# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 16 , 2018 *

Decided March 20 , 2018

Before

FRANK H. EASTERBROOK

, Circuit Judge

DANIEL A. MANION

, Circuit Judge

DIANE S. SYKES

, Circuit Judge

No. 17

- 1937

MICKEY MILLER

, Plaintiff

- Appellant

,

v

.

MICHAEL NINKOVIC, et al.

, Defendants

- Appellees

. Appeal from the United States District
Court for the Eastern District of Wisconsin

.

No. 14

- cv

- 1603

Nancy Joseph

, Magistrate Judge

.

O R D E R

Mickey Miller sued several staff members of the Milwaukee County Jail for using
excessive force in violation of his constitutional rights . A jury found in favor of the officers, and t he district court denied Miller’s motion s to alter the judgment and for a
new trial

. Because Miller’s challenges on appeal are meritless , we affirm.

* We have agreed to decide this cas e without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantl y aid the court. See F ED

. R. A PP

. P . 34(a)(2) (C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 1937 Page 2

Miller alleges tha t five officers at the Milwa ukee County Jail assaulted him on December 5, 2013. He asserts that they brutally beat him , first on an elevator ride during his move from the booking room to the 4D maximum security section of the jail , and then again on the “d ogwalk” of 4D. Miller testified that he suffered severe injuries, including abrasions, tor n

- out dreadlocks, and “knots” on his forehead. The day of the beating

, staff psychologist Melinda Andrze je wski visited Miller for an evaluation. In her report Andrze j e wski did not record any physical signs of injury, but she did include
Miller’s assertion of emotional trauma because officers “beat him up again.”

Miller , acting pro se , then filed this suit under 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights

. Early on he filed a successful motion requesting recruitment of counsel, and was represented by two attorneys

. At trial a jury found that
none of the defendants had used excessive force against Miller. T he magistrate judge ( presiding by consent, 28 U.S.C. § 636(c) )

, then entered judgment in favor of the
defendants

. She later denied Miller’s post

- trial motions.

On appeal Miller offers undeveloped arguments and cites no legal authority to support his assertions. See F ED

. R. A PP

. P. 28(a)(8); Yasinskyy v. Holder , 724 F.3d 983, 989 (7th Cir. 2013). But we read his brief as generously as we can to address the arguments that we can fairly discern. See Anderson v. Hardman

, 241 F.3d 544, 545 (7th Cir. 2001).

Miller argues first that he was prejudiced at trial because the magistrate judge
den ied his request for a jury instruct ion on spoliation of evidence. A judge may instruct the jury to infer that destroyed evidence contained incrimin ating content if a party intentionally destroyed the evidence in bad faith. See Crabtree v. National Steel Corp.

, 261 F.3d 715, 721 (7th Cir. 2001) . Miller contends that the instruction was appropriate
because he believes the defendants destroyed surveillance recordings from the elevator and the dogwalk where they allegedly beat him. But t he magistrate judge found the spoliation instruction in applicable beca use the dogwalk was not captured in
surveillance footage and the footage from the elevator was not destroyed in bad faith; rather, it was automatically recorded over by a jail technician when storage capacity
had been reached.

The magistrate judge did no t abuse her discretion in rejecting the spoliation

instruction

. See United States v. Rebolledo

- Delgadillo , 820 F.3d 870, 878 (7th Cir. 2016) (reviewing jury instruction for abuse of discretion). As the moving party, Miller bore the burden of demonstrating that the defendants destroyed the surveillance footage “for the purpose of hiding adverse information

. ” Bracey v. Grondin , 712 F.3d 1012, 1019No. 17

- 1937 Page 3

(7th Cir. 2013) (quoting Mathis v. John Morden Buick, Inc. , 136 F.3d 1153, 1155 (7th Cir. 1998) )

. Without evidence of any monitoring of the dogwalk, or that defendants destroyed footage of the elevator in bad faith , the judge reasonably assessed that Miller
did not meet his burden. See id. at 1019

– 20 (affirming that prison ’s video surveillance
recorded on a lo op was not destroyed in bad faith)

.

Miller next argues that the magistrate judge misapplied her own ruling on a motion in limine. In his motion Miller re quested the exclusion of character evidence

, including evidence of Miller’s multiple grievance s and lawsuits against other correctional officers involving similar claims of excessive force . The magistrate judge granted this motion, but also stated in her oral decision that the defendants could e licit testimony from Andrze je wski about her contact with Mil ler in October 2013

— a fter
which she documented a bandage on Miller’s forehead

— a s long as she did not mention
that he had identified correctional officers as the source of his injury . The defendants
offered the testimony to demonstrate Andrzejewski’s detailed recordkeeping to support an inference that she would have noted serious physical injuries , if any, in
December 2013

. Miller challenges the judge’s decision to allow Andrze je wski ’s testimony because he believes it was inconsistent with the ruling b arring evidence of his
former claims of excessive force

.

Evidence of a crime, wrong, or other act is not admissible to prove a person's character or propensity to act a certain way. See F ED

. R. E VID

. 404(b)(1)

. In this vein t he magistrate judge granted Mi ller’s motion to exclude evidence of his past claims of
excessive force and his general litigious nature

. And the defendants never violated the ruling

. Andrze je wski testified about her report detailing Miller’s bandage for an unspecified injury without tying the injury to an alleged attack on Miller

. T o the extent that Miller is attempting to argue that Andrzejewski’s testimony also was inadmissible propensity evidence

, he waived the argument because he did not timely object to the testimony at trial

. See F ED

. R. E VID

. 103 ; Christmas v. City of Chicago , 682 F.3d 632, 640 (7th Cir. 2012)

.

One matter remains. Miller asserts that he received ineffective assistance of his
recruited counsel. But t he Sixth Amendment right to effective assistance of counsel does not apply in a civil case. See Stanciel v. Gramley , 267 F.3d 575, 581 (7th Cir. 2001)

. His argument is therefore frivolous

.

AFFIRMED