Thompson v. Afamasaga et al
Filing
175
ORDER (1) DENYING MOTION TO ALTER OR AMEND JUDGMENT, ECF NO. 150 ; AND (2) DENYING MOTION FOR A NEW TRIAL, ECF NO. 151 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 3/20/2019. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THAD J. THOMPSON,
Civ. No. 16-00128 JMS-RT
Plaintiff,
vs.
J. AFAMASAGA, STATE OF HAWAII,
ORDER (1) DENYING MOTION
TO ALTER OR AMEND
JUDGMENT, ECF NO. 150; AND
(2) DENYING MOTION FOR A
NEW TRIAL, ECF NO. 151
Defendants.
ORDER (1) DENYING MOTION TO ALTER OR AMEND JUDGMENT,
ECF NO. 150; AND (2) DENYING MOTION FOR A NEW TRIAL,
ECF NO. 151
I. INTRODUCTION
In this prisoner civil rights action, Plaintiff Thad J. Thompson
(“Plaintiff”), who was a pretrial inmate at Oahu Community Correctional Center
claimed that Defendant Adult Correction Officer (“ACO”) J. Afamasaga
(“Defendant” or “Afamasaga”) used excessive force against Plaintiff in violation
of the United States Constitution. During a strip-search, Defendant discovered an
item concealed between Plaintiff’s buttocks. A physical altercation followed,
during which Plaintiff was injured. On May 29, a two-day non-jury trial
commenced on Plaintiff’s claim against Afamasaga. In its June 26, 2018 Findings
of Fact and Conclusions of Law (“FOFCOL”), the court found that Plaintiff failed
to show by a preponderance of the credible evidence that the force Defendant
purposely or knowingly used against Plaintiff was objectively unreasonable. ECF
No. 148 at PageID #543-44. That is, the court found that Plaintiff failed to prove
that Defendant used constitutionally excessive force against Plaintiff. Id. at
PageID #544. On June 26, 2018, Judgment was entered in favor of Defendant and
against Plaintiff. ECF No. 149.
On July 18, 2018, Plaintiff, proceeding pro se, 1 filed two separate
motions — a Motion to Alter or Amend Judgment, ECF No. 150, and a Motion for
a New Trial, ECF No. 151. On October 9, 2018, Defendant filed an Opposition.
ECF No. 167. Despite having obtained numerous extensions of time, see ECF
Nos. 169, 171, 174, Plaintiff did not file a Reply. Pursuant to Local Rule 7.2(d),
the court finds this matter suitable for disposition without a hearing.
For the reasons discussed below, Plaintiff’s Motions are DENIED.
II. STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 59, a district court may
reconsider final judgments and order a new trial or alter or amend a judgment.
Fed. R. Civ. P. 59(a), (e). Under Rule 59(a)(1)(B), a court may grant a new trial
“after a nonjury trial, for any reason for which a rehearing has heretofore been
1
During trial, Plaintiff was represented by retained counsel. On September 25, 2018,
Plaintiff’s counsel’s motion to withdraw as counsel was granted, ECF No. 162, and the court set
briefing deadlines for Plaintiff’s motions for new trial and to alter or amend judgment, ECF No.
163.
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granted in a suit in equity in federal court.” There are three grounds for granting
new trials in court-tried actions: “(1) manifest error of law; (2) manifest error of
fact; and (3) newly discovered evidence.” Brown v. Wright, 588 F.2d 708, 710
(9th Cir. 1978) (per curiam) (citing 6A Moore’s Federal Practice § 59.07 at 5994). And the Ninth Circuit has identified four non-exclusive reasons to grant a
motion to alter or amend a judgment under Rule 59(e): “(1) if such motion is
necessary to correct manifest errors of law or fact upon which the judgment rests;
(2) if such motion is necessary to present newly discovered or previously
unavailable evidence; (3) if such motion is necessary to prevent manifest injustice;
or (4) if the amendment is justified by an intervening change in controlling law.”
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citation omitted).
Mere disagreement with a previous ruling is not a sufficient basis for
reconsideration. McAllister v. Adecco Grp. N.A., 2018 WL 6682984, at *2 (D.
Haw. Dec. 19, 2018) (citing White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D.
Haw. 2006). Thus, a Rule 59 motion for new trial or to alter or amend judgment
“may not be used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (citation and quotation marks
omitted). And although a “district court has considerable discretion when
considering a [Rule 59] motion[,]” Turner v. Burlington N. Santa Fe R.R. Co., 338
F.3d 1058, 1063 (9th Cir. 2003), vacating or “amending a judgment after its entry
remains an extraordinary remedy which should be used sparingly,” Allstate Ins.
Co., 634 F.3d at 1111 (internal quotation marks and citation omitted).
III. DISCUSSION
Plaintiff contends that the court erred and/or engaged in judicial
misconduct by (1) denying his motion in limine to introduce “character evidence
(i.e., prior bad acts) of Defendant”; (2) intimidating Plaintiff’s counsel; (3) calling
a recess during defense counsel’s cross examination of Plaintiff, thereby
preventing Plaintiff from providing further testimony; (4) allowing defense counsel
to “test” Plaintiff’s memory capabilities; and (5) exhibiting bias by making
credibility determinations, factual findings, and legal conclusions in favor of
Defendant and against Plaintiff that were “obviously against the weight of the
evidence.” ECF No. 150 at PageID #558-59; ECF No. 151 at PageID #565-73.
In large part, Plaintiff simply disagrees with the court’s rulings,
including credibility determinations, which is not a sufficient basis for
reconsideration under Rule 59. Plaintiff does not contend that there is newly
discovered evidence that was previously unavailable or that reconsideration is
sought based on any intervening change in controlling law. For the reasons
discussed below, Plaintiff has failed to establish that the judgment is based on
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manifest errors of law or fact and/or that reconsideration is necessary to prevent
manifest injustice.
A.
Motion in Limine — Rule 404
Plaintiff argues that the court erred by denying his motion in limine to
include character evidence of Defendant (prior bad acts by Defendant against other
inmates). ECF No. 151 at PageID #565. But Plaintiff did not file such a motion in
limine. Rather, Defendant filed a motion in limine to exclude character evidence
under Federal Rule of Evidence 404(a) and (b). ECF No. 101.
Defendant’s motion in limine to exclude character evidence became
somewhat convoluted. In response to that motion, Plaintiff proffered that
Defendant and ACO Danny Patelesio (“Patelesio”) “have a routine practice and
habit of beating inmates.” ECF No. 117 at PageID #424. Thus, Plaintiff sought
admission of prior assaults under Rule 406, but did not seek admission of prior
assaults under Rule 404(b).
During a January 22, 2018 hearing on the motions in limine, the court
denied Plaintiff’s request to admit evidence of the alleged prior inmate assaults
under Rule 406. As stated in the Advisory Committee Notes to Rule 406,
“evidence of other assaults is inadmissible to prove the instant one in a civil assault
action.” The court was equally clear, however, that it was not ruling pre-trial on
the possible admission of prior assaults at trial under Rule 404(b). Instead, the
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court informed Plaintiff’s counsel that he was not precluded from raising any Rule
404(b) evidence at trial. And as a result, the court granted Defendant’s motion
without prejudice.
During trial, Plaintiff neither made an offer of proof nor sought to
introduce evidence under Rule 404(b). Thus, Plaintiff cannot establish error. See
Fed. R. Evid. 103(a)(2) (requiring that in order to preserve a claim that the court
erred by excluding evidence, a party must make an offer of proof).
B.
Intimidation of Counsel
Plaintiff contends that the court improperly intimidated Plaintiff’s
counsel. But Plaintiff does not specify what the court did or said to intimidate his
counsel, nor does he identify when the court engaged in such conduct. Thus,
Plaintiff has failed to show that the court improperly intimidated counsel, let alone
that such unidentified conduct constitutes manifest error of law or resulted in
manifest injustice.
C.
Recess
Plaintiff contends that the court violated Federal Rule of Evidence
611(a) when it called a recess while Plaintiff was “testifying in response to [the]
Deputy Attorney General[’s] . . . questioning,” thereby cutting off Plaintiff’s
testimony and depriving him of an opportunity to provide further testimony. ECF
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No. 151 at PageID #565. The exact nature of this claim is unclear, but regardless,
the timing of a recess during trial cannot give rise to any allegation of error.
Rule 611 provides:
The court should exercise reasonable control over the
mode and order of examining witnesses and presenting
evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
Fed. R. Evid. 611(a). Embedded in Rule 611(a) is authorization for a trial court to
exercise broad discretion over trial-management decisions. See United States v.
Fields, 763 F.3d 443, 465 (6th Cir. 2014); see also United States v. Claiborne, 765
F.2d 784, 804 (9th Cir. 1985) (recognizing that Rule 611(a) grants a trial court
“broad discretion . . . to order a recess as circumstances necessitate”), abrogated on
other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988)). And a court’s trialmanagement decisions are generally overturned only if a “defendant’s substantial
rights are affected.” Fields, 763 F.3d at 465.
Here, Plaintiff’s counsel did not object to a recess during Plaintiff’s
cross examination. See United States v. Boggs, 737 F. App’x 243, 253-54 (6th Cir.
2018) (rejecting claim that trial court erred by calling several recesses during direct
examination of witnesses, particularly where defendant did not object to those
recesses); United States v. Henderson, 478 F. App’x 459, 460 (9th Cir. 2012)
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(Mem.) (rejecting claim that trial court abused its discretion by calling a recess
during a witness’s testimony where Defendant’s counsel did not object to the
recess). And Plaintiff does not contend that counsel for either party was prevented
from eliciting further testimony from Plaintiff after the recess. See, e.g., Castro v.
Tanner, 2014 WL 2938355, at *30-31 (E.D. La. June 27, 2014) (finding no error or
prejudice where the court called a recess during cross-examination, allowed
counsel to continue questioning witness after recess, and excused witness after
counsel for both parties said they had no more questions, even though witness
stated that he had more to say). In short, Plaintiff has failed to show that his
substantial rights were affected by the timing of a recess during his cross
examination. Thus, Plaintiff has failed to show manifest error of law or manifest
injustice resulting from the court calling a recess during Plaintiff’s testimony
during cross-examination.
D.
Cross Examination
Plaintiff argues that the court erred by allowing Defendant’s counsel
to “test” Plaintiff’s memory capabilities. ECF No. 151 at PageID #566, 572.
Plaintiff does not identify the nature of such “tests.” Nor does he explain how
Defendant’s counsel administered these “tests.” During cross examination,
however, Defendant’s counsel did question Plaintiff about inconsistencies between
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Plaintiff’s trial testimony and his earlier statements in grievances, reports, and
answers to discovery requests.
The scope of cross examination generally is limited to “the subject
matter of the direct examination and matters affecting the witness’s credibility.”
Rule 611(b). Thus, questions addressing inconsistencies between trial testimony
and pre-trial documents, as well as inconsistencies within various pre-trial
documents, are generally appropriate during cross examination. See, e.g., United
States v. Hale, 422 U.S. 171, 176 (1975) (“A basic rule of evidence provides that
prior inconsistent statements may be used to impeach the credibility of a
witness.”); Kalouma v. Gonzales, 512 F.3d 1073, 1076 n.1 (9th Cir. 2008) (“Prior
inconsistent statements are a classic ground to impeach a witness.”). “The trial
judge has a ‘high degree of flexibility’ in deciding how much inconsistency is
enough to permit use of a prior statement for impeachment.” United States v.
Higa, 55 F.3d 448, 453 (9th Cir. 1995) (quoting United States v. Morgan, 555 F.2d
238, 242 (9th Cir. 1977)).
Here, Plaintiff has failed to show that the court engaged in manifest
error of law by allowing Defendant’s counsel to ask questions about
inconsistencies between Plaintiff’s trial testimony and various pre-trial documents
during cross examination or that such questioning resulted in manifest injustice.
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E.
Determinations of Credibility, Facts, and Legal Conclusions
Lastly, Plaintiff contends that the court erred and/or exhibited bias in
favor of Defendant and against Plaintiff in connection with its determinations
regarding credibility, facts, and legal conclusions that were “obviously against the
weight of the evidence.” ECF No. 151 at PageID #565.
As set forth in the FOFCOL, this court considered “live testimony
from four witnesses and seventeen exhibits submitted jointly by the parties, ECF
No. 137, and admitted without objection.” ECF No. 148 at PageID #543. The
court “heard and weighed all the evidence and testimony presented at trial,
observed the demeanor of witnesses and evaluated their credibility and candor, and
heard and considered Plaintiff’s and Defendant’s arguments.” Id. More
specifically, as to the credibility of the parties, the court explained:
Plaintiff conceded that his accounts of the incident and
injuries set forth in his Complaint, grievance, and
answers to interrogatories differ from the others and
conflicts with portions of his trial testimony. Moreover,
Plaintiff’s testimony that Defendant punched Plaintiff in
the face three times with enough force to snap his head
back before Plaintiff had time to react and push
Defendant is not believable. Thus, taking into account
Plaintiff’s demeanor, poor memory (for instance, in
claiming that Defendant, not Patelesio, took him to the
medical unit), and inconsistent accounts of the incident
and his injuries, the court finds Plaintiff’s testimony to
lack credibility. . . . In contrast, based on his manner of
testifying, memory, and overall demeanor, the court finds
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Defendant’s testimony to be credible, and finds
Defendant’s version of events to be accurate and truthful.
Id. at PageID #549-50.
Plaintiff argues only that he would have made different credibility
determinations. See ECF No. 151 at PageID #566-72. Plaintiff sets forth what he
believes are contradictions in Defendant’s testimony and asks the court to make
inferences favorable to him based on such inconsistencies. But the contradictions
Plaintiff highlights are largely between Defendant’s testimony and Plaintiff’s
interpretation of portions of the evidence. For example, Plaintiff contends that
Defendant’s trial testimony — that he thought Plaintiff may have been concealing
a weapon — clearly contradicts his later statement that the item Plaintiff concealed
was plastic and did not appear to be drugs. See ECF No. 151 at PageID #569.
From this, Plaintiff infers that Defendant had a good look at the item and therefore
lied when he said he thought it could have been a weapon. Id. at PageID #569-71.
Moreover, Plaintiff’s disagreement with the court’s rulings “is not a
sufficient basis for reconsideration.” McAllister, 2018 WL 6682984, at *2; see
White, 424 F. Supp. 2d at 1274. Nor may a Rule 59 motion be “used to relitigate
old matters.” Exxon Shipping Co., 554 U.S. at 486 n.5. The court carefully
considered the same evidence Plaintiff highlights and determined that, on balance,
Defendant’s testimony was more credible than Plaintiff’s testimony.
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And although Plaintiff contends that the court’s determinations of
credibility, facts, and legal conclusions were the result of judicial bias, he fails to
provide any basis for bias. Generally, absent evidence of some extrajudicial source
of bias or partiality, adverse rulings alone do not suffice to overcome a
presumption of judicial integrity. See Larson v. Palmateer, 515 F.3d 1057, 1067
(9th Cir. 2008) (citing Liteky v. United States, 510 U.S. 540, 555 (1994)); see also
United States v. Martin, 278 F.3d 988, 1005 (9th Cir. 2002) (rejecting claim of bias
where the “judge’s knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings” rather than from an
extrajudicial source) (quoting Liteky, 510 U.S. at 551). Plaintiff does not allege
that either the court’s ruling alone, or any remark by the court during the
proceedings, evidences such a high degree of favoritism or antagonism to make
fair judgment impossible. See Liteky, 510 U.S. at 555 (distinguishing obviously
biased judicial statement in an espionage case against a German-American that
“German Americans[’] . . . hearts are reeking with disloyalty” from examples not
sufficient to show bias, such as “expressions of impatience, dissatisfaction,
annoyance, . . . anger[,]” and a “stern and short-tempered judge’s ordinary efforts
at courtroom administration”).
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In sum, Plaintiff has failed to establish bias, manifest error of law or
fact based on the court’s determinations of credibility, factual findings, and legal
conclusions, or that the court’s rulings resulted in manifest injustice.
IV. CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Alter or Amend
Judgment, ECF No. 150, and a Motion for a New Trial, ECF No. 151, are
DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 20, 2019.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Thompson v. Afamasaga, Civ. No. 16-00128 JMS-RT, Order (1) Denying Motion to Alter or
Amend Judgment, ECF No. 150; and (2) Denying Motion for a New Trial, ECF No. 151
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