# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 22, 2020 * Decided July 8, 2020

Before

KENNETH F. RIPPLE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-3412

MYRON KYKTA, Plaintiff-Appellant

,

v

.

J EFF CIACCIO, et al., Defendants-Appellees

. Appeal from the United States District Court for the Northern District of Illinois, Western Division.

No. 3:13-cv-50325

Thomas M. Durkin, J udge

.

O R D E R

Myron Kykta asks us to overturn a jury’s verdict in favor of two sheriff’s deputies whom he sued under 42 U.S.C. § 1983 for violating the Fourth Amendment by allegedly stopping and searching his car with out adequate justification. Because we are unable to review Mr. Kykta’s challenge to the jury’s verdict and because his other argument on appeal—that his recruited counse l was ineffective—lacks merit, we affirm.

* We have agreed to decide this case on the briefs because oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C).No. 19-3412 Page 2

This case has a long history. It began in 2011, when deputies Bob Bandelio Juanez and Jeff Ciaccio of the Winnebago County Sher iff’s Department performed a traffic stop of Mr. Kykta’s car and, after searching it and him, found cocaine and marijuana. Kykta
v. Ciaccio , 633 F. App’x 340, 342 (7th Cir. 2015). The deputies then obtained Mr. Kykta’s consent to search his home, where they di scovered a marijuana-growing operation. Id. During the ensuing state criminal prosec ution, Mr. Kykta moved to suppress all evidence obtained after the stop, but then, on the advice of counsel, he pleaded guilty before the district cour t ruled on the motion. Id.
Before changing his plea, however, Mr. Kykt a filed a pro se civil-rights complaint in federal court, alleging, among other things , that the deputies had violated the Fourth Amendment when they stopped him, searche d him and his car, arrested him, and then searched his residence. Id. The district court entered judg ment on the pleadings for the deputies, concluding that res judicata an d collateral estoppel precluded Mr. Kykta’s claim because he had pleaded guilty. Id. at 343. We disagreed, vacated the dismissal, and remanded for further proceedings. Id. at 344–45.

The district court recruited counsel fo r Mr. Kykta, and the case proceeded to trial. Mr. Kykta maintains that, at trial, he testified that he did not commit any traffic violations, so the deputies had no grounds to stop him. 1 The deputies, however, both testified that they observed Mr. Kykta sp eeding. Deputy Juanez also smelled marijuana when he approached Mr. Kykta’s car; Depu ty Ciaccio did not. Further, Deputy Juanez testified that he had received a tip from a confidential informant that Mr. Kykta was selling drugs. The jury returned a verdict for the defendants.
Mr. Kykta appeals. First, he asks that we vacate the judgment because the jury’s verdict is against the manifest weight of the evidence. King v. Harrington , 447 F.3d 531, 534 (7th Cir. 2006). He contends that the jury sh ould have credited his evidence over the defendants’ because theirs was mislea ding, implausible, and uncorroborated.
As the appellees point out, however, Mr. Kykta has not provided a trial transcript, as required when raising such an argument on appeal. Federal Rule of Appellate Procedure 10(b)(2) provides: “If the a ppellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcrip t of all evidence relevant to that finding or conclusion.” Without a transcript, we are unable to evaluate the evidence, and

1 For the purpose of background, we summarize th e discussion in the parties’ briefs about the trial testimony. Without a transcript, however, we do not endorse any party’s version of what occurred at trial.No. 19-3412 Page 3

therefore we cannot conduct a meaningful review of Mr. Kykta’s arguments. See Morisch v. United States , 653 F.3d 522, 530 (7th Cir. 2011).
There is an exception; under Rule 10(c), an appellant “may prepare a statement of the evidence or proceedings from the best available means” if a record is “unavailable.” Mr. Kykta asserts that the tr anscript is “unavailable” under Rule 10(c) because he cannot afford to have it prepared. Indeed, Mr. Kykta petitioned the district court to waive the cost of preparing transcrip ts because he was unable to afford it. The district court never ruled on Mr. Kykta’s request, however.
We considered remanding this matter to the district court to permit it to act on Mr. Kykta’s petition, but we decline to follow th at course of action because it would be futile. The district court could grant Mr. Kykta’s request only if it could “certif[y] that the appeal is not frivolous (but presents a substantial question).” 28 U.S.C. § 753(f). It could not do so because, even with a tran script, Mr. Kykta could not prevail on his appeal. Mr. Kykta did not preserve his argumen t that the jury’s verdict is against the manifest weight of the evidence in a timely post-trial motion for ju dgment as a matter of law under Federal Rule of Civil Procedur e 50. Without such a motion, our court is “‘powerless’” to review his challenge to the sufficiency of the evidence. See Collins v. Lochard , 792 F.3d 828, 831 (7th Cir. 2015) (quoting Unitherm Food Sys., Inc. v. SwiftEckrich, Inc. , 546 U.S. 394, 405 (2006)). Although Mr. Kykta proceeded pro se after trial, and we therefore must treat his filings libe rally, we cannot excuse his omission. “We review the actions of judges, not juries, and the Federal Rules of Civil Procedure require civil litigants to speak up if they want a trial judge to resolve the factual sufficiency of a claim as a matter of law.” Collins , 792 F.3d at 831

. Because Mr. Kykta did not ask the district judge to examine the verdict, we wo uld have no ruling to review even if the appeal returned to us with a trial transcr ipt, and therefore we need not wait for the district court to act on Mr. Kykta’s petition.
Mr. Kykta also argues that his court-re cruited trial attorneys were ineffective because they failed to present to the jury all of the evidence that he provided to them. We have no record on which we could conclude that the attorneys performed defectively in any way, but, more fundament ally, Mr. Kykta had no constitutional or statutory right to court-recruited counsel in this case. 28 U.S.C. § 1915(e)(1) (court “may request” counsel to assist indigent civil litigants pro bono); Romanelli v. Suliene , 615 F.3d 847, 851 (7th Cir. 2010) (stating that “[t]here is no constitutional or statutory right to counsel in federal 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 aNo. 19-3412 Page 4

malpractice action against the offending attorney.” Stanciel v. Gramley , 267 F.3d 575, 581 (7th Cir. 2001).
The judgment of the district court is affirmed.