Hunter v. Dutton et al

Filing 143

ORDER DENYING 141 MOTION to Alter Judgment filed by Markus Hunter, 139 MOTION for New Trial filed by Markus Hunter. Signed by Magistrate Judge Donald G. Wilkerson on 8/16/11. (alg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARKUS HUNTER,
Plaintiff,
v.
C/O DUTTON, et al.
Defendants.

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Case No. 06-cv-00444-DGW

ORDER
This matter is before the Court on a Motion for New Trial or Alternative Transferred to
an Minimum Security Institution and to Amend (sic) (“Motion for New Trial”) (Doc. 139) and
Motion to Alter or Amend the Judgment (Doc. 141) filed by Plaintiff Markus Hunter.
Defendants Kirk Dutton and Doug Mason filed a Response to Plaintiff’s Motion for New Trial
(Doc. 142), but did not file a Response to the Motion to Alter or Amend the Judgment. For the
reasons stated below, Plaintiff’s Motions (Docs. 139, 141) are DENIED.
Background
Markus Hunter (“Plaintiff”), an inmate incarcerated at Tamms Correctional Center
(“Tamms”), brought this suit pursuant to 42 U.S.C. § 1983 alleging that correctional officers
Kirk Dutton and Doug Mason (“Defendants”) retaliated against him in violation of his First
Amendment rights (Doc. 1). On April 19, 2011, following a two-day bench trial, the Court
found in favor of Defendants and entered judgment accordingly (Doc. 130). Plaintiff filed two
separate and timely1 motions for a new trial citing errors of the Court and newly discovered
evidence (Docs. 139, 141). Defendants filed a response only to the Plaintiff’s Motion for New
Trial (Doc. 142).
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FED. R. CIV. P. 59(b). Motions must be filed within 28 days from judgment. Id.

For purposes of clarity, the Court will address the arguments asserted in both motions
together. Essentially, Plaintiff requests a new trial because: 1) the Court erred by permitting
defense counsel to make “prejudicial statements” in its closing argument; (2) there is “newly
discovered evidence” in the form of the Plaintiff’s past medical files from Tamms and an internet
blog pertaining to asthma; (3) the Court erred by failing to properly “authenticate” the
“shakedown slip” under the Federal Rules of Evidence; and (4) the Court erred when it
dismissed the Plaintiff’s court-appointed counsel at the conclusion of trial.

Additionally,

Plaintiff requests to be transferred to a minimum security facility and seeks monetary relief.
Standard
Under Federal Rule of Civil Procedure 59, a court may grant a new trial following a
nonjury trial “for any reason for which a rehearing has heretofore been granted in a suit in equity
in federal court.” FED. R. CIV. P. 59(a)(1)(B).2 Rule 59(e) is a procedural vehicle that provides
district courts the “opportunity to correct errors that may have crept into the proceeding, before
the case leaves the district court for good.” Sosebee v. Astrue, 494 F.3d 583, 589 (7th Cir. 2007).
Courts should grant a Rule 59(e) motion only if “the movant presents newly discovered evidence
that was not available at the time of trial or if the movant points to evidence in the record that
clearly establishes a manifest error of law or fact.” In re Prince, 85 F.3d 314, 324 (7th Cir.
1996); see also Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (noting that neither the
“timing” nor the “label” of a prisoner’s pro se motion is “dispositive with respect to the
appropriate characterization of the motion.”).

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Further, “the court may, on motion for a new trial, open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the
entry of a new judgment.” FED. R. CIV. P. 59(a)(2).
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Analysis
Prejudicial Statements Made by Defense Counsel During Closing Argument
Plaintiff argues that defense counsel made “prejudicial, inflammatory, and erroneous
statements in closing argument designed to arouse the prejudices and passions of the Judge,
thereby prejudicing the Plaintiff’s right to a fair trial.” (Doc. 139). Statements made by attorneys
in court are not evidence. See United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008). During
closing arguments, in particular, attorneys are permitted “more leeway . . . to suggest inferences
based on the evidence, highlight weaknesses in the opponent's case, and emphasize strengths in
their own case.”

Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008).

A new trial is

appropriate when an attorney’s statements during closing argument may “influenc[e] the jury in
such a way that substantial prejudice resulted to the opposing party.” Gruca v. Alpha Therapeutic
Corp., 51 F.3d 638, 644 (7th Cir. 1995) (internal citations omitted). However, the fear of incourt statements causing “unfair prejudice” to sway judges presiding over a nonjury trial is
substantially less than in a jury trial. See, e.g., Carter v. Hewitt, 617 F.2d 961, 972 n.13 (3d Cir.
1980); United States v. Nguyen, No. 06-0075, 2008 WL 540230, at *6 (E.D. Cal. Feb. 25, 2008)
(noting that “in bench trials, the judge is not so easily swayed” by potentially prejudicial
statements by attorneys). Further, any prejudice from comments made during closing arguments
“rarely rise[s] to the level of reversible error.” Ramsey v. Am. Air Filter Co., 772 F.2d 1303,
1311 (7th Cir. 1985); see also Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388
(7th Cir. 2011) (noting that any potential harm an attorney’s remarks can be “cured” by a judge’s
jury instructions).
Plaintiff failed to fully develop this argument in both motions, and his court-appointed
attorneys did not make a timely objection during trial. Plaintiff did not allege, and the Court will

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not, on its own, attempt to discern which statements Plaintiff alleges were improper. It seems
clear that the Plaintiff’s real dispute, if any, lies with his attorney, not this Court. See Stanciel v.
Gramley, 267 F.3d 575, 581 (7th Cir. 2001) (denying a motion for retrial on the failure of an
attorney’s “effective assistance” and noting that the “proper remedy for inadequate
representation in a civil case lies not in dragging the opposing party through another trial, but
rather in a malpractice action against the offending attorney”); see also Sheldon v. Munford, Inc.,
950 F.2d 403, 410-11 (7th Cir. 1991) (noting that the Seventh Circuit defers to the “decision of
the Magistrate Judge not to intervene in the absence of objection, nor to grant a new trial because
he heard the statements and was in a far better position than [an appellate court] to judge the
effect of improper comments . . .”) (emphasis added). Plaintiff did not cite to any legal authority
or make reference to the trial record to support this allegation, and it is not the Court’s duty to
develop an argument on the Plaintiff’s behalf. See Spath v. Hayes Wheels Int’l-Indiana, Inc.,
211 F.3d 392, 397 (7th Cir. 2000). Accordingly, Plaintiff shall not be granted a new trial or
amended judgment on the basis of alleged prejudicial statements made by defense counsel during
closing argument. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding
that the Seventh Circuit has “made clear that perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority, are waived (even where those arguments
raise constitutional issues); see also Costello v. Grundon, No. 08–3961, 2011 WL 2536089, at
*22 (7th Cir. June 28, 2011).
Newly Discovered Evidence
Plaintiff argues that newly discovered evidence entitles him to a new trial for two
reasons. First, Plaintiff contends that his past medical records from Tamms clearly show that he
was proscribed and possessed more than one asthma inhaler while incarcerated (Doc. 139).

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Second, Plaintiff argues that an Internet blog entry by an asthmatic named “Breathin’ Stephen”
shows that it is possible for a person to suffer an asthma attack and still have “normal or near
normal” oxygen saturation levels in their blood (Doc. 141). Both arguments fail as a matter of
law.
Pursuant to Federal Rule of Civil Procedure 59(e), if a party produces “newly discovered
evidence” after trial, the court has the discretion to grant a new trial or “alter or amend” the
judgment. See Obriecht, 517 F.3d at 494. However, it is inappropriate to grant a Rule 59(e)
motion where the “newly discovered evidence” could have been produced prior to judgment.
See Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008); see also Payette v. Dickman,
No. 09-3291, 2010 WL 3075271, at *2 (7th Cir. July 28, 2010) (denying a prisoner’s pro se
motion asserting “newly discovered evidence” because the prisoner’s counsel had access to the
documents prior to judgment).
Plaintiff’s purported new evidence is irrelevant to the matter before the Court.

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The

crucial question is whether the Plaintiff’s proffered evidence was available prior to judgment.
Plaintiff’s personal inventory and medical records were available prior to trial and his attorneys
were aware of it during discovery. See Egonmwan v. Cook Cty. Sheriff’s Dept., 602 F.3d 845,
852 (7th Cir. 2010). The fact that Plaintiff’s attorneys either found this evidence immaterial or
decided against using these documents at trial does not present grounds for a new trial or to alter

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Plaintiff first produced his medical records and personal property inventory records from Tamms
between 1998 and 2001 (Docs. 139-1, 139-2). He argues that this evidence demonstrates that during this
period he possessed more than one inhaler, which contradicts defense witness testimony by Dr. Powers
that he never prescribed more than one inhaler for Plaintiff (Doc. 139). Plaintiff also produced a posting
from an internet blog cite authored by a man suffering from asthma (Doc. 141). Plaintiff argues that the
statements made in the blog “goe[s] against the weight of evidence in the medical profession” because it
demonstrates than an asthmatic, like Plaintiff, could display normal oxygen saturation levels immediately
after an asthma attack. Plaintiff argues that this contradicts Dr. Powers’ trial testimony that Plaintiff’s
normal oxygen readings suggest that he feigned the attack. Id.

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or amend a judgment.4 See Stanciel, 267 F.3d at 581 (denying a prisoner’s motion for a new
trial and holding that there is not a constitutional “right to effective assistance of counsel in a
civil case.”). The blog entry was dated November 30, 2010 and the Court entered judgment on
April 19, 2011 (Docs. 131, 141). Even assuming arguendo, that the Court would admit as
evidence a random blog posting from a nonmedical professional, like Plaintiff’s personal
records, the blog was published months prior to the judgment. Since the alleged “newly
discovered evidence” was available well before the final judgment, Plaintiff is not entitled to a
new trial or an altered or amended judgment.
Errors of Law
Along with “newly discovered evidence,” a Rule 59(e) motion for a new trial or altered
or amended judgment may be sustained if the movant can prove that the court made “manifest
errors” of law at trial. See Obriecht, 517 F.3d at 494. Plaintiff carried the burden of proving by
a preponderance of evidence that “but for” the numerous grievances he had filed against
correctional officers, he would not have been ticketed for violating IDOC Rules 203 and 308
(Doc. 131).5

IDOC rules, however, are clear: possessing “unauthorized amounts of . . .

medication” not prescribed “through regular procedures” is a violation. See 20 ILL. ADMIN. CODE
§ 504, Appendix A (2011) (defining IDOC Rules 203, “Drugs and Drug Paraphernalia,” and 308,
“Contraband or Unauthorized Property”).

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The fact that Plaintiff points to “newly discovered evidence” that allegedly contradicts defense witness
testimony is not grounds to grant a Rule 59(e) motion. Whether Plaintiff had four or four-hundred
inhalers in his possession at some point does not disprove the fact that he violated Illinois Department of
Corrections (“IDOC”) Rules 203 and 308 for possessing “drug paraphernalia” over the prescribed limit
(Doc. 131). This may, in fact, prove multiple violations of the rules.

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As previously stated, to succeed on a retaliation claim, a plaintiff must prove that filing grievances
against correctional officers was constitutionally protected conduct; that “but for” that conduct the
Defendants would not have ticketed the Plaintiff for violating IDOC Rules for possessing unauthorized
medication; and that the Plaintiff was deprived in some way (Doc. 131).
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Evidence presented at trial demonstrated that Plaintiff exceeded his limit of prescribed
medication by possessing a second albuterol inhaler, and Plaintiff even admitted this in his
deposition testimony (Docs. 131, 142). Thus, Plaintiff effectively mooted his retaliation claim by
making it impossible to prove by any standard of proof that “but for” his First Amendment right
to file grievances, he would not have been found in clear violation of IDOC Rules 203 and 308.
Additionally, Plaintiff argues that the “shakedown slip” which notified Plaintiff that he
had violated IDOC Rules 203 and 308 was not properly authenticated at trial under the Federal
Rules of Evidence (Doc. 31-1).6 See Fed. R. Evid. 901. Plaintiff has failed to cite any legal
authority, reference to the trial record, or even develop an argument to support his assertion that
the Court made a “manifest error” of law by failing to properly authenticate the “shakedown
slip,” thus, this argument is waived. See Spath, 211 F.3d 297; Berkowitz, 927 F.2d at 1384.
Accordingly, Plaintiff is not entitled to a new trial or amended judgment on the basis of manifest
errors of law.
Dismissal of Court-Appointed Attorneys after Trial
Plaintiff claims that the Court erred by dismissing his court-appointed counsel at the
conclusion of trial (Doc. 139). This issue is wholly collateral to Plaintiff’s Rule 59(e) motions.
The district court maintains broad discretion to oversee the appointment of counsel for indigent
clients, specifically prisoners, because there is no constitutional right to an attorney in civil
lawsuits. See Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). The Court appointed counsel
to Plaintiff on April 6, 2009 and again on October 5, 2009 for the limited purposes of Final
Pretrial Conference and Trial Proceedings only (Docs. 55, 77). Plaintiff’s counsel vigorously
represented Plaintiff throughout pretrial and trial proceedings. At the conclusion of the bench
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It seems that Plaintiff’s sole argument is that the original “shakedown slip” was amended by Defendants
during the events in question (Doc. 131).
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trial on April 19, 2011, the Court dismissed Plaintiff’s counsel. Plaintiff’s assertion that the
Court somehow erred in dismissing his trial counsel is unfounded. Therefore, Plaintiff is not
entitled to a new trial or amended/altered judgment on the basis that the Court incorrectly
dismissed his trial counsel.
Prayers for Relief
In his Motion for New Trial, Plaintiff requests to be transferred to a minimum security
facility and seeks monetary relief (Docs. 141, 139). The law is well-settled that decisions where
inmates will be housed are left to the discretion of prison administrators. See McKune v. Lile,
536 U.S. 24, 39 (2002). Therefore, Plaintiff must seek relief through the grievance procedure at
Tamms.
With respect to his prayer for damages, Plaintiff had already his day in court and the only
relief he may seek at this time is a new trial or an altered/amended judgment, not a new request
for damages. FED. R. CIV. P. 59.
Conclusion
For the reasons stated above, Plaintiff’s Motion for New Trial (Doc. 139) and Motion to
Alter or Amend the Judgment (Doc. 141) are DENIED.
IT IS SO ORDERED.
DATED: August 16, 2011
___________________________
DONALD G. WILKERSON
United States Magistrate Judge

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