Carter v. Ricumstrict et al

Filing 158

ORDER DENYING 155 MOTION FOR RELIEF FROM JUDGMENT UNDER RULE 60(B) and FINDING ANY APPEAL FRIVOLOUS. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOEL CARTER,
Plaintiff,

Case No. 07-13311
Honorable Denise Page Hood

v.
ASSISTANT DEPUTY WARDEN
RICUMSTRICT, et al.,
Defendants.
_________________________________/

ORDER DENYING MOTION FOR RELIEF
FROM JUDGMENT UNDER RULE 60(B)
and
FINDING ANY APPEAL FRIVOLOUS

I.

BACKGROUND
The jury trial began on July 9, 2012 on Plaintiff Joel Carter’s 42 U.S.C. § 1983

Eighth Amendment claim that Plaintiff was subject to the use of chemical agents
while in Defendants’ custody. Plaintiff was represented by an appointed pro bono
counsel during the proceedings. A verdict was rendered on July 11, 2012, the jury
finding a no cause of action in favor of Defendants and against Plaintiff. (Verdict
Form, Doc. No. 129) On March 29, 2013, the Court entered an Order denying
Plaintiff’s Motions for New Trial and/or for Judgment as a Matter of Law. (Doc. No.

136) A Notice of Appeal was filed on April 18, 2013. (Doc. No. 137) The Sixth
Circuit appointed counsel to represent Plaintiff on appeal. (Doc. No. 148) While on
appeal, Plaintiff’s counsel filed a Motion for Relief from Judgment under Rule 60(b)
with this Court. (Doc. No. 155) The Sixth Circuit stayed the appeal pending this
Court’s ruling on Plaintiff’s motion. (Doc. No. 156)
In his Rule 60(b) motion, Plaintiff asserts that the exhibit book provided to the
jury contained exhibits which were excluded by the Court. Specifically, Plaintiff
claims that the Jury received exhibits that detail Plaintiff’s sexual misconduct
allegations which were excluded by the Court. Plaintiff claims the trial transcript
shows that the Court inadvertently gave the Jury a copy of Plaintiff’s exhibit book
containing the inadmissible exhibits.
In an affidavit submitted by Plaintiff, he claims that on the last day of trial, July
11, 2012, he reviewed one of the exhibit books on Plaintiff’s table and observed that
it contained the exhibits excluded by the Court. (Ex. A, Carter Aff.) Plaintiff asked
his counsel, Gerald Gleeson, why the binder contained the inadmissible exhibits. Mr.
Gleeson responded that the binder was for “our records only,” and that the “Jury
won’t be seeing these because they have their own copies of the exhibits,” which do
not contain the sexual misconduct allegations. (Ex. A, Carter Aff.; Ex. B, Gleeson
Aff.)
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The Jury began deliberation at 10:16 a.m. on July 11, 2012 and the Court
returned to session at 11:27 a.m. to receive the verdict. (Tr., Pg ID #1247-48)
Before receiving the verdict, the Court stated that “I received a note from the Jurors
saying we want to get a copy of all admissible documents for the Jury’s review. So
we gave them all the documents that were on the front table.” (Tr., Pg ID #
1248)(italics added) Plaintiff asserts in his affidavit that “Plaintiff’s table was the
front table facing the judge’s bench. The defense’s table was on the side facing the
jury.” (Ex. A, Carter Aff.) Plaintiff further asserts that “[t]he exhibit book and Mr.
Gleeson’s notepad were the only items sitting on top of the table.” (Id.) Plaintiff
claims that when he read the transcripts in November 2013 that exhibits from the
front table were given to the Jury, he knew that the Jury received the inadmissible
exhibits. (Id.) Mr. Gleeson indicated that he left the binder with the excluded
documents on Plaintiff’s table, but “I believe I later packaged it in a box.” (Ex. B,
Gleeson Aff.) Plaintiff contends in his motion that the “front table” referred to by the
Court in the transcript was the “Plaintiff’s table.”
II.

ANALYSIS
A.

Rule 60(b) Standard

Rule 60(b) of the Federal Rules of Civil Procedures provides that,
[T]he court may relieve a party or a party’s legal
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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). The standard under Rule 60(b) is significantly higher than the
Rule 59(e) standard. Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir.
1998). Motions based on (1), (2) and (3) must be filed no more than a year after the
entry of the judgment or order. Fed. R. Civ. P. 60(c)(1). Under the catch-all
provision in subsection (6), the Sixth Circuit has held that a Rule 60(b)(6) motion
must be based upon some reason other than those stated in subsections (1) to (5).
Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1333 (6th Cir.
1985). Extraordinary circumstances are needed to grant relief under Rule 60(b)(6).
Id.
B.

Rule 60(b)(1) - Mistake

Plaintiff cites Rule 60(b)(1) as a basis for his request, arguing that the Court

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inadvertently made a mistake by giving the Jury the exhibit book on Plaintiff’s table
which contained the excluded exhibits. The Judgment in this case was entered on
July 12, 2012, which would make Plaintiff’s motion under Rule 60(b)(1) untimely.
The Order denying Plaintiff’s Motions for New Trial was entered on March 29, 2013.
The instant motion was filed on March 28, 2014, which would make the motion
timely within the one-year limitation period from the March 29, 2013 Order.
However, the issue raised in this motion regarding the exhibit binder was not raised
in Plaintiff’s Motions for New Trial.
Even if the Court were to consider Rule 60(b)(1) motion as timely, the Court
denies the motion. The table referred to by the Court in the trial transcript is the small
table immediately in front of and below the court clerk’s table. The court clerk’s
table is immediately in front of and below the bench. The Court did not refer to the
Plaintiff’s table when it indicated “we gave them all the documents that were on the
front table.” (Tr., Pg ID # 1248) The small table in front of court clerk’s table in the
courtroom is where the admitted exhibits to be given to the Jury (if requested by the
Jury) are placed, after all parties have reviewed the exhibits to be submitted to the
Jury during deliberation.
From the view of the bench, Plaintiff’s table is facing the bench, which would
be in front of the bench. However, Plaintiff’s table is several yards away from the
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bench. In between the bench and Plaintiff’s table are the court clerk’s table, a small
table directly in front of the court clerk’s table and the podium. The Plaintiff’s table
is behind the podium in the back of the bar, but is immediately before the swinging
doors which separate the audience from the bar. Those who sit behind the Plaintiff’s
table are directly facing the bench. To the left of the bench and to the left of the
Plaintiff’s table (as viewed from the bench) is the jury box. To the right of the bench
is the defense table and those who sit behind the defense table are directly facing the
jury box. Although Plaintiff’s table is facing and is in front of the bench, the Court
was not referring to the Plaintiff’s table when it indicated the jury was given the
evidence books. The Court was referring to the small table directly in front of the
court clerk’s table, which the Court routinely uses as the table where the parties place
the admitted evidence to be given to the jury if so requested.
C.

Rule 60(b)(6)

Alternatively, Plaintiff cites Rule 60(b)(6), the catch-all provision, arguing that
the Jury may have received prejudicial information due to Plaintiff’s own counsel’s
gross negligence by failing to examine Defendant’s exhibit book for prejudicial and
excluded exhibits. As noted above, a Rule 60(b)(6) motion must be based upon some
reason other than those stated in subsections (1) to (5) and requires a showing of
extraordinary circumstances to grant relief. Smith, 776 F.2d at 1333. (6th Cir. 1985).
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When defense counsel offered the exhibit book for the Jury during defense
counsel’s examination of a witness on July 10, 2012, Mr. Gleeson stated, “I have seen
the book and he has represented he has taken out the exhibits that have been ruled
inadmissible.” (Tr., Pg ID # 982) Defense counsel stated, “Correct.” (Id.) Mr.
Gleeson then stated, “So I trust Mr. Schneider in that regard as an officer of the
Court.” (Id.)
This exchange between the Court and both counsel, does not show egregious
behavior by Plaintiff’s counsel or support Plaintiff’s claim that his counsel did not
review the exhibit book actually submitted to the Jury. Plaintiff’s counsel in this
cited exchange only asserts he saw the defense exhibit book and trusted that defense
counsel removed the excluded exhibits before the defense published its exhibit book
to the Jury on July 10, 2012. There is also no evidence that the excluded exhibits
were placed in the exhibit book presented to the Jury during its deliberations on July
11, 2012. Plaintiff has not shown extraordinary circumstances to warrant relief under
Rule 60(b)(6).
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiff’s Motion for Relief from Judgment under Rule

60(b) [Doc. No. 155] is DENIED. Any appeal from this Order would be frivolous
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and not taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369
U.S. 438, 445 (1962), McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.
1997)(overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)).

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 9, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 9, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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