Johnson v. Runnels et al

Filing 202

ORDER signed by District Judge Kimberly J. Mueller on 8/13/2011 ORDERING that plaintiff's 191 motion for verdict notwithstanding judgment and for a new trial is DENIED. This case is CLOSED. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BYRON EUGENE JOHNSON,
Plaintiff,

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vs.

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No. CIV S-05-2123 KJM-EFB P

DAVID L. RUNNELS, et al.,
Defendants.

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ORDER
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This matter is before the court on plaintiff’s motion for verdict notwithstanding

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judgment and for a new trial, filed on July 8, 2011. (ECF 191.) For the following reasons,

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plaintiff’s motion is DENIED.

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I. PROCEDURAL HISTORY

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Plaintiff filed his original complaint in this action on October 21, 2005. (ECF 1.)

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After litigation of the matter over several years, including the grant of partial summary judgment

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to defendants, the jury trial commenced on June 20, 2011, with plaintiff proceeding pro se and

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deputy attorney general Philip Arthur representing the remaining defendant. Plaintiff’s first

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amendment retaliation claim against defendant Miranda proceeded to trial. The jury returned its

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verdict on June 21, 2011, finding for defendant. (ECF 185.)

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On July 8, 2011, plaintiff, relying on Federal Rule of Civil Procedure 59, filed the

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present motion for verdict notwithstanding judgment1 and for a new trial. Defendant filed his

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opposition on July 25, 2011. (ECF 197.)

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II. ANALYSIS

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A. Standard

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Federal Rule of Civil Procedure 59(a)(1)(A) provides that the court may grant a

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new trial “after a jury trial, for any reason for which a new trial has heretofore been granted in an

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action at law in federal court.” Thus, “‘Rule 59 does not specify the grounds on which a motion

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for a new trial may be granted.’ [] Rather, the court is ‘bound by those grounds that have been

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historically recognized.’” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting

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Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003)). Such reasons include

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claims “‘that the verdict is against the weight of the evidence, that the damages are excessive, or

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that, for other reasons, the trial was not fair to the party moving.’” Id. (quoting Montgomery

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Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).

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The grounds for granting a motion under Federal Rule of Civil Procedure 59(e)

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are: “1) . . . ‘to correct manifest errors of law or fact upon which the judgment is based;’ 2) the

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moving party presents ‘newly discovered or previously unavailable evidence;’ 3) the motion is

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necessary to ‘prevent manifest injustice;’ or 4) there is an ‘intervening change in controlling

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law.’” Turner v. Burlington Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003)

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Plaintiff explicitly states that his motion is “pursuant to Rule 59.” Plaintiff did not
make a Rule 50 motion prior to submission of the case to the jury, although he did indicate that
he would be making a motion of some sort but had not yet researched what kind of motion he
would make; as a result, he cannot make a Rule 50 motion after the trial – one cannot “renew” a
motion made for the first time. See FED. R. CIV. P. 50; see also EEOC v. Go Daddy Software,
Inc., 581 F.3d 951, 961 (9th Cir. 2009) (“A Rule 50(b) motion for judgment as a matter of law is
not a freestanding motion. Rather, it is a renewed Rule 50(a) motion.”); Tortu v. Las Vegas
Metropolitan Police Dept., 556 F.3d 1075, 1081-83 (9th Cir. 2009). Thus, although plaintiff
calls his motion one for “verdict notwithstanding judgment,” it is not, and will not be treated by
the court as though it were, a Rule 50 motion. The court instead treats this as a Rule 59 motion
to alter or amend judgment.
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(quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999)) (emphasis in original).

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“A trial court properly acts within its discretion in denying a Rule 59(e) motion where the

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verdict is not manifest error of law.” Nelson v. Equifax Info. Servs. LLC, 522 F. Supp. 2d 1222,

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1237 (C.D. Cal. 2007) (citing Turner, 338 F.3d 1058). Moreover, the district court “enjoys

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considerable discretion in granting or denying the motion.” United States Fidelity & Guaranty

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Co. v. Lee Investments LLC, 2009 U.S. Dist. LEXIS 90579, at *9 (E.D. Cal. Sep. 29, 2009).

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“Rule 59(e) is an ‘extraordinary remedy, to be used sparingly in the interests of finality and

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conservation of judicial resources.’” Merrill v. County of Madera, 2007 U.S. Dist. LEXIS

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90981, at *4 (E.D. Cal. Dec. 11, 2007) (quoting Kona Enterprises, Inc. v. Estate of Bishop, 229

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F.3d 877, 890 (9th Cir. 2000)).

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B. Application

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Plaintiff contends that he is entitled to amended judgment or a new trial because

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the “verdict [is] against the clear weight of evidence offered by Plaintiff [and] the court

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committed substantial error in rejecting certain evidence” and because “Defendant’s counsel []

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committed misconduct by offering legal advice to Plaintiff’s witness, Van M. Washington [and]

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repeatedly violated the rules set on use of non-relevant information [and] Plaintiff just received

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the 5/9/11 notice . . . as to Plaintiff being made available for telephonic conference on

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5/18/2011.” (Pl.’s Mem. at 1-2.) Plaintiff’s contentions are without merit.

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The jury verdict was not “against [the] clear weight of evidence.” Plaintiff was

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required to prove, by a preponderance of the evidence, that: 1) defendant took an adverse action

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against plaintiff; 2) plaintiff’s protected conduct was a substantial or motivating factor for the

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alleged retaliatory action; 3) defendant’s action chilled plaintiff’s exercise of his First

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Amendment rights or would chill or silence a person of ordinary firmness from future First

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Amendment activities; and 4) the action did not reasonably advance a legitimate correctional

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goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). On the record of the trial, the

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court cannot find that plaintiff met his burden such that the jury erred in returning its verdict.
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Rather, defendant presented evidence from which a reasonable jury could conclude that his

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search of plaintiff’s cell was not retaliatory and advanced a legitimate correctional goal.

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Moreover, the court did not commit “substantial error” in excluding plaintiff’s

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CDC 602 appeal form. Plaintiff contends that this proffered exhibit was not hearsay, but rather

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was “in accordance with Rule 803(6) records of regularly conducted activity.” (Pl.’s Mem. at 2.)

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However, the document, setting forth the details of the January 11, 2004 search, which was the

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subject of the present litigation and submitted by plaintiff as part of the prison grievance process,

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decidedly does not fall within the hearsay exception created by Federal Rule of Evidence 803(6).

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Rather, it memorializes a private grievance plaintiff wanted to use to prove the truth of the

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matter asserted, FED. R. EVID. 801(c), and does not qualify as “[a] memorandum, report, record,

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or data compilation . . . of acts, events, conditions, opinions, or diagnoses, made at or near the

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time by, or from information transmitted by, a person with knowledge, if kept in the course of a

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regularly conducted business activity . . . .” FED. R. EVID. 803(6). “For a memorandum or

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record to be admissible as a business record, it must be (1) made by a regularly conducted

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business activity, (2) kept in the ‘regular course’ of that business, (3) ‘the regular practice of that

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business to make the memorandum,’ (4) and made by a person with knowledge or from

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information transmitted by a person with knowledge.” Clark v. Los Angeles, 650 F.2d 1033,

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1036-37 (9th Cir. 1981). Plaintiff, in recording his grievance, was not “‘acting routinely, under a

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duty of accuracy, with employer reliance on the result, or [] in the regular course of business.’”

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Id. at 1037 (quoting United States v. Pitman, 475 F.2d 1335 (9th Cir. 1973), cert. denied, 414

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U.S. 873 (1973)). Even if the court committed error in excluding this exhibit, any such error

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does not support either a new trial or an amended or altered verdict. With or without the

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grievance, the verdict was not against the weight of the evidence. As defendant notes, “[w]hile

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the grievance itself is hearsay, the jury was able to hear sworn testimony about the contents of

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the grievance. Thus Johnson was not harmed by the exclusion of the document itself.” (Def.’s

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Opp’n at 7.)
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Plaintiff also is not entitled to an amended judgment or a new trial due to defense

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counsel’s alleged misconduct. “‘A new trial is warranted on the ground of attorney misconduct

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during the trial where the flavor of misconduct sufficiently permeates an entire proceeding to

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provide conviction that the jury was influenced by passion and prejudice in reaching its

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verdict.’” Merrill, 2007 U.S. Dist. LEXIS 90981, at *25 (quoting Anheuser-Busch, Inc. v.

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Natural Beverage Distributors, 69 F.3d 337, 346 (9th Cir. 1995)). Although, as is clear from the

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court’s June 27, 2011 order to show cause (ECF 188), the court took issue with the substance of

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defense counsel’s telephone interview with plaintiff’s witness, Van M. Washington, the record

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of this telephone conversation could not have influenced the jury to act with passion or

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prejudice in reaching its verdict. Very little of the objectionable portion of the conversation was

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covered in the jury’s presence, and to the extent it was reviewed, it was through plaintiff’s cross-

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examination. Moreover, Washington appeared as a witness, meaning that defense counsel’s

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comments to him did not have the effect of keeping him away from trial. While defense counsel

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did err in what he said to Washington, his error had no material effect on the trial.

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Likewise, plaintiff’s contention that he is entitled to a new trial because defense

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counsel “repeatedly violated the rules set on use of non-relevant information” (Pl.’s Mem. at 2)

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is meritless. Defense counsel questioned plaintiff’s incarcerated witnesses for the purpose of

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attacking their character for truthfulness in accordance with Federal Rule of Evidence 609.

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When defense counsel began to traverse the boundaries set by the court’s orders on motions in

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limine, the court cut him off. Plaintiff also had the opportunity to object to an objectionable line

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of questioning during trial. See Merrill, 2007 U.S. Dist. LEXIS 90981, at *27 (citing Kaiser

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Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 & n.2 (9th Cir. 1986)) (“The

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failure to object and seek a curative instruction or admonition generally waives the right to

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contend a new trial is necessary because a counsel’s arguments were improper.”).

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Finally, plaintiff’s nonappearance at the May 18, 2011 status conference for
reasons beyond plaintiff’s and the court’s control does not warrant an amended verdict or new
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trial. Defendant’s contention that this nonappearance had no affect on trial is compelling (Def.’s

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Opp’n at 11) as the purpose of the status conference was to discuss the court’s calendar conflict.

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(ECF 169.) The trial was ultimately reset, plaintiff appeared and did not complain of the new

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date and the trial concluded without mishap.

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III. CONCLUSION

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For the foregoing reasons, plaintiff’s motion for verdict notwithstanding judgment
and for a new trial is DENIED. This case is CLOSED.
IT IS SO ORDERED.
DATED: August 13, 2011.

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UNITED STATES DISTRICT JUDGE
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