# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted May 6, 2022 *

Decided May 9, 2022

Before

DIANE S. SYKES , C hief Judge

ILANA DIAMOND ROVNER , Circuit Judge

MICHAEL B. BRENNAN , Circuit Judge

No. 21-1679

ELVIN HEARD , Plaintiff -Appell ant ,

v

.
JUSTIN HUNZIKER , et al., Defendant s

- Appel lees

. Appeal from the United States District Court for the Central District of I llinois

.

No. 17-3309
Jonathan E. Hawley , Magistrate Judge

.

O R D E R

Elvin Heard, an Illinois inmate, appeals the district court’s ju dgment on a jury’s verdict in favor of officers whom he sued under the Eighth Amendment over allegations of excessive force and deliberate indifference to a medical need

. He

* We have agreed to decide the 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. F ED

. R. A PP

. P. 34(a)(2)(C). Accordingly, Heard’s motion for

an update on oral argument is denied as moot. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with F ED

. R. A PP

. P. 32.1No. 21-1679 Page 2

challenges the verdict as lacking sufficient evidence and the jury as biased . But Heard did not file a post

- verdict motion as required, suppl y a trial transcript as needed , or substantiate his contention about bias

. He also failed to show that the district court abuse d its discretion in den ying his requests for counsel. W e therefore affirm.
Heard brought th is suit u nder 42 U.S.C. § 1983 against prison guards and a nurse. He alleged that, as guards escorted him to the segregation unit for yelling “Black Lives Matter ,” they beat him while another guard stood by doing nothing

. Heard also

a lleged that , after the attack, a nurse disregarded his injuries , and that over the next nine days while he was in segregation , the defendant s ignored his requests for medical

care. At the outset of the case and during discovery, Heard asked the district judge to recrui t counsel for him. The judge denied the motion s because Heard appeared able to draft papers and conduct discovery pro se , and because Heard had not followed up with a n attorney who had expressed interest in pursuing the case. After discovery, the defendant s moved for summary judgment. The district judge entered partial summary judgment for the nurse and for officer s not involved in some of the alleged violations

.
T he remaining claims

— for excessive force, failure to intervene, and deliberate indifference

— went to a jury trial before a magistrate judge who presided by consent

. After Heard presented his case in chief, the defendants moved for judgment as a matter of law . F ED

. R. C IV

. P. 50(a). The magistrate judge granted the motion for one defen dant and deferred the re st of the motion until after the jury reached its verdict. The jury later returned a verdict in favor of the other defendants on all claims, and the magistrate judge entered judgment accordingly. Heard did not file a ny post

- verdict motion s. On appeal , Heard has elected to proceed without a transcript of the trial. He correctly underst ands , as he told us in a motion, that he “cannot proceed” without it

. W e advised him how to obtain it : He “may request the relevant transc ript from the court reporter ” and if “ he cannot afford the transcripts ,” he can ask “the district court for government

- paid copies.” Despite this advice, Heard did not order the transcript

. He n onetheless now asks us to overturn the unfavorable jury verdic t on the ground that the evidence was insufficient to support it. For two reason s, his argument fails. First, b ecause Heard has not provided the trial transcript , we cannot consider his challenge. See F ED

. R. A PP

. P. 10(b) (2); Morisch v. United States , 653 F.3d 522, 529 (7th Cir. 2011). Although w e could provide Heard with another chance to order the transcript, see id. at 530, we see no reason to do so given t his prior failure combined with the second

reason that his challenge fails

— the dispositive effect of the lack of a ny post

- verdict motion . H e did not move for judgment as a matter of law under Rule 50(b) of theNo. 21-1679 Page 3

Federal Rules of Civil Procedure before or after the jury’s verdict. As a result, we are “‘powerless’ to review th e sufficiency of the evidence after trial.” Ortiz v. Jordan , 562 U.S. 180, 189 (2011) (quoting Unitherm Food Sys., Inc. v. Swift- Eckrich, Inc. , 546 U.S. 394, 405 (2006)); see also Haze v. Kubicek , 880 F.3d 946, 950 (7th Cir. 2018).

Heard next contends that the magistrate judge erred by , in Heard’s view, permitt ing a biased jury to hear the case . He speculates that a juror, who he as serts told the judge during a recess after opening statements that he “does not approve” of the Black Lives Matter movement, could have “ contaminated ” the jury by shar ing th is view with other jurors before the magistrate judge dismissed him

. But Heard’s contention of a biased jury lacks merit for two reasons. First, Heard does not assert that he raised th e issue in the district court , a step that he must take to preserve the issue for appellate review. See United States v. Burns , 843 F.3d 679, 685 (7 th Cir. 2016). Second, even if Heard raised the issue , without evidence (lacking here) that any of the seated juror s were influenced by this view , the magistrate judge did not abuse his discretion in allowing the trial to proceed after dismissing the problematic juror. S ee Pena

- Rodriguez v. Colorado , 137 S. Ct. 855, 869 (2017) ( requiring an overt statement of racism to place jury bias at issue ).
Finally , Heard contend s that he was entitled to recruited counsel. He argues that counsel c ould have helped him recover a video recording that , he believes, would have proved his case. But the dis trict court reasonably denied Heard’s request

. S ee Pruitt v. Mote , 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc). Before exercising discretion to recruit counsel for a litigant , a district judge must find that the litigant made reasonable efforts to obtain counsel and is not able to litigate the case pro se. Id. Here, t he district court properly ruled that neither finding was justified. First, it right ly observed that when Heard tried to obtain counsel, id. , one attorney was interest ed in taking his case, but Heard failed to follow up with that attorney. Second, the court appropriately ruled
t hat , based on Heard’s well -d raft ed filings and his ability to pursue d iscovery requests , Heard could adequately litigate th e case without recruited counsel

. Id.

We have considered Heard’s remaining , undeveloped arguments, and none has merit.

AFFIRM ED