## Facts

- Jerry McCrary-El, a Missouri prisoner in administrative segregation at Farmington Correctional Center, sued three correctional officers under 42 U.S.C. § 1983 for alleged Eighth Amendment excessive force during a forced cell move.
- McCrary-El claimed officers tried to make him accept a cellmate; after he refused, they slammed him onto the concrete floor, punched him, twisted his neck, handcuffed and shackled him, and dragged him to another cell, causing back, shoulder, and neck injuries.
- The officers testified McCrary-El refused orders, stood in the doorway, shoved an officer when the door opened, and they used only the force necessary under established procedures to restrain and move him.
- Two cell movements occurred that day; the second move (where no excessive force was alleged) was videotaped and showed officers wearing protective gear.
- The first move, the one central to the excessive-force claim, was also videotaped but the videotape was not produced at trial.
- At a three-day jury trial in federal district court, the jury returned a verdict for the officers; the court denied McCrary-El’s motion for a new trial.

## Issues

1. Whether the district court abused its discretion by admitting a videotape of the second cell move as relevant to injuries and context, although the alleged excessive force occurred during the first move.
2. Whether the district court abused its discretion by admitting McCrary-El’s prior prison conduct violation reports as relevant to the officers’ state of mind and the amount of force reasonably necessary.
3. Whether the district court erred by refusing a permissive adverse-inference instruction based on nonproduction of the first-move videotape and instead requiring a finding of intentional destruction.
4. Whether excluding an inmate witness’s deposition testimony for lack of personal knowledge under Federal Rule of Evidence 602 was reversible error.

## Decision

- The Eighth Circuit affirmed the judgment for the officers.
- The court held the second-move videotape was relevant and its admission was not an abuse of discretion.
- The court held admission of prior conduct violation reports, despite potential prejudice, was within the trial court’s discretion given their relevance to the officers’ assessment of risk and needed force.
- The court held it was error to deny a permissive missing-evidence instruction based on nonproduction of the first-move videotape without requiring proof of intentional destruction, but the error was harmless in light of the remaining evidence supporting the verdict.
- The court found no reversible error in excluding the inmate deposition testimony under Rule 602.

## Legal Principles

- In Eighth Amendment excessive-force claims, whether force is excessive depends on the circumstances confronting officers; the assessment is context-dependent, including perceived threat and institutional setting.
- Evidence is admissible if relevant to injury, context, or state of mind; trial courts have broad discretion to balance probative value against unfair prejudice under Federal Rule of Evidence 403.
- A permissive adverse inference may be appropriate when a party fails to produce evidence within its control that it admits once existed; an instruction need not be conditioned on a finding of intentional destruction when the factual question is nonproduction.
- Evidentiary rulings and jury-instruction decisions are reviewed for abuse of discretion, and reversal requires prejudicial error affecting the verdict.

## Conclusion

The Eighth Circuit left intact a defense verdict in a prisoner excessive-force case, approving the trial court’s discretionary evidentiary rulings and holding that the failure to give a permissive missing-videotape inference instruction was error but harmless.


McCrary-El v. Shaw, 992 F.2d 809 (8th Cir. 1993)