In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2365

CLEOTHER TIDWELL,

Plaintiff-Appellant,

v.

BRYCE HICKS, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 10-cv-974-JPG-PMF — J. Phil Gilbert, Judge.

____________________

SUBMITTED MAY 26, 2015* — DECIDED JUNE 26, 2015

____________________

Before WOOD, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.

WOOD, Chief Judge. Cleother Tidwell, an Illinois inmate, 

brought this suit under 42 U.S.C. § 1983; in it, he contends

that three prison guards violated his Eighth Amendment

* After examining the briefs and record, we have concluded that oral 

argument is unnecessary. The appeal is therefore submitted on the briefs 

and record. See FED. R. APP. P. 34(a)(2)(C). 

 
2 No. 14-2365

rights when they failed to protect him from attack by a fellow inmate and then subjected him to excessive force by restraining him during the attack. The district court granted 

judgment as a matter of law for two of the guards, and a jury 

returned a verdict in favor of the third. We affirm.

I

The underlying incident occurred on November 30, 2008,

at Pinckneyville Correctional Center, where Tidwell was 

then confined. (He was later moved to Menard Correctional 

Center.) Before that date, Tidwell had experienced several 

run-ins with fellow inmate Levi Hoyle. The encounters were 

becoming increasingly violent; one involved a scuffle in 

which Tidwell says he was grabbed and held by one prison 

guard while Hoyle punched him repeatedly.

Tidwell filed a form civil-rights complaint and promptly 

moved to have counsel recruited for him. The district court 

granted the motion, and Tidwell, through counsel, amended 

his complaint to allege both excessive-force and failure-toprotect claims under the Eighth Amendment. But communications between Tidwell and his attorneys broke down, and 

eventually the court granted the attorneys’ motion to withdraw. Nevertheless, Tidwell continued to ask the court for 

assistance of counsel or an investigator to help him locate 

former inmates to testify at trial. The court denied these requests, but it directed that Tidwell be provided subpoena 

forms, and it recruited standby counsel to assist him at trial. 

Once trial began, however, Tidwell moved to discharge 

standby counsel, and the court granted the motion.

At trial Tidwell testified that he had been in the segregation unit at Pinckneyville for only a short time when he came 
No. 14-2365 3

into conflict with Hoyle, an inmate-worker who delivered 

meals in the segregation unit. According to Tidwell, his 

problems with Hoyle began when Hoyle repeatedly threw 

his food tray into his cell so roughly that food would spill on 

the floor. Hoyle also taunted him by threatening to put his 

genitals in Tidwell’s food. Tidwell complained to three 

guards—Cory Harbison, Paul Johnson, and Bryce Hicks—

that he did not want Hoyle delivering his food, but Hoyle 

was allowed to continue with the deliveries. One day Tidwell, exasperated with Hoyle’s provocations, tried to hit 

Hoyle with a container of urine that he tossed through the 

slot in his cell door. The urine unfortunately splashed both 

Hoyle and Johnson, who were nearby. Both quickly departed—Johnson to change his uniform and write up an incident 

report, Hoyle to shower and change. Tidwell was told to 

pack up his property because he was being transferred to 

another segregation unit. His cellmate was moved first, leaving Tidwell behind, alone in the cell.

The parties disputed what happened next. According to 

Tidwell, the three prison guards had enlisted Hoyle to beat 

him in retaliation for the urine-throwing incident. The plan, 

Tidwell explained, was to send Hoyle into his locked cell,

where Tidwell—handcuffed—would be unable to resist assault or even escape. Tidwell testified that Hicks, Harbison, 

and a third guard (who Tidwell believed was Johnson) came 

to his cell under the guise of transferring him, but he quickly 

suspected a set-up once he spotted Hoyle in the hallway 

through his partly open door. Fearing for his safety, Tidwell 

burst through his unlocked cell door and preemptively tried 

to kick Hoyle. As Tidwell bolted from his cell, Hicks grabbed 

him and held him so that Hoyle could beat him.
4 No. 14-2365

The defendants’ account is quite different. They denied 

any wrongdoing and maintained that Tidwell ran out of his 

cell and had to be restrained. Hicks was best positioned to 

do so. Only Hicks and Harbison came to transfer Tidwell, all 

three guards testified; they added that Johnson was away 

writing his report on the urine-throwing incident. Hoyle was 

visible to Tidwell only because he was mopping up the urine 

in the hallway near Tidwell’s cell. When Tidwell darted out 

of his cell door toward Hoyle, Hicks pulled him back, but 

Tidwell slipped on the wet floor and bumped his head on 

the doorjamb. Hicks then returned Tidwell to his cell but noticed that his head was bleeding and took him to the showers. A prison nurse examined him; later he was sent to an 

outside hospital and received stitches for the cut on his head.

Hoyle’s account did not match either of the other two. He

testified that he crept back on his own volition to the hallway near Tidwell’s cell in order to retaliate against him for 

throwing the urine. He denied being directed to do so by the 

guards.

After Tidwell rested his case, the defendants moved for 

judgment as a matter of law. On the failure-to-protect claim, 

Johnson and Harbison argued there was no evidence that 

they knew violence was about to take place or that there was 

any opportunity to intervene. Hicks argued that the only 

evidence of impending violence was Tidwell’s conclusory 

statement that he was set up. For the excessive-force claim, 

Johnson and Harbison contended that there was no evidence 

they used any force; Hicks maintained that the force that he 

used to control the situation was reasonable.

The district court granted judgment as a matter of law on 

both claims for Johnson and Harbison. It concluded that 
No. 14-2365 5

there was no evidence that Johnson was present at the time 

of the incident or that he set Tidwell up to be attacked. As 

for Harbison, the court stated, the evidence showed only 

that he was positioned behind Hicks. This was not enough to 

permit a finding that he was involved in any alleged set-up. 

It denied the motion as it applied to Hicks, finding conflicting evidence with regard to his involvement.

During the jury instruction conference, Hicks requested 

an instruction stating that “[t]he law does not require any 

party to call as a witness every person who might have 

knowledge of the facts related to this trial.” Tidwell objected 

that this instruction was incomplete because it did not 

acknowledge that the jury could draw a negative inference 

against a party from a witness’s absence. He asked the court 

to give Seventh Circuit Pattern Jury Instruction § 1.19, which 

says “[Witness] was mentioned at trial but did not testify. 

You may, but are not required to, assume that [Witness’s] 

testimony would have been unfavorable to [Plaintiff] [Defendant].” The court noted Tidwell’s objection but decided 

to give Hicks’s instruction rather than Tidwell’s. It did so because the only missing witness Tidwell had mentioned was 

a prison doctor, and Tidwell could have called the doctor as 

his own witness. The jury returned a verdict in favor of 

Hicks on both claims.

II

On appeal, Tidwell argues that the district court should 

not have granted judgment as a matter of law for Johnson 

and Harbison on his failure-to-protect claim. The court 

erred, he asserts, by thinking it critical that there was no evidence that either Johnson or Harbison knew that violence 

was about to occur. A failure-to-protect claim, he maintains, 
6 No. 14-2365

does not require a guard “to have prior knowledge or some 

idea that violence is imminent.” It was enough, he says, that 

Harbison and Johnson stood to the side while Hicks held 

him up for Hoyle to attack him.

But Tidwell misapprehends his burden in establishing a

failure-to-protect claim. Tidwell had to show, either through 

direct or circumstantial evidence, that the defendants had 

actual knowledge that he was at serious risk of being 

harmed. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); 

Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). He has 

not done so. In fact, Tidwell presented no evidence that 

Johnson was even present. The defendants and Johnson’s 

supervisor testified that Johnson was in another area of the 

segregation unit writing an incident report. The record is 

devoid of evidence that would allow a reasonable jury to 

conclude Johnson had any knowledge of a set-up. Nor did 

Tidwell present evidence that Harbison was aware of any 

risk. Harbison was standing behind Hicks in a narrow hallway and would not have been able to move around Hicks to 

intervene when the situation blew up.

Next Tidwell argues that the court abused its discretion 

by failing to give the missing-witness Pattern Jury Instruction, § 1.19. The jurors should have been told, he urges, that 

they could infer that a missing witness would have testified 

unfavorably with respect to the party who failed to call him. 

Perhaps recognizing the weak nature of his trial showing on 

this point, Tidwell now argues for the first time that Hicks

should have called three former inmates who could have 

confirmed the antagonism between Hoyle and Tidwell.

Tidwell’s failure to make this argument in the district 

court, however, means that it is forfeited (if not waived) 
No. 14-2365 7

here. See Hahn v. Walsh, 762 F.3d 617, 639 (7th Cir. 2014); 

Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). In 

any event, for his proposed instruction to apply, Tidwell had 

to show that the former inmates were “peculiarly in the 

power of the other party to produce.” Oxman v. WLS-TV, 12 

F.3d 652, 661 (7th Cir. 1993). Tidwell presented no such evidence. Tidwell’s recruited counsel tried unsuccessfully to 

locate these former inmates, and the defendants’ counsel reported that she searched the Illinois Department of Corrections database but found no matches for the names Tidwell 

provided. Nothing indicates that these possible witnesses 

were within Hicks’s exclusive control.

Finally, Tidwell contends that the court erred when it refused to recruit new counsel for him after his first set of lawyers was allowed to withdraw. He needed a lawyer, he 

maintains, because his confinement in jail prevented him 

from locating witnesses, and prison policies prohibited him 

from communicating with inmates or searching through its 

records to identify prisoners who might have witnessed the 

events.

As we have recognized when considering similar claims 

by inmates, in many cases “sound resolution depends on evidence to which the plaintiff in his distant lockup has no access; and a plaintiff’s inability to investigate crucial facts by 

virtue of his being a prisoner or of the remoteness of the 

prison from essential evidence is a familiar ground for regarding counsel as indispensable to the effective prosecution 

of the case.” Junior v. Anderson, 724 F.3d 812, 815 (7th Cir. 

2013) (collecting cases); see also Schlemm v. Wall, 784 F.3d 

362, 366 (7th Cir. 2015) (“Because resolving his claims may 

require evidence that a prisoner will find it hard to obtain 
8 No. 14-2365

and present, the district court should seriously consider recruiting counsel to assist Schlemm.”). Pruitt v. Mote, 503 F.3d 

647, 655 (7th Cir. 2007) (en banc), directs the district court to 

conduct an individualized inquiry considering this plaintiff, 

litigating this particular case. The nature of the case and the 

plaintiff’s circumstances and impediments, including the 

consequences of his incarceration, are among the relevant 

considerations.

We need not consider whether the district court misapplied the Pruitt standard, however, because we will reverse 

only upon a showing of prejudice, 503 F.3d at 659, and Tidwell has failed to make such a showing. He offers no reason 

to think that new counsel or an investigator might have 

turned up evidence that would have affected the outcome of 

the case. See Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 

2014); Snipes v. DeTella, 95 F.3d 586, 592–93 (7th Cir. 1996). 

The witnesses whom he hoped to find were former inmates

who, he says, would have been able to corroborate parts of 

his testimony (that he tried to submit a grievance about 

Hoyle; that he complained to another guard—not party to 

this suit—about Hoyle’s misconduct while delivering food

and the defendants’ lack of action; and that Harbison told 

the inmate-workers to clear the segregation unit for his 

transfer so that no one would be able to observe the beating 

administered by Hoyle). But this testimony would at best 

have duplicated Tidwell’s own testimony. Tidwell does not 

assert that any of these potential witnesses saw the actual 

incident. Moreover, as we noted, no one could find the proposed witnesses he identified. This is too thin a reed to support reversal.

We AFFIRM the judgment of the district court.