Sublett v. Green et al

Filing 92

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 3/17/2021. denying 87 Motion to Reopen Case. cc: Counsel, plaintiff pro se(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:17-CV-00116-TBR
DAMIEN A. SUBLETT

PLAINTIFF

v.
LINDA S. GREEN, et al.

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court is Sublett’s Motion to Reopen. [DN 87]. The defendants responded. [DN
88]. Sublett replied. [DN 89]. The motion is ripe for adjudication. For the reasons stated below,
the motion is DENIED.
I.

Background
Damien A. Sublett is a prolific filer. This case involved a series of complaints, supplements

to complaints, and amended complaints by Sublett where many of the parties changed and the
claims brought by Sublett also changed over the action’s lifespan. Sublett originated this action on
August 3, 2017 when he filed his first complaint under 42 U.S.C. § 1983 claiming that the
Defendants violated several of his constitutional rights. Sublett had at least six civil actions against
prison officials working their way through the courts during the period in which his rights were
allegedly violated. Sublett alleged that the Defendants in this case took adverse action against him
in retaliation for these civil actions and grievances against prison officials. More specifically,
Sublett claimed that the Defendants unlawfully limited his access to legal resources and that a
grievance against a prison official was wrongfully rejected.
On January 18, 2019, the Court dismissed Sublett’s claims that his “original grievance”
#8479 was not returned to him when he was released from the Restrictive Housing Unit into the
general population, that Defendant Tangerose wrongfully rejected his “original grievance” #8479,
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and that Sublett’s affidavits were never returned to him. [DN 40 at 13]. Sublett then had two
remaining claims: (1) that Green, Tangerose, and Hatton denied him access to the legal library and
use of the LexisNexis computer; and (2) that Green directed prison officials to enter Sublett’s cell
and confiscate all of his legal materials. The action proceeded to trial on these two claims.
On June 3 and June 4, 2019, a jury found in favor of Sublett on his claim that Defendant
Green retaliated against Sublett in violation of the First Amendment by directing prison officials
to enter his cell and confiscate all of his legal materials; the jury awarded Sublett nominal damages
of $1.00. [DN 77]. The jury found in favor of Defendants Green, Hatton, and Tangerose on the
claim that they retaliated against Sublett in violation of the First Amendment by denying Sublett
access to the legal library and/or use of the Lexis Nexis computer.
Following trial, Sublett moved the Court to set aside the judgment and grant him a new
trial on his claims that Hatton, Green, and Tangerose denied him legal materials and/or access to
the Lexis Nexis computer and a new trial on the issue of damages against Green arising out of the
jury’s finding that she confiscated all of his legal materials in violation of the First Amendment.
Sublett argued that “[t]he Jury’s determination that Hatton, Tangerose and Green did not deny
Sublett access to legal material was a ‘seriously erroneous result’” and that the verdict on that
claim was against the weight of the evidence. [DN 83 at 3]. Sublett also argued that “[t]he damage
against Linda S. Green where inadequate awarded in an amount substantially less than
unquestionably proven as there was no evidence submitted by Green that Sublett had 5 inches
more in violation of the policy and RHU Rule.” [DN 79-1 at 11]. Finally, Sublett argued that “[t]he
court gave an incorrect compensatory Damages Instruction; INSTRUCTION NO. 5.” Id. at 14.
The Court denied Sublett’s motion for a new trial. [DN 85]. The Court determined first that
the Jury’s determination that Hatton, Tangerose, and Green did not deny the Plaintiff access to

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legal material was not a “seriously erroneous result,” and did not warrant a new trial. The Court
also determined that the damages awarded against Linda S. Green were adequate and did not
warrant a new trial. Finally, the Court determined that Jury Instruction No. 5 did not warrant a new
trial. On these findings, the Court denied Sublett’s motion.
Currently before the Court is Sublett’s “Motion to Reopen” pursuant to Federal Rules of
Civil Procedure 60(b)(1) and 60(b)(6). [DN 87]. Sublett argues that the Court should allow Sublett
to proceed with a trial on compensatory damages against Linda Green. In support, Sublett argues
that the Court applied the incorrect law in determining there was no error in the jury instructions.
Thus, Sublett challenges the Court’s previous determination that jury instruction No. 5 does not
warrant a new trial.1
II.

Standards
Federal Rule of Civil Procedure 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Sublett argues that he is entitled to a new trial under subsection (1),
subsection (6), or both. “Relief under Rule 60(b)(1) is proper ‘in only two situations: (1) when a

Green argues in her response to Sublett’s motion that the motion should be stricken from the record because
Sublett failed to serve his motion on Green’s counsel, and Green only became aware of the motion because it was
docketed electronically by the clerk. [DN 88 at 1-2]. The Court agrees that Sublett’s failure to serve is reprehensible,
but ultimately, the Court prefers to hear arguments on their merits rather than to dismiss them for procedural errors,
especially when a party is proceeding pro se.
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party has made an excusable mistake or an attorney has acted without authority, or (2) when the
judge has made a substantive mistake of law or fact in the final judgment or order.’” Gibson v.
Ford Motor Co., No. 3:18-CV-43-RGJ, 2021 WL 77470, at *2 (W.D. Ky. Jan. 8, 2021) (quoting
United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002)); Vargo v. D & M Tours, Inc., No. 203380, 2020 WL 7828742, at *4 (6th Cir. Dec. 31, 2020). “Rule 60(b)(6) is a catch-all provision
that provides relief from a final judgment when the movant shows ‘any other reason that justifies
relief.’” Id. (quoting Gonzales v. Crosby, 545 U.S. 524, 528 (2005)). Rule 60(b)(6) only applies in
“extraordinary circumstances” or “unusual and extreme situations” that “are not addressed by the
first five numbered clauses of the rule.” Vargo, WL 7828742, at *5 (first quoting Buck v. Davis,
137 S.Ct. 759, 777 (2017); and then quoting Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th
Cir. 1990)).
III.

Discussion
The Court entered final judgment in this action after a jury found in favor of Sublett on his

claim that Green retaliated against him in violation of the First Amendment. [DN 77]. The jury
awarded Sublett nominal damages of $1.00, and the Court entered judgment against Green
accordingly. Id. Sublett argues the judgment was in error because it was based on an erroneous
jury instruction. As stated above, the Court has already determined that Jury Instruction No. 5 does
not warrant a new trial. [DN 85]. Now, Sublett asks the Court to reconsider that finding.
a. Sublett’s Motion to Reopen
The jury instruction Sublett challenges reads:
INSTRUCTION NO. 5
Compensatory Damages
If you find for the Plaintiff against the Defendants, then you will next
determine from the evidence and award the Plaintiff such sum of money as will
fairly and reasonably compensate him for his mental and physical pain and
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suffering, if any, as you believe from the evidence he has sustained as a direct result
of the deprivation of his constitutional rights by the Defendant. Any award of
compensatory damages must not exceed an amount of $17,000.00 against any
single Defendant.
The fact that I instruct you on damages should not be taken by you as
indicating one way or the other whether the Plaintiff is entitled to recover damages.
This is entirely for you to decide. Any damages you award must have a reasonable
basis in the evidence. They need not be mathematically exact but there must be
enough evidence for you to make a reasonable estimate of damages without
speculation or guess work.
If you find in favor of the Plaintiff against the Defendants, but you find the
Plaintiffs damages have no monetary value, then you must return a verdict for the
Plaintiff in the nominal amount of one dollar.
[DN 73 at 9]. Sublett’s earlier challenge to the instruction was made in his motion for a new trial
pursuant to Federal Rule of Civil Procedure 59(a). [DN 79]. Sublett argued the instruction was
erroneous because under King v. Zamiara, 788 F.3d 207 (6th Cir. 2015), Sublett was not required
to prove mental and physical pain and suffering to recover compensatory damages for a
constitutional violation. The Court determined that the jury instruction did not warrant a new trial
because Sublett did not object to the jury instructions and the instruction was what Sublett
submitted to the Court, and because even if the instruction was erroneous, the error was harmless
since Sublett failed to prove any actual injury caused by the First Amendment violation. Id.
Sublett says the Court used the wrong standards in making that determination. Sublett cites
various Sixth Circuit cases and their propositions of law, seemingly to demonstrate that the Court
would have reached a different result on the motion for a new trial had it considered those cases
and rules. First, Sublett argues that jury instructions must be taken as a whole to determine whether
the jury was adequately informed of the law on which to base its decision, and that the correctness
of jury instructions is a question of law. [DN 87 at 1-2] (citing Pivnick v. White, Getgey & Meyer
Co., LPA, 552 F.3d 479 (6th Cir. 2009); Vance v. Spencer Cty. Public Sch. Dist., 231 F.3d 253
(6th Cir. 2000); Jones v. Federated Fin. Reserve Corp., 144 F.3d 961 (6th Cir. 1998)). Next,

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Sublett argues the district court was required to follow the rule that an “inquiry into jury
instructions is limited to whether, taken as a whole, the instructions adequately inform the jury of
the relevant considerations and provide the jury with a sound basis in law with which to reach a
conclusion.” Id. at 2 (citing United States v. Wells, 211 F.3d 988, 1002 (6th Cir. 2000)). Sublett
further argues, “[t]he Court was required to determine whether the jury Instruction [were]
‘confusing, misleading, and prejudicial.’” Id. (citing Pivnick, 552 F.3d at 488). Next, Sublett cites
quotes Walker v. Norris, stating, “[a] party is not entitled to a new trial based upon alleged
deficiencies in the jury instructions unless the instructions, taken as a whole, are misleading or
give an inadequate understanding of the law.” Id. (quoting Walker v. Norris, 917 F.2d 1449, 145344 (6th Cir. 1990) (quoting Bowman v. Koch Transfer Co., 862 F.2d 1257, 1263 (6th Cir. 1988)).
Sublett then argues he is entitled to relief under a plain error standard of review. Sublett
cites the United States District Court for the Western District of Tennessee in stating:
“A court may consider a plain error in the instructions that has not been preserved
as required by Rule 51(d)(1) if the error affects substantial rights.” Under plain error
review, a court must find four factors:
First, there must be an error or defect ... that has not been
intentionally relinquished or abandoned, i.e. affirmatively waived,
by the appellant. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error must have
affected the appellant's substantial rights. Fourth and finally, if the
above three prongs are satisfied ... discretion ... ought to be exercised
only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
EEOC v. New Breed Logistics, 962 F.Supp.2d 1001, 1009 (W.D. Tenn. Aug. 23, 2013) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)). Sublett argues that “[t]here is no dispute that
the first prong has been [satisfied].” [DN 87 at 2].
Sublett then turns to the alleged error in the jury instructions. Id. at 2-3. He quotes King for
its statement that “deprivations of First Amendment rights are themselves injuries, apart from any
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mental, emotional, or physical injury that might also arise from the deprivation, and that § 1997e(e)
does not bar all relief for injuries to First Amendment rights.” King, 788 F.3d at 212. Again, Sublett
argues there was in error in law in Instruction No. 5 because the jury could only grant him
compensatory damages if he suffered emotional or physical pain from Defendant Green’s First
Amendment violation. [DN 87 at 2-3]. Sublett argues that he was entitled to recover presumed
damages for Green’s First Amendment violation because it was a harm difficult or impossible to
measure. Id. at 2 (citing Carey v. Piphus, 435 U.S. 247, 262 (1978); Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 760-76 (1985)). Finally, Sublett generally argues that the
error in the jury instructions was not harmless and can only be corrected with a new trial. Id. (citing
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984); City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 256 (1981)).
None of Sublett’s arguments or the rules he cites changes the Court’s earlier determination
that he is not entitled to a new trial on compensatory damages. As the Court earlier recognized,
King does provide that a plaintiff may recover presumed damages if the actual injury suffered is
difficult to determine. King, 788 F.3d at 213-14. Yet, even granting Sublett that the compensatory
damages instruction was erroneous, it does not constitute reversible error that warrants a new trial
under Rule 60(b) because Sublett did not prove an actual injury.
b. No Reversible Error
“‘Generally, the propriety of jury instructions is a matter of law that is reviewed de novo,’
under a harmless error standard if the defendant objected to the jury instructions at trial and a plain
error standard if he did not.” United States v. Thiam, 934 F.3d 89, 93 (2d Cir. 2019) (quoting
United States v. Botti, 711 F.3d 299, 307-08 (2d Cir. 2013)); Barnett v. Smithwick, 835 F. App’x
31, 34 (6th Cir. 2020). “Where a party fails to preserve its objection to jury instructions, we review

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the instructions for plain error.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1075 (6th Cir.
2015) (citing Bath & Body Works, Inc. v. Luzier Personalized Cosmetics, Inc., 76 F.3d 743, 749
(6th Cir.1996)). Sublett did not object to the jury instructions, so plain error review applies.2
“Demonstrating plain error is a tall order.” Barnett, 835 F. App’x at 34 (citing Maday v.
Pub. Libraries of Saginaw, 480 F.3d 815, 820 (6th Cir. 2007)). “Plain error is defined as an
‘obvious and prejudicial error that requires action by the reviewing court in the interests of
justice.’” New Breed Logistics, 783 F.3d at 1075-76 (quoting Reynolds v. Green, 184 F.3d 589,
594 (6th Cir. 1999)). To require action by this Court, Sublett must demonstrate “an ‘error or
defect—some sort of deviation from a legal rule’ that is ‘obvious and prejudicial,’ and ‘requires
action . . . in the interests of justice.’” Barnett, 835 F. App’x at 34 (citing Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Olano, 507 U.S. 725, 732-33 (1993); New Breed
Logistics, 783 F.3d at 1075; Scott v. Miller, 361 F. App'x 650, 653-54 (6th Cir. 2010)) (internal
citations, internal quotation marks, and brackets omitted). Sublett must also show that he “did not
intentionally acquiesce to the error.” Id. (citing Olano, 507 U.S. at 733).
Beyond intentional acquiescence, Sublett proposed the instruction he now challenges.3
Thus, Sublett’s claim is foreclosed by the invited error doctrine. “The doctrine of ‘invited error’
refers to the principle that a party may not complain on appeal of errors that he himself invited or
provoked the court or the opposite party to commit.” Harvis v. Roadway Exp. Inc., 923 F.2d 59,
60 (6th Cir. 1991) (citation omitted). “Having induced the court to rely on a particular erroneous
proposition of law or fact, a party in the normal case may not at a later stage of the case use the

2

The Court applied the more forgiving harmless error standard of review in its opinion and order addressing
Sublett’s motion for a new trial. [DN 85]. Here, Sublett concedes that plain error applies.
3
See DN 54 at 10, Proposed Jury Instructions by Damien A. Sublett (“If you find for the Plaintiff against the
Defendants, then you will next determine from the evidence and award the Plaintiff such sum of money as will fairly
and reasonably compensate him for his mental and physical pain and suffering, if any, as you believe from the
evidence he has sustained as a direct result of the deprivation of his constitutional rights by one or both
defendants.”) (emphasis added).

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error to set aside the immediate consequences of the error.” Id. at 61. An invited error is the rough
equivalent of a waiver, and, “although waived arguments are typically unreviewable, we will
consider invited errors when they ‘result in manifest injustice.’” United States v. Derringer, No.
19-6427, 2021 WL 387499, at *5 (6th Cir. Feb. 3, 2021) (quoting United States v. Demmler, 655
F.3d 451, 458 (6th Cir. 2011)).
The jury instruction at issue did not include an error that was obvious and prejudicial, nor
did it result in manifest injustice. Sublett claims error in the instruction because the Court did not
include presumed damages in the compensatory damages instruction. However, there is no
prejudice or injustice in this omission because Sublett was not entitled to recover compensatory
damages, including presumed damages, “unless he [could] prove actual injury caused by [Green’s
First Amendment] violation.” King, 788 F.3d at 213 (emphasis added). But Sublett proved no
actual injury. As the Court stated in addressing Sublett’s motion for a new trial, Sublett failed to
point to specific witness testimony presented at trial or other evidence offered at trial to prove that
he suffered a real and cognizable injury. Sublett broadly asserted that Green’s actions prevented
him from litigating other lawsuits but he failed to direct the Court to portions of the transcript to
support this assertion or provide any other comparable evidence. The Court also stated:
Plaintiff argues that his damages were his inability to prosecute other civil
actions due to the confiscation of his legal materials. Plaintiff argues “Sublett
testified that he was unable to respond to motion by lawyer for the defendants in
his pending civil action because Sublett did not have any of his legal material, and
that Green confiscated all of Sublett legal material that came in the legal mail from
other defendant’s lawyer’s.” (DN 83 at 7). Plaintiff specifically identifies Sublett v.
McAlister, 5:16-cv-00138-TBR and argues he “could not litigate the McAlister case
because all of his legal material was confiscated by green, the damage was the fact
that Sublett could not litigate his pending civil case like in King v. Zamiara supra.”
Id.
Plaintiff has not articulated exactly how the confiscation of his legal
materials hindered his prosecution of the McAlister case. Plaintiff has not identified
what specific documents were confiscated that were critical to that case.
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Furthermore, Plaintiff has not identified any outcomes in that case which would
have been different if the documents were not confiscated. Most importantly,
Plaintiff does not offer any proof that he presented evidence of these damages at
trial. Plaintiff has not cited to any transcripts from trial testimony where a witness
testified that Sublett was hindered in his prosecution of the McAlister case, or any
other case, by Green’s confiscation of his materials. Plaintiff bore the burden of
proving these damages at trial and he now bears the burden of proving that he met
that burden at trial.
[DN 85 at 5-6]. Without proving actual injury at trial, Sublett could not have been granted
presumed damages, so no prejudice or injustice could have resulted from failure to give the jury a
presumed damages instruction.
Sublett must establish grounds for relief pursuant to Rule 60(b) under a clear and
convincing evidence standard. United States v. Church, No. 19-1528, 2020 WL 2494431, at *2
(6th Cir. Apr. 22, 2020) (citing Info-Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 454
(6th Cir. 2008)). Sublett has failed to carry that burden. Thus, this Court will not exercise its
discretion under Rule 60(b) to grant Sublett relief from the final judgment in this action.
IV.

Conclusion
Sublett’s Motion to Reopen, DN 87, is DENIED.
IT IS SO ORDERED.

cc: counsel
March 17, 2021

Damien A. Sublett
134575
LEE ADJUSTMENT CENTER
WN207
Inmate Mail
168 Lee Adjustment Center Drive
Beattyville, KY 41311
PRO SE
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