Dixon, Jr. v. Chicago et al

Filing 90

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 1/20/2017: Defendant Officer Michael Butlers and Defendant Officer Collis Underwoods motion for a new trial 79 is denied. Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENNIS DIXON, JR.,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

No. 10 C 5897

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Officer Michael Butler’s (Butler)
and Defendant Officer Collis Underwood’s (Underwood) motion for a new trial. For
the reasons stated below, the motion for a new trial is denied.

BACKGROUND
On September 18, 2008, Dixon was arrested by Defendant Officer Michael
Butler (Butler) and Defendant Officer Collis Underwood (Underwood). Dixon
alleged in his complaint that Butler and Underwood used excessive force during the
arrest and brought claims against Defendants pursuant to 42 U.S.C. § 1983 for
alleged constitutional violations. Dixon also brought indemnification claims against
the City of Chicago (City). A jury trial was held in this case and the jury found in

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favor of Butler against Dixon, and in favor of Dixon against Underwood. The City
and Underwood (collectively referred to as “Moving Defendants”) now move for a
new trial pursuant to Federal Rule of Civil Procedure 59(a) (Rule 59(a)).

LEGAL STANDARD
Pursuant to 59(a), after a jury returns its verdict, the losing party can move for
a new trial. Fed. R. Civ. P. 59(a). Rule 59(a) provides that “[t]he court may, on
motion, grant a new trial on all or some of the issues - -and to any party- - . . . after a
jury trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court. . . .” Fed. R. Civ. P. 59(a). A court can order a new
trial pursuant to Rule 59(a) “if the jury’s verdict is against the manifest weight of the
evidence, . . . or if for other reasons the trial was not fair to the moving party.” Willis
v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012)(internal quotations omitted)(quoting
Marcus & Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313 (7th Cir. 2011));
see also id. (stating that “[a] verdict will be set aside as contrary to the manifest
weight of the evidence only if no rational jury could have rendered the verdict” and
that “[j]ury verdicts deserve particular deference in cases with simple issues but
highly disputed facts”)(internal quotations omitted)(quoting Moore ex rel. Estate of
Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008)).

DISCUSSION
Moving Defendants contend that the court erred: (1) by allowing Dixon to
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testify that he battered Underwood with legal justification, and (2) by refusing to
give a requested jury instruction .

I. Testimony by Dixon
Moving Defendants argue that the court improperly allowed Dixon to testify
that he battered Underwood with legal justification, which drew into question
Dixon’s prior battery conviction. A Section 1983 claim is “barred if it ‘necessarily
impl[ies] the invalidity of [a] conviction.’” Viramontes v. City of Chicago, 840 F.3d
423, 426 (7th Cir. 2016)(quoting Heck v. Humphrey, 512 U.S. 477 (1994)); see also
Rollins v. Willett, 770 F.3d 575, 576 (7th Cir. 2014)(stating that “a section 1983 suit
can’t be brought if a judgment in favor of the plaintiff would imply that his
conviction in a prior proceeding had been invalid”). Moving Defendants contend
that although Dixon pled guilty to the battery of Underwood in state court, Dixon
testified at trial in this case that he bit Underwood in self defense. Moving
Defendants argue that the admission of guilt for the battery necessarily foreclosed
any subsequent legal justification such as acting in self defense. Moving Defendants
argue that the court should have barred Dixon from testifying in a manner that was
inconsistent with his battery conviction.

A. Waiver
Dixon argues that Moving Defendants waived the Heck argument. Moving
Defendants never pleaded Heck as an affirmative defense in this matter and although
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they filed extensive written motions in limine in this case, they never raised the Heck
issue in such motions. Moving Defendants made general oral references to Heck at
the pretrial conference but failed to adequately articulate the position that they now
take or present the court with legal authority to support their position. Moving
Defendants thus failed to properly present the Heck argument to the court and the
argument has been waived.

B. Heck Violation
Dixon argues that even if Moving Defendants did not waive the Heck
argument, Dixon’s testimony did not violate Heck. At trial Dixon testified that he bit
Underwood while Underwood had Dixon in a choke hold. (TR 506). However,
Dixon admitted at trial that he pled guilty to battery in regard to that bite, thus
acknowledging to the jury that he did not have legal justification for that conduct.
(TR 529). Dixon further testified at trial that after he bit Underwood, Underwood
said “this MF-er bit me.” (TR 507). Underwood then allegedly proceeded to pull
out his metal baton and started to beat Dixon with it. (TR 507). There was sufficient
evidence at trial presented that would have allowed the jury to conclude that Dixon
committed battery upon Underwood and that Underwood then, in retaliation,
proceeded to use the metal baton and use excessive force upon Dixon. The Seventh
Circuit has made clear that a conviction for battery upon an arresting officer does not
necessitate a finding that the officer used reasonable force during the arrest. See
Viramontes, 840 F.3d at 427 (explaining that in Gilbert v. Cook, 512 F.3d 899 (7th
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Cir. 2008) the Court “held that a plaintiff's conviction for assaulting a police officer
does not necessarily imply that the officer used appropriate force during the course of
arrest after the assault”). In this case, the bite by Dixon and the subsequent beating
with the metal baton are separate and distinct factual issues. Thus, a judgment in this
action would not imply that Dixon’s criminal conviction is invalid.

II. Jury Instruction
Moving Defendants argue that the court should have instructed the jury that
Dixon committed battery and that any testimony to the contrary must be ignored.
This court rejected such an instruction at the jury instruction conference. As the
court indicated, such an instruction would simply have highlighted certain testimony
and placed an emphasis on certain evidence and would have unfairly favored the
defense. Nor was such an instruction necessary since Dixon admitted at trial that he
committed a battery, and he testified that the severe beating with the baton that was
the focus of his excessive force claim occurred after he committed the battery.
Dixon would have been unfairly prejudiced by the proposed instruction and Moving
Defendants have not shown that the court erred in declining to provide such an
instruction.
Moving Defendants cite Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008) in
support of their position. However, as indicated above, in Gilbert, the court held that
a claim for excessive force may be dealt with apart and separate from issues relating
to an assault on an arresting officer. Id. at 902. The Court in Gilbert
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held that “Heck and Edwards do not affect litigation about what happens after the
crime is completed.” Id. That is what the facts were in this case. It was after the
bite and battery upon Underwood that Dixon contends Underwood took out the metal
baton and beat him with it.
Also, in Gilbert, the plaintiff was accused with punching a prison guard and he
denied that he punched the guard. Id. at 900. The Seventh Circuit stated that had the
plaintiff “been willing to concede that he had punched a guard, he would have had
clear sailing.” Id. at 901. In the instant action, Dixon never denied biting
Underwood, which was the basis for the battery conviction. Dixon did testify in this
case regarding to his recollection of the events during his arrest and made certain
references to being choked, but he did not state that he had a right to bite Underwood
in self defense. The alleged excessive force in the form of the beating with the baton
occurred after and separate from the biting and the excessive force claim does not
call into question the battery conviction.
In addition, when Dixon was confronted on the witness stand in this case
during cross-examination, any prejudice to Moving Defendants or confusion, if any,
by the jury was cured. Dixon was shown a transcript of the plea hearing in his
criminal matter and was asked by defense counsel the following: “Were you asked a
question at that criminal proceeding by the judge as to whether or not you pleaded
guilty to battering Collis Underwood without legal justification or provocation on
September 18th, 2008, were you asked that question by the judge.” (TR
529)(emphasis added). After one incomplete response by Dixon, defense counsel
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was ultimately able to get Dixon to respond that he did plead guilty to battery. (TR
529). Dixon then admitted: “Yes. What’s on that paper is true, on that paper you just
gave to me.” (TR 529). Thus, evidence was introduced by the defense to the jury
that showed that Dixon admitted that he did not have legal justification for biting
Underwood.
In addition, as Dixon correctly points out, the crux of Moving Defendants’
position in the motion for a new trial is that Dixon should not have been allowed to
testify that he had legal justification for biting Underwood. Moving Defendants’
proposed instruction merely would have instructed the jury that Dixon committed a
battery, which he already admitted at trial. Moving Defendants’ proposed instruction
stated nothing in regard to Dixon’s legal justification for his actions. (TR 583).
Thus, Moving Defendants have waived any such argument relating to an instruction
that was not properly raised at trial. Based on the above, Moving Defendants’
motion for a new trial is denied.

CONCLUSION
Based on the foregoing analysis, Moving Defendants’ motion for a new trial is
denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: January 20, 2017

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