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 the district court denied Miller’s motions 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 case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 17-1937 Page 2

Miller alleges that five officers at the Milwaukee 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 “dogwalk” of 4D. Miller testified that he suffered severe injuries, 

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

beating, staff psychologist Melinda Andrzejewski visited Miller for an evaluation. In her 

report Andrzejewski 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. The 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 FED. R. APP. 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

denied his request for a jury instruction on spoliation of evidence. A judge may instruct 

the jury to infer that destroyed evidence contained incriminating 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 the magistrate judge found the 

spoliation instruction inapplicable because 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 not 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, 1019
No. 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 loop 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 requested the exclusion of character evidence,

including evidence of Miller’s multiple grievances 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 elicit 

testimony from Andrzejewski about her contact with Miller in October 2013—after 

which she documented a bandage on Miller’s forehead—as 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 Andrzejewski’s 

testimony because he believes it was inconsistent with the ruling barring 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 FED. R. EVID. 404(b)(1). In this vein the 

magistrate judge granted Miller’s motion to exclude evidence of his past claims of 

excessive force and his general litigious nature. And the defendants never violated the 

ruling. Andrzejewski testified about her report detailing Miller’s bandage for an 

unspecified injury without tying the injury to an alleged attack on Miller. To 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 FED. R. EVID. 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 the 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