# UnitedStates Cou rt of App eals For the Seventh Circui t Chic ago, I lli nois 60604
Submi tte d May 7, 2014 * Deci ded May 7, 2014
Before DIANE P. WOOD, Chief Ju dge
WILLIAM J. BAUER, Circ uit Judge
ILANA DIAM OND ROVNER, Circ uit Judge
No. 13-2954
KIM MILLBRO OK, Plaintiff-Appellant,

v. UNITED STATES OF AMERI CA, Defen dant-Appellee

. Appeal from the United Stat es Di stric t Court for t he Sout hern Di stric t of Indiana, Terre Haute Di vis i on.
No. 2:10-cv-246-WTL -WGH
Wi lli am T. Law rence, Judge

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O R D E R
KimMillbroo k, a federal inm ate, appeals from a judgment ag ai nst hi m after a benchtr i al under the Feder al Tort Clai ms Ac t, 28 U.S .C. §§ 1346(b), 2671–2680, as serting that O ffi cers Stanley Pound and Kenneth S wi ck i njured himby slamm i ng hi s celldoor ’s food slot o nto his arm and hand. He als o challenges the grant of sum mary j udgment N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i t e d o n l y i n a c c o r d a n c e w i t h F e d

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After exami ni ng the par ties ’ brief s and the record, we have concluded that or al * arg ument i s unnecess ary . Thus, the appeal i s submi tte d on the briefsand the recor d. See F E D
. R. A P P
. P. 34(a)( 2)(C).N o
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again st hi m on hi s cl ai m that Li eutenant Derr i ck Mosley acte d negli gently when h e observe d the att ack but di d nothin g to stop it. We affi rm. At summary judgment t he parties recounted di fferent ve rsi ons of an inci dent that o ccu rr ed when Mi llbrook was incarcerated at the hi gh-secu rity peni tentiary in Terre Haute, Indi ana. (He has since been transferred to Lewi sbu rg , Penns ylvania.) Millbroo k pro vided the following account. He told Offi cers Pound an d Swi ck that he was s pi tting up bl ood and r equested medi cal attention. The guards i gnor ed hi m, so to get their attention he stuffed a sheet i nto his cell door’ s food slot. When Pound and 1 Swi ck ret urned, they snatched the sheet, reached thr ough the slot, gr abbed hi s arm and hand, and s hut the slot’s doo r o nto his arm and hand. Meanwh i le, Li eutenant Derr i ck Mosley ar rived on the scene, watch ed the alter cati on, but di d not intervene. The gov ernment mai ntained, however, t hat when Offi cers Pound an d Swi ck di scovered t he sheet, they r emoved it and shut the foo d slot wi thout making any physi cal c ontact wi th Millbroo k. Millbrook ’s medi cal record shows that the next day he was treate d for a cut on hi s left index fi nger and r edness on hi s left forear m and elb ow, and Mi llbrook repo rt ed that t he i njuries w ere caused by hi s arm and han d gett i ng shut in the food slot.
The di stric t court gr anted summ ary judgment for the go ver nment on Millbroo k’s negli gence clai ms. The court concluded that the actions Millbroo k att rib uted to Offi cers Pound and Swi ck amounted to “deliberate conduct” and thus di d not establi sh negli gence. Nor could Millb ro ok e stabli sh negli gence on the par t of Lieu tenant M osley, the court added, merely by asserting he “stood back and allowed Pound and Swi ck to assau lt hi m.” But the courtconclu ded that a fact questi on existed over whether Pound

2 and Swi ck i ntentionally slam med the food slot o nto M i llbrook , so the court deni ed sum mary j udgment on the assault and b atte ry clai ms.

The food slot is an openi ng i n the cell door t hat i s about 3 i nches tall, 7 or 8 1 i nches wi de, 1 1⁄2 in ches thi ck, and made of 14-gauge steel. The opening has i ts own door that o pens downward and canbe locked wi th a key

. A scri vener ’s err or appeared inthe court ’s order . The court wrot e that “[w]i th 2 respect to Mosley, M i llbrook asserts that he stoo d back and all owed Pound and Swi ck to assault hi m. Thes e allegations are suffi ci ent to rais e a genui ne i ssu e of mater i al fact wi th reg ard to whether Mo sley was n egligent.” In a sub sequent order following the final pretr i al conference, the court r eplaced the word “suffi ci ent” wi th “i nsu ffi ci ent.”N o
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Di scovery conti nued and Mi llbrook sought to compel the gov ernment to produce videotaped foot age o f the i nci dent that alleg edly was c aptured o n the secu rity camera outsi de hi s cell . The gov ernment r esponded that it could not pr oduce the tape becau se i t had been recycled. The c ourt deni ed Millbroo k’s request, not i ng that if “there i s a vi deo of t he i nci dent . . . the par ties may make arr angements for t he plainti ff to have a copy of it or at least meaningful ac cess to it.” Millb ro ok maintained that the inc i dent was vi deotaped, ins i sti ng i n another mo tion that certain adm i ni strat i ve r epor ts prov ed that t he tape exists. The court r esponded that “[i ]f nec essary, the Co urt wi ll hold a hearin g r egar di ng the Plai nti ff’s al legation of spoli ation of evi dence ei ther at a hearin g prior to tr i al or dur i ng tr i al.”
Sev eral t i mes b efore t he parties w ent to tr i al, Mil lbroo k asked the dis tr i ct court t o enli st couns el. Millbroo k fi rst asked t he court t o r ecrui t counsel bef or e the go ver nment had fi led a responsi ve pleadin g; he explained that he had li mi ted access to t he law library , no longer was incarcerated in T err e Haute, and hi s bi polar and postt raumatic stress di sorder s rendered himi ncompetent to repr esent hi mself . The court deni ed the request, concluding that his “comprehensi ble fi li ngs, hi s us e of the court ’s processes, h i s fami li arity wi th both t he factual c i rcums tances s urro unding hi s cl ai ms an d wi th the legal is sues associ ated wi th those clai ms,” dem onstrat ed hi s competence to li tigate alone. Then, after the court ruled on summ ary judgment, M i llbrook twi ce wi thi n days requested counsel, advancing the same reasons as in hi s fi rst r equest. The c ourtdeni ed those re quests b ut noted t hat i t would keep open t he possi bi li ty o f enli sti ng counsel at a later stage if

“plainti ff’s incarceration and pro se status would m ake it particularly di ffi cult for hi m to pr oceed wi thout r epresentat i on.” Finall y, the cour t addressed the matter at the fin al pretr i al conference and explained that “[g]i ven the fact that the Plainti ff i s incarcerated in P ennsylvani a, i t is not lo gic ally feasi ble for the Co urt t o appoi nt counsel.”
Also before t rial Mi llbrook moved t o amend hi s compl ai nt to i ncrease the amount of damages tenfold from $50,000 to $500,000. The di stric t court too k the mot i on under advis ement.
At t rial Mi llbrook and Offi cers Pound an d Swi ck testifi ed to t hei r confli cti ng accoun ts of the in ci dent. Offi cer Pound testi fi ed speci fi cally that, as he reached to shut the food slot, he sawMillbroo k’s face in the cell’s w i ndow—a si ghting that was si gni fi cant, he explai ned, becau se Mi llbrook could not have been visi ble i f hi s hand were stil l i n the slot. Pound added that he felt no r esi stance w hen he shut the slot. Dani el Burks, a member of the Special Investi gative Se rv i ce at USP Terr e Haute,N o
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testifi ed for t he gov ernment about t he methods of tapi ng and preserv i ng video foot age at the pr i son; he explai ned that by t he tim e he received Mi llbrook ’s admini strat i ve clai m (a month after t he i nci dent), the videotape in questi on had already been taped o ver
. The di stric t court found in favor of the go ver nment. The c ourt credi ted the offi cers’ testim ony—par ticularly Offi cer Pound’s “detai led recollection” of seeing Millbroo k’s face in the cell window—over Millbroo k’s testimony that t he offi cers slamm ed the slot do or onto hi s arm and han d. Concerni ng Millb ro ok’ s allegation of spoli ation, the court concluded that there was “no evidenc e that A gent Burk s was alert ed to an inc i dent requiri ng the pr eservat i on of video foot age befor e he received Millbroo k’s admini strat i ve r emedy i n Janu ary 2010.” The court also deni ed as moot Millbroo k’s motion to amend hi s compl ai nt. On appeal Millbroo k fi rst ar gues that the dis tr i ct court wro ngly g ranted sum mary j udgment for t he gov ernment on his negli gence clai m agai nst Li eutenant Mosley. M i llbrook contends that hi s ass ert i on that M osley stoo d by whi le Offi cers Pound and Swi ck attacke d hi m rai ses a f act questi on ov er whether Mosley br eached hi s duty to prot ect i nmates from harm.
Even if we ass ume that Millb ro ok’ s negli gence clai m sh ould have survived sum mary j udgment, as the Bureau of Pri sons owes a duty of care t o federal pr i soners to prov i de for t hei r safekeepin g and pro tection, 18 U.S.C. § 4042(a)(2), ( 3); United S tat es v. Muniz, 374 U.S. 150, 164–65 & n.26 (1963); Parrot t v. United States, 536 F.3d 629, 636–37 (7th Ci r. 2008), any er ro r her e was h armless. In i ts entry of judgment for the go ver nment after t he bench trial, the di stric t courtexplain ed that it wei ghed Millb ro ok’ s trial testim ony ag ai nst the offi cers’, and found ( 1) that the o ffi cers di d not slam the food slot’s door onto Millbroo k’s arm and hand, and ( 2) Li eutenant Mo sley di d not see Millbroo k’s arms sti cki ng out o f the food slot. I n li ght o f these findings, Mi llbrook cannot prev ai l on hi s negli gence clai m agai nst Mosley, so t he court’s deci si on di d not affec t hi s substanti al rights. See F E D
. R. C I V
. P. 61; Patt on v. MFS/S UN Li fe Fi n. Dis tribs., Inc., 480 F.3d 478, 484 (7th Cir. 2007).
Millbroo k next asserts that the dis tr i ct court should have compelled the gov ernment to produce the prison’s s ecuri ty v i deotape, whi ch, he s ays, would s how the offi cers attacking hi m and c ontr adi ct the offi cers’ tr i al testim ony. He asserts thathe was able to r ecover a videotape from the gov ernment inan unrelated case, and thu s the foot age in thi s cas e mus t ex i st or mus t have e xis ted at some po i nt yet was n ot pr eserve d by the go ver nment. But at the t i me the court r uled on Mi llbrook ’s fi rst mot i on, the courtN o
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was n ot wr ong t o te ll the go ver nment to ar range fo r M i llbrook to see it (i f the tape exis ted) when Mi llbrook had not cert i fi ed that he had conferre d or at tempted t o confer wi th the g ov ernment in an effort t o obt ai n the tape. See F E D
. R. C I V
. P. 37(a)( 1); Kalis v. Colgate-P almolive Co., 231 F.3d 1049, 1059 (7th Cir. 2000). In any event, at tr i al Dani el Burks testifi ed that by t he tim e he began hi s investigati on of the inc i dent, foot age fro m that dat e had already been taped o ver . And Offi cer Swic k ex plai ned that ther e was n o i nci dent repo rtthat would have aler ted the pr i son to save t he tape becaus e repo rt s are not pr epared for “run-of-the-mi ll” i nci dents li ke blocking the food slot wi th a sheet. To the ext ent thatMillbroo k challenges the court’s conclus i on that t he gov ernment did not recycle the t ape to hide adverse i nformation, he offers no reason (nor do we see any) to di sturb the court’ s finding. See Norman-Nu nne ry v. Madison Area T echni cal Coll., 625 F.3d 422, 428–30 (7th Ci r. 2010).
Millbroo k also arg ues that the di stric t courtabus ed i ts di screti on by decli ni ng to enli st couns el. He maintains that, becau se he was no longer i ncarcerated in T err e Haute, he could not adequately investi gate , locate, or present ke y wi tnesses or evidenc e (su ch as the videotape). Indeed, becau se of hi s transfer to a di fferent prison, Mi llbrook potent i ally faced hu rdles that a t ypic al i ncarcerated liti gant do es not, and the di stric t court should have consi dered t hose ci rcums tances. See S antiago v. Walls, 599 F.3d 749, 762–64 (7th Ci r. 2010); Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) ( en banc ). Sett i ng the di stric t court ’s explanation as i de, Millbroo k cannot show that he was prejudi ced by the rulin g becaus e counsel w ould not have alter ed the outcome o f the li tigati on. Bracey v. Grondin, 712 F.3d 1012, 1017 (7th Cir. 2013); Pruitt, 503 F.3d at 659. M i llbrook knew the id entiti es of all the pris on employees invo lved inthe in ci dent and adequately engaged in di scovery by prepar i ng i nterr ogat or i es and requests f or admi ssi ons. See S antiago, 559 F.3d at 763 & n.11 (incarcerated § 1983 plain tiff prejudic ed by lack of recruited couns el becau se he needed to obtain i denti ties of defendants and wi tnesses, medi cal fi les, inci dent repo rt s, grievances , and cam era foo tage located at different i nsti tution). Moreo ver , the only e videnc e that M i llbrook says he w as un able to obtain—the vi deotape—could nothave been pro cured by couns el becau se the recor d does not support the conclus i on that t he videotape exis ted when he asked for i t. And spoli ation i s not a complex legal is sue s upporting recruitment of couns el. See Bracey, 712 F.3d at 1017. Lastly, Millb ro ok cont ests the di stric t court ’s deni al of hi s moti on to amend hi s complaint to rais e the amount of allege d damages. But leave to amend need not be gr anted i f amending would be fu tile, Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013), and the court’s r uling here in f avo r o f the gov ernment effecti vely foreclosed relief.
AFF IRM ED.