Stephen Bowen v. Reginald Roberson, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, KRAUSE and NYGAARD, Circuit Judges. Total Pages: 4.

Case: 14-4576

Document: 003112622655

Page: 1

Date Filed: 05/15/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4576
___________
STEPHEN C. BOWEN,
Appellant
v.
REGINALD ROBERSON; TROOPER JOHNATHAN BURNHAM; CORPORAL
ALAN TREES; CORPORAL BRIAN TORKAR
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1-12-cv-00036)
District Court Judge: Honorable Yvette Kane
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 12, 2017
Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges
(Opinion filed: May 15, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 14-4576

Document: 003112622655

Page: 2

Date Filed: 05/15/2017

Stephen C. Bowen appeals the District Court’s judgment entered upon a jury
verdict in favor of Defendants in his civil rights lawsuit. We will affirm.
Bowen sued four police officers, claiming that each of them used excessive force
when arresting him after he led them on a high-speed chase. Bowen, represented by
counsel, tried his case to a jury. At the close of evidence, Bowen moved for a directed
verdict on his excessive force claims against two of the officers, Defendants Trees and
Trokar. See Fed. R. Civ. P. 50(a). The District Court denied Bowen’s motion. The jury
found that Defendants had not used excessive force against Bowen, and the District Court
entered judgment for them.
Bowen, then proceeding pro se, filed a notice of appeal in the District Court. In
his notice, Bowen also indicated that he wished to file two motions, which he
acknowledged were untimely. First, under Fed. R. Civ. P. 50(b), Bowen argued that the
District Court should have directed a verdict against Defendants Trees, Trokar, and
Burnham. Second, Bowen sought a new trial under Fed. R. Civ. P. 59 because he
believed the weight of the evidence compelled the jury to find in his favor. Because
Bowen’s motions were untimely,1 the District Court denied them. Bowen appeals.2

1

The District Court correctly found that Bowen’s motions were untimely. The District
Court entered judgment on October 8, 2014, and Bowen had 28 days from that date to
seek a new trial under Fed. R. Civ. P. 50(b) or Fed. R. Civ. P. 59. Bowen did not file his
post-verdict motions until November 24, 2014—more than two weeks too late.
2

We have jurisdiction under 28 U.S.C. § 1291. The District Court granted Bowen’s Fed.
R. App. P. 4(a)(5) motion to extend the time to file his appeal, and his notice of appeal
was thus timely filed.
2

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While Bowen purports to raise a number of claims, they all have the same thrust:
he contends that the jury’s verdict was unsupported by the weight of the evidence.
However, Bowen’s “failure to comply with Rule 50(b) forecloses [his] challenge to the
sufficiency of the evidence . . . .” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 404 (2006). Where, as here, a party moves for judgment as a matter of law
under Rule 50(a), he must renew that request after the jury has reached a verdict, as
required by Rule 50(b). See Fed. R. Civ. P. 50(b) (providing that a party may move for a
post-verdict judgment under Rules 50(b) or 59). If he does not, he is foreclosed from
challenging the sufficiency of the evidence on appeal. Unitherm, 546 U.S. at 404; see
also Ortiz v. Jordan, 562 U.S. 180, 189 (2011) (reaffirming that absent a Rule 50(b)
motion in the District Court, an appellate court will not review the sufficiency of the
evidence supporting the verdict).
Here, Bowen did not timely challenge the jury’s verdict in the District Court under
Rule 50(b). And, although Bowen ultimately filed motions under Rules 50(b) and 59, he
did so too late. Because Bowen did not seek to overturn the jury’s verdict within 28 days
of the trial, see Johnson v. N.Y., N.H. & H.R. Co., 344 U.S. 48, 53 (1952) (noting that a
timely post-verdict motion is “an essential part of the rule”), the District Court correctly
denied his untimely request. See Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d
1283, 1292 (11th Cir. 2016) (an untimely Rule 50(b) motion challenging the sufficiency
of the evidence is insufficient to preserve such a challenge for appellate review); see also
Cone v. W. Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947) (rejecting argument that
3

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a circuit court should grant a new trial on appeal absent a timely post-verdict motion
because that “would enable litigants to extend indefinitely the prescribed . . . period
simply by adoption of the expedient of an appeal”). Bowen’s failure to properly
challenge the sufficiency of the evidence in the District Court has forfeited his right to do
so on appeal. See Rosenberg, 818 F.3d at 1292.3
Accordingly, we will affirm the judgment of the District Court.

3

Even if we were to review Bowen’s challenge to the sufficiency of the evidence, our
independent review of the record reveals ample support for the jury’s verdict. Each of
the four Defendants testified as to their actions, and each explained how their actions
were designed to stop Bowen as he led them on a dangerous, high-speed chase and then
to safely effect his arrest and to respond to his repeated attempts to assault them until he
was subdued. See Graham v. Connor, 490 U.S. 386, 396 (1989). That testimony, viewed
in the light most favorable to Defendants, supports the jury’s finding in their favor. See
Kinnel v. Mid-Atlantic Mausoleums, Inc., 850 F.2d 958, 961-62 (3d Cir. 1988).
4