NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0223n.06
No. 09-1372
UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T
FL OYD JENNI

NGS, Plaintiff-Appellant,

v. BRENT B RADL EY, et a l., Def endants-A

ppellees. ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

/
Be fore : BA TCHEL DER, Chief J udg e; MARTI N and SUTTON , Circuit J udg es. BO YCE F. MARTI

N, J R., Circuit J udg e. Floy d J enning s, a Michig an prisoner proce eding
pro se, sued a number of employ ees at Alg er Maxi mum Correc t i o n al Fa cility under 42 U.S.C. §
1983. The dist rict co u rt g rante d summary judgme nt in favor of all the defendants ex cept for one, and the jury

found in favor

of the re maining de fenda nt. J enning s appea ls the district court’s g rant of summary judgme nt, its order deny ing him appointment of counsel, its decision requiring sever al of his witnesses to testify via video teleconf ere ncing , and its denial of his motion for a new trial. We
AF F IRM the dec ision of the district court.
I. BACKG ROUND
J enning s sued the following employ ees of Alg er Maxi m u m C o rre ctional Fa cility : C orre ctions Offic er Bre nt Br adley , Assistant Resident Unit Manag er Thomas Salo, Resident Uni t Manag er C u rt R i fe, Serg eant Donald MacD onald, Deputy Warden L loy d Rapelje, Correc tionsNo. 09-1372

Jennings v . Bradley Pag e 2 Offic er Gary Schertz, Correc tions Offic er Robert Wickstro m, Serg eant Kevin Taskila, L ieutenant Craig Tay lo r, and L ieutenant J eff rey Stevens. J enning s alleg ed that they violated his Eig hth

1
Amendment rig hts by putting human fec es in his food; smearing fec es on him; using various forms of unwar rante d or excessive forc e; forc ing him to lie in his own waste; and deny ing him food, water , and restroom brea

ks. J enning s also alleg ed that the defe ndants violated his proce dural due proce ss rig hts and reta li at ed aga i n st him by placing him without notice on a “Cell Slot Manag ement”
prog ram, which require d him to move to the back of his cell and as s u me a cer tain position when

rec eiving meals, mail, or medication. A full rec ounting of the fac tu al backg round of this case is available in the mag istrate judg e’s Repor t and Recommenda tion.
J en n i n gs filed two motions reque sting that counsel be appointed to repr esent him and the district court denied both motions. Be fore trial, the defe ndants moved for summary judgme nt. After

a de novo revie w of the mag istrate judge ’s Report and Recommenda tion, the district court adopted it and g rante d summary judgme nt to all of the defe ndants except Br adley , who J enning s alleg ed had

serve d him a sandwich containing feces and used a fec es-smea red shield ag ainst him. After a two-day trial, the jury

rende red a

verdic t in favor of

Br adley . J enning s moved for a new trial, and the di strict court denied the m otion. J enning s now appeals, challeng ing the district cour t ’s denial of his motion for a new

trial as we ll as sever al pre -trial and tr ial ruling s.

T h e d i s t r i c t c o u r t d i s m i s s e d t h e c l a i m s a g a i n s t T a y l o r a n d S t e v e n s b e c a u s e J e n n i n g s d i d n o t e x h a u s t h i s 1
a d m i n i s t r a t i v e r e m e d i e s a g a i n s t t h e m . J e n n i n g s d o e s n o t c h a l l e n g e t h i s d e c i s i o n .No. 09-1372

Jennings v . Bradley Pag e 3 II. ANALYSIS
A. Mot ion f

or sum m ary judgm ent
We revie w the district court’s g rant of summary judgme nt de novo. Ciminil lo v. Streicher , 434 F.3d 461, 464 (6th Cir. 2006). Sum mary judgme nt is appropr iate wher e there is no g enuine issue of materia l f

act and the moving party is e ntitled to judgme nt a s a matter of law. Fe d. R. Civ. P. 56(a).
J enning s claims that the district court err ed in gra n t i n g S alo, Rife, MacD onald, Rapelje, Schertz, and Wickstrom summary judgme nt based on qualified immunit y as to his Procedur al Due
Process claim and First Amendment reta liation claim. Under the doctrine of qualified immunit y , g overnme nt officia ls perf

orming discretionar

y functions are shielded from civil liability unless their conduct violates clea

rly established constitutional rig hts. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Thus, a defe ndant is entitled to qualified immunit y on summary judgme nt unless the fac ts, when viewed in the light most favor able to the plaintiff, would permit a rea sonable juror to find that: (1) the defe ndant violated a constitutional rig ht; and (2) the rig ht was clea rly established. Pearson

v. Callahan , 555 U.S. 223, —, 129 S. Ct. 808, 815-16 (2009). A court of appea ls ma y exercise its discretion to decide which prong of the test to addre ss first in light of the circ umstances of the case . Id. at 818.
1. P roce dural Due Pr ocess J enning s claims that the district co u rt er re d in g ranting Salo, Rife, MacD onald, Rapelje, Schertz, and Wickstrom summary judgme nt based on qualified immunit y as to his Procedur al Due
Process cl ai m . To establish that the defe ndants violated a constitutional rig ht, J enning s mustNo. 09-1372

Jennings v . Bradley Pag e 4 demonstrate that bein g place d on a Cell Slot Manag ement prog ram constitutes an aty pical and signific ant hardship. See Sandin v. Conner , 515 U.S. 472, 484 (1995) (holding that due proce ss liberty interests created by prison reg ulations are g ener ally limit ed to fre edom from restra int that imposes “aty

pical and sig nificant ha

rdship on an inmate in re lation to ordinary incidents of prison life”)

. The district court corr ectly found that J enning s failed to make this showing

. See, e.g. , id. at 486 (holding that i n m at e’s thirty day s in solitary confine ment did not constitute an aty pical and signific ant hardship); Jones v. Bake r , 155 F.3d 810, 812 (6th Cir. 1998) (noting that place ment in administrative seg reg ation normally does not constitute an aty pical and signi fi ca n t hardship).
Fur thermore , the defe ndants introduced substantial evidenc e that J enning s’ seg reg ation was not aty pical beca use it was based on his continuous violent conduct. Cf. id. (stating that it is not aty pical for a prisoner to be place d in seg reg ation beca use of participa

tion in violent conduct)

. T h u s , we AF F IRM the district court’s g rant of summary judgme nt to the defe ndants on J enning s’ Procedur al
Due Proc ess claim.
2. Ret aliation
J enning s claims that the district court err ed in g ranting summary judgme n t to Schertz and Rife on his reta liation claim. He asser ts that they reta liated ag ainst him by placing him on a Cell Slot Manag ement prog ram beca use he testified ag ainst prison officia ls at another inmate’s trial. To state

a claim of reta liation, a plaintiff must establish that: (1) he en gage d i n protec ted conduct; (2) he suffe red an adver se action that would deter a person of ordinary firmness from continuing to eng ag e in the protec ted conduct; and (3) the adver se action was motivated, at least in part, by the protec ted conduct. Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6th Cir. 1999) (en banc)

. Fur thermore , “[i] f theNo. 09-1372

Jennings v . Bradley Pag e 5 defe ndant can show that he would have taken the same action in the absenc e of the protec ted activity , he is entitled to preva il on summ ary judgme nt.” Id. at 399. Schertz and Rife pr esente d substantial evidence that J enning s’ beha vior justified his be ing place d in a Cell Slot Manag ement prog ram. They prese nted evidenc e that J enning s assaulted prison officia ls by throwing urine and fec es, biting t h em , t h reatening them, and masturbating in front of them. Thus, we AF F IRM the district court’s g rant of summary judgme nt to Schertz and Rife on J enning s’ re taliation claim.
B. Motion f

or Appointme nt of Cou nsel
We revie w the district court’s order deny ing appointment of counsel for abuse of discretion. Lavado v. Keohane , 992 F.2d 601, 605 (6th Cir. 1993). Appointed counsel in civil suits is a privileg e only justified in exceptional circ umstances, i d

. at 606, and J enning s did not prese nt any exceptional circ umstances in t h i s ca s e. Thus, we hold that the district court did not abuse its discretion by

deny ing Jenning s’ motion to appoint counsel.
C. Testim ony Via Video Teleconferencing
J enning s claims that the district court err ed by requiring that four of his witnesses testify via video teleconf

ere ncing

. The Fe dera l Rules of Civil Procedur e provid e t h at “[f]or g ood cause in compelling circ umstances and with appropr iate safe g uards, the court may permit testimony in open
court by contempora

neous transmi s s i o n fr o m a differ ent location.” Fe d. R. Civ. P. 43(a)

. The district court determin ed t h at compelling circ umstances just ified requiring J enning s’ wit nesses to testify via video telec onfer encing . The district cour t found that three witnesses pre sented sec urity threa ts becaus e they wer e housed at maxi mum secur ity prisons and had extensive disciplinaryNo. 09-1372

Jennings v . Bradley Pag e 6

rec ords, and that the fourth witness was in a crisis stabiliz ation prog ram and would not have acc ess
to proper mental health support if he wer e transporte d to another fac ility

. Cf. Barnes v. Black , 544 F.3d 807, 810 (7th Cir. 2008) (noting that moving inmates “to a distant court entails cost and even dang er” ). The district court also ensure d that appropr iate safe g uards wer e instit uted. The jury could listen to the witnesses an d observe their demea nor, J enning s could question them, and the transmission was instantaneous. Thus, we hold t h at t h e d i s t rict court did not err by requiring 2
J enning s’ witnesses to testify via video telec onfer encing

. D. Mot ion f

or Ne w T rial
J enning s claims that the district court err ed in deny ing his motion for a new trial. We revie w

a district court’s ref

usal to g rant a motion for a new trial for abuse of discretion. Mike ’s Train House, Inc. v. Lionel, L.L.C

. , 472 F.3d 398, 405 (6th Cir. 2006). A new trial may be g rante d “whe n

a jury has rea ched a seriously err oneous result as evidenc ed by

. . . the trial being un fa i r t o t h e moving party in some fa s h i o n , i.e., the proce eding s being influence d by prejudice or bias.” Id. (interna l quotation marks and citation omitted). For the rea sons stated belo w, we AF F IRM the district court’s de nial of Jennings’ motion for a new tria l.
1. “Worst of the Worst” C om m ents
J enning s arg ues that Br adley and his a ttorney prejudice d his rig ht to a fair trial by ref err ing
to the inmates at Alg er Maxi mum Correc tional Fa cility as the “wor st of the worst,” which stereoty ped all inmates as untruthful and dang erous. During opening arg ument, Br adley ’s attorney

A l t h o u g h o n e o f J e n n i n g s ’ w i t n e s s e s t e s t i f i e d b y t e l e p h o n e b e c a u s e o f a t e c h n i c a l p r o b l e m , t h i s f a c t i s n o t 2 d i s p o s i t i v e . S e e J

e r d e n v
. A m s t u t

z , 4 3 0 F

. 3 d 1 2 3 1 , 1 2 3 8 n . 7 ( 9 t h C i r . 2 0 0 5 ) ( s t a t i n g t h a t t e s t i m o n y i n o p e n c o u r t b y t e l e p h o n e i s p e r m i t t e d b y R u l e 4 3 ( a ) )
.No. 09-1372

Jennings v . Bradley Pag e 7 told that jury that “y ou’re g oing to have to g o inside a world that most of y ou, and probably none of
y ou, will ever experience. I t’s a world in which the worst of the worst prisoners in the state of Michig an are incar cer ated.” L ater , Br adley testified in response to a question about the prison’s

secur ity level that “[i]t ’s a L evel V, the worst of the w orst.” “Misconduct by an attorney that results in prejudice may serve as a basis for a new trial. The burden of showing prejudice rests with the party seeking the new trial, and district courts have broad discretion in deciding whether to g rant a motion for a new trial.” Fuhr v. Sch. Dist. of Hazel Park , 364 F.3d 753, 759 (6th Cir. 2004) (interna l quota tion mar ks and citation omitted). Thus, J enning s “must show both that the

. . . arg ument was improper and that [he] was prejud i ced by the impropriety , that is, that there is a reasonable probability that the j ury ’s verdict was influenced by the improper a

rg ument.” Id. at 760.
J enning s has arg uably shown that the “worst o f t h e worst” comments wer e im proper . See
W illiams v. Drake , 146 F.3d 44, 48 (1st Cir. 1998) (af firming decision t o ex clude ref ere nce to plaintiff’s prison as the “hig hest secur ity prison in the State of Maine, housing the most da ng erous prisoners i n the State of Maine” beca use it was unduly prejudicia l). But we need not resolve the point beca

use we are not persua ded that J ennin gs h as demonstrated that there is a rea sonable probability that the jury ’s verdic t was influence d by the improper arg ument. The statements descr ibing Alg er Maxi mum Correc tional Fa cility inmates as “the worst of the worst” wer e acc urate

. Cf. Fuhr , 364 F.3d at 760 (holding that party failed to demonstrate a rea sonable probability that the jury was improperly influence d by a comment when it was acc urate ). Fur thermore , the district court instructed the jury that attorney comments are not evidenc e, and that “[t] his case is to be

. . . decide dNo. 09-1372

Jennings v . Bradley Pag e 8 by y ou as an action between persons of eq u al standing in the communi ty , of equal worth, hol ding the s am e o r simil ar stations in life. Prisoners and prison employ ees are entitled to the same fair
trea tment at y our hands as any private individual.” Thus, any prejudice resulting from the comments

was alleviated by the jury instructions. Cf. Holme s v. City of Massillon, Ohio , 78 F.3d 1041, 1047 (6th Cir. 1996) (holding that a motion for a new trial should be denied if prejudice is cure d by jury instructions); Jame

s v. Tilghman , 194 F.R.D. 408, 420-21 (D. Conn. 1999) (holding that inmate fa i led t o establish that “wor st of t he worst” statements warrante d new trial when jury instructi o n s adequately redirect ed the jury ’s attention). Be cause we cannot say that the arg uably improper statements adversely aff

ecte d the fairness of J enning s’ t rial, we hold that the di strict court did not abuse its discre tion in declining to g rant a new tria l on this ground. 2. Spol iation In struct ion
J enning s claims that his trial was unfair beca use the district court d en i ed h i s reque st for a spoliation instruction based on Br adley ’s failure to produce cer tain videos of the incidents at issue.
Br adley ’s attorney was order ed to make available for use at trial all video rec ording s of the incidents
at issue. He produce d a video of J enning s being place d in restra ints on J une 18 and J une 20, 2005, but he did not produce a video of himself enter ing J enning s’ cell. We have held that a party seeking

a spoliation instruction based on the destruction of evidenc e must make a three -prong showing : (1) the party having control over the evidenc e had a duty to prese rve it; (2) the evidenc e was destroy ed with a culpable sta t e o f mind; and (3) the destroy ed evidenc e was rele vant to the party ’s claim or defe nse. Beav en v. U.S. Dep’t Of Justice , 622 F.3d 540, 553 (6th Cir. 2010). A di strict court ha s “broa d discretion in imposing sanctions based on spoliated evidenc e.” Adkins v. W oleve r , 554 F.3dNo. 09-1372

Jennings v . Bradley Pag e 9 650, 653 (6th Cir. 2009). The district court did not abuse its bro ad d i s cr et i o n in finding that an adver se infere nce was inappropria te here

. I t noted that Br adley ’s attorney stated that there wer e no video re cording s of the incidents, Jennings pre sented no e vidence to sug g est that the attorne y was
not truthful in this repr esenta tion, and J enning s prese nted no evidenc e that Br adley had any control

over the videotape o r d u t y t o p re s er v e it. Thus, we hold that the district court did not abuse its discretion in dec lining to g rant a new tria l based on the la ck of a spoliation inst ruction.
III. CONCLUSION
We AF F IRM the dec ision of the district court.