Petition for certiorari filed at, 09/19/2014
Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:07-cv-00428-WCS.
For DARREL CUMMINGS, Plaintiff - Appellant: Elaine Joan Mittleman, Law Office of Elaine J. Mittleman, FALLS CHURCH, VA.
DARREL CUMMINGS, Plaintiff - Appellant, Pro se, SOUTH BAY, FL.
For MATTHEW T. WHIDDON, Sgt., TAYLOR CI WARDEN, Officer R. L. DURHAM, Officer MATT FOUNTAIN, Defendants - Appellees: Joe Belitzky, Cedell Ian Garland, Jason Vail, Pam Bondi, Mark J. Hiers, Office of the Attorney General, TALLAHASSEE, FL.
Before TJOFLAT, WILSON, and RIPPLE,[*] Circuit Judges.
TJOFLAT, Circuit Judge
This case is about a sleeping juror. Darrel Cummings filed a complaint against four prison officials at the Taylor Correctional Institution, alleging violations of his First, Eighth, and Fourteenth Amendment rights and seeking money damages under 42 U.S.C. § 1983. The case was tried to a jury before a Magistrate Judge. During the afternoon of the first day of trial, one of the jurors fell asleep off-and-on for two hours. The Magistrate Judge questioned the juror in camera, with neither party present, and concluded that the juror could remain on the jury. Neither party objected to this decision, nor did they request that the Magistrate Judge explain his ruling.
The jury returned a verdict for the defense, at which point Cummings filed a motion for a new trial, arguing that the sleeping juror should have been removed from the jury. The Magistrate Judge granted the motion. The defendants moved the court to reconsider the ruling, arguing that Cummings waived any objection to the court's decision allowing the juror to remain on the jury. The Magistrate Judge granted the motion for reconsideration and denied Cummings's motion for a new trial. Cummings appeals the decision. We affirm.
In his fifth amended pro se complaint, Cummings alleged that at 5:00 a.m. on September 19, 2007, he was in the dining hall of the Taylor Correctional Institution with twenty-three other inmates when Sergeant Matthew Whiddon told the inmates to " get [your] Goddamn asses up and move," adding, " You Muslim son of bitches think you['re] special." Doc. 88, at 5 (internal quotation marks omitted). According to the complaint, supervisors in the kitchen had authorized Cummings and the other inmates to use the kitchen for eating and prayer during the Islamic month of Ramadan. Sergeant Whiddon continued to verbally berate Cummings and forced him to face the wall. While Cummings faced the wall, Sergeant Whiddon allegedly slammed his shoulder into Cummings, tightly handcuffed one of Cummings's wrists, and then pulled up. According to Cummings, this action caused permanent injury to his arm and lower back. Cummings filed multiple informal and formal grievances with the jail, which, according to Cummings, led to more assaults and verbal abuse at the hands of Sergeant Whiddon, as well as Officers R.L. Durham and Matt Fountain.
Cummings's complaint raised three claims under 42 U.S.C. § 1983. First, Cummings alleged that the defendants denied his First Amendment right to criticize the state without retaliation. Second, Cummings claimed that he was denied his right to be free from cruel and unusual punishment, in violation of the Eighth Amendment. Finally, he claimed that the defendants were deliberately indifferent to his health and safety, also in violation of the Eighth Amendment. Cummings named as defendants Warden Dufie Harrison, Sergeant Matthew Whiddon, Officer R.L. Durham, and Officer Matt Fountain. Defendant Matt Fountain answered the fifth amended complaint and denied liability.
Trial began on March 28, 2011. Cummings represented himself pro se; Senior Assistant Attorney General Joe Belitzky and Assistant Attorney General Mark J. Hiers represented the defendants. The case was tried to a jury of seven before the Magistrate Judge. During the afternoon of the first day of trial, the Magistrate Judge noticed one of the jurors--Juror Linn--appeared to be sleeping, whereon the following occurred in the absence of the jury:
THE COURT: I would like to take a break at this point. We'll take a 15-minute break.
(A recess was taken at 4:06 p.m.)
Please have a seat.
Counsel, would you come forward with Mr. Cummings? (Conference held at the bench.)
THE COURT: Juror Number 1, Ms. [Linn], has slept for the last two hours.
MR. CUMMINGS: She's been out of it.
THE COURT: I don't think she's going to be sufficiently attentive to finish the trial. The court reporter, my law clerk, the deputy clerk, have been watching, and I have repeated messages about her. She's unable to stay awake.
I'm thinking we should excuse her at this point, because otherwise -- that leaves us with only six, but I think that's the thing to do.
MR. BELITZKY: I rely on Your Honor's observation.
THE COURT: Have you noticed?
MR. CUMMINGS: I tried to wake her one time.
THE COURT: I hit the gavel, and I'm embarrassed to do that anymore. So how should we do this?
MR. BELITZKY: She's the first lady?
THE COURT: I think I should clear the courtroom and ask her to -- tell her I need to excuse her for the record.
MR. BELITZKY: I think the alternate --
THE COURT: There are no alternates. They are ...