Hubbard v. White, S.F. P

Citation755 F.2d 692
Decision Date28 February 1985
Docket NumberS.F. P,No. 83-2704,83-2704
PartiesLloyd HUBBARD, Appellant, v. Carl WHITE, Jim Jones, William Arney, Dale Still,erkins, Mr. Humphrey, and J.V. Rockenfield, Appellees. Clifton FRANKLIN, Harry Little, Paul Williams, and Terry Walls, Appellants, v. Jim JONES, Clarence Williams, William Arney, Larry Nelson, and Dale Still, Appellees. Matthew JACKSON, Booker T. Willingthan, Regional Brown, Jabu Kabaila, Eugene Lewis and Ron Seiter, Appellants, v. Jim JONES, C.L. Williams, W.M. Arney, Dale Still, A.L. Nelson, D.F. Kroeckel, Denver Halley, M.M. Guerin, Mr. Humphrey, Jerry Hudson, Frank Brown,erkins, W.R. O'Brien, Tom Anderson, and J.V. Rockenfield, Appellees. Horace BONNER and Levi West, Appellants, v. Jim JONES, C.L. Williams, W.M. Arney, Dale Still, A.L. Nelson, D.F. Kroeckel, Denver Halley, M.M. Guerin, Mr. Humphrey, Jerry Hudson, Frank Brown,erkins, W.R. O'Brien, Tom Anderson, and J.V. Rockenfield, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Donald W. Paule, Clayton, Mo., for appellant.

Kelly Mescher, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before BRIGHT, McMILLIAN and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

This is an appeal from a judgment for defendants rendered after a jury verdict. Plaintiffs are or were inmates of the Missouri Training Center for Men at Moberly, Missouri (MTCM). Defendants are correctional officers, caseworkers, administrative officials and other employees at MTCM. Plaintiffs sued under 42 U.S.C. Sec. 1983 for injuries allegedly inflicted by defendants during a search of plaintiffs' cells on the night and morning of July 3-4, 1983. With the consent of the parties pursuant to 28 U.S.C. Sec. 636(c), a United States Magistrate presided at the trial. 1 Plaintiffs allege error on three grounds: 1) failure to grant a request for change of venue; 2) refusal to permit the use of a specific instance of conduct which occurred after the events at issue to impeach a witness's credibility on cross-examination; and 3) denial of plaintiffs' motion for judgment notwithstanding the verdict. Since we find none of the trial court's actions to constitute prejudicial error, we affirm.

I. Facts

On the evening of July 3, 1983, a disturbance broke out in Wing B of Housing Unit Number 2 of MTCM. This disturbance, which took place in the common area of the wing, involved a group of inmates intoxicated on homemade alcohol. Officer Jackson, who was on duty at the time, attempted to remove one of the more disorderly inmates from the group. After encountering resistance, he summoned assistance, and several officers came to his aid. A melee ensued in which Officer Jackson was killed and several other officers were injured. The officers managed to make their way out of the common area to the control room (rotunda) and to shut the rotunda door, locking the inmates in the common area. At this point, the inmates began beating on the glass separating the rotunda from the common area. In the meantime, the emergency squad was summoned to assist in quelling the riot. Under orders from supervisory personnel, the squad broke out shotguns and fired warning shots into the ceiling and floor of the wing, while ordering the inmates to return to their cells. Finally, all the inmates returned to their cells. The inmates involved in the riot were removed and placed in administrative segregation. The rest of the inmates were locked in their cells and their cell keys were taken away by the correctional officers. 2 Several inmates had received richochet injuries from pellets of shot and were taken for medical attention that evening. No material dispute is raised with respect to the foregoing facts.

After the disturbance was quelled, a systematic search for weapons and contraband (a shakedown) was conducted of the entire institution. At the time of the shakedown, the inmates involved in the riot already had been removed from the wing. At trial, it was undisputed that the inmates were cooperative and offered no significant resistance during the shakedown.

Plaintiffs alleged that during the shakedown, and without provocation, defendants kicked and beat them and committed other acts of physical violence and verbal abuse against them. Defendants denied these charges and testified that the shakedown was conducted in an uneventful manner. Photographs of injuries allegedly received by inmates during the shakedown were received into evidence. No expert testimony was offered as to the source of these injuries. One officer, after viewing the photographs, testified that the injuries may have been self-inflicted.

The jury found in favor of defendants. Judgment was entered accordingly.

II. Discussion

Prior to trial, plaintiffs filed a motion requesting that the jury in the case be drawn from the Southern and Eastern Divisions of the Eastern District of Missouri, rather than from the Northern Division, where the events in question occurred and where the trial took place. In support of this motion, plaintiffs argued that sympathy generated for defendants by pre-trial publicity regarding the riot made it impossible to find impartial jurors in the Northern Division. The trial court denied this motion. Plaintiffs contend that this constitutes reversible error.

Although plaintiffs requested only that the jury be drawn from outside the Moberly area, and did not request a change in the location of the proceedings, the trial court was correct in treating the motion as one for change of venue under 28 U.S.C. Sec. 1404(a). The grant or denial of a change of venue is in the discretion of the trial court and may not be set aside absent a clear showing of abuse of discretion. Layne-Minnesota p.r., Inc. v. Singer Co. 574 F.2d 429, 434 (8th Cir.1978). Our search of the record does not reveal that plaintiffs' motion was accompanied by materials that demonstrated the alleged prejudicial publicity. At voir dire and jury selection, plaintiffs apparently lodged no objection that the jurors selected were biased against them or otherwise unable to render an impartial decision. Based on the record before us, the trial court's denial of the...

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