendants repeatedly object ed to Birdo’s narrative testimony, whereas Birdo’s counsel objected only once and that objection was sustained. Arguing unfairness by pointing to instances in whic h the opposing side followed the proper steps and the complaining party did not “doe s 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 cost s, 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 appe al, 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 cons idered the request de novo, we would deny it. Birdo does not specify which issues (oth er than the ones already developed in his brief) counsel might have pursued, and a la wyer 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 ap peal, we decline to overturn our earlier rulings.

AFFIRMED