### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 11

‐ 2091

G LENN V ERSER

, Plaintiff

‐ Appellant

,

v.

J EFFERY B ARFIELD

, et al.

Defendants

‐ Appellees

.

____________________

Appeal from the United States District

Court for the Central District of Illinois.

No. 07

‐ 3293

— Harold A. Baker

, Judge

.

____________________

A RGUED S EPTEMBER 10, 2013

— D ECIDED D ECEMBER 19, 2013

____________________

Before W OOD

, Chief Judge

, and E ASTERBROOK and

H AMILTON

, Circuit Judges

.

W OOD

, Chief Judge

. Inmate Glenn Verser brought this suit

pro se under 42 U.S.C. § 1983 against four prison officials

who allegedly held him down and punched him in the

stomach during a cell change. After the jury returned a ver

‐

dict in favor of the defendants, one might have thought that

there was little left to say. But with the court’s permission the

foreperson made a statement on the record after the verdict2 No. 11

‐ 2091

indicating that a majority of the jury felt that the defendants

“all had a part to play in what happened to” Verser, but

based on the evidence “could not find the defendants

guilty.” Verser did not hear this statement, nor did he learn

of the verdict for some time, because at the close of the evi

‐

dence the district court had excluded him not just from the

courtroom but also from all contact with the proceedings, in

order to return him to the Illinois Department of Correc

‐

tions.

Represented by recruited counsel, whom we thank,

Verser now argues that his total exclusion from the

proceedings prevented him from exercising his right to poll

the jury pursuant to Federal Rule of Civil Procedure 48(c),

and that such a poll might have made a difference. He asks

us to reverse the district court’s denial of his motion for a

new trial. Despite the deferential standard of review that

applies to such rulings, we conclude that Verser is entitled to

another trial, and so we reverse the district court and

remand his case for further proceedings.

I

The dispute underlying this case is simple. Verser, an

inmate then housed at Western Illinois Correctional Center,

began a hunger strike in September 2007, in response to

what he perceived as unwarranted prison discipline levied

against him. The prison’s hunger strike protocols involve

moving a hunger striker to a separate cell after he misses

three meals; the defendants here are the security officers

who moved Verser at around 3:00 a.m. on September 2, 2007.

Verser alleges that after defendants Chris Davis and Ryan

Robinson deposited him in an isolated cell, they held him

down while defendants Jeffery Barfield and Douglas Good

‐No. 11

‐ 2091 3

ing punched him in the stomach. This outburst, according to

Verser, was in retaliation for his hunger strike and his previ

‐

ous filing of an allegedly libelous grievance against another

officer. The defendants deny that any such assault occurred.

Verser brought suit pro se under 42 U.S.C. § 1983, alleging

that the defendants violated his Eighth Amendment right

(applicable to the states through the Fourteenth Amend

‐

ment) to be free from the excessive use of force. At the three

‐ day trial the jury heard testimony from Verser, the four de

‐

fendants, the mental health professional at Western Illinois

Correctional Center, and Verser’s cellmate at the time of the

move; the latter two witnesses testified via video

‐ conference.

After the parties finished presenting their evidence and the

district court instructed the jury, the court decided to send

Verser back to the prison rather than keep him in the court

‐

house to await the verdict:

THE COURT: We will be in recess and wait for the re

‐

turn of the verdict. I’m going to return Mr. Verser to

the Department of Corrections. Here is your writ. You

guys are out of here. All right. We will be in recess

and wait for the jury’s verdict. We will let you know

what it is, Mr. Verser.

VERSER: All right. Thank you, Your Honor.

After deliberating for about two hours, the jury sent a

note to the court asking whether there was any video of

Verser’s cell change. The court, consulting only with defense

counsel, answered that there was not. A little more than an

hour later, the jurors sent a note indicating that they could

not come to an agreement; the court instructed them that4 No. 11

‐ 2091

they could choose to come back the next day, or to deliberate

further that afternoon.

Less than an hour later, the jury indicated that it had

reached a verdict, but it sent a note to the court asking, “Can

a juror ask a question to the judge after the verdict is read?”

The court responded, “First, I have to have a verdict.” The

jury then announced its verdict in favor of the defendants;

no effort was made to notify Verser at that time.

The district court then asked what the jury’s question

was, and one of the jurors responded:

JUROR: We would like to make a statement, if we

could. This was very hard for us. Many of us—the

majority feel that the defendants all had a part to play

in what happened to Mr. Verser, but, because there

was a lack of evidence, we could not find the defend

‐

ants guilty.

THE COURT: Responsible? Liable?

JUROR: Yes. Thank you.

The court then discharged the jury.

After he received notification of the verdict by mail,

Verser moved for a new trial. He argued, among other

things, that his total exclusion from the proceedings at the

time the verdict was read prevented him from exercising his

right to poll the jury. See F ED

. R. C IV

. P. 48(c). The district

court denied the motion. Regarding Verser’s involuntary ex

‐

clusion from the courtroom, the court wrote that “[Verser]

was returned to [prison] when the jury retired to deliberate

for valid courthouse security reasons,” and that it “was not

going to keep Verser in the courthouse and chance his calmNo. 11

‐ 2091 5

acceptance of an adverse ruling which is the predominant

result in this type of case.” Finding that Verser was appro

‐ priately excluded from the courtroom, the district court went

on to explain that “the verdict was clear and supported by

the evidence,” and so there was no reason to conduct a poll.

The court commented that it would not have overturned the

verdict had it gone in Verser’s favor, but it found that the

polling claim did not support the request for a new trial.

Still acting pro se, Verser appealed on numerous grounds.

In August 2012, this court recruited counsel for him and or

‐

dered further briefing on whether he was deprived of his

right to have the jury polled, whether the court was required

to adopt alternative procedures to allow an involuntarily ex

‐

cluded pro se litigant to poll the jury, and whether Verser

had forfeited his right to poll by raising no objection at the

time he was excluded from the proceedings. We turn to

those questions now.

II

The purpose of a jury poll is “to ascertain for a certainty

that each of the jurors approves of the verdict as returned;

that no one has been coerced or induced to sign a verdict to

which he does not fully assent.” Humphries v. District of Co

‐

lumbia

, 174 U.S. 190, 194 (1899). We have recognized that a

jury poll is meant to ensure jurors’ accountability for the

verdict, “creating individual responsibility” and ferreting

out any dissent that, for whatever reason, was not reflected

in the verdict as announced. United States v. Shepherd

, 576

F.2d 719, 725 (7th Cir. 1978); see also United States v. Sturman

,

49 F.3d 1275, 1282 (7th Cir. 1995).6 No. 11

‐ 2091

A civil litigant’s right to poll the jury is established by

Federal Rule of Civil Procedure 48(c), which provides, “After

a verdict is returned but before the jury is discharged, the

court must on a party’s request, or may on its own, poll the

jurors individually.” F ED

. R. C IV

. P. 48(c). Rule 48(c) was

added to the Federal Rules in 2009 (well before Verser’s trial,

which took place in April 2011), and was modeled on Feder

‐

al Rule of Criminal Procedure 31(d), which gives the same

polling right to the parties to a criminal prosecution. See

F ED

. R. C IV

. P. 48 Committee Note. There is little caselaw in

‐ terpreting Civil Rule 48(c), but both parties suggest, and we

agree, that decisions applying Criminal Rule 31(d) are fully

applicable to its civil analogue. The civil rule was self

‐ consciously written to extend the right guaranteed by the

criminal rule into the civil realm, and there is little reason to

distinguish between the two contexts. We have held that the

right to poll protected by Criminal Rule 31(d) is a substantial

right, but not a right flowing from any of the constitutional

rules of criminal procedure. See Sturman

, 49 F.3d at 1282.

There is no doubt that a district court’s refusal, or even

neglect, to conduct a jury poll upon a timely request is

ground for a new trial. Indeed, failure to conduct a properly

requested poll is a serious error ordinarily requiring rever

‐

sal, see United States v. F.J. Vollmer & Co.

, 1 F.3d 1511, 1522

(7th Cir. 1993); we have confirmed that litigants “enjoy an

absolute right to poll the jury

... unless it has been expressly

waived,” id. at 1523 (internal quotation marks and emphasis

omitted). Accordingly, we have remanded cases for a new

trial not only when the district court refuses to conduct a

poll upon request, see, e.g.

, id. at 1522

‐ 23, but also when the

court cuts off the possibility of a timely polling request by

proceeding too quickly after the announcement of the ver

‐No. 11

‐ 2091 7

dict to matters that would prejudice jurors in a later poll, see

United States v. Randle

, 966 F.2d 1209, 1214 (7th Cir. 1992).

The defendants do not contest that civil litigants have a

right to poll the jury upon a timely request, nor do they belit

‐

tle the importance of the right. They argue instead that this

case differs from those in which we have ordered a new trial.

The latter cases generally involve some variation on the

theme of a failure to poll despite a litigant’s timely request.

Here, Verser was excluded from the proceedings and so

could not ask for a poll; his case therefore presents the dis

‐

tinct question whether Rule 48(c) requires that the court en

‐

sure that a party is somehow able to make a polling request

after the verdict is read.

III

Defendants make much of the fact that it was proper for

Verser to be excluded from the courtroom at the time the

verdict was read. We have no quarrel with that point, as far

as it goes, but there is a difference between removing some

‐

one from a courtroom and leaving him entirely unable to

participate in his case. Trial courts generally have discretion

to determine whether an inmate

‐ plaintiff must be excluded

from the courtroom for security reasons or other good cause.

Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976). The court

must balance “the interest of the plaintiff in presenting his

testimony in person against the interest of the state in main

‐ taining the confinement of the plaintiff

‐ prisoner.” Id. When a

plaintiff is acting pro se, however, the court must take into

account the fact that excluding him from the courtroom nec

‐ essarily also excludes his “lawyer.” The “orderly conduct of

a trial by jury, essential to the proper protection of the right

to be heard, entitles the parties who attend for the purpose8 No. 11

‐ 2091

to be present in person or by counsel at all proceedings from

the time the jury is impaneled until it is discharged after

rendering the verdict.” Fillippon v. Albion Vein Slate Co., 250

U.S. 76, 81 (1919); see also Kulas v. Flores, 255 F.3d 780, 786

‐

87 (9th Cir. 2001) (explaining that Fillippon does not prohibit

exclusion from the courtroom of a disorderly pro se plaintiff,

at least as a temporary measure, if his disorderly behavior

threatens the defendant’s right to a fair trial).

Nevertheless, while there is no constitutional right for an

inmate to be present at a civil suit he has initiated, his status

as an inmate does not automatically mean that he can be ex

‐

cluded summarily. Stone

, 546 F.2d at 735. Instead, in deter

‐ mining whether an inmate pursuing civil litigation should

be excluded from the courtroom, the court must balance “the

interest of the plaintiff in presenting his testimony in person

against the interest of the state in maintaining confinement

of the plaintiff

‐ prisoner.” Id.

The record in this case is thin when it comes to reasons

why Verser had to be excluded from the courtroom for the

verdict. The district court explained that it “was not going to

keep Verser in the court house and chance his calm ac

‐

ceptance of an adverse ruling which is the predominant re

‐

sult in this type of case.” But Verser had not misbehaved at

trial, and the record is filled with instances in which he ac

‐ cepted adverse evidentiary rulings without incident. Verser,

however, does not now argue that his exclusion in itself was

reversible error, and so we assume for the purposes of this

appeal that Verser was properly excluded from the court

‐

room after the jury retired to deliberate.

But Verser suffered more than simple exclusion from the

courtroom. He was left incommunicado, unable to contrib

‐No. 11

‐ 2091 9

ute to questions that arose while the jury was deliberating

and unable to respond to the verdict with a request for a

poll. The crux of the issue is whether this state of affairs vio

‐

lated his rights, and if so, whether a new trial is required.

The defendants argue that because Verser’s exclusion was

appropriate, he was not deprived of his right to poll the jury.

As they see it, nothing prevented Verser from raising his re

‐

quest to poll the jury before he was removed from the court

‐

room, and so the district court committed no error by failing

to conduct a poll sua sponte after the juror made the trouble

‐

some remarks. The first question we must address therefore

deals with when a litigant may, or must, request a poll.

The plain text of Rule 48(c) indicates that any request for

a poll made before the verdict is read would be premature.

Recall that the rule says “ [a]fter a verdict is returned but be

‐

fore the jury is discharged, the court must on a party’s re

‐

quest

... poll the jurors individually.” F ED

. R. C IV

. P. 48(c)

(emphasis added). It is a stretch, at best, to interpret the

word “after” to mean “before or after.” The time

‐ limiting

language in the first clause most naturally constrains every

‐ thing that follows—both the poll and the request. It would

be nonsensical to read this language to address only when

the court is permitted to conduct a poll, since as a matter of

simple logic a poll of the jurors is impossible until they have

delivered their verdict.

The question when the rule either permits or compels a

litigant to request a poll is slightly different from the ques

‐

tion when the poll would take place. Specifically, the issue is

whether a litigant may make such a request before the jury

retires to deliberate. In our view, both the language of the

rule and functional considerations point in the same direc

‐10 No. 11

‐ 2091

tion: the request must come after the verdict is read. The rule

does not contemplate an automatic poll after every verdict.

Instead, it makes a poll mandatory if a party requests one,

and optional if the court thinks one is desirable. We have

explained that “the right to poll a jury cannot be exercised

intelligently until after the verdict has been announced, and a

request prior thereto would be premature.” United States v.

Marr

, 428 F.2d 614, 615 (7th Cir. 1970) (emphasis added). In

‐

deed, in Marr

, this court found that a request to poll made

before the verdict was “abandoned” by a litigant’s failure to

reassert it after the verdict, and we therefore refused to upset

the conviction on the ground that the district court failed to

poll the jury. Id. Marr shows both that a litigant might rea

‐ sonably choose to forgo a jury poll, and also that the decision

whether to poll is meaningful only after the verdict has been

returned. It is quite unlikely that a litigant would want a poll

if the jury rules in her favor. If the verdict is unfavorable, the

litigant might be more inclined to ask for a poll if there are

indications that a verdict may not have been unanimous or

was otherwise tainted.

We have never interpreted either the civil or the criminal

rule in a way that would make a polling request raised in

anticipation of the verdict sufficient to protect a litigant’s

right. In United States v. Randle

, we remanded for a new trial

because the two

‐ second interval between when the verdict

was announced and when the district judge began to read a

bond describing the defendant’s previous arrests was “clear

‐ ly inadequate” to move for a poll. 966 F.2d 1209, 1213

‐ 14

(7th Cir. 1992). If the possibility of a pre

‐ verdict request were

adequate to safeguard a party’s right to poll the jury, the

amount of time available to raise a request after the verdict

was read would have been immaterial. And in United StatesNo. 11

‐ 2091 11

ex rel. SEC v. Billingsley

, 766 F.2d 1015 (7th Cir. 1985), we ap

‐ proved of a procedure by which the district court obtained

an advance waiver of the right to poll the jury from a party

who would be voluntarily absent from the reading of the

verdict. Id. at 1019 n.5. Obtaining such a waiver would have

been unnecessary if counsel could simply have lodged a

preemptive motion to poll before the defendant departed.

We have no need to decide in this case whether a district

court would err if it accepted a preemptive motion for a poll,

even though it is under no obligation to do so. But that is a

different matter from the question whether the rule permits

the court to make it impossible for the litigant to seek a poll

at the appropriate time. Because the proper time to raise a

polling request is after the verdict is read but before the jury

is discharged, a party’s right to poll under Rule 48(c) is not

adequately protected by the questionable possibility that he

could have requested a poll preemptively.

The defendants suggest in the alternative that Verser

waived or forfeited his right to poll the jury by raising no

objection when he was removed from the courtroom when

the jury retired to deliberate. But, as we have noted already,

whether Verser was appropriately excluded is not the right

question to ask. Even if his physical removal from the court

‐

room was done for valid reasons, the court cannot imple

‐

ment that removal in a way that leaves a party unable to par

‐ ticipate in the remaining proceedings in the case.

The court had a number of options available, any of

which would have preserved Verser’s right to ask for a poll.

It could have essentially done nothing, by allowing Verser to

remain in the courtroom (perhaps under enhanced security,

if the risk of an outburst warranted such a measure); it could12 No. 11

‐ 2091

have removed Verser from the courtroom and sent him to a

nearby holding cell, available to be called back quickly if

something came up; it could have returned Verser to the

prison but ensured that he remained in touch with the court

(perhaps using a guard’s cellphone) and could reach a video

room at the prison if his presence were required. These

measures, or others suitable to local conditions, were not

important only for purposes of a jury poll. If, as happened in

Verser’s case, the jury asks a question, each party has the

right to provide the judge with its views on that as well. See,

e.g., United States v. Neff, 10 F.3d 1321, 1324 (7th Cir. 1993);

see also F ED

. R. C RIM

. P. 43(a). When Verser’s jury asked

whether a video of the crucial event existed, the judge fol

‐

lowed defense counsel’s suggestion and responded that

there was not. This may not even have been accurate: we

know that there was no video in the record, but it is possible

that a video existed that the prison was unwilling to give to

an unrepresented inmate.

Although Verser has stressed the fact that his total exclu

‐

sion from the proceedings prevented him from seeking a

poll under Rule 48(c), that is just one adverse consequence

that can arise when a litigant is prevented from communi

‐ cating with the court while his case is before the jury. We

conclude that the court erred by placing Verser in this situa

‐

tion.

IV

We must now determine whether the district court

abused its discretion by denying Verser’s motion for a new

trial. Verser argues that we should apply the standard used

where a district court fails to conduct a poll on a timely re

‐

quest; in such cases, he argues, courts find that the denial ofNo. 11

‐ 2091 13

the right to poll the jury requires automatic reversal. The de

‐

fendants retort that unlike an express or implied refusal to

poll on request, a litigant’s inability to raise a timely motion

for a poll should be subject to harmless

‐ error review. We

consider first whether Verser can show prejudice; if he can,

there is no need for us to reach the broader, structural issue.

Knowing that the question of prejudice was likely to

arise, we asked the parties at oral argument to file supple

‐

mental memoranda discussing any empirical analyses of ju

‐

ry polls that they could find. Our hope was that this kind of

scholarly research might shed light on the situations in

which polls are requested and the frequency with which

polls reveal hidden splits among jurors. The defendants re

‐ sponded with a brief statement indicating that they had

found no research addressing the court’s question. Verser,

through counsel, reported that he had found just one study

that “loosely touched” upon the court’s request: a May 21,

2009, report of the Oregon Public Defense Services Commis

‐

sion, entitled “On the Frequency of Non

‐ Unanimous Felony

Verdicts In Oregon,” available at http://www.oregon.gov/

OPDS/docs/Reports/PDSCReportNonUnanJuries.pdf. This

study found that “[o]f the 662 sample cases [representing in

‐ digent appeals from a pool of 1,421 trials in 2007 and 2008],

jury polling occurred in 63%. In the remaining 37%, either

polling was not requested by defense counsel, or was con

‐

ducted in secret, with the results not part of the public rec

‐

ord.

... Where the record reflected the jury vote, 65.5% of all

cases included a non

‐ unanimous verdict on at least one

count.” Because the purpose of this study was to investigate

Oregon’s non

‐ unanimous jury system, however, these re

‐

sults are neither surprising nor of much use to the question14 No. 11

‐ 2091

before us. We therefore proceed on the basis of the facts be

‐

fore us in Verser’s case.

The defendants suggest that the error here was harmless

because there was no affirmative indication that any indi

‐

vidual juror actually disagreed with the verdict. They char

‐

acterize the juror’s post

‐ verdict statement that “the majority

feel that the defendants all had a part to play in what hap

‐ pened to Mr. Verser” as merely expressing the jurors’ emo

‐

tional dissatisfaction with the outcome and confirming that

they applied the appropriate evidentiary standard. This ar

‐

gument suffers from two problems. First, the statement was

made by a single juror. A jury poll, in contrast, is justified by

the notion that each juror must speak for herself, to ensure

that the spokesperson’s report of the verdict accurately re

‐

flects unanimity. Second, even if the defendants’ theory is

plausible, it is not the only interpretation that could be given

to the events that accompanied the reading of the verdict.

The point is not that a jury poll definitely or even likely

would have revealed that the verdict was not unanimous. It

is that Verser would have realized, had he had some way of

knowing about the circumstances attending the announce

‐

ment of the verdict, that a poll might be fruitful. A reasona

‐

ble party, taking into account this jury’s initial indication

that it was deadlocked, the speed with which it then re

‐

turned a verdict, the statement (not emphasized by defend

‐

ants) that a majority of jurors felt that the defendants had

“something to do with what happened to Mr. Verser,” and

the juror’s mistaken use of the term “guilt” (usually associ

‐

ated with the reasonable

‐ doubt standard) rather than the

civil term “liability,” would likely have requested a poll of

the jury. Verser was unable to observe or otherwise to learnNo. 11

‐ 2091 15

about these events. On these particular facts, we cannot say

that the district court’s error was harmless.

The defendants’ proposed standard for finding prejudi

‐

cial error—that there was a signal of “particular disagree

‐

ment” with the verdict by a juror—asks too much. The pur

‐

pose of a jury poll under Rule 48(c) is to discover unex

‐ pressed dissent, not to reconfirm dissent that is already ap

‐

parent. The circumstances here indicated an elevated possi

‐ bility that at least one juror might not agree with the verdict

as read. This is exactly why Rule 48(c) exists.

V

As we noted earlier, there are a number of options avail

‐

able to a district court that believes a pro se litigant must be

excluded from the courtroom. Although the inability to

make a timely request for a poll is one serious consequence

of being cut off from the proceeding, it is not the only one.

Jurors sometimes ask questions; courts sometimes need to

craft supplemental instructions. The litigant’s exclusion

leaves him unable to provide the judge with his views about

these critical matters. Because Verser could not exercise his

right under Rule 48(c) to poll the jury and no alternative

measure to safeguard the right was put in place, we R EVERSE

the district court and R EMAND for a new trial.