In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 00-2758

GEORGE HARPER and ROBERT PADILLA,

Plaintiffs-Appellants,

v.

LIEUTENANT ALBERT, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 97-775-CJP—Clifford J. Proud, Magistrate Judge.

____________

ARGUED JUNE 5, 2003—DECIDED MARCH 17, 2005

____________

Before FLAUM, Chief Judge, and COFFEY and MANION,

Circuit Judges.

COFFEY, Circuit Judge. On September 15, 1997 two prisoners, George Harper and Robert Padilla, confined at the

Menard Correctional Facility in Menard, Illinois, filed a complaint in the United States District Court for the Southern

District of Illinois pursuant to 42 U.S.C. § 1983, claiming

that twelve prison guards and two supervisors, who are

members of the “Orange Crush” tactical team, violated their

Eighth Amendment right to be free from cruel and unusual
2 No. 00-2758

punishment when guards allegedly battered the two prisoners during a cell-transfer procedure. A jury trial ensued,

and following the presentation of the plaintiff’s case-in-chief

the defendants moved for judgment as a matter of law,

which was granted as to eight of the fourteen named

defendants. The jury subsequently found in favor of the remaining six defendants concluding that, during the time

frame when the assaults had allegedly taken place, no officer

used excessive force. Harper and Padilla now appeal the

district court’s decision to dismiss the eight defendants, although they concede the validity of the jury’s verdict as to

the remaining six defendants. We affirm.

I. BACKGROUND

On August 4, 1996 the East Cellhouse at the Menard

Correctional Facility in Menard, Illinois (“Menard”) erupted

in violence with inmates throwing cans, burning rags, light

bulbs, bodily fluids and other liquids at officers. This outburst was apparently in retaliation for the “strip out,” or

complete search, of a cell on the block and continued to grow

more serious throughout the day.

Sometime during the disturbance the situation escalated

to near-riot proportions and Correctional Officer Goolsby

was struck in the back of his head with a can of soup, causing a contusion requiring medical attention. The ranking

officers on duty at the time, Captain Stanley and Lieutenant

Thomas, received reports from other correctional officers

and concluded shortly thereafter that the projectile can was

thrown from Harper and Padilla’s cell. Stanley and Thomas

subsequently approached the inmates’ cell and informed

Padilla that he and his cell-mate would be removed and

transferred to the segregation unit. Padilla immediately

protested claiming he had not thrown anything, while the

officers informed him that according to eyewitness accounts

someone in the cell had thrown the can. Harper overheard
No. 00-2758 3

1 As described in Fillmore v. Page, 358 F.3d 496, 500 (7th Cir.

2004), while executing their duties at the prison members of the

tactical team don shields, gloves, safety glasses and orange jumpsuits, ergo their nickname.

the conversation and, in Padilla’s defense, admitted to throwing the can that hit Goolsby and agreed that he would accept the transfer to segregation willingly. However, when

the officers informed the inmates that they both would be

going to segregation, regardless of who admitted throwing

the can, Padilla immediately refused and Harper joined him

and recanted his prior offer to go along peacefully. Nevertheless, after reconsidering, Harper and Padilla had a

change of heart and decided to cooperate with the officers

and called Stanley and Thomas to inform them.

Proceeding cautiously, Stanley again approached the cell,

and while questioning Padilla about the inmates’ new-found

intention to cooperate, he observed Harper moving towards

him with a bowl of hot water (which Padilla later claimed

he was heating to prepare soup). Stanley immediately

ordered Harper to set the bowl down, and when he refused

to do so Stanley sprayed him in the face with mace. Harper

reacted by throwing the scalding water at the officers,

hitting Thomas, who retreated down the corridor. Stanley

continued to spray Harper for a moment and then left the

cell and called for backup assistance.

Stanley called for the prison’s tactical unit, better known

by their nickname, the “Orange Crush.”1

 The makeup of the

Orange Crush team consists of corrections officers who have

undergone specialized training and are called upon by

prison officials to assist in controlling unruly or violent inmates. Specifically, the team is also charged with the duty

of extracting, or removing, hostile, violent or non-cooperative inmates from their cells and relocating them to other

areas of the prison such as the segregation unit, where they
4 No. 00-2758

2 Included in the group that night was Lieutenant Albert, the

commander of the tactical team, along with Lieutenant Townley,

Sergeant Hudsell and officers Ferrell, Scott, Smithson, Lawless,

Myers, Skoog, Tindall, Edmonds and Flowers, all of whom (along

with Captain Stanley) were defendants in this action.

3 Some of this fluid landed on Officer Smithson, causing the video

camera he was using to tape the transfer maneuver to cease

functioning. Therefore, no video record was produced of the cell

extraction procedure or the transport of Harper and Padilla to the

segregation area.

can be monitored more closely. Stanley decided to contact

the tactical unit to transfer the prisoners to the segregation

area in hopes that they would no longer pose a threat to

themselves or other correction officers.

The tactical team members were directed to assemble in

full riot gear and thereafter briefed. Cpt. Stanley gave the

order and they proceeded to the East Cell house where

Harper and Padilla were housed. Twelve (12) tactical team

members in all2

 were assigned to transport Harper and

Padilla that night. One member of the team, Officer

Smithson, was assigned to videotape the maneuver, while

four other members were directed to hold shields and give

protection to the other officers by providing them cover from

flying debris and fluids. Marching in formation dressed in

full uniform, the tactical unit reached the East Cell house

where they encountered shouting, whistling, hollering and

taunts as well as a barrage of fluid and other objects being

thrown at them.3

 Lieutenant Albert, the unit’s commanding

officer, led the unit through the melee to Harper and

Padilla’s cell. When the unit reached the cell area, Albert

approached and ordered the two prisoners to “cuff up,” or to

back up to the bars of the cell and place their hands behind

their backs and through the bars so that officers could

handcuff them.
No. 00-2758 5

4 Padilla claims he refused because he believed that he would be

subjected to a worse beating if he requested to be taken to the

hospital.

What happened next is in dispute. Padilla and Harper

claim they were brutally beaten by officers while being

transported to the segregation unit, while the defendantsappellees, all twelve members of the tactical team along

with Captain Stanley, claim the force used was necessary

to safely convey and transfer the inmates to the designated

segregation area.

Padilla claims the abuse began shortly after he was cuffed

when—while waiting for the cell door to be opened—one of

the officers grabbed his ponytail and proceeded to bang his

head against the bars of the cell approximately three times,

then stopped and began to punch him. Once the cell door

was opened, Padilla was backed out with his hands cuffed

behind his back. One of the officers then placed a police

baton between his cuffs and his back so that his torso was

positioned parallel to the ground in order to assist in controlling him while leading him out of the cell house to the

strip-search area. While en route to the area where he was

to be searched, Padilla claims various unidentified officers

intentionally and repeatedly slammed him into cell bars

and gates as well as punching, elbowing and kicking him

throughout the maneuver. Before reaching the strip-search

room officers allegedly stopped and asked Padilla if he

needed medical attention, to which Padilla answered “no.”4

Padilla was next taken into the strip-search room where he

states that officers, at this point, resumed kicking and

punching him while others stepped on his hands and neck.

Padilla claims he was bleeding profusely throughout the

procedure and lost consciousness on at least two occasions

before being stripped naked and led up a set of stairs to the

segregation unit. Padilla alleges that, among other things,

he was once again slammed into a gate and punched in the
6 No. 00-2758

5 It is prison policy to strip search all prisoners before confining

them in segregation cells.

ribs before being forced into a cell. After a medical examination that night, it was concluded that Padilla had sustained

a swollen jaw along with a laceration to his head, for which

he received eight stitches.

Harper’s version of events is much the same as Padilla’s

in that he also alleges the officers went out of their way to

abuse and assault him while being escorted to a segregation

cell. Once he was backed out of the cell he shared with

Padilla, Harper alleged he was also positioned with his

hands cuffed behind his back and an officer along side him

using a baton for leverage to keep his shoulders and head

down parallel to the floor as they walked. Like Padilla,

Harper claims that during the journey to the strip-search

room he was slammed into various gates along the way and

to receiving numerous punches to the head and face. Harper

also claims that, at some point during the walk, an unidentified officer stopped and struck him on the back with a

baton, driving him to the ground. When the group resumed

walking, Harper described being kneed or punched at every

step by the officers in front and back of him. Immediately

before entering the strip-search area Harper states that he

was asked if he would like medical attention, but declined in

fear of a more severe beating. Before being strip searched5

Harper claims officers brutally beat him all over his body

and went on to verbally humiliate him by commenting on

his naked form while laughing and joking. Once reduced to

his boxer shorts Harper was led to his segregation cell, but

before reaching the cell he alleges that the officers went out

of their way to run him head-first into whatever metal

objects they came upon. When the officers finally delivered

him to the segregation cell Harper claims that he was

uncuffed and that one of the larger officers grabbed him by

the neck and propelled him into the cell causing him to
No. 00-2758 7

6 Lt. Thomas was voluntarily dismissed from the suit shortly

after the amended complaint was filed when plaintiffs discovered

that although Thomas was present during the beginning of the

incident, he departed the area before any of the alleged constitutional violations took place.

strike his head on the wall and lose consciousness. While in

segregation Harper refused a medical examination and it

was not until some two days later that he was examined and

was found to have a number of bruises and abrasions on his

back.

A. District Court Proceedings

On September 15, 1997, Harper and Padilla filed a

complaint in the District Court for the Southern District of

Illinois claiming that they had been deprived of their

Eighth and Fourteenth amendment rights when unidentified prison officials intentionally assaulted and battered

them with the use of excessive force during the transfer

procedure on August 4, 1996, and were thus entitled to recover damages pursuant to 42 U.S.C. § 1983. The original

complaint identifies only Lt. Albert, the leader of the prison’s tactical team, by name. The other defendants were simply referred to as “unknown correctional officers.” However,

following initial discovery disclosures pursuant to Rule

26(a)(1) of the Federal Rules of Civil Procedure, the prisoners amended their complaint and added the names of the

eleven previously unidentified members of the Menard

Tactical Unit who were present during the extraction and/

or transport of Harper and Padilla. The amended complaint

added the following parties as defendants: Lt. Townley, Sgt.

Hudsell and Officers Ferrell, Scott, Smithson, Lawless,

Myers, Skoog, Tindall, Edmonds, and Flowers, as well as

Cpt. Stanley and Lt. Thomas6

 who the defendants claimed,
8 No. 00-2758

7 This is despite the fact that Harper and Padilla were provided

with discovery, before filing their amended complaint, in the form

of Department of Corrections incident reports and interviews that

identified the defendants by name who were present during each

phase of the alleged abuse.

8 The defendant guards claimed, among other things, that they

were protected by the doctrine of qualified immunity as state prison employees. They also claimed that the use of force under the

circumstances was justified in this case and did not constitute a

violation of the law.

9 The judge stated: “Plaintiffs are inmates who, at the time, were

imprisoned at Menard Correctional Center, allege that their rights

were violated in that defendants, who are prison officers and guards,

maliciously, sadistically, and unnecessarily beat plaintiffs as they

were being moved from the East Cell House to the segregation

unit.” We note here that it is extremely clear that the magistrate

judge interpreted the plaintiffs’ legal claim as one alleging excessive force and not failure to intervene as the plaintiffs later

claimed.

along with Lt. Albert, acted in a supervisory role over the

alleged constitutional violations. Although their amended

complaint detailed the alleged instances of abuse that both

prisoners supposedly endured on August 4, 1996, and identified the guards present, the complaint failed to allege which

of the individual officers allegedly beat, kicked or otherwise

used excessive force against Harper and/or Padilla.7

 The

defendants promptly filed an answer with the court denying

that they had violated any of Harper and Padilla’s constitutional rights and raised a number of affirmative defenses.8

Upon completion of discovery, the parties commenced their

preparations for trial and consented to have Magistrate

Judge Proud hear their case. Thereafter, the magistrate

judge issued a “Final Pre-Trial Order” which described the

nature of the case as one dealing exclusively with claims of

excessive force.9
No. 00-2758 9

The trial commenced on June 5, 2000, and during the

plaintiffs’ case-in-chief Harper and Padilla testified to essentially the same course of events set out above, i.e., that

the Menard Tactical Unit used excessive force by beating,

kicking and generally abusing them in between the timeframe when Padilla threw the can of soup at Officer Goolsby

and they were delivered to their segregation cells. Like

in their complaint, however, neither Harper nor Padilla

identified any individual guard who was abusive.

At trial, Lt. Albert was called to testify and stated that the

procedure used to transport Harper and Padilla was for the

most part routine. Albert testified that the two prisoners

refused to cooperate with the officers and had to be forcibly

restrained on two different occasions during the transfer;

when they refused to exit their cell, and when each of them

individually underwent the prison’s mandatory strip-search

procedure for each person prior to being admitted to the

segregation unit (at which time Albert stated that he was

forced to kneel on the backs of both prisoners in an attempt

to restrain them so that they could be thoroughly searched).

Indeed, Albert conceded that any injuries Harper sustained

to his back could, in all probability, be attributable to his

kneeling on Harper in the strip-search area after Harper

had refused to comply with the officers’ orders prior to and

during the strip-search procedure. Albert, on the other hand,

denied that any tactical unit member used excessive force,

at any time, while restraining and/or transporting Harper

and Padilla. Specifically, he testified that at no point did he

witness either of the prisoners come into contact with

anything (i.e., doors, walls or bars) while they were being

led by officers. In addition, he stated that he never saw any

guard strike (with a baton or fist), kick or punch either

Harper or Padilla during the entire encounter (from the time

they were forcibly removed from their cell until the moment

they were deposited in their individual segregation cells).
10 No. 00-2758

10 Ironically the purpose of using the video camera to record transfer procedures such as this one is to insure that the guards are

protected from the very sort of liability that they faced in this

case.

The Plaintiffs also called Officer Smithson, the officer who

was responsible for carrying the video camera10 on the day

of the alleged incident, to testify as to the reason why the

video camera malfunctioned. According to Smithson, he was

the last member of the unit to enter the floor where Harper

and Padilla’s cell was located and he and the camera were

immediately hit by a bag of urine which caused the camera

to cease operating. Smithson claimed that he attempted to

continue to operate and repair the camera, but that he was

unsuccessful because it was too badly damaged. He remained with the unit until Padilla and Harper were

escorted out of the cell house, but instead of following them

to the strip-search or segregation area, he proceeded to Cpt.

Stanley’s office to report the problem and turn the camera

in.

In addition to the testimony of Harper, Padilla, Albert

and Smithson, a number of fellow inmates testified in an

attempt to corroborate the prisoners’ claims of abuse. This

testimony was introduced to describe the physical condition

of the inmates after the alleged abuse was allegedly visited

upon them. For example, fellow prisoner William Rudder

testified that as he witnessed Padilla being placed in the

segregation cell he observed that “he looked pretty beat up,”

and that there was “blood coming off his face.” Other

prisoners testified that, in addition to witnessing the physical condition of the prisoners, they actually viewed guards

hitting and kicking them. However, none of the prisoners

who testified were able to identify the specific guards that

they alleged were abusing Harper and Padilla.

After the prisoners completed presenting their case-inchief, the defendants moved for judgment as a matter of law
No. 00-2758 11

pursuant to Rule 50(a)(1) of the Federal Rules of Civil

Procedure. Prior to ruling on the motion, the judge clarified

the nature of the case by asking plaintiffs’ counsel whether

this case indeed constituted “an 8th Amendment excessive

force case against the defendants based on these beatings

and related things like beatings that started with moving

the plaintiffs out of Cell 214 in the East Cellhouse and continuing all the way to the North Cellhouse Segregation . . .

where they were placed.” (Tr. VIII. p. 9). Counsel for Padilla

and Harper answered in the affirmative, acknowledging

that the claims presented were premised on excessive force

under the Eighth Amendment. In spite of this on-the-record

concession, plaintiffs’ counsel, for the first time in the

proceeding, interjected what they now claim to be a failure

to intervene argument. In addition, counsel for Harper and

Padilla continued to argue that joint and several liability

should apply in this case because all of the guards were

“participating in a joint action to beat the crap out of these

guys . . . [and] [a]s a result, they should all be found liable

if the jury believes all of our testimony.” (Tr. VIII p. 19) In

order to address plaintiffs’ counsel’s arguments, the trial

judge once again reiterated that this was an excessive force

case and did not encompass a failure to intervene claim,

and explained that when proceeding under an excessive force

theory “a plaintiff must establish a defendant’s personal

liability for the claimed deprivation of the constitutional

right . . . [t]he personal responsibility requirement is satisfied if the official acts or fails to act, and here we are

dealing with acting, not failing to act.” Id. (emphasis

added). The judge went on to state that “[t]here is no joint

and several liability in an 8th Amendment case like this . . .

we only have individual liability where it has been shown

that each defendant did something to one . . . or both

plaintiffs that would be an 8th Amendment violation.”

Having framed the issue more precisely as one involving

excessive force (and specifically disallowing any argument

for failure to intervene), the magistrate judge proceeded to
12 No. 00-2758

11 As to defendants Stanley, Townley, Hudsell, Smithson, Myers,

Skoog, Tindall and Flowers, the magistrate judge found that

Harper and Padilla had failed to establish that those defendants

had made any physical contact with the inmates during the extraction and transport maneuver and thus under the controlling

law a reasonable juror could not find them liable for an Eighth

Amendment violation.

rule on the defendants’ Rule 50(a)(1) motion by identifying

the individual officers which the evidence established could,

as a matter of law, be found to have used excessive force.

The magistrate judge concluded from his knowledge and

review of the evidence submitted during the plaintiffs’ casein-chief that only five of the thirteen named defendants had

actually been in physical contact with the plaintiffs and,

therefore, the other eight defendants should be dismissed.11

The court ruled that Lt. Albert, Officers Ferrell, Scott,

Lawless and Edmonds all assisted in restraining Harper

and/or Padilla in some fashion and therefore a reasonable

jury might conceivably conclude that they violated Harper

and Padilla’s constitutional rights by using excessive force.

Specifically, the judge went on to conclude that Lt. Albert

would remain in the case as to both Harper and Padilla. On

the other hand, he stated that only Ferrell and Scott would

remain in the case as defendants to Harper’s claims while

Edmonds and Lawless would remain in the case as defendants to Padilla’s claims. However, the judge concluded that

Ferrell, Scott, Lawless and Edmonds could only be considered as defendants as to their actions during the events

which took place while the prisoners were being transferred

from the East Cellhouse to the strip-search area (and while

in the strip-search area), and not for the allegations of

abuse which allegedly took place during the transfer of the

prisoners from the strip-search area to segregation cells.

The trial resumed with only five of the defendants remaining in the case. The defense presented its case-in-chief
No. 00-2758 13

and each of the defendants took the stand testifying that at

no time did they kick, hit, knee, or in any way injure the

plaintiffs nor did they see any other officer engage any

actions that were not necessary to safely restrain and transport the prisoners. In addition, the nurse who examined

Padilla and Harper testified as to the contents of the prisoners’ medical records, which reflected that after the transfer

Padilla had some swelling on his face and shoulders, had

complained of jaw and rib pain (x-rays on both were negative

for fracture) and had received stitches to close a 1/4” laceration on his head. The record also notes that Harper did not

seek medical attention until two days after the alleged

abuse and was subsequently examined by the prison nurse

who determined that Harper had bruising and some minor

abrasions on his back.

Following the close of evidence, the plaintiffs moved for

reconsideration of the court’s Rule 50 judgment based on

their interpretation of the evidence uncovered during the

defense’s case which they claim demonstrated that Officer

Scott had physical contact with Harper on the way from the

strip-search area to the segregation cell and that Lawless

had control over Padilla during the same period of time.

Relying on Mayer v. Gary Partners and Co. Ltd., 29 F.3d

330 (7th Cir. 1994), the judge denied the motion stating

that the evidence the plaintiffs were relying upon was submitted after the court’s Rule 50 motion, which was proper

at the time and which he still believed to be correct.

(Tr. VIII. p. 256). The judge stated that “[t]he fact that we

have now found out later that certain of the defendants still

in the case were escorting one or more of the plaintiffs to

their actual Segregation cells from the [strip-search] room . . .

doesn’t change anything . . . [s]o I will deny the motion.”

(Tr. VII. p. 257). Also, the remaining defendants renewed

their motions and the court took them under advisement

pending the verdict of the jury.
14 No. 00-2758

B. The Jury Verdict

After deliberating for less than half-an-hour the jury

found in favor of the remaining defendants on both Harper

and Padilla’s Eighth Amendment excessive force claims.

Also, the jury answered two special interrogatories that

read as follows:

Do you find that any of the force used against Plaintiff

Harper by any prison employee, while transporting him

from his cell in the East Cellhouse to the [strip-search]

room or while in the [strip-search room], constituted

cruel and unusual punishment as that term is defined

elsewhere in the instructions?

and

Do you find that any of the force used against Padilla

by any prison employee, while transporting him from

his cell to the East Cellhouse to his final destination in

the North Cellhouse, constituted cruel and unusual

punishment, as that term is defined elsewhere in the

instructions?

(Tr. IX. p. 37-38). Jurors answered “No” to both of these

special interrogatories and then reiterated their ruling in

favor of each of the five remaining defendants when polled

by the judge.

II. Discussion

Although Harper and Padilla concede that the jury verdict

was proper in all respects, they allege that the magistrate

judge improperly granted the defendants’ Rule 50 motion at

the close of their case-in-chief dismissing defendants

Stanley, Townley, Hudsell, Smithson, Myers, Skoog, Tindall

and Flowers. In addition, they claim that they should have

been allowed to present a theory of the case that would

have allowed the jury to conclude that all of the defendants

were jointly and severally liable for violating Harper and

Padilla’s Eighth Amendment rights by using excessive force
No. 00-2758 15

or failing to intervene while a constitutional violation (cruel

and unusual punishment by the use of excessive force) was

occurring. In conjunction with these claims, the appellees

also claim that the magistrate judge gave the jury instructions that erroneously limited the facts which the jury could

consider when determining whether a constitutional

violation had occurred (i.e., the judge would not let them

present facts which would establish their joint and several

liability argument) and that the court’s decision to advise

the jury regarding the defendants’ indemnification was in

error. We disagree.

A. Rule 50 Dismissal as a Matter of Law

We review a district judge’s, or in this case a magistrate

judge’s, decision to grant a party judgment as a matter of

law de novo, while viewing all the evidence in the light most

favorable to the nonmoving parties, Harper and Padilla.

Rule 50 of the Federal Rules of Civil Procedure prescribes

that judgment as a matter of law is proper when “a party

has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for

that party on that issue.” Fed. R. Civ. P. 50(a)(1); Mut. Serv.

Cas. Ins. Co. v. Elizabeth State Bank, 265 F.3d 601, 612

(7th Cir. 2003). We will uphold a trial court’s grant of

judgment as a matter of law only if, after viewing all the

evidence, no reasonable jury could have found for Harper

and/or Padilla on each essential element of their claim. See

Campbell v. Peters, 256 F.3d 695, 699 (7th Cir. 2001).

1. Events Covered by the Jury’s Verdict

Harper and Padilla claim that the trial judge incorrectly

granted the defendants’ Rule 50 motion because, under a

theory of joint and several liability, a reasonable jury could

have found in their favor, i.e., but for the dismissal the jury
16 No. 00-2758

could have found that the eight defendants that were

dismissed had violated Harper and Padilla’s constitutional

rights on a joint and several liability theory. Their argument is misplaced in great part.

Joint and several liability is a theory of recovery which

requires that the plaintiffs, in an action alleging tortious or

constitutionally repugnant conduct by multiple actors,

establish that each defendant acted in concert to “produce

a single, indivisible injury.” Watts v. Laurent, 774 F.2d 168,

179 (7th Cir. 1985). In their brief, appellants cite a number

of cases for the proposition that joint tort-feasors may be

held jointly and severally liable when “several persons act

pursuant to a common plan or design to commit a tortious

act.” In re Uranium Antitrust Litigation, 473 F.Supp. 382,

387 (N.D. Ill. 1979); Watts v. Laurent, 774 F.2d 168 (7th Cir.

1985); McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.

1984); Smith v. Eli Lilly & Co., 527 N.E.2d 333 (Ill. 1988).

However, the underlying legal theory upon which all the

cases that Harper and Padilla cite is that in order for

defendants to be held jointly and severally liable, all of the

named defendants must have visited some manner of wrong

(here a constitutional violation) on the plaintiff. Indeed, in

the § 1983 cases cited by the appellees, Watts v. Laurent,

and McKinnon v. City of Berwyn, we considered the applicability of joint and several liability only after a jury had

found all the named defendants liable for concurrently

violating the plaintiff’s constitutional rights. On a number

of occasions we have specifically held that in order for

liability to attach under § 1983, “an individual must have

personally caused or participated in the alleged constitutional deprivation.” See Palmer v. Marion Co., 327 F.3d 588,

594 (7th Cir. 2003), accord Zimmerman v. Tribble, 226 F.3d

568, 574 (7th Cir. 2000). Thus, applying this principle to the

case at hand; for joint and several liability to have any

application here, under the Rule 50 standard, the plaintiffs’

case should have been dismissed as a matter of law unless,
No. 00-2758 17

12 Indeed, the record establishes that some of the thirteen

defendants were not even present during the time frames when

Harper and Padilla claim excessive force was used.

viewing the evidence in the light most favorable to Harper

and Padilla, a reasonable jury could have concluded that all

thirteen of the original defendants violated each prisoner’s

Eighth Amendment rights during the cell transfer and

transport procedure. See id. However, the evidence Harper

and Padilla submitted at trial, as evinced by the jury’s verdict and answers to the special interrogatories, failed to

establish that any of the defendants violated either Harper

or Padilla’s constitutional rights. Indeed, Harper and Padilla

failed to even establish that each and every one of the

defendants ever touched the plaintiffs, much less that any

of the guards used excessive force against them. Thus, the

appellants claim must fail because, under their own presentation of the case, as well as the evidence submitted to the

jury at trial it would not have been possible for a reasonable

jury to find that all thirteen defendants used excessive force

against both Harper and Padilla.12

In a futile attempt to bolster their claim, Harper and

Padilla later argued that although not all of the defendants

used excessive force, the remainder of the defendants were

nonetheless culpable for a related constitutional violation;

failure to intervene. The first time the plaintiffs articulated

this failure to intervene claim was in their answer to the

defendants’ Rule 50 motion. The defendants argue that this

constitutes a waiver on Harper and Padilla’s part due to

their failure to raise any such failure to intervene claim in

the pleadings.

Pursuant to Seventh Circuit and Supreme Court precedent, it is inaccurate for the defendants-appellees to characterize Harper and Padilla’s late introduction of this new

theory of liability in the case, failure to intervene, as a
18 No. 00-2758

13 Both parties, in their briefs, mischaracterize this issue as one

involving waiver. However, because the record is instructive on

this issue and because the issue does not ultimately affect the

outcome of the case, we have proceeded sua sponte and analyze

this issue in the proper context of a forfeiture, as discussed infra.

14 Due to the fact that the trial judge interjected and clarified the

issues of the case immediately after plaintiffs’ counsel advanced

(continued...)

waiver.13 Rather, such an untimely assertion is properly

classified as a forfeiture. This is because, as the Supreme

Court described in United States v. Olano, “forfeiture is the

failure to make the timely assertion of a right, [while]

waiver is the ‘intentional relinquishment or abandonment

of a known right.’ ” 507 U.S. 725, 733 (1993) (citations

omitted). In the magistrate judge’s pretrial order, he

specifically identified the sole legal issue in the case as one

involving only excessive force, not failure to intervene. This

is significant considering “the parties rely on the pretrial

conference to inform them precisely what is in controversy

[and] the pretrial order . . . establishes the issues to be

considered at trial.” Gorlikowski v. Tolbert, 52 F.3d 1439,

1443-44 (7th Cir. 1995). In order for a pretrial order to have

any value as a procedural mechanism and to protect against

the possibility of either of the parties being taken by

surprise at trial, the parties must be held to the issues set

forth in that order. Therefore, this court has consistently

enforced a strict rule of forfeiture in a situation where a

party seeks to introduce a new legal theory to the litigation

after the pretrial order has issued. See Nagy v. Riblet Prods.

Corp., 79 F.3d 572, 575 (7th Cir. 1996). As mentioned

above, the plaintiffs first asserted their failure to intervene

claim after the defendants moved for judgment as a matter

of law. At that time the district judge properly refused to

allow the defendants to interject this claim, specifically

clarifying the sole issue in the case as “dealing with acting,

not failure to act.”14 For purposes of this appeal we will
No. 00-2758 19

14 (...continued)

his novel failure to intervene claim, Harper and Padilla are precluded from claiming that the defendants consented to the trial of

this issue. In essence, the trial judge preserved their objection by

ruling on what was essentially a motion to amend the pretrial

order before any objection could be made. See generally Camden

v. Circuit Court of Second Judicial District, 892 F.2d 610, 615 (7th

Cir. 1989).

treat this definitive ruling as the denial of a motion to

modify the pretrial order under Rule 16 of the Federal

Rules of Civil Procedure. See Gorlikowski, 52 F.3d at 1445.

While it is true that a pretrial order may be modified, such

modification is only permissible under very limited circumstances and only in those cases where failure to do so would

result in “manifest injustice,” Fed. R. Civ. P. 16(e), and we

review a district court’s refusal to modify a pretrial order only

for abuse of discretion. Gorlikowski, 52 F.3d at 1444.

Harper and Padilla had numerous opportunities prior to

trial to amend their complaint or to petition the court to add

a failure to intervene claim to the litigation. As the record

establishes, at various times throughout the proceedings as

well as in the pretrial order, the trial judge clarified the

issues in the trial as only dealing with excessive force and

not failure to intervene so as to avoid any confusion for

either party. Harper and Padilla offer no reason why the

judge’s refusal to allow such a claim would constitute

“manifest injustice.” Instead, they concede that they “intentionally did not bring a separate failure to protect claim.”

Appellants’ Reply Brief at 11. Thus, we hold that the district

court did not abuse its discretion in barring the plaintiffs

from litigating their failure to intervene claim. Hotaling v.

Chubb Sovereign Life Ins. Co., 241 F.3d 572 (7th Cir. 2001);

Durr v. Intercounty Title Co. of Illinois, 14 F.3d 1183, 1187

(7th Cir. 1994). Nonetheless, even if we were to assume

arguendo that the Harper and Padilla’s failure to intervene
20 No. 00-2758

15 See infra Part II. A. 2.

claim was not forfeited, the jury’s verdict answered and

foreclosed this argument entirely for Padilla and for the

majority (i.e., from the moment he was taken from the cell

he shared with Padilla until he left the strip-search room)

of the transport maneuver for Harper.15

It is true that this court has recognized in the past

that “police officers who have a realistic opportunity to step

forward and prevent a fellow officer from violating a

plaintiff’s right through the use of excessive force but fail to

do so” may be held liable. Miller v. Smith, 220 F.3d 491, 495

(7th Cir. 2000) (citing Yang v. Hardin, 37 F.3d 282, 285 (7th

Cir. 1994)); see also Fillmore, 358 F.3d at 505-06. This is

what has become known as a “failure to intervene” basis for

a constitutional violation under the Eighth Amendment, a

principle which this circuit has long recognized. Fillmore,

358 F.3d at 506; Crowder v. Lash, 687 F.3d 996, 1005 (7th

Cir. 1982), accord Spence v. Staras, 507 F.2d 554, 557 (7th

Cir. 1974). In order for there to be a failure to intervene, it

logically follows that there must exist an underlying constitutional violation, as we recently articulated in Fillmore v.

Page, 358 F.3d 496 (7th Cir. 2004). In Fillmore, a case strikingly similar to the one at bar, the plaintiff, also a prisoner

at the Menard Correctional Center, could not succeed on his

failure to intervene claim because he had failed to establish

that guards used excessive force in violation of his Eighth

Amendment rights. Fillmore, 358 F.3d 505-06.

Most importantly, like the plaintiff in Fillmore, Harper

and Padilla have failed to establish an underlying constitutional violation that would allow them to prevail on a

failure to intervene claim. See id. In special interrogatories

submitted by the magistrate judge, the jurors unanimously

concluded that: (a) Padilla had not been subjected to excessive force at any time during the transport maneuver; and
No. 00-2758 21

16 See supra pp. 13-14 for the complete text of the special interrogatories.

that (b) no excessive force had been used against Harper

from the time he was removed from his cell in the East

Cellhouse until he left the strip-search area.16 Thus, because

the jury found that no excessive force was used against

Padilla by any guard, at any time, and because an underlying constitutional violation is a primary concern when attempting to establish a failure to intervene claim, Padilla

cannot possibly establish joint and several liability and thus

his claim that the judge erred in granting the defendants’

Rule 50 motion is based on a foundation of quicksand. However, Harper’s claim, at least in part, endures and requires

that we examine whether he provided sufficient evidence to

resist a Rule 50 motion as to the events of August 4, 1996,

while he was en route from the strip-search room to his

segregation cell in the North Cellhouse.

2. Events Not Covered by the Jury’s Verdict

Harper’s claim must be given separate consideration because the jury’s verdict does not cover that specific period

of time beginning when Harper left the strip-search area

and ending when he arrived at his segregation cell in the

North Cellhouse. Harper’s specious claim is based on the

fact that it is conceivably possible, although most improbable, for him to demonstrate to this court that a reasonable

jury could have found that, during that short time period,

each and every one of the defendants committed an Eighth

Amendment violation against him.

The Eighth Amendment, applicable to the States through

the Due Process clause of the Fourteenth Amendment, prohibits “cruel and unusual punishments” and has been interpreted by the United States Supreme Court to encompass the
22 No. 00-2758

“unnecessary and wanton infliction of pain” upon prisoners

in a correctional institution. Wilson v. Seiter, 501 U.S. 294,

296 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 104

(1976) (emphasis added)). In determining whether a prison

official has violated the parameters of this prohibition, part of

our task is to “inquire into [the] prison official’s state of mind”

to determine whether a constitutional violation has occurred;

for, “[i]f the pain inflicted is not formally meted out as punishment by the statute or the sentencing judge, some mental

element must be attributed to the inflicting officer before it

can qualify.” Id. at 300. In Wilson v. Seiter, the Supreme

Court explained that, in order for a constitutional violation

to exist, plaintiffs in a § 1983 action must establish that

prison officials acted wantonly or, stated another way “maliciously and sadistically for the very purpose of causing

harm.” Wilson, 501 U.S. at 296. Indeed, “negligence or even

gross negligence is not enough; rather the plaintiffs must

show actual intent or deliberate indifference on the part of

state actors in order to make out an eighth amendment

claim.” James v. Milwaukee Co., 956 F.2d 696, 699 (7th Cir.

1992) (emphasis in original); see also Walker v. Benjamin,

293 F.3d 1030, 1037 (7th Cir. 2003) (same); Delgado-Brunet

v. Clark, 93 F.3d 339, 345 (7th Cir. 1996). Even objectively

serious injuries suffered by prisoners, without the requisite

mens rea on the part of prison officials, will not comprise a

constitutional injury. See Wilson, 501 U.S. at 301. In a case

such as this, “where prison officials are accused of using

excessive physical force in violation of the Cruel and

Unusual Punishments Clause, the core judicial inquiry

is . . . whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically cause harm.” Hudson v. McMillian, 503 U.S. 1, 7

(1992). To illustrate this subjective requirement, there are

a number of factors that a court must consider in determining whether excessive physical force has been used such

as “the need for an application of force, the relationship

between that need and the force applied, the threat reason-
No. 00-2758 23

17 The plaintiffs claim that the evidence in the record established

that, in addition to Lt. Townley, Officer Scott “escorted

(continued...)

ably perceived by the responsible officers, the efforts made

to temper the severity of the force employed, and the extent

of the injury suffered by the prisoner.” Id. In sum, it is

Harper’s burden to supply us with a human being or “mind”

which we may examine to determine whether specific officers

acted “with a knowing willingness that [a constitutional violation would] occur.” Id.

The problem Harper faces, and has faced throughout the

factual and legal presentation of the case, is that he has

failed to identify any individual guards that violated his

constitutional rights with the use of excessive force at any

point during the transfer. More importantly, as to this appeal he has likewise failed to identify any particular officer

who harmed him as he was being transferred from the stripsearch area to the segregation unit in the North Cellhouse.

See K.F.P. v. Dane County, 110 F.3d 516, 519 (7th Cir. 1997).

In order for courts to satisfy the mandate to inquire into the

state of mind of prison officials who have allegedly caused

a constitutional violation, see Wilson, 501 U.S. at 299, it is

most imperative that we are provided with “identified

culprits”; for “[w]ithout minds to examine, we cannot conduct an individualized inquiry.” K.P.F., 110 F.3d at 519. It

was Harper’s burden to identify, either through discovery

(which was completed to the satisfaction of both parties) or

through evidence submitted at trial, those guards that allegedly violated his constitutional rights during the time

frame in question; his failure to do so is fatal to the claim

and thus it was entirely proper for the district court to

grant the defendant’s Rule 50 motion.

Indeed, the only guard that Harper established was even

present while he was being taken from the strip-search

room to the North Cellhouse is Lt. Townley.17 Townley
24 No. 00-2758

17 (...continued)

Mr. Harper from the East Cellhouse to the segregation unit.”

Appellant’s Brief at 17. However, it was reasonable for the trial

judge to conclude otherwise in refusing to reconsider his Rule 50

motion, see supra pp. 15-16, considering that, even when taken in

the light most favorable to Harper, the “Internal Investigation

Interview Sheet” falls far short of establishing that Scott escorted

Harper to his segregation cell, much less used excessive force in

doing so. See Appendix to Appellant’s Brief at A-47.

18 Indeed, the only possible application of this evidence would be

to establish a failure to intervene claim. However, as we state

supra, without establishing an underlying constitutional violation

(as the plaintiffs have failed to do) it would be impossible for a

failure to intervene claim, as a matter of law, to succeed. See

Fillmore, 358 F.3d at 505-06.

stated in part of his testimony at the internal investigation

that he “helped escort HARPER to [segregation] Cell #8-42,”

but that he had “no contact with HARPER or PADILLA.”

Appendix to Appellant’s Brief at A-40. This evidence falls

far short of satisfying the mandate of Wilson v. Seiter and

Hudson v. McMillian for establishing an Eighth Amendment

violation.18 Townley’s “mere presence” during Harper’s transfer from the strip-search area to a segregation cell does not,

without more, rise to the level of violation of Harper’s

constitutional rights, and is not sufficient evidence to

withstand a Rule 50 motion. Fillmore, 358 F.3d at 506.

Furthermore, in his buckshot approach to this litigation

Harper has failed to identify any particular guard, either in

his pleadings or through the evidence submitted to the jury

at any point during the trial, that used excessive force

against him during his transfer. Thus, absent any evidence

or even an allegation which could establish a constitutionally cognizable claim for excessive force against any of the

defendants (e.g., identification of the individual guard(s) who

used excessive force against him during the transfer procedure) Harper cannot possibly establish bystander liability
No. 00-2758 25

19 In Miller v. Smith, 220 F.3d 495 (7th Cir. 2000) this court reversed the district court’s grant of summary judgment in favor of

three police officers accused of using excessive force against a

motorist whose van was mistaken for that of a fleeing robbery

suspect. In that case, Miller alleged that three officers violated his

constitutional rights, one by using excessive force and the other

two by failing to intervene. We held that the fact that Miller could

not identify the specific officer that beat him was not fatal to his

claim because, taking his allegations as true, whichever officer did

not directly beat him could be held responsible for failing to

intervene.

Miller is distinguishable for a number of reasons. First, the

plaintiff in Miller had a much stronger legal basis for his claim,

for he was able to identify, by name, the three officers whom

allegedly violated his constitutional rights. What’s more, Miller

alleged that one of two officers (either Smith or Brower) was the

one that actually used excessive force. By process of elimination

therefore, the other two (if the constitutional violation were established at trial) could be held responsible for failing to intervene.

As we stated in Miller, “if [the plaintiff] can show at trial that an

officer attacked him while another officer ignored a realistic

opportunity to intervene, he can recover.” Miller, 220 F.3d at 495.

However, Harper never identified in his pleadings the particular

officer(s) that allegedly violated constitutional rights during his

transfer from the strip-search area to his segregation cell. Also, in

this case Harper has already had an opportunity to “show at trial”

that one of the officers attacked him, but could not. There is no

controversy for a jury to decide here; for Harper has simply failed

as a matter of law to establish or even allege that any individual

officer even touched him while he was being moved, much less

violated his constitutional rights. Accordingly there is no basis for

a failure to intervene claim either.

Also, it should be noted that the Miller case was reviewed before

discovery had been completed or trial had begun, where as Harper

has been given full discovery as well as their case-in-chief at trial

(continued...)

as to Townley or anyone else for failure to intervene, and

his claim must fail. See id.; cf. Miller, 220 F.3d at 494-96.19
26 No. 00-2758

19 (...continued)

to identify the officer(s) that allegedly used excessive force against

him, which he failed to do. Under Rule 50, “where a party has

been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue” judgment as a matter of law is proper. Fed. R. Civ. P.

50(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-51 (2000). Although, the method of analysis is essentially identical when reviewing the grant of a motion for summary judgment

and when reviewing a grant of a motion under Rule 50, they come

at different points in the proceedings. Therefore, the disposition

of this case may well have been different if we were reviewing a

grant of summary judgment and Harper would still have trial to

bear out facts supporting his claim; however, after the presentation of his case-in-chief (or during the entire trial) Harper failed

to offer any legal basis for a reasonable jury to find that any

constitutional violation had occurred.

Finally, Miller is distinguishable from this case for yet another,

more fundamental reason. Miller’s claim was premised on the

Fourth Amendment, and such claims are analyzed under a

standard of objective reasonableness. See Graham v. Connor, 490

U.S. 386, 397 (1989). Thus, Miller was not required, at the

summary judgment stage to identify a particular officer who used

excessive force as long as he had produced sufficient evidence that

one or all of the officers’ behavior was objectively unreasonable.

However, Harper’s claims are premised under the Eighth

Amendment which, as noted above, requires that the plaintiff

establish subjective intent by identifying a particular “mind to

examine.” Wilson, 501 U.S. at 300; see supra pp. 24-26. Harper

has failed to do so and therefore his claim must fail.

Without weighing the evidence or making credibility

determinations, we have examined the record and drawn all

reasonable inferences in Harper’s favor as required under

Rule 50. However, even in light of this generous standard we

hold that Harper has failed to “present a legally sufficient

evidentiary basis for a reasonable jury to find” in his favor

and thus the trial judge did not commit a reversible error
No. 00-2758 27

20 Instruction 18A states, in pertinent part:

The plaintiff’s complaint consists of two counts. The issues to

be decided by you under Count I of the complaint are as

follows:

Plaintiff George Harper claims that he was injured and sustained damage and that defendants Duane Albert, Richard

Ferrell, and Todd Scott violated plaintiff’s right to be free

from cruel and unusual punishment in the following respects:

Defendants Richard Ferrell and Todd Scott while escorting

plaintiff Harper between the East Cellhouse and the North

Cellhouse banged and or rammed plaintiff Harper against one

or more stationary objects.

Defendant Duane Albert, in supervising the other members

of the tactical unit and allowing with his knowledge and consent those tactical members to punch, kick, beat and ram

plaintiff Harper into stationary objects from the time he left

cell in the East Cellhouse until the completion of the strip

search.

(continued...)

when granting the defendants’ Rule 50 motion dismissing

eight of the thirteen defendants. Fed.R.Civ.P. 50(a)(1); see

Sarkes v. Tarzian, Nos. 03-2994, 03-3098 (7th Cir. Feb. 14,

2005); Fillmore, 358 F.3d at 504; Kossman v. Northeast

Illinois Reg’l Commuter R.R. Corp., 211 F.3d 1031, 1036

(7th Cir. 2000).

B. Jury Instructions

Harper and Padilla also claim that the jury instructions

given to the jury by the magistrate judge (concerning the

five defendants not dismissed pursuant to Rule 50) erroneously limited their theory of recovery. Specifically, the

appellants argue that instruction 18A was “extremely limited” because it allowed the jury to consider only the actions

of the remaining five defendants when deciding whether or

not to impose liability for the alleged use of excessive force.20
28 No. 00-2758

20 (...continued)

The plaintiff claims that one or more of the foregoing was a

proximate cause of his injuries.

The defendants deny doing the things claimed by the plaintiff

and deny that they acted maliciously and sadistically.

The defendants further deny that plaintiff was injured or

sustained damages to the extent claimed.

Turning now to Count II of the complaint, the issues to be

decided by you under that Count are as follows:

Plaintiff Robert Padilla claims that he was injured and sustained and damages and that defendants Duane Albert, Tom

Lawless and Joseph Edmonds violated plaintiff’s right to be

free from cruel and unusual punishment in the following

respects:

Defendants Tom Lawless and Joseph Edmonds while escorting plaintiff Padilla between Cell 2-14 in the East Cellhouse

and the North Cellhouse banged and or rammed plaintiff

Padilla against one or more stationary objects.

Defendant Duane Albert, in supervising the other members

of the tactical unit and allowing with his knowledge and

consent those tactical members to punch, kick, beat and ram

plaintiff Padilla in stationary objects.

The plaintiff claims that one or more of the foregoing was a

proximate cause of his injuries.

Defendants deny doing the things claimed by the plaintiff and

deny that they acted maliciously and sadistically.

Defendants further deny that plaintiff was injured or sustained damages to the extent claimed.

In essence, this is quite simply another attack on the

judge’s decision to grant the defendants’ Rule 50 motion.

We review jury instructions for an abuse of discretion

only, and will approve “instructions that fairly and accurately summarize the law and have support in the record.”

United States v. Messino, 382 F.3d 704, 710 (7th Cir. 2004)

(quoting United States v. Jefferson, 334 F.3d 670, 672 (7th
No. 00-2758 29

21 At trial Harper and Padilla objected on grounds that the jury

instruction did not contain information about specific guards, i.e.,

that Ferrell and Scott could be potentially held liable for restraining the inmates “in a way that was intended to inflict pain and

injury to their wrists.” However, on appeal they argue that the

instruction should have encompassed a joint and several liability

theory. There is no question that these are two substantively

separate and distinct grounds for objections and therefore, the

argument advanced here is waived. See Shobert, 304 F.3d at 730;

Coulter, 882 F.2d at 1290.

Cir. 2003)). In view of the fact that we have previously

determined that the magistrate judge did not err when he

granted the defendants’ Rule 50 motion we are likewise

unmoved at what is essentially a collateral attack on that

ruling. The plaintiffs’ joint and several liability argument

lacks a foundation in either fact or law and therefore did

not merit submission to the jury. Also, it is worth noting that,

as discussed above, the special interrogatories submitted to

the jury asked the jurors whether any of the guards used

excessive force for the majority of the transfer procedure for

both prisoners, to which they unanimously answered “no.”

In addition, Harper and Padilla waived the specific objection to jury instruction 18A that they raise on appeal

because their objection at trial was on another, more confined, basis.21 See Shobert v. Ill. Dept. Of Transport, 304

F.3d 725, 730 (7th Cir. 2002); Coulter v. Vitale, 882 F.2d

1286, 1290 (7th Cir. 1989).

C. Evidence of Indemnification

In their final unavailing assignment of error, Harper and

Padilla argue that the trial judge erred when he refused to

allow them to introduce evidence of the defendants’ indemnification by the State of Illinois for acts committed within

the scope of their official duties. Evidentiary rulings are
30 No. 00-2758

reviewed for abuse of discretion only, and will not be overturned unless we were to conclude, which we do not, that

the judge’s ruling was both erroneous and affected the outcome of the case. See Cooper-Schut v. Visteon Auto. Sys.,

361 F.3d 421, 429 (7th Cir. 2004). However, because the jury

found in favor of the defendants and because we have determined that it was not error for the judge to dismiss the other

eight defendants, Harper and Padilla were not entitled to

any recovery in this case and, thus, the issue of damages

has been rendered moot. See Hoffman v. Caterpillar, Inc.,

368 F.3d 709, 720 (7th Cir. 2004); Knapp v. Eagle Prop.

Mgmt. Corp., 54 F.3d 1272, 1281 (7th Cir. 1995). Appellants

“could not have been prejudiced by the erroneous exclusion

of any evidence relating to damages,” and therefore there

could be no error in precluding evidence relating to the

defendants’ indemnification status.

III. Conclusion

The decision of the district court is

AFFIRMED.

FLAUM, Chief Judge, concurring in part and concurring in

the judgment. While I agree with the result reached by the

majority and join much of its reasoning, I write separately

to explain one point on which I disagree. As the Court

explains, the jury’s verdict forecloses all of plaintiffs’ claims

except those brought by Harper arising between the time he

left the strip-search room and when he arrived at his

segregation cell. Harper contends that during this last leg
No. 00-2758 31

of his transfer, an unidentified officer or officers attacked

him. I agree with the conclusion that Harper’s inability to

point out which officers struck him defeats his excessive

force claim because, absent evidence implicating particular

defendants, the jury could have imposed liability in this case

only by resort to speculation. Moreover, all three judges on

this panel are in accord that Harper forfeited his failure to

intervene claim by not timely raising it below. This provides

a sufficient basis to affirm on all counts.

I respectfully disagree, however, with the majority’s alternate holding regarding Harper’s failure to intervene claim

against Lt. Townley. The Court reaches the merits of this

claim and concludes that it too fails as a matter of law because Harper does not know which officers beat him. The

majority equates Harper’s failure to identify specific culprits

with a finding that there was no underlying constitutional

violation, and therefore no duty to intervene.

In my view, Harper’s inability to pin the excessive force

claim on anyone in particular does not preclude the possibility that the attack occurred. To the contrary, given that

we are reviewing the grant of judgment as a matter of law,

we must accept as true Harper’s testimony that, while being

moved from the strip-search room to his segregation cell,

“officers went out of their way to run him head-first into

whatever metal objects they came upon,” and that when he

arrived at the cell, “one of the larger officers grabbed him by

the neck and propelled him into the cell causing him to

strike his head on the wall and lose consciousness.” See

Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir.

1999) (“Judgments as a matter of law are reviewed by

appellate courts in the same fashion as summary judgment

motions.”). If believed, this testimony shows that some officer or officers used excessive force in violation of Harper’s

Eighth Amendment rights. Moreover, prison records confirm

that Lt. Townley helped escort Harper from the strip-search

room to the segregation cell. While there is no evidence that
32 No. 00-2758

Lt. Townley laid so much as a finger on Harper, the lieutenant would have been duty-bound to attempt to prevent an

attack by his fellow officers if he had reason to know that

excessive force was being used and a realistic opportunity

to prevent it. Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.

1994). Harper’s testimony combined with prison records

showing that Lt. Townley was present at the time of the

alleged beating establish a jury issue on this claim.

I believe that the majority’s reasoning creates at least

some tension with our holding in Miller v. Smith, 220 F.3d

491 (7th Cir. 2000). The plaintiff in Miller alleged that, after

being mistaken for a fleeing armed felon, he was arrested

by Indiana state troopers, handcuffed, and ordered to lie on

the ground. While he laid there, one of two troopers—the

plaintiff could not say which—kicked him in the back,

stepped on his face, and yanked him around by his hair. Id.

at 493. The plaintiff was able to identify specifically a third

officer who looked on but did nothing to stop the attack. He

sued all three officers for excessive use of force and failure

to intervene. The district court granted summary judgment

in favor of the defendants, reasoning that the plaintiff’s

inability to identify which officer attacked him precluded

his failure to intervene claims against all of the officers. Id.

at 495. We reversed: “If, as we are required to do at this

point in the case, Miller’s allegations are taken as true,

whichever officer was not directly responsible for the

beating was idly standing by.” Id. As in Miller, the evidence

viewed in the light most favorable to Harper establishes

that he was brutalized and that an identified law enforcement officer who had a good chance to stop the attack did

nothing. Miller’s inability to say who landed the offending

blows did not defeat his failure to intervene claims; Harper’s

similar lack of evidence should not be treated any differently. Nevertheless, because I agree that Harper forfeited

this claim, I join the result reached by the majority.
No. 00-2758 33

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-17-05