Alexander v. Hoffman et al
Filing
126
ORDER DENYING 117 Motion for New Trial or to Amend Judgment. Signed by District Judge Terrence G. Berg. (AChu)
Case 4:16-cv-12069-TGB-MKM ECF No. 126 filed 06/03/20
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D’ANDRE M. ALEXANDER,
4:16-cv-12069
Plaintiff,
HON. TERRENCE G. BERG
v.
ORDER DENYING MOTION
FOR A NEW TRIAL OR TO
AMEND JUDGMENT
ANN HOFFMAN, et al.
Defendants.
Plaintiff
D’Andre
Alexander,
a
prisoner
of
the
Michigan
Department of Corrections (“MDOC”), moves for a new trial, or to amend
judgment, after the jury found against him following a four-day jury trial
that concluded on September 27, 2019. Alexander had alleged that
several MDOC employees tried to frame him by falsely claiming to have
found a knife hidden among his person effects and completing a majormisconduct report to that effect. Although Plaintiff requested that
evidence be gathered to support his version of events and mount a
defense to the charge, that evidence was never collected. An
Administrative Hearing Officer later found Plaintiff guilty of possessing
a weapon in prison. He was subsequently placed in administrative
segregation and transferred from the Saginaw Correctional Facility to a
prison in Michigan’s Upper Peninsula.
Plaintiff brought two claims to trial. First, that the Hearing
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Investigator, Scott Freed, violated his Fourteenth Amendment right to
procedural due process by refusing to gather specific evidence Plaintiff
believed would have supported his defense against the major-misconduct
charge; and second, that Ann Hoffman, an Assistant Resident Unit
Specialist,
retaliated
against
Plaintiff
for
exercising
his
First
Amendment right to file grievances against her by falsifying the
misconduct report.
At the close of the proofs, Defendants moved for judgment as a
matter of law pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure. The Court granted that motion as to Freed but denied it as to
Hoffman. ECF No. 105. Accordingly, only Plaintiff’s First Amendment
retaliation claim against Hoffman went to the jury, which returned a
verdict in her favor. This case is now before the Court on Plaintiff’s Rule
59 motion for a new trial or to amend the judgment, ECF No. 117, as well
as a motion for limited discovery for the purposes of identifying new
evidence, ECF No. 118. See Fed. R. Civ. P. 59(e). The Court will deny both
pending motions.
BACKGROUND
This case arose from events that occurred at the Saginaw
Correctional Facility, where Plaintiff was incarcerated in 2013. The
relevant facts are set forth in more detail in previous orders. See, e.g.,
ECF No. 72 (Mar. 25, 2019 Order Adopting in Part, Modifying in Part R.
& R.); ECF No. 65 (Sep. 27, 2018 R. & R.); ECF No. 44 (Jan. 23, 2018 R.
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& R.). Briefly, Plaintiff claimed that Hoffman conspired with other
previously dismissed Defendants to falsify a major-misconduct report by
claiming—disingenuously—to have discovered a knife inside a duffel bag
in Plaintiff’s cell. ECF No. 72, PageID.643–46. Plaintiff asserted that
these actions were retaliation by Hoffman against Plaintiff for his
previous filing of grievances against her. ECF No. 105, PageID.783.
At trial, Plaintiff’s sole remaining claim against Hoffman was for
First Amendment retaliation. See id. His claims alleging conspiracy and
retaliatory transfer had been dismissed on summary judgment. See ECF
Nos. 64, 72. The other claim that remained for trial was Plaintiff’s claim
against Freed for violation of his Fourteenth Amendment due process
rights. Freed, Plaintiff alleged, had refused to gather evidence Plaintiff
requested to support his defense during the hearing on his majormisconduct charge. Specifically, Plaintiff had asked Freed to procure the
recording of Plaintiff’s phone call with his sister, during which he
expressed concern that MDOC officers would set him up. ECF No. 105,
PageID.786. He also asked that Freed gather witness statements. ECF
No. 105, PageID.786. According to the major-misconduct hearing report,
that evidence was never presented to the Hearing Officer, who ultimately
found Plaintiff guilty of misconduct. Pl.’s Ex. 8; ECF No. 105, PageID.786.
The hearing report described Plaintiff’s claim that he had notified his
sister of a potential set-up by MDOC employees the night before the knife
was found as “a manufactured argument created by prisoner Plaintiff to
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undermine the investigative and hearing process.” Pl.’s Ex. 8. Concerning
Plaintiff’s request that Freed gather witness statements, the hearing
report stated only that those statements “were not obtained.” The
Hearing Officer, Wayne Groat, nonetheless described them as
“immaterial, irrelevant, or unduly repetitious.” Pl.’s Ex. 8.
Voir dire began and concluded on September 24, 2019 and a jury
was impaneled that same day. Trial began on September 25 and
concluded on September 27, 2019. After the parties finished presenting
their evidence and arguments, Defendants moved for judgment as a
matter of law under Rule 50(a) of the Federal Rules of Civil Procedure.
The Court granted that motion as to Freed, finding that “no evidence was
presented at trial that would provide a reasonable jury with a legally
sufficient evidentiary basis to find that Plaintiff was subjected to an
‘atypical and significant hardship . . . in relation to the ordinary incidents
of prison life,” a required element of his Fourteenth Amendment due
process claim. ECF No. 105, PageID.780–81 (Court’s Sep. 27, 2019
Order). The Court denied the Rule 50 motion as to Hoffman. See id. The
jury subsequently returned a verdict in favor of Hoffman on the First
Amendment retaliation claim.
Plaintiff gave oral notice of his intent to appeal both judgments in
open Court on September 27, 2019. See Sep. 27, 2019 Dkt. Entry. The
Clerk of Court filed a corresponding notice of appeal on October 7, 2019.
ECF No. 113 (Notice of Appeal). But Plaintiff later changed his mind and
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elected to file a post-judgment motion in the district court pursuant to
Rule 59. ECF Nos. 117, 118. He has subsequently filed documents with
the Court that he describes as supplemental evidence supporting the
post-judgment motion. See ECF Nos. 121, 122. On March 5, 2020, the
Sixth Circuit issued an order informing Plaintiff that it would not hold
his appeal in abeyance while the district court rules on his post-judgment
motion. ECF No. 124. Unless Plaintiff pays the appellate filing fee to the
district court or moves for leave to proceed in forma pauperis, his appeal
may be dismissed. ECF No. 124.
LEGAL STANDARD
Rule 59 of the Federal Rules of Civil Procedure permits district
courts to grant a new trial or to alter, amend, or vacate a prior judgment
on motion by a party filed within 28 days of the entry of judgment. Fed.
R. Civ. P. 59(b), (e). Plaintiff specifically requests a new trial pursuant to
Rule 59(a), or amendment of the existing judgment under Rule 59(e).
ECF No. 117, PageID.955 (Plaintiff’s Br.). The fact that Plaintiff also filed
what he describes as additional newly discovered evidence more than 28
days after judgment was entered suggests he intended also to style his
motion as one for relief from a final judgment under Rule 60(b)(2) based
on “newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b).”
Fed. R. Civ. P. 60(b)(2). Accordingly, the Court will construe the motion
as one seeking a new trial under Rule 59(a), as well as relief from
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judgment under Rule 59(e) and Rule 60(b)(2). See Fed R. Civ. P. 59(b),
(e); Fed. R. Civ. P. 60(b)(2).
After a jury trial, district courts may grant a new trial on all or
some of the claims pursuant to Rule 59(a) “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 Sixth Circuit has interpreted this
language to mean that courts should grant a party’s Rule 59 motion for a
new trial when the jury has reached “a seriously erroneous result”
characterized by: (1) the verdict being against the weight of the evidence;
(2) excessive damages; or (3) the trial being unfair to the moving party,
i.e. influenced by prejudice or bias. Holmes v. City of Massillon, Ohio, 78
F.3d 1041, 1046 (6th Cir. 1996); Fed. R. Civ. P. 59(b).
In contrast, courts may grant a Rule 59(e) motion to alter or amend
a judgment to “(1) correct a clear error of law, (2) account for newly
discovered evidence, (3) accommodate an intervening change in the
controlling law, or (4) otherwise prevent manifest injustice.” Moore v.
Coffee Cty., Tenn., 402 F. App’x 107, 108 (6th Cir. 2010) (citation omitted).
For purposes of the Federal Rules, “newly discovered evidence” is
evidence that was previously unavailable. Bishawi v. Northeast Ohio
Corr. Ctr., 628 F. App’x 339, 346 (6th Cir. 2014) (citing GenCorp, Inc. v.
AM. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).
Rule 59(e) motions “cannot be used to present new arguments that
could have been raised prior to judgment.” Howard v. United States, 533
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F.3d 472, 475 (6th Cir. 2008) (citations omitted). Similarly, Rule 59(e) is
not a procedural vehicle for parties to relitigate issues previously
considered by the district court. Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Additionally, district
courts have a great deal of discretion in deciding whether to grant a Rule
59 motion. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d
612, 615 (6th Cir. 2010).
Rule 60(b) provides another mechanism for parties to seek relief
from a final judgment. Under that rule, relief may be granted only on
enumerated grounds, one of which is “newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move
for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).
DISCUSSION
Although Plaintiff’s Rule 59 motion was docketed on October 29,
2019, more than the allowed 28 days after judgment was entered in favor
of Defendants, the Court will construe the motion as timely filed because
Plaintiff timely submitted the motion to prison authorities for mailing.
Browning v. United States, No. 2:07–20427, 2013 WL 1843381, at *1
(E.D. Mich. May 1, 2013) (“Although the Rule 59(e) motion was not timely
filed, the court has considered the Rule 59(e) motion on the merits
because of Browning’s claim that he timely filed his motion to this
court.”); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (deeming prisoner’s
habeas motion filed when given to prison authorities for mailing). MDOC
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records show that Plaintiff indeed submitted his motion to prison staff on
October 22, 2019, in advance of the October 25, 2019 deadline. See ECF
No. 120, PageID.989. The Rule 59 motion is therefore timely.
In his motion for a new trial or amendment of the judgment,
Plaintiff asserts three overarching bases for his requested post-judgment
relief: (1) abuse of discretion by the trial court; (2) newly discovered
evidence; and (3) verdict not supported by the weight of the evidence.
ECF No. 117, PageID.951. The Court will address these issues in turn
but ultimately is not persuaded that any of the arguments raised warrant
a new trial or amendment of the existing judgments in favor of
Defendants.
I.
Abuse of discretion by the trial court
Plaintiff takes issue with a number of decisions and perceived
omissions by the trial court, among them the Court’s finding that his
proposed Exhibits 13 and 14 were inadmissible, its decision to allow
Juror No. 2 to serve on the jury, the decision to designate Exhibit 24 as
Plaintiff’s (rather than Defendants’) exhibit, failure to sanction alleged
misconduct by defense counsel, limitations placed on what Plaintiff could
tell the jury about Exhibit 24, and the decision to enter Rule 50 judgment
in favor of Freed. None of these decisions by the trial court warrant a new
trial under Rule 59(a) or revisiting the judgment under Rules 59(e) or 60.
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A. Inadmissibility of Exhibits 13 and 14, and failure to rule
on “offer of proof”
First, Plaintiff asserts that the Court improperly excluded his
proposed Exhibits 13 and 14 from evidence and failed to rule on an offer
of proof he made concerning those exhibits pursuant to Rule 103 of the
Federal Rules of Evidence. ECF No. 117, PageID.956. The inclusion or
exclusion of evidence is left to the sound discretion of the trial court and
is reviewed by the appellate court for abuse of discretion. Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 141–42 (1997). Even if the decision of the district
court is an abuse of discretion, it will not be grounds for reversal unless
the evidentiary ruling results in actual prejudice. Shabazz v. Martin, No.
00-73005, 2007 WL 2782054, *2 (E.D. Mich. Sept. 24, 2007).
Here, the Court had ruled before trial that evidence relevant only
to Plaintiff’s previously dismissed claims would be excluded on relevance
grounds unless it was introduced to help establish his alleged damages.
ECF No. 104 (Sep. 24, 2019 Order on Mots. in Limine). Consistent with
its order on the motions in limine, the Court made specific evidentiary
rulings at trial finding Exhibits 13 and 14 inadmissible for the purposes
sought by Plaintiff. Plaintiff has not presented any information that
indicates the Court’s evidentiary rulings were in error, that he was
prejudiced, or that he is otherwise entitled to a new trial or relief from
judgment on this basis.
Plaintiff’s proposed Exhibit 13 comprises two versions of an MDOC
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transfer order——one dated June 26, 2013 and the other March 15,
2018—facilitating his transfer from Saginaw Correctional Facility to
Chippewa Correctional Facility, in the Upper Peninsula. See ECF No.
107 (Court’s Ex. List). The two transfer documents have different dates.
And while the 2013 version of the transfer order provides the redacted
name of the individual who prepared the order, and a signature by the
individual who signed it, the 2018 version omits this information.
Similarly, proposed Exhibit 14 includes two almost identical copies of a
security classification screen the MDOC completed concerning Plaintiff
in 2013. Both security screens provide a “date entered” of June 25, 2013
but also list another “date” of March 15, 2018 (possibly the date the
MDOC produced the documents). One version of the document provides
the name of the individual who conducted the screen, while the other
redacts that information. The security screen copies also apparently
incorrectly identify Plaintiff’s location as Gus Harrison Correctional.
According to Plaintiff, Exhibits 13 and 14 should have been
admitted at trial because the fact that different versions of the transfer
order and security classification screen exist indicates the documents
“were altered . . . to cover up who was responsible for the transfer from
SRF to URF, and to shield the circumstances contributing to this
transfer.” ECF No. 117, PageID.956. He further asserts that, because
Exhibits 13 and 14 both include two versions of one document, the
exhibits indicate “consciousness of guilt” on the part of Hoffman that she
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engineered Plaintiff’s transfer to the Upper Peninsula to punish him for
filing grievances. ECF No. 117, PageID.957. Essentially, Plaintiff’s
position is that if the major-misconduct ticket was valid there would have
been no need to “alter” either the transfer order or the security
classification screen. ECF No. 117, PageID.957.
The Court previously considered these arguments and found
Exhibits 13 and 14 inadmissible. See Engler, 146 F.3d at 374 (explaining
that Rule 59(e) is not a procedural vehicle for parties to relitigate issues
previously considered by the district court). In its Order deciding both
parties’ motions in limine before trial, the Court ruled that evidence
pertaining only to Plaintiff’s previously dismissed claims was not
relevant and would be excluded to avoid undue delay at trial. ECF No.
104, PageID.776–77 (Sep. 24, 2019 Order). Among the claims dismissed
before trial were Plaintiff’s claims alleging conspiracy and retaliatory
transfer to the Upper Peninsula correctional facility. See ECF No. 64
(Sep. 27, 2018 R. & R.); ECF No. 72 (Mar. 25, 2019 Order Adopting in
Part and Modifying in Part Sep. 27, 2018 R. & R.). Evidence relevant to
Plaintiff’s transfer, the Court ruled, would be considered relevant and
admissible only “to the extent it is relevant to proving his alleged
damages.” ECF No. 104, PageID.777.
From the bench during trial, the Court again ruled that Plaintiff’s
proposed Exhibit 13—comprising the transfer orders—was relevant to
damages only to the extent that certain educational opportunities
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available at Saginaw Correctional Facility were not available at the
Upper Peninsula facility. Accordingly, Plaintiff was instructed that he
would be permitted to use the transfer orders only to establish his
damages. Although the Court acknowledged Plaintiff could attempt to
admit Exhibit 13 as impeachment evidence, it explained he would only
be allowed to do so if the witness he showed the documents to expressed
familiarity with them. When Plaintiff showed Exhibit 13 to Hoffman
during her testimony, she did not express familiarity with the transfer
orders. Exhibit 13 was therefore never admitted at trial. See Fed. R. Evid.
602 (prohibiting introduction of a document through a witness with no
personal knowledge of the documents or its contents).
Concerning Exhibit 14, Plaintiff argued at trial that alleged
discrepancies between the two versions of the 2013 security classification
showed the documents were “clearly altered” and indicative of
“corruption” and a “clean-up attempt.” Again, Plaintiff’s civil conspiracy
and retaliatory transfer claims were dismissed on summary judgment.
See ECF Nos. 64, 72. Nonetheless, the Court ruled that Plaintiff could
attempt to use his proposed Exhibit 14 as impeachment evidence if the
witness he showed that exhibit to demonstrated familiarity with it. See
Fed. R. Evid. 602. But Plaintiff did not successfully introduce the exhibit
as impeachment material.
The Court’s ruling at trial that neither Exhibit 13 nor Exhibit 14
could properly be admitted into evidence was consistent with its earlier
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decision on the motions in limine. Plaintiff has not convinced the Court
that its decision to exclude Exhibits 13 and 14 involved a clear error of
law, or that he is otherwise entitled to a new trial or relief from judgment
because of the Court’s decision to exclude those exhibits from evidence.
Plaintiff further contends that the Court failed to rule on his Rule
103 offer of proof in support of admitting Exhibits 13 and 14. “This
erroneous omission,” he asserts, “left a question of relevancy unresolved
before the closing of evidence.” ECF No. 117, PageID.956. But Rule 103
simply provides a mechanism for a party objecting to a trial court’s
evidentiary ruling to preserve that objection for appeal. Fed. R. Civ. P.
103(a) (“A party may claim error in a ruling to admit or exclude evidence
only if the error affects a substantial right of the party and . . . if the
ruling excludes evidence, a party informs the court of its substance by an
offer of proof, unless the substance was apparent from the context.”).
Here, the Court thoroughly reviewed Plaintiff’s proposed Exhibits 13 and
14. The substance of those exhibits was plain to the Court upon its review
of those documents, and it deemed them not relevant. Plaintiff’s objection
to the Court’s decision not to admit Exhibits 13 and 14 at trial is,
however, preserved for appeal.
B. Failure to strike Juror No. 2 for cause
Next, Plaintiff takes issue with the Court’s decision not to strike
Juror No. 2 for cause because of emotional hardship she mentioned
during voir dire, or to later excuse her for—Plaintiff contends—
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“snoozing” during trial. The Court finds no evidence of partiality that
would have justified striking Juror No. 2 for cause during voir dire. On
the issue of inattention, Plaintiff has not shown that Juror No. 2, once
seated, slept through any critical part of the trial proceedings (or, in fact,
that she slept at all). Plaintiff is not entitled to a new trial or alteration
of the judgment on the basis of juror partiality or misconduct.
A juror should be excused for cause only where her responses to voir
dire questioning indicate she will not be an impartial trier of fact; either
because the juror is incapable of deciding the case solely on the evidence
before her, or because she is unwilling to do so. See McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). “Jurors are
presumed to be impartial.” Frye v. CSX Transp., Inc., 933 F.3d 591, 604
(6th Cir. 2019). That presumption can be overcome only if the moving
party demonstrates grounds for “actual bias.” Id. See United States ex rel.
Stickler v. Tehan, 365 F.2d 199, 201 (6th Cir. 1966) (explaining that party
challenging a jury trial as partial has the burden of persuasion). Unless
the challenger “shows the actual existence of such an opinion in the mind
of the juror as will raise the presumption of partiality, the juror need not
necessarily be set aside, and it will not be error for the court to refuse to
do so.” Reynolds v. United States, 98 U.S. 145, 157 (1878).
Juror No. 2’s voir dire responses were not indicative of any inability
or unwillingness to be impartial. She explained that she had lost her
husband seven months prior and that at the time of voir dire she was
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periodically helping to care for a sister in Virginia struggling with cancer.
When asked by the Court whether she thought her caregiving duties
“might prevent [her] from serving as a juror,” Juror No. 2 stated, “I’m
only saying it because I want to be here but I know my mind will be on
all the other issues that I’ve been—I’ve been coping with these last
three—specifically last four months.” In response to specific questions
about her ability to be an impartial juror, Juror No. 2 answered that she
possessed no biases that would make it difficult for her to fairly decide
the case. Those questions addressed Juror No. 2’s membership in social
and political organizations, opinions about crime, prisons, and whether
prisoners should be provided fair and equal treatment, among other
topics.
Moreover, at no point during voir dire did Plaintiff seek to exclude
Juror No. 2 for cause, nor did he exercise any of his peremptory
challenges to remove her from the panel. In his motion Plaintiff
acknowledges that when he approached the bench during voir dire to ask
that Juror No. 2 be excused because of difficulty she might have paying
close attention to the trial proceedings, the Court explained that Plaintiff
could exercise one of his peremptory challenges to strike her from the
jury if he was concerned about her diligence. ECF No. 117, PageID.958–
59. But Plaintiff elected not to use any of his peremptory challenges to
strike Juror No. 2. ECF No. 117, PageID.959 (“Ultimately, Plaintiff had
other prospective jurors he wanted to use a peremptory challenge on, and
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decided to use that route.”). Nor did Plaintiff attempt to have Juror No.
2 removed for cause at the close of voir dire when given the express
opportunity to do so.
On the issue of “snoozing,” certainly “a juror who sleeps through
much of the trial testimony cannot be expected to perform his duties.”
United States v. Cook, 550 F. App’x 265, 270 (6th Cir. 2014) (quoting
United States v. Warner, 690 F.2d 545, 555 (6th Cir. 1982)). But
overturning a verdict on the basis that a juror slept through the
proceedings and was therefore unable to perform his duties “is
appropriate only if the [challenging party] was deprived of his Fifth
Amendment due process rights or his Sixth Amendment right to an
impartial jury.” Cook, 550 F. App’x at 270 (quoting United States v.
Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000)).
To demonstrate this type of error, courts generally require the
challenging party to demonstrate that, because of the juror’s lack of
attention, “the juror failed to follow some essential part of the
proceedings, such that the complaining party thereby suffered resulting
prejudice.” Inattention of juror from sleepiness or other cause as ground
for reversal or new trial, 59 A.L.R. 5th 1 (1998). Vague assertions that a
juror was sleeping, and that such behavior prejudiced the challenging
party, are generally insufficient to establish juror misconduct. United
States v. Sherrill, 388 F.3d 535, 537–38 (6th Cir. 2004) (discussing United
States v. Newman, 982 F.2d 665, 670 (1st Cir. 1992), cert. denied, 510
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U.S. 812 (1993)). Rather, the party claiming prejudice “must
affirmatively establish the juror’s inattention.” Newman, 982 F.2d at 670.
In United States v. Tierney, 947 F.2d 854, 868–69 (8th Cir. 1991), for
example, the court found defendant’s contention that “jurors slept
through the critical presentation of [defendant’s] evidence and the crossexamination of witnesses” to be “too vague to establish prejudice.”
Similarly, the Supreme Court has found no error where evidence
“suggested, at worst, that several of the jurors fell asleep at times.”
Tanner v. United States, 483 U.S. 107, 125 (1987).
Concerning Juror No. 2’s alleged inattention, Plaintiff asserts only
that he observed her “snoozing during the trial.” ECF No. 117,
PageID.959. He is concerned that these “nap sessions,” when considered
together with the juror’s “mental anguish” and decision not to take notes,
compromised her impartiality. ECF No. 117, PageID.959. The Court
itself had an unobstructed view of the jury and at no point observed Juror
No. 2 sleeping. See Tanner, 483 U.S. at 125 (finding it appropriate for
trial judge to draw upon personal knowledge and recollection in
considering factual allegations about juror behavior). Plaintiff has not
presented evidence about Juror No. 2’s alleged lack of diligence sufficient
to demonstrate juror misconduct or error. As an initial matter, where a
party knew of a juror’s inattention during trial and failed to take proper
steps to bring that behavior to the trial judge’s attention, “the matter is
deemed waived.” Inattention of juror, 59 A.L.R. 5th 1. Plaintiff made no
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objection to Juror No. 2’s behavior during trial. Concerning the substance
of Plaintiff’s argument, the Court finds he has not presented affirmative
evidence that Juror No. 2 fell asleep at any point during trial. And he has
not shown that Juror No. 2 missed any important part of the testimony,
evidence, or argument at trial that might have changed her mind as to
the proper verdict.
Even the most eager juror may reach the limits of her attention
span at some point during trial and permit her mind “to wander
temporarily from the matter at hand.” Hassan v. Ford Motor Co., 650
P.2d 1171, 1190 (Cal. 1981), cert. dismissed by Ford Motor Co. v. Hasson,
459 U.S. 1190 (1983). Although the Court does not condone such behavior
and urges trial judges to take appropriate steps to prevent juror
listlessness, the mere possibility that Juror No. 2 missed an unspecified
portion of testimony does not constitute error or warrant a new trial or
disturbing the judgment in this case.
C. Designating Exhibit
Defendants’) exhibit
24
Plaintiff’s
(rather
than
During trial, Plaintiff observed what appeared to be a clean copy of
the MDOC major-misconduct report (versions of which had previously
admitted as Plaintiff’s Exhibit 6 and Defendants’ Exhibit A) on defense
counsel’s laptop screen. Defense counsel had been scrolling through
documents while his display was being projected onto a large screen in
the courtroom. At Plaintiff’s request, the Court obtained a copy of that
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more legible version of the misconduct report for him and then marked it
as Plaintiff’s Exhibit 24. Plaintiff now says that the exhibit—because it
came from Defendants’ files and, he says, was improperly withheld by
defense counsel—should have been identified as Defendants’ exhibit,
rather than his own. The Court, however, finds no error or prejudice to
Plaintiff by having identified evidence he intended to use at trial as his
Exhibit 24.
As soon as Plaintiff brought the existence of the more legible
version of the misconduct report to this Court’s attention, the Court
instructed defense counsel to provide the document to Plaintiff, and to
the Court. The Court acknowledged that Plaintiff’s desire to obtain “the
best evidence” in the form of a “cleaner copy of an exhibit” was a request
both “simple” and “reasonable.” The Court even sua sponte questioned
Defendant Freed, who was already on the stand, about why Exhibit 24
was more legible than versions of the misconduct report previously
marked as Plaintiff’s Exhibit 6 and Defendants’ Exhibit A. Freed
explained that the difference likely stemmed from the fact that Exhibit
24 appeared to be a copy of the top portion of a multi-layer pressuresensitive form, while the other exhibits were likely copies of the bottom
portion, causing the handwriting on those versions to be less visible. Id.
After the question concerning the origination of the more legible
misconduct report and differences between that version and other
versions of the misconduct report was resolved, the Court asked, “Would
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either side like to have this marked as an exhibit?” Plaintiff initially
responded, “Yes, your Honor. I want to mark this as Exhibit 2[4].”1
Plaintiff then changed tack, explaining that, because Defendants had
produced the document, it should be marked as their exhibit rather than
his. The Court nonetheless marked the exhibit as Plaintiff’s Exhibit 24.
And Plaintiff proceeded to question Defendant Freed about the
document.
Although Plaintiff contends that marking the more legible
misconduct report as his—rather than Defendants’—Exhibit 24 confused
the jury and caused him to suffer prejudice, it was Plaintiff who identified
Exhibit 24 as evidence he wished to present to the jury and to question
his witness about. Moreover, Plaintiff explained to the jury that the
exhibit had originated with the Defendants, so there was no lack of
clarity that the document came from the State. Accordingly, it was not
improper for the Court to mark the exhibit as Plaintiff’s Exhibit 24. He
is not entitled to a new trial or to revision of the judgment based on how
the Court chose to identify this exhibit.
D. Failure to sanction alleged misconduct by defense
counsel
Discovery of the legible major-misconduct report on defense
counsel’s laptop during trial—later marked as Plaintiff’s Exhibit 24—
1
Plaintiff actually asked that the document be marked as his Exhibit 23 but another
document has already been marked as Exhibit 23. Accordingly, the more legible
misconduct report was marked as Plaintiff’s Exhibit 24.
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also led Plaintiff to allege misconduct on the part of defense counsel in
not earlier disclosing that document. Nondisclosure of the clean version
of the major-misconduct report, Plaintiff asserts, “denied [him] a fair trial
because he could not prepare an adequate defense and argument against
the original copy to the jury.” ECF No. 117, PageID.963. Although
defense counsel has not explained why the better version of the
misconduct report (an MDOC document) was not produced during
discovery, Plaintiff has not met the high bar of establishing attorney
misconduct worthy of a new trial or alteration of the judgment.
To warrant a new trial on the basis of attorney misconduct, the
movant must make a “concrete showing” that the misconduct
“‘consistently permeated’ the trial such that the moving party was
unfairly prejudiced by the misconduct.” Smith v. Rock-Tenn Servs., Inc.,
813 F.3d 298, 312 (6th Cir. 2016) (quoting Tompkins v. Crown Corr, Inc.,
726 F.3d 830, 835 (6th Cir. 2013)). The only manner in which attorney
misconduct would conceivably warrant altering an existing judgment
under Rule 59(e) would be if altering the judgment was necessary to
“prevent manifest injustice.” Fed. R. Civ. P 59(e).
Plaintiff has not shown that defense counsel’s alleged misconduct
“permeated” the trial, or that his failure to disclose Exhibit 24 prior to
trial caused Plaintiff to suffer manifest injustice. Although the Court
questions why the more legible version of the major-misconduct report
was not produced earlier, defense counsel’s failure to turn over that
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document was not plainly intentional. Even if defense counsel purposely
withheld the document, Plaintiff has not established that such
misconduct was a pattern apparent throughout trial, or that he was
ultimately prejudiced by defense counsel’s conduct (or this Court’s failure
to sanction it).
Ultimately, Plaintiff’s Exhibit 24, Plaintiff’s Exhibit 6, and
Defendants’ Exhibit A are versions of the same document. The major
differences are that some of the handwriting visible on Exhibit 24 is not
legible on Exhibits 6 and A, and that Exhibits 6 and A contain
typewritten notes added by Plaintiff. Essentially, Exhibit 24 is a better
version of Exhibits 6 and A. But Exhibit 24 did not include information
central to proving the elements of Plaintiff’s claims that was not already
present in other versions of that document. Nor was Exhibit 24 so
different from other versions of the misconduct report that Plaintiff was
prejudiced by discovering the document only at trial and not having the
benefit of months of preparation to review it. Moreover, Exhibit 24 was
ultimately introduced at trial and Plaintiff was allowed to question his
witness about it. The exhibit was also provided to the jury so that they
could examine it at leisure during deliberations. Plaintiff has not shown
that defense counsel’s failure to turn over Exhibit 24, or this Court’s
decision not to sanction that conduct, entitles him to a new trial under
Rule 59(a), or alteration of the judgment under Rule 59(e).
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E. Decision to limit what Plaintiff could tell jury about the
origin of Plaintiff’s Exhibit 24
Plaintiff also takes issue with the Court’s instruction that during
witness questioning he could explain only that Exhibit 24 came from the
MDOC—not that it had been discovered by Plaintiff on defense counsel’s
laptop screen, or allegedly improperly withheld before trial. ECF No. 117,
PageID.964. This ruling, Plaintiff contends, was prejudicial. But the
Court’s instruction that Plaintiff could not provide commentary about the
nature and source of the document during witness questioning was not
erroneous or prejudicial and he is therefore not entitled to relief on this
claim.
After a sidebar on the issue, the Court instructed Plaintiff that in
questioning Freed he would not be permitted to refer to Exhibit 24’s
existence as indicative of “bad conduct by the state or for lack of a better
word, conspiracy” or to suggest “that the document was created for some
nefarious reason because you happen to believe that.” Instead, the Court
instructed Plaintiff that he could ask the witness questions about the
document, point out what its contents were, and ask questions about any
discrepancies between Exhibit 24 and Exhibits 6 and A. If a witness
recognized the document to be a forgery, the Court explained, it would be
up to the witness to testify to that conclusion. Plaintiff, in examining
witnesses, would not be permitted to characterize the documents as such.
The practice of reading unfamiliar documents into the record and
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then asking a witness to confirm what was read or to provide an
unwitting reaction or interpretation is not permitted under the Federal
Rules of Evidence. See Fed. R. Evid. 602. Such a practice represents “a
vehicle to improperly enable . . . counsel to testify and argue the case.” In
re: E.I. Du Pont De Nemours and Co. C-8 Pers. Inj. Litig., No. 2:13-cv-170,
2016 WL 659112, at *54 (S.D. Ohio Feb. 17, 2016). The Court’s
instruction that Plaintiff should not introduce Exhibit 24 to the witness
by himself describing or characterizing it is consistent with Rule 602. Fed
R. Evid. 602. Plaintiff has not demonstrated that the Court’s ruling was
in error, or that it otherwise entitles him to a new trial or amendment of
the judgment under Rule 59(a) or 59(e).
F. Granting Rule 50 judgment in favor of Defendant Freed
Next, Plaintiff challenges the Court’s decision to enter judgment as
a matter of law in favor of Defendant Freed on his Fourteenth
Amendment due process claim for failure to gather potentially
exculpatory evidence in advance of the misconduct hearing. See ECF No.
105. He argues that the Court erred in holding that he had not identified
any cognizable liberty interest, and that his claim failed as a matter of
law without that required element. ECF No. 117, PageID.965–66. The
Court has already analyzed this issue in detail and need not revisit it on
a Rule 59 motion. See Roger Miller Music, Inc. v. Sony/ATV Publishing,
LLC, 477 F.3d 383, 395 (6th Cir. 2007) (“[P]arties cannot use a motion for
reconsideration [under Rule 59(e)] to raise new legal arguments that
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could have been raised before a judgment was issued.”). Having taken the
relevant facts and law into account, the Court previously determined
Plaintiff was unable to identify loss of a liberty interest that rose to the
level of an “atypical and significant hardship” in the prison context.
Sandin v. Conner, 515 U.S. 472, 485 (1995). Granting judgment as a
matter of law in favor of Freed was appropriate under governing law.
Not every state action motivated by a punitive purpose encroaches
upon a liberty interest protected by the Fourteenth Amendment’s due
process clause. See Sandin, 515 U.S. at 484. In the case of individuals
who are lawfully incarcerated as the result of a criminal conviction, some
privileges and rights are necessarily withdrawn. Jones v. N.C. Prisoners’
Labor Union, Inc., 433 U.S. 119, 125 (1977). In Sandin v. Conner, the
Supreme Court held that transferring an inmate to segregated
confinement for 30 days after he was found guilty of “high misconduct”
following a hearing did not implicate a constitutional liberty interest
created by the state. 515 U.S. at 486. The type of confinement the Sandin
plaintiff was subjected to as a result of the misconduct hearing, the Court
reasoned, “was within the range of confinement to be normally expected
for one serving an indeterminate term of 30 years to life.” Id. at 487. The
import of Sandin is that a state creates a protected liberty interest in
prison disciplinary proceedings only where the sanction at issue “will
inevitably affect the duration of [the inmate’s] sentence” or “impose
atypical and significant hardship on the inmate in relation to the
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ordinary incidents of prison life.” 515 U.S. at 483–84.
Plaintiff urges that he had a liberty interest in “his property
withheld from him, refusal of mail, visits, phone time, religious service,
and access to yard activities; all restricted while in segregation” because
of a disciplinary hearing lacking in due process. ECF No. 117,
PageID.966. Being placed in administrative segregation and losing
access to communication with loved ones, outdoor activity, and other
basic privileges is unquestionably an immensely difficult hardship for
any person. But in terms of legal precedent, such a loss of privileges does
not implicate a liberty interest under the Fourteenth Amendment’s due
process clause. Such a finding is foreclosed by Sandin, in which the
Supreme Court held that being placed in segregated confinement for 30
days, with the associated loss of the few privileges and comforts afforded
inmates in the first place, does not implicate a constitutional liberty
interest.
Although Plaintiff offers several cases in support of his argument—
and the Court has read them—none of those cases allow him to sidestep
the Supreme Court’s opinion in Sandin. As an initial matter, all of the
cases Plaintiff provides, with the exception of the Tennessee state-court
case, predate Sandin, which is binding precedent on this Court. Further,
Procunier v. Martinez, 416 U.S. 396 (1974) did not involve a prison
disciplinary hearing and was expressly overruled by Thornburg v. Abbott,
490 U.S. 401, 413 (1989). Next, Cale v. Johnson, 861 F.2d 943 (6th Cir.
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1988), abrogated by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999),
involved a Bivens action in which the plaintiff alleged violation of Fifth
Amendment
substantive
due
process,
rather
than
Fourteenth
Amendment procedural due process, which is at issue here. The Supreme
Court’s opinion in Turner v. Safley, 482 U.S. 78 (1987) provided a
standard for assessing the constitutionality of prison policies but did not
address the question of when a state creates a protected liberty interest
in prison disciplinary proceedings. Similarly, Washington v. Reno, 35
F.3d 1093 (6th Cir. 1994) stemmed from a challenge to the
constitutionality of prison phone policies and did not squarely address
the issue of liberty interests. Finally, the Tennessee Court of Appeals
case Plaintiff cites, Jeffries v. Tenn. Dep’t of Corrections, 108 S.W.3d 862
(Tenn. Ct. App. 2002) is not binding on this Court and held only that
prisoners have a property interest in their trust-fund accounts that the
Tennessee Department of Corrections could not confiscate prisoners’
money without due process of law. As such, Jeffries is not on all fours
with this case, which did not involve removal of funds from Plaintiff’s
MDOC trust-fund account.
II.
Newly discovered evidence
As another ground for relief, Plaintiff claims to have newly
discovered evidence relating to one of the trial witnesses, Shannon
Flaugher, and to Defendant Freed, that warrants altering or amending
the judgment under Rule 59(e). According to Plaintiff, since trial he has
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learned that “Flaugher intentionally interfered with someone else’s
grievance activities at the Saginaw Correctional Facility, just as she did
in Plaintiff’s case.” ECF No. 117, PageID.967. Concerning Freed, Plaintiff
says he recently discovered that “Freed admitted to improperly disposing
of documents related to someone else’s misconduct hearing.” ECF No.
117, PageID969.
A Court may grant a Rule 59(e) motion to alter or amend based on,
among other bases, newly discovered evidence. That newly discovered
evidence must have been previously unavailable and “of such a nature as
would probably produce a different result.” Doe v. Baum, 282 F. Supp. 3d
972, 978 (E.D. Mich. 2017) (quoting F.D.I.C. v. Arciero, 741 F.3d 1111,
1117 (10th Cir. 2013)). The “same standard applies” to motions brought
on the basis of newly discovered evidence, whether those motions are
brought under Rule 59(e) or Rule 60(b)(2). Doe v. Baum, 282 F. Supp. 3d
at 978 (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 2859 (3d Ed. 2012)).
A. Flaugher email
Concerning Flaugher, Plaintiff references evidence produced in
another case involving the Saginaw Correctional Facility, Kitchen v.
Winn, No. 2:17-cv-11627, 2019 WL 1512778 (E.D. Mich. Apr. 8, 2019). In
that case, discovery yielded an email from Flaugher to another MDOC
employee, Russell Vittitow. That email, available at No. 2:17-cv-11627,
ECF No. 38-1, PageID.457, states, in its entirety:
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FYI…..
Fuqua was moved back over here for some reason. I overheard
him talking to Kitchen about a grievance and Kitchen said he
is going to keep pushing them through for him. It sounds like
Kitchen is still writing his grievances and pushing him to
grieve it.”
The plaintiff in Kitchen presented this email in support his argument
that Flaugher had instructed Vittitow to monitor his grievance-filing
activity, and that Vittitow then improperly rejected the grievance to help
another MDOC employee retaliate against plaintiff. Kitchen, 2019 WL
1512778, at *6. According to Plaintiff in this case, the email demonstrates
that Flaugher had “a pattern of interfering with grievance activities,” and
that her testimony at trial was disingenuous. ECF No. 117, PageID.968.
As an initial matter, this email was filed on the Kitchen docket in
November 2018, almost one year before the trial in this matter. The Sixth
Circuit has held that to constitute “newly discovered evidence,” the
evidence must have been “previously unavailable.” Leisure Caviar, LLC
v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 617 (6th Cir. 2010). In
contrast, evidence was previously available if it could have been found
and submitted to the court “in the exercise of reasonable diligence.” Hurst
v. Fed. Nat’l Mortg. Ass’n, No. 14-cv-10942, 2015 WL 1757225, at *1 (E.D.
Mich. Apr. 17, 2015) (citation omitted). This due diligence inquiry should,
however, take into account limitations on Plaintiff’s ability to identify
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relevant evidence before trial. See Moore v. Knight, 368 F.3d 936, 940 (7th
Cir. 2004). Here, the Court is cognizant that, because he has been
incarcerated
during
the
pendency
of
this
litigation,
Plaintiff’s
opportunities to conduct research and investigation were limited. The
Court will accordingly cut Plaintiff some slack and assume he could not
have discovered the Flaugher email before trial. Davis v. United States,
No. 08-184-ART, 2010 WL 5014533, at *4 (E.D. Ky. Dec. 3, 2010).
But the Court is not convinced that the Flaugher email would have
been admissible at trial. See Rhoden v. Campbell, 202 F.3d 269 (Table)
(6th Cir. 1999) (explaining that newly discovered evidence must be
“admissible and credible”). The email would likely have been ruled
inadmissible on relevance grounds. Only relevant evidence is admissible.
See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”). Evidence
is relevant if “it has any tendency to make a fact more or less probable
than it would have been without the evidence; and the fact is of
consequence in determining the action.” Fed. R. Evid. 401. Here,
Flaugher was not a Defendant at the time of trial, and Plaintiff’s
conspiracy
claim
had
been
dismissed
on
summary
judgment.
Presumably, Plaintiff considers the email relevant to his First
Amendment retaliation claim against Hoffman. But even assuming the
email shows a tendency on the part of Flaugher to monitor prisoner
grievance-filing, or to improperly deny grievances, that is not plainly
relevant the question of whether Hoffman falsified a misconduct report
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to punish Plaintiff for filing grievances.
Even assuming the email is relevant, Rule 404(b) prohibits
admission of evidence of “a crime, wrong, or other act” for the purpose of
proving a person’s character “to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid. 404(b).
Although Plaintiff frames the email as evidence of a “habit” Flaugher had
of interfering with prisoner grievance-filing, an improper refusal of a
prisoner’s legitimate grievance is more of a “bad act” than a “habit” as
the term “habit” is understood in the context of Rule 406. See Fed. R.
Evid. 404(b), 406. As stated by another court in this district, “one
previous bad act does not constitute a habit or routine.” Dunn ex rel.
Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 275 (E.D. Mich.
2009).
Finally, had the Flaugher email been discovered by plaintiff before
judgment was entered in this case, the Court is not convinced it would
have resulted in a different disposition. Plaintiff’s First Amendment
retaliation claim was against Hoffman, not Flaugher. Nowhere in his
discussion of the email does Plaintiff explain why it would have helped
prove the elements of his claim against Hoffman (or Freed), other than
by potentially placing Flaugher, another MDOC employee, in a bad light.
Nor does Plaintiff explain if the email could have been used to impeach
Flaugher’s testimony in any way. Even if the email had been admitted,
which seems doubtful at best, its impact would only have been to allow
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the jury to cast suspicion as to why MDOC employees so closely monitor
prisoners’ filing of grievances; nothing in the email would tip the scales
in Plaintiff’s favor. The Flaugher email does not warrant altering the
judgment.
B. Freed’s prior destruction of prisoner documents
Concerning Defendant Freed, Plaintiff claims to have discovered
new evidence that Freed “admitted to improperly disposing of documents
related to someone else’s misconduct hearing.” ECF No. 117, PageID.969.
Plaintiff cites to evidence from a 2010 case in this district, Johnson v.
Freed, Case No. 09-CV-14371, 2010 WL 3906891, at *2 (E.D. Mich. 2010).
In that case, the plaintiff alleged that Freed had acknowledged
destroying court records belonging to him “without advance notice as
required by prison policy.” Id. See Freed, Case No. 09-CV-14371, ECF No.
1, PageID.9 (Compl.). But the exhibits attached to the complaint in that
case, which Plaintiff cites as newly discovered evidence, do not clearly
establish that Freed admitted to inappropriately destroying documents.
One of the documents is a major-misconduct hearing report finding
that the Freed plaintiff had possessed forged documents in violation of
MDOC policy. See Freed, Case No. 09-CV-14371, ECF No. 1, PageID.27.
Under the heading “Reason for Finding,” the April 27, 2005 hearing
report states, “Prisoner indicates he wants to send these items home, so
it is given to staff to arrange for him to mail home within 90 days.” Id.
The second document Plaintiff presents as newly discovered evidence is
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a 2007 memorandum from a Saginaw Correctional Facility Grievance
Coordinator summarizing findings of an investigation into the plaintiffgrievant’s allegation that Freed, a Hearing Investigator, destroyed
documents in violation of prison policy. Id. at PageID.41. The
memorandum explained that the Freed plaintiff had been found guilty of
possessing contraband documents multiple times, after three separate
misconduct hearings that took place on March 1, 2005, March 14, 2005,
and April 27, 2005. Id. It then concludes that the plaintiff failed to mail
the documents home despite being instructed to do so after each hearing.
Id. at PageID.43. Freed, according to the memorandum, acknowledged
destroying the documents 115 days after the plaintiff was told, the third
time, to mail them home. Id. at PageID.43. Nothing about the
memorandum indicates that Freed destroyed the documents in violation
of MDOC policy.
The two documents Plaintiff describes as newly discovered evidence
relating to Freed were docketed in Freed, Case No. 09-CV-14371, back in
2009, almost a decade before the trial in this case. Even giving Plaintiff
the benefit of the doubt on the question of whether these documents could
have been earlier discovered through the reasonable exercise of diligence,
the Court finds they do not warrant revisiting the judgment in this case.
The documents do not appear to establish any previous wrongdoing on
the part of Freed. Even if they did, they have no relevance to this case.
While they might have been used for impeachment, there is no reason to
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believe that such use, or their possible admission before or during trial,
would have resulted in a different judgment.
III.
Verdict not supported by the weight of the evidence
Finally, Plaintiff argues that the jury verdict in favor of Defendant
Hoffman was not supported by the weight of the evidence, and that a new
trial is therefore warranted under Rule 59(a) of the Federal Rules of Civil
Procedure. Again, Rule 59(a) provides that a new trial may be granted
“for any of the reasons for which new [jury] trials have heretofore been
granted in actions at law in the courts of the United States.” Fed. R. Civ.
P. 59(a). That includes a “seriously erroneous result” reached by a jury
that is “against the weight of the evidence.” Holmes, 78 F.3d at 1045–46
(citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).
When deciding a motion for a new trial on the basis that the verdict
is against the weight of the evidence, “the court is not to set aside the
verdict simply because it believes that another outcome is more justified.”
Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007) (citing
TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981)).
Rather, the district court must accept the jury’s verdict “if it is one which
reasonably could have been reached.” Denhof, 494 F.3d at 543. See
Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967) (explaining that
“[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 judge feel that other results are more reasonable”)
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(internal quotation marks omitted).
Here, the Court finds no indication that the verdict was against the
weight of the evidence. Although proceeding pro se, Plaintiff ably
presented evidence and argument in support of his case. See ECF No.
970–72. But his argument that the Defendants provided “nothing but
denial of guilt” fails to acknowledge that Plaintiff himself had the burden
of proving his case at trial by a preponderance of the evidence. Id. at
PageID.970. The jury weighed the evidence presented at trial and
reached a verdict that to the Court appears reasonable and clearly
supported by the evidence.
IV.
Supplemental evidence submitted by Plaintiff
Plaintiff attempted to file additional evidence with the Court on
December 5, 2019 and successfully submitted a different document as
additional evidence on December 27, 2019, the details of which will be
explained below. ECF Nos. 121, 122. The Court will consider this
material under Rule 60(b)(2) because it was submitted more than 28 days
after judgment was entered in the case. Ultimately, the evidence and
argument Plaintiff submitted in December does not warrant revision of
the judgment under Rule 60(b)(2).
Plaintiff’s December 5, 2019 filing states that he “hereby files with
the court the attached document from the Michigan State Police Freedom
of Information Act Coordinator.” ECF No. 121, PageID.992. But no
document appears to have been attached; or at least it was not docketed.
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The Court received only Plaintiff’s brief, which explains that the
document from the FOIA Coordinator “verified that no record exist[s]” of
the Michigan State Police having received any communication or
information from the MDOC about a weapon being found in Plaintiff’s
cell. Id. at 993.
This document may have been relevant at trial because the
misconduct hearing report marked as Defendants’ Exhibit B stated that
“[t]he weapon [found in Plaintiff’s cell] shall be turned over to Michigan
State Police” in accordance with MDOC policy. Accordingly, Plaintiff
argues that this described newly discovered evidence—which did not
reach the Court—would have established that no weapon was ever found
in his cell. In addition to the problem that this new document never
reached the Court, Plaintiff has not explained why he could not have sent
his FOIA request to the Michigan State Police before trial. Further,
although this piece of evidence (as described) would likely have been
helpful to Plaintiff’s case, it is unlikely that it would resulted in a
different disposition of the case. There may have been plausible
explanations as to why the weapon never made it to the Michigan State
Police.
The second document, which Plaintiff successfully attached to his
December 27, 2019 filing, was obtained through a FOIA request to the
Michigan Department of Corrections. ECF No. 122, PageID.1004. The
document comprises copies of logbook entries for Plaintiff’s unit at the
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Saginaw Correctional Facility for June 7, 2013, the date Hoffman
supposedly discovered the weapon in his cell. Id. at PageID.1004–1008.
The log confirms that Hoffman was staffed on Plaintiff’s unit the day of
the search. ECF No. 122, PageID.1006 (“Log reviewed—ARUS Hoff”).
The handwriting in the log is difficult to read but there appears to be no
entry specifically describing a search of Plaintiff’s cell. The only time he
is mentioned in the log is an entry that reads “Per [illegible], Alexander
731077 from 5-191 to 6-127, 188 now [illegible].” ECF No. 122,
PageID.1006. Plaintiff characterizes the entry as describing his transfer
to segregation, as a result of the weapon being found. Before that entry
are several others that state, simply, “rounds.” ECF No. 122,
PageID.1006.
Hoffman testified at trial that she was familiar with, and had never
violated, MDOC rules, policies, or protocols. She also suggested, through
her testimony, that the log book would be a way to determine whether
she had conducted cell searches during 2013. But Hoffman never
specifically testified that she had recorded her June 7 search of Plaintiff’s
cell in the log book. Given that she testified to “regularly” conducting
routine searches of prisoners’ cells in her MDOC role and would
sometimes search multiple prisoners’ cells during a shift, it is plausible
that Hoffman conducted the search of Plaintiff’s cell during her “rounds.”
As such, the Court does not find that the log books warrant revisiting the
judgment in this case.
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CONCLUSION
For these reasons, the motion for a new trial or to amend the
judgment (ECF No. 117) is DENIED. As to Plaintiff’s motion for limited
additional discovery (ECF No. 118), the new evidence Plaintiff hopes to
discover, which allegedly involves witness Flaugher, is not plainly
relevant to establishing the elements of his claims, see supra at 28–32,
and he has not otherwise shown that post-trial discovery is warranted.
Consequently, the motion for limited discovery is also DENIED.
Plaintiff has availed himself of his right to a federal jury trial to
adjudicate his civil claims against employees of the State of Michigan. In
the Court’s view, though he did not prevail he enjoyed a full and fair trial
of his claims. His remedy for any perceived errors in that process now lies
with the court of appeals.
IT IS SO ORDERED.
Dated: June 3, 2020
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
38
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