Colbert v. Kempker et al

Filing 312

ORDER - plaintiff's Pro Se Motion for New Trial 303 is DENIED; and plaintiff's Pro Se Motion for Enlargement of Time to Defendants Motion in Opposition to Plaintiff's Motion for New Trial 309 is DENIED. Signed on 2/9/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 2/9/2012 to note copy mailed First Class to plaintiff to address on docket sheet (Moore, Terri).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
DARRYL COLBERT,
Plaintiff,
vs.
KATHLEEN BAKER, et al.,
Defendants.

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Case No. 07-6051-CV-SJ-FJG

ORDER
Before the Court are (1) Plaintiff’s Pro Se Motion for New Trial (Doc. No. 303); and
(2) Plaintiff’s Pro Se Motion for Enlargement of Time to Defendants Motion in Opposition
to Plaintiff’s Motion for New Trial (Doc. No. 309).
I.

Background
A jury trial was held in this matter from November 14 to November 15, 2011 to

determine whether defendants Baker, Carter and/or Almond violated plaintiff’s civil rights
by telling inmate Bobby Williams that plaintiff had reported to prison officials that Williams
and other prisoners planned to rape defendant Almond. Plaintiff asserted that Baker,
Carter and/or Almond’s statements cause Bobby Williams to attack plaintiff on April 15,
2002. At the close of the evidence, the Court granted a directed verdict in favor of
defendant Carter. The jury then returned a verdicts in favor of defendants Almond and
Baker.
II.

Analysis
In plaintiff’s motion for new trial (Doc. No. 303), plaintiff asserts that his attorneys

(who were court-appointed and pro bono) did not elicit expert reports and/or testimony from
various neurosurgeons and psychiatrists, despite plaintiff requesting his attorneys contact
these doctors. Plaintiff requests a new trial on the issue of the nature, extent and cause
of his physical injuries due to his appointed counsel’s purported failure to properly prepare

and present his case.
Defendants respond that the verdict reached by the jury was not against the weight
of the evidence, as there was substantial evidence that defendants Almond and Baker did
not cause plaintiff’s injuries. Furthermore, defendants note that in civil cases there is no
statutory or constitutional right to effective counsel, and even if there were, an expert that
could opine on plaintiff’s injuries would not have changed the outcome at trial as the jury
did not find defendants liable at all (so damages were not even reached).
Instead of filing a reply, plaintiff filed a motion for extension of time to reply in that
he is “in need of the trial transcripts of his November 14th and 15th trial setting,” as he
“cannot adequately respond to defendants’ [suggestions in opposition] without properly
being able to refute their response by the record.” Doc. No. 309, p. 1. Plaintiff further
indicates that his motion is “also against the improper arguments of the assistant attorney
general in her presentation to the jury and he will need the record to substantiate his legal
claim.” Doc. No. 309, p. 2. Plaintiff further requests a copy of the trial transcript be
prepared for purposes of this motion and any subsequent appeal.
The Court will DENY plaintiff’s motion (Doc. No. 309) for additional time to reply and
for preparation of a trial transcript. The issues raised in plaintiff’s initial motion (Doc. No.
303) are not complex, and plaintiff should have been able to timely respond without a trial
transcript.

Additionally, the Court will not consider any alleged improper defense

arguments that were not identified with any particularity in plaintiff’s motions. Furthermore,
civil litigants are not automatically entitled to trial transcripts at government expense. See
28 U.S.C. § 753(f); Rhodes v. Corps of Eng’rs, 589 F.2d 358, 359 (8th Cir. 1978). If plaintiff
appeals, he may request preparation of a transcript at that time.
The Court now turns to plaintiff’s motion for new trial (Doc. No. 303). Rule 59
motions “serve the limited function of correcting manifest errors of law or fact or to present
newly discovered evidence.” Lowry v. Watson Chapel Sch. Dist., 540 F.3d 752, 761 (8th
Cir. 2008). A new trial may be granted on the grounds that the verdict is so against the
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weight of the evidence that a new trial is necessary to avoid a miscarriage of justice.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (citations omitted).
In this case, the weight of the evidence is sufficient to support the jury’s verdict. The
outcome of this trial largely turned on whose testimony the jury believed: that of defendants
Almond, Baker, and Carter, or that of inmate Bobby Williams. The Court cannot say the
jury’s verdict was seriously erroneous or a miscarriage of justice based on evidence
presented at trial. Furthermore, plaintiff has no constitutional or statutory right to effective
counsel in a civil matter. See Taylor v. Dickel, 293 F.3d 427, 431 (8th Cir. 2002). In this
Court’s opinion, plaintiff’s appointed counsel performed more than adequately both in their
pretrial preparation and at trial. Additionally, plaintiff has identified no new evidence that
would support a new trial. Plaintiff’s motion for new trial (Doc. No. 303) is DENIED.
III.

Conclusion
Therefore, for the foregoing reasons:
(1)

Plaintiff’s Pro Se Motion for New Trial (Doc. No. 303) is DENIED; and

(2)

Plaintiff’s Pro Se Motion for Enlargement of Time to Defendants Motion in
Opposition to Plaintiff’s Motion for New Trial (Doc. No. 309) is DENIED.

IT IS SO ORDERED.
/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Dated: February 9, 2012
Kansas City, Missouri

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