Aaron v. Dyer et al

Filing 109

ORDER denying 102 Motion for New Trial. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY AARON,
Plaintiff,
v.

Case No. 15-11014
Honorable Victoria A. Roberts

JACKIE DYER, et al.,
Defendants.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL [Doc. 102]
I.

INTRODUCTION AND BACKGROUND
Plaintiff Jeffrey Aaron, a prisoner confined in the Michigan Department of

Corrections (“MDOC”), filed this case pro se against seven MDOC employees, alleging
that they retaliated against him for filing grievances in violation of his First Amendment
rights. After the Court ruled on dispositive motions, Aaron retained Solomon Radner as
counsel.
The case proceeded to trial in January 2017 against the four remaining
Defendants – Jackie Dyer, Rennia Funches, Kelly Holden and Richard Cady. With
consent of the parties, Magistrate Judge David R. Grand conducted voir dire (i.e., jury
selection) on January 9, 2017. On January 12, the jury returned a verdict in favor of
Defendants, finding no cause of action. The Court entered judgment to that effect on
January 17.
On January 31, 2017, Aaron filed a pro se Motion for New Trial pursuant to
Federal Rule of Civil Procedure 59. [Doc. 102]. On July 6, 2017, well after the motion

had been fully briefed, Aaron filed a supplemental pleading with additional evidence that
he says he recently discovered. [Doc. 106].
For the following reasons, Aaron’s Motion for New Trial [Doc. 102] is DENIED.
II.

ANALYSIS
A.

Aaron May Proceed Pro Se

Defendants say the Court should strike Aaron’s motion because he filed it himself
rather than having counsel file it on his behalf. In his reply brief, Aaron says he has
been representing himself since the jury verdict. Therefore, Aaron may proceed without
counsel, and the Court will not strike his motion.
However, Radner and his co-counsel are still listed on the docket as counsel of
record for Aaron. So that the docket accurately indicates that Aaron is pro se, the Court
TERMINATES Radner and his co-counsel as Aaron’s active counsel of record.
B.

Aaron’s Motion for New Trial

The Court may grant a new trial under Rule 59 “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)(1)(A). “The language of Rule 59(a) has been interpreted to mean that a new trial
is warranted when a jury has reached a ‘seriously erroneous’ result as evidenced by: (1)
the verdict being against the weight of the evidence; (2) the damages being excessive;
or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings
being influenced by prejudice or bias.” E.E.O.C. v. New Breed Logistics, 783 F.3d
1057, 1066 (6th Cir. 2015) (citation omitted). The Court has broad discretion in deciding
whether to grant a new trial. Clark v. Esser, 907 F. Supp. 1069, 1073 (E.D. Mich.
1995). However, a motion for new trial may not be granted unless the moving party

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establishes that he or she suffered prejudice. Simmons v. Napier, 626 Fed. Appx. 129,
132 (6th Cir. 2015).
Aaron says he is entitled to a new trial because: (1) he presented evidence
proving he was moved in retaliation for filing grievances; (2) Defendant Dyer gave false
testimony and is not credible, “as the truth of the matter was as stated in Plaintiff’s
grievance,” [Doc. 102, PgID 1006]; (3) the jury had a right to know about a “sham
affidavit” and false testimony Defendant Holden gave in another case; (4) the jury
should have known that every Defendant has been sued by other prisoners for their
conduct involving similar issues; (5) the jury should have heard the testimony of two
prison inspectors, and they should have known that he would have called them as
witnesses if Defendants would not have indicated they planned to call them as
witnesses; and (6) the jury was tainted.
1. The Verdict is Supported by Sufficient Evidence
Aaron says the Court should grant a new trial because he proved his case – i.e.,
that Defendants retaliated against him for engaging in protected conduct.
Defendants argue that Aaron cannot challenge the sufficiency of the evidence
because, although Aaron orally moved for directed verdict during trial, his failure to
attach the trial transcript to his motion prevents the Court from determining “what
issues, if any, were preserved by that motion.” [Doc. 104, PgID 1021]. In making this
argument, Defendants rely on S. Ry. Co. v. Miller, 285 F.2d 202 (6th Cir. 1960), for the
proposition that “the question of the sufficiency of the evidence to support the jury’s
verdict is not available as a ground for a motion for new trial” if “[n]o motion for directed
verdict ha[d] been made.” Id. at 206.

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Defendants misconstrue the holding in Miller. In that case, the Sixth Circuit
“distinguished between motions made pursuant to Rule 50, which claim there is
insufficient evidence to send a case to a jury, and Rule 59 motions, which claim that the
jury verdict was against the weight of the evidence.” Hillside Prods., Inc. v. Cty. of
Macomb, 389 Fed. Appx. 449, 456 (6th Cir. 2010) (emphasis in original). Contrary to
Defendants’ position, a motion for directed verdict is not a prerequisite to an argument,
under Rule 59, that the verdict was against the great weight of the evidence. See id.
(“The district court abused its discretion when it misapplied the law and held that a Rule
50 motion is a prerequisite for a Rule 59 motion that the weight of the evidence does not
support the jury’s verdict.”); Maclin v. Holden, No. 12-12480, 2016 WL 1161526, at *1
(E.D. Mich. Mar. 23, 2016) (holding that the Court can consider a claim that the verdict
was against the great weight of the evidence in a Rule 59 motion for new trial, even
where no motion for directed verdict was made regarding the sufficiency of the
evidence).
Aaron argues that the verdict was against the great weight of the evidence;
Defendants acknowledge this in their response, stating that “[Aaron] argues repeatedly
that he presented evidence on which the jury should have ruled in his favor.” [Doc. 104,
PgID 1020]. Accordingly, Defendants’ argument fails, and the Court will consider
Aaron’s sufficiency of the evidence claim.
Nevertheless, Aaron is not entitled to a new trial; the verdict was not against the
great weight of evidence.
When deciding a motion for new trial on the ground that the verdict is against the
great weight of the evidence, the Court may not set aside the verdict simply because it

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believes another outcome is more justified. Denhof v. City of Grand Rapids, 494 F.3d
534, 543 (6th Cir. 2007). Moreover, “[c]ourts are not free to reweigh the evidence and
set aside the jury verdict[] merely because the jury could have drawn different
inferences or conclusions or because [the] judge[] feel[s] that other results are more
reasonable.” Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982) (citation omitted).
Rather, the Court must “uphold the verdict if it was one which the jury reasonably could
have reached.” Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir.
2012). Because of this, “granting a new trial on this ground is a rare occurrence – it
happens only when the verdict is said to be unreasonable.” Id.
Throughout his pleadings, Aaron gives his interpretation of the evidence, arguing
that Defendants were not credible witnesses and summarily stating that he presented
sufficient evidence to establish that Defendants retaliated against him for filing
grievances. By making these arguments, Aaron essentially asks the Court to reweigh
the evidence and substitute his inferences and conclusions for those of the jury. This is
insufficient to demonstrate that Aaron is entitled a new trial on this ground.
To prove his retaliation claim, Aaron was required to establish by a
preponderance of the evidence that: “(1) [he] engaged in protected conduct; (2) an
adverse action was taken against [him] that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two – that is, the adverse action was motivated at least in part by [his]
protected conduct.” See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
The jury heard the testimony of Aaron, the Defendants, and other witnesses –
including Aaron’s cellmate – and made decisions regarding the credibility of each

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witnesses’ testimony. In weighing the evidence and making credibility determinations,
the jury concluded that Aaron did not establish a First Amendment retaliation claim.
This verdict was reasonable and was sufficiently supported by credible evidence.
As Defendants point out, there was credible evidence that would allow the jury to
conclude that Aaron’s allegations were not true and/or insufficient to establish each
element of a retaliation claim. Among other things, the jury could have reasonably
concluded that Defendants were not personally involved in, or were not the decision
makers behind, moving Aaron’s cell, and/or that Aaron’s protected conduct (i.e., filing
grievances) was not the moving force behind the alleged adverse action(s). See
Thaddeus-X, 175 F.3d at 399 (“[I]f the defendant can show that he would have taken
the same action in the absence of the protected activity, he is entitled to prevail.”).
Because there was sufficient evidence supporting the jury’s verdict of no cause
of action, the verdict was reasonable, and the Court will not reweigh the evidence or
make credibility determinations to comport with Aaron’s interpretation of the evidence.
See Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir. 1996) (holding that the Court
properly denies a motion for new trial where “some competent, credible evidence”
supports the verdict); Maclin, 2016 WL 1161526, at *2 (“It is the responsibility of the jury
to weigh the evidence and to judge the credibility of the witnesses. The Court cannot
reweigh the evidence or substitute its view of the evidence for that of the jury’s when
there is evidence upon which reasonable minds could differ.”).
Aaron fails to show that the verdict was unreasonable or against the great weight
of the evidence, and his credibility arguments lack merit. Aaron is not entitled to a new
trial on these grounds.

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Aaron also is not entitled to a new trial based on information he says should have
been presented to the jury (i.e., Holden’s alleged “sham affidavit” and false testimony in
another case, and the fact that Defendants have been sued by other prisoners) or
because Defendants did not call the prison inspectors as witnesses.
Aaron fails to show that Defendants wrongfully prevented him from introducing
evidence, and he does not claim that the Court erred in making evidentiary rulings.
Neither the Court nor Defendants are obligated to present evidence on Aaron’s behalf.
If Aaron wanted the jury to consider certain evidence, he should have presented it while
litigating his case. His failure to do so does not translate into a new trial.
Moreover, as to the inspectors, the joint final pretrial order states that Defendants
“may call” the inspectors as witnesses. [Doc. 86, PgID 956]. Nothing required
Defendants to call them as witnesses. Even if Defendants indicated that they were
calling the inspectors as witnesses, it would be unreasonable for Aaron to rely on that
indication in any circumstance, and especially if – as he says – their testimony was
relevant to his case. Like Defendants, Aaron had a right to call or not call any relevant
individual on the witness list. Aaron’s failure to call the inspectors was his own fault;
any prejudice he suffered from not presenting their testimony does not warrant a new
trial.
2. The Jury Was Not Tainted by Two Potential Jurors During Voir Dire
Aaron argues he was denied a fair trial because the jury was tainted:
During jury selection, there were (2) jurors that poisoned the rest of the
jurors. . . . [They] complained of being [on] a jury and [said] that they
cannot by any circumstances allow a prisoner to prevail. . . . They were
even questioned by the Honorable Magistrate David A. Grand . . . and
[were] ultimately dismissed by the Judge. . . .However, the damage was

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done. They successfully tainted the rest of the jurors . . . [and] Plaintiff
was ultimately prejudice[d].
[Doc. 102, PgID 1001]. This argument fails for multiple reasons.
First, Aaron rests his argument on the conclusory allegations quoted above.
Other than the fact that the jury found in favor of Defendants, Aaron fails to provide any
support for his conclusion that the jury was tainted by the opinions of the potential jurors
who were ultimately dismissed, and he does not cite any case or other legal authority
that establishes a right to a new trial where prospective jurors were dismissed after
disclosing relevant biases during voir dire.
Importantly, Aaron fails to acknowledge that the purpose of voir dire is to expose
possible biases of prospective jurors:
One touchstone of a fair trial is an impartial trier of fact – ‘a jury capable
and willing to decide the case solely on the evidence before it.’ Voir dire
examination serves to protect that right by exposing possible biases, both
known and unknown, on the part of potential jurors. Demonstrated bias in
the responses to questions on voir dire may result in a juror being excused
for cause; hints of bias not sufficient to warrant challenge for cause may
assist parties in exercising their peremptory challenges. The necessity of
truthful answers by prospective jurors if this process is to serve its purpose
is obvious.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (internal
citation omitted). If courts had to wipe the slate clean and assemble a new jury pool
every time a prospective juror revealed a bias against one of the parties, jury selection
could be never ending.
The prospective jurors’ disclosure that they would not allow a prisoner to prevail
in litigation is an example of voir dire serving its purpose; contrary to Aaron’s claim,
exposing those individuals’ biases did not deny him a fair trial, but ensured him one.

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Moreover, Aaron’s argument is further undermined – if not waived – because he
failed to move for a new, untainted jury pool (or mistrial) immediately after “the damage
was done.” Allowing Aaron to raise this argument for the first time after trial and after
the jury returned an unfavorable verdict would create a dangerous precedent –
especially since he fails to support his conclusory allegations with any evidence of
prejudice. Such a ruling would encourage litigants to proceed through trial without
objecting/moving for a mistrial – hoping that the jury finds in their favor, but knowing that
they could raise the issue if the verdict is unfavorable.
Aaron fails to show that the two prospective jurors tainted the jury or denied him
a fair trial. He is not entitled to a new trial for this reason.
C.

Aaron’s Supplemental Pleading

In his supplemental pleading, Aaron says he was denied a fair trial because
Badawi Abdellatif, M.D., a member of the jury, purposely failed to disclose that: (1) his
employer has a contract with MDOC, under which he provides care to MDOC prisoners;
and (2) “he has been sued over 26 times by MDOC prisoners.” [Doc. 106, PgID 1048].
Defendants argue that the Court should not consider the supplemental pleading
because Aaron waited too long to raise this issue, without excuse.
Aaron filed the supplemental pleading on July 6, 2017 – over five months after he
filed his motion for new trial. Aaron claims that he only recently discovered this
information about Dr. Abdellatif; specifically, he says he came across Dr. Abdellatif’s
name in another case while doing electronic research for this case, and that he
searched the name further because it sounded familiar. Defendants say Aaron could
have searched the jurors’ names during or after trial, but before filing his motion.

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The Court agrees with Defendant; Aaron could have done research on the jurors
before filing his motion for new trial. Nonetheless, because Aaron filed the supplement
before the Court ruled on the underlying motion, the Court will consider it.
Although Aaron failed to attach or cite to the jury selection transcript, the Court
reviewed it. Contrary to Aaron’s assertion, Dr. Abdellatif did disclose his employer and
the fact that he treated MDOC prisoners as a contract physician.
In fact, Aaron’s counsel questioned Dr. Abdellatif regarding his treatment of
prisoners, and asked him specifically whether he could issue a fair and just verdict if he
served as a juror. Dr. Abdellatif responded that he could deliver a fair verdict, without
improperly considering Aaron’s status as a prisoner. In response to a different question
from Aaron’s counsel, Dr. Abdellatif agreed that many prisoners he had interacted with
were very nice and good people.
Magistrate Judge Grand also asked Dr. Abdellatif whether he could be a fair juror
and deliver a verdict based on the facts and evidence in the case in light of his
interactions with prisoners and corrections officers. Dr. Abdellatif affirmed that he could
be fair, and said that nothing about his interactions with prisoners and corrections
officers would prevent him from being fair.
On the other hand, Aaron is correct that Dr. Abdellatif did not disclose that he has
been sued by prisoners. However, no one asked Dr. Abdellatif during voir dire whether
he has been sued, and he was not asked any other question that should have elicited a
response regarding his litigation history. Dr. Abdellatif did not have a duty to
affirmatively volunteer information related to his litigation history. See United States v.
Ledford, Nos. 96-5659, 96-6589, 1997 WL 659673, at *3 (6th Cir. Oct. 22, 1997) (“It is

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not the responsibility of a prospective juror to anticipate and then volunteer every piece
of information that might conceivably be of use to counsel.”). Because Dr. Abdellatif
had no duty to volunteer information related to his litigation history, his failure to do so is
irrelevant, and he did not maliciously withhold information or mislead the Court, as
Aaron summarily contends.
Moreover, “where the partiality of a particular juror is at issue, the relevant
question is ‘did a juror swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror’s protestations of impartiality
have been believed.’” Smith v. Jones, No. 05-72971, 2010 WL 3069781, at *3 (E.D.
Mich. July 26, 2010) (quoting Patton v. Yount, 467 U.S. 1025, 1036 (1984)). Here, Dr.
Abdellatif said several times under oath that he could be impartial and decide the case
based on the evidence; no evidence suggests he was lying.
In order to obtain a new trial based on a juror’s non-disclosure during voir dire,
the moving party “must first demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984).
Because Aaron cannot demonstrate that Dr. Abdellatif failed to answer honestly
a material question on voir dire, the Court need not address the second prong of the
test set forth in McDonough. Aaron is not entitled to a new trial on this ground.
III.

CONCLUSION
Aaron’s motion for new trial [Doc. 102] is DENIED. The Court TERMINATES

Radner and his co-counsel as Aaron’s attorneys of record on the docket.

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IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 22, 2017

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