In the

United States Court of Appeals
                For the Seventh Circuit

No. 08-3083

O SCAR E. C RUZ,
                                                  Plaintiff-Appellant,
                                  v.

JOHN S AFFORD , et al.,
                                              Defendants-Appellees.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
               No. 05 C 366—Larry J. McKinney, Judge.



      A RGUED A PRIL 16, 2009—D ECIDED A UGUST 28, 2009




 Before E ASTERBROOK, Chief Judge, and B AUER and
M ANION, Circuit Judges.
  B AUER, Circuit Judge. Oscar Cruz, an inmate at the
Pendleton Correctional Facility, filed a pro se civil
rights action against prison guard John Safford under
42 U.S.C. § 1983, claiming that Safford reached into
Cruz’s cell and choked him, in violation of his Eighth
Amendment right to be free from excessive force. The
case was tried to a jury and Cruz lost. On appeal, Cruz
2                                               No. 08-3083

argues that the district court committed several reversible
errors by: (1) erroneously instructing the jury; (2) denying
a motion to amend his complaint; and (3) limiting
the cross-examination of one of Safford’s witnesses. For
the following reasons, we affirm.


                   I. BACKGROUND
  In answer to Cruz’s § 1983 excessive force complaint,
Safford denied even touching Cruz; according to Safford,
he brought Cruz his correspondence and only passed it
through the cell bars, which his employment duties
required him to do. Finding that there were triable
issues of material fact, the district court denied Safford’s
summary judgment motion.
  Cruz filed his proposed jury instructions before trial,
which, in addition to an excessive force instruction,
included instructions for assault and battery, and re-
quested that these state law claims proceed as part of the
case. Safford objected. At the final pretrial conference,
Safford claimed that the issues in the complaint had
already been briefed—namely, the § 1983 action. Although
the district court noted that “assault and battery is not
a stranger to excessive force actions,” it denied Cruz’s
assault and battery instructions. The court found that
because the assault and battery claims “have not previ-
ously been identified through the pleadings or through
any pretrial order,” the way to avoid prejudice “at this
late date” was to treat Cruz’s case as only an excessive
force claim. Cruz renewed his request for the instruc-
tions at the jury instructions conference, but the district
court again denied it.
No. 08-3083                                                  3

  The district court intended to use its own § 1983 in-
struction, based on the Eighth Amendment claim. The
instruction stated that prisoners have the right to be
free from excessive force by prison staff and, for § 1983
purposes, that the jury had to find that Cruz had a con-
stitutionally protected right. Cruz challenged the instruc-
tion on the ground that the right to be free from exces-
sive force was a guaranteed right, not a right that had to
be determined by the jury or proved by Cruz. The
district judge rejected this objection; he stated, “I think the
instructions that I’ve got are adequate. I’ve used them
before, and I think juries can sort through them. If you
just take the one, it does look a little complicated; but
there are others that flesh it out a little better.”
  At trial, Cruz called prisoners from cells adjacent to
his, to testify on his behalf. The prisoners testified that,
upon hearing the interaction between Cruz and Safford,
they were informed by Cruz that Safford attacked Cruz;
one prisoner also claimed to have seen Safford reach
into Cruz’s cell. However, they testified that they could
not see if there had been any contact. These witnesses
later described the incident as Safford reaching into the
cell and attempting to grab Cruz.
  Safford testified that he never put his hands into the
cell, but that Cruz began to shout that Safford had, in
an attempt to grab Cruz. Safford, and other correctional
officers, including Safford’s supervisor Rick Shannon,
stated that all employees were trained to not put their
arms into a prisoner’s cell to avoid injury. Shannon also
summarized the incident, along with a conversation
4                                              No. 08-3083

with Cruz, in a report. The report stated that “Cruz’s
story had escalated to that Safford had tried to hit Cruz
while Cruz was in his cell. . . . Cruz’s story would
later escalate to Safford actually hit Cruz.”
  In an attempt to discredit Shannon’s testimony, Cruz
intended to cross-examine Shannon using his previous
deposition testimony. Outside the presence of the jury,
Cruz informed the district court that Shannon had
testified that he had only been arrested twice, but
Madison County Sheriff’s Department records indicated
that he had, in fact, been arrested about six other times.
The district court, in light of the fact that one of the
arrests was for child molestation, limited Cruz’s cross-
examination, because “the prejudicial nature of that
given the fact that he’s found not guilty is overwhelming.”
The court also prohibited Cruz from inquiring into
the number of times Shannon was arrested since the
arrests did not deal with Shannon’s credibility, and nor
did his sole conviction which was for battery.
  At the close of evidence, Cruz orally moved to amend
his pleadings to conform to the evidence presented and
add assault and battery claims, with accompanying
jury instructions. The motion was denied.
  The jury found in favor of Safford and Cruz timely
appealed.


                    II. DISCUSSION
  Cruz argues that the district court abused its discretion
in three ways: (1) when it instructed the jury to find
No. 08-3083                                             5

whether Cruz had presented enough evidence to estab-
lish that he had a constitutionally protected right to be
free from excessive force; (2) when it refused to
include assault and battery claims as part of the case;
and (3) when it prohibited Cruz from questioning
Shannon about his number of previous arrests.


 A. Jury Instruction
  We begin by reviewing the propriety of the district
court’s instruction that the jury had to find that the
Eighth Amendment protected Cruz from excessive force.
“We consider a district court’s jury instructions with
deference, analyzing them as a whole to determine if
they accurately state the law and do not confuse the
jury.” Aliotta v. National Railroad Passenger Corp., 

, 764 (7th Cir. 2003) (citation omitted). This
inquiry requires us to first determine whether an instruc-
tion misstates or insufficiently states the law and, if
legally improper, then to determine whether the instruc-
tion could produce prejudice by a confusing or mis-
leading jury instruction. 

in question stated that:
   Mr. Cruz asserts that Mr. Safford violated his federal
   constitutional rights by subjecting him to constitu-
   tionally excessive force. The Eighth Amendment to the
   United States Constitution protects prisoners from
   the use of excessive force by prison staff. This claim
   is brought pursuant to Title 42, Section 1983 of the
   United States Code, which permits an individual to
6                                              No. 08-3083

    seek redress in this Court, by way of money damages,
    against any person who, under color of state law,
    deprives that individual of any of his or her constitu-
    tional rights. . . .
    In order to find a defendant liable under Section 1983,
    you must find that (1) plaintiff had a constitutionally
    protected right, (2) he was deprived of that right
    in violation of the Constitution, (3) the defendant
    intentionally caused that deprivation and (4) the
    defendant acted under color of state law. The plain-
    tiff has the burden of proving each of these elements.
According to Cruz, this instruction—informing the jury
that there is a right and later that it must find whether
a right existed—confused the jury and was erroneous.
  We disagree; the instruction, as given, is not error. It
correctly states the facts that must be proved to establish
a § 1983 case. The difficulty lies in the fact that two of
the necessary facts were already established in this
case. One fact was established as a matter of law, as the
instruction carefully points out. The last fact that had to
be proved was also established—as the instruction also
points out—by an agreement by the defendants that
they were acting under color of state law. So that,
properly speaking, the jury had only to find two of the
four necessary predicates for the plaintiff to prevail. And
while the reiteration of the four necessary facts may
seem somewhat confusing, they are not misleading.
  Properly, for greater clarity, the instruction should
have recited that two of the necessary facts are demon-
No. 08-3083                                                  7

strated: (1) as a matter of law, and (4) by stipulation,
and only two facts remained for the jury’s consideration.
But the fact that the instruction could be clearer does not
make it erroneous. Considered in its entirety, and with
other instructions, it properly states the law. No rea-
sonable juror would be long in determining that only
two of the four issues were in dispute.


  B. Amending the Complaint
  Cruz argues that the district court erred when it denied
Cruz the opportunity to amend his complaint and add
pendant state law claims for assault and battery under
Federal Rule of Civil Procedure 15. He argues that the
court abused its discretion when it refused to add the
claims to the pro se complaint. See Helm v. Resolution
Trust Corp., 

, 879 (7th Cir. 1996). Cruz contends
that Safford would not have suffered prejudice since
he impliedly had notice of the assault and battery
claims, given the nature of an excessive force action.
  We can briefly dispose of this argument. Cruz argues
that Rule 15 allowed the district court to add the
claims, and that the court’s discretionary rejection of
them was abusive. We have previously noted that
“[e]leventh hour additions are bound to produce
delays that burden not only the parties to the litigation
but also the judicial system and other litigants[,]” and a
district court can reject new claims to avoid prejudice.
Soltys v. Costello, 

, 743 (7th Cir. 2008) (citation
omitted). However, our focus is not on the complaint
8                                               No. 08-3083

but on amending the pretrial order. A district court also
has the discretionary power to reject new claims from
becoming part of the pretrial order to avoid prejudice.
See Fed. R. Civ. P. 16. The district court properly exer-
cised its discretion when it did not allow the claims to be
included in the order because: the claims had not been
identified in the pleadings or previous orders; the
claims were raised too late since the parties have
already “gone a long way in this case without raising
the assault and battery”; and Safford had neither re-
searched, nor prepared the issues. Therefore, the
district court did not abuse its discretion when it kept
tardy assault and battery claims out of the pretrial order
and refused to consider them in Cruz’s § 1983 excessive
force action.


    C. Limitation of Cross-Examination
  Finally, Cruz contends that the district court erred by
denying Cruz the opportunity to cross-examine Shannon
about the number of Shannon’s previous arrests. We
review the district court’s evidentiary ruling of limiting
the scope of cross-examination for an abuse of discretion
and reverse only if we find that the limitation affected
Cruz’s substantive rights. United States v. Gallardo, 

, 732 (7th Cir. 2007); United States v. Williamson,

, 978 (7th Cir. 2000); United States v. Jackson,

, 591 (7th Cir. 2008) (“A district judge has
wide discretion to impose reasonable limits on
cross-examination, and may do so based on concerns
about . . . prejudice[.]”).
No. 08-3083                                              9

  Cruz claims that the intended cross-examination
would have exposed Shannon’s unreliable memory.
According to Cruz, Shannon testified at a deposi-
tion that he had only been arrested twice: once for child
molestation that resulted in his acquittal and another
arrest that led to a battery conviction. Public records,
however, revealed otherwise. Cruz suggests that had
the court allowed Shannon to be subjected to cross-exami-
nation on the number of arrests, the jury might have
concluded that Shannon could not accurately remember
whether Cruz informed him that Safford attempted to
attack, or indeed, attacked, Cruz. See Fed. R. Evid. 608
(allowing cross-examination into witness’s past miscon-
duct if probative on truthfulness).
  We find no error on the limits placed on Shannon’s cross-
examination. As with all evidence, Rule 403 of the
Federal Rules of Evidence grants the district court
broad discretion to limit the scope of cross-examination
when the evidence’s probative value is substantially
outweighed by the danger of unfair prejudice. Fed. R.
Evid. 403. The court noted that out of roughly eight
arrests, only a battery arrest led to a conviction. The
court found that although, generally, convictions of
witnesses are admissible when they center on credi-
bility, seven arrests and one battery conviction were not
credibility matters, but highly prejudicial.
  Further, the court expressly prohibited the inquiry
into the child molestation arrest since he was acquitted.
Limiting cross-examination into Shannon’s arrest record
was a permissible level of limitation that falls within
10                                          No. 08-3083

the ambit of the court’s discretion. See 

. We find no abuse of that discretion.
                                             A FFIRMED.




                         8-28-09