Hill v. Griffin et al

Filing 140

DECISION AND ORDER denying 135 Motion for Reconsideration; denying 137 Supplemental Motion for Reconsideration. Signed by Hon. Elizabeth A. Wolford on 07/09/2019. (CDH) (A copy of this Decision and Order was mailed to Plaintiff)

S"TW^SDIS]^^
JUL 0 9 2019

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

igewENGUiiW-^^T
DISTRICT

MICFLA.EL HIEE,

Plaintiff,
DECISION AND ORDER
V.

6:10-CV-064I9EAW

PATRICK GRIFFIN, et al.
Defendants.

INTRODUCTION

Plaintiff Michael Elill ("Plaintiff), an inmate currently confined at the Auburn

Correctional Facility, commenced the instant action pro se on July 21, 2010, alleging

various violations of his constitutional rights. (Dkt. 1).' At Plaintiffs request (Dkt. 46),
the Court appointed pro bono counsel to represent Plaintiff on January 5, 2016 (Dkt. 54).
A jury trial commenced on October 15, 2018. (Dkt. 121). The jury returned a "no
cause of action" verdict on October 19, 2019 (Dkt. 132; Dkt. 133), and judgment was
entered in Defendants' favor on October 25, 2019(Dkt. 134).

Presently before the Court is Plaintiffs motion for a new trial pursuant to Rule 59
of the Federal Rules of Civil Procedure, and a supplement thereto. (Dkt. 135; Dkt. 137).

Plaintiff argues: (1) appointed counsel represented the interests of the Court instead of

diligently pursuing Plaintiffs case; (2) the Court erred in denying Plaintiffs pre-trial

'
A later-filed action. Hill v. Griffin, et al, Civil Action No. 6:1 l-cv-06I0I, was
consolidated into the instant matter on November 13, 2015. (Dkt. 52).
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request for an adverse inference based on purported discoveiy misconduct by Defendants;
(3) defense counsel made improper false remarks during summation and to the Court
during oral argument; (4) defense counsel withheld relevant documentary evidence;

(5)Plaintiff was prejudiced by not being present at side bars held during the trial; and
(6)the verdict was against the weight of the evidence. The Court has considered these

arguments and finds them without merit, for the reasons discussed below.
DISCUSSION

I.

Legal Standard

Federal Rule of Civil Procedure 59(a)(1)(A) provides that a court"may, on motion,

grant a new trial on all or some ofthe issues—and to any party—as follows:... after ajury
trial, for any reason for which a new trial has heretofore been granted in an action at law in
federal court." Id. "Essentially, to grant a Rule 59 motion, a district court'must conclude

that the jury has reached a seriously erroneous result or the verdict is a miscarriage of

justice...

Greenaway v. County ofNassau,327 F. Supp. 3d 552,560(E.D.N.Y. 2018)

(quoting Maureen Christensen v. County ofDutchess, N.Y., 548 F. App'x 651,653(2d Cir.
2013)); see also Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003). For the
reasons discussed below, the Court finds that Plaintiff has failed to meet this standard.
II.

Appointed Counsel Diligently and Ably Pursued PlaintifPs Claims

Plaintiffs first argument is that he was unfairly prejudiced by the conduct of his

appointed,pro bono counsel, whom he claims prioritized the Court's interests over his and
failed to pursue his claims in the matter he considered most appropriate. This argument is
without basis in either law or fact. As an initial matter, having presided over this case since
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before pro bono counsel was appointed, the Court can confidently state that Plaintiffs
counsel pursued this case with diligence and zeal, and that Plaintiff received representation
superior to many civil litigants with retained counsel.

To the extent that counsel

recommended that claims against certain Defendants be voluntarily dismissed prior to trial,
this was done not to further the Court's interests, as Plaintiff now alleges, but to enable
Plaintiff and his counsel to focus on those claims that had the most potential merit.
The Court further notes that Plaintiff raised the issue of his disagreement with
certain of the decisions made by his appointed counsel during the course of the trial. The
Court had an ex parte conversation with Plaintiff and his appointed counsel to discuss the
matter and Plaintiff ultimately informed the Court that he wished to continue to have his

appointed counsel represent him. Plaintiffs disagreement with his counsel's strategic
decisions at trial, made in hindsight, does not constitute a basis for a new trial. See Soltero
V. Kuhlman, No. 99CIV10765(GEL), 2000 WL 1781657, at *4 (S.D.N.Y. Dec. 4, 2000)

(explaining that at trial, "tactical decisions" are "left to the discretion of appointed
counsel").

Plaintiff also had no right to be present during side bars dealing with legal matters

or to otherwise make arguments on his own behalf while represented by counsel. It is clear
that Plaintiff wished both to have appointed counsel and to retain full control over the
conduct of this lawsuit.

However, it is well-established that "the rights of self-

representation and representation by counsel cannot be both exercised at the same time"
and that as such "a party seeking to assert his ... right of self-representation must clearly
and unequivocally discharge any lawyer previously retained." O'Reilly v. N.Y. Times Co.,
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692 F.2d 863, 868 (2d Cir. 1982)(quotation omitted). So-called "hybrid representation,"
where a party seeks "to straddle the line between self-representation and representation by
counsel," is not permitted. Antonmarchi v. Consol. Edison Co. ofN.Y., 678 F. Supp. 2d
235, 240(S.D.N.Y. 2010). Here, Plaintiff expressly asked the Court to appoint counsel to
him, and affirmatively chose to retain that counsel even after he became aware of certain

tactical decisions with which he purportedly disagreed. Under these circumstances.
Plaintiff cannot now complain that he was unable to fully control the conduct ofthe trial.
In sum, the Court finds no merit to Plaintiffs allegations that pro bono counsel

conducted themselves with anything less than the highest professionalism, nor has Plaintiff
demonstrated any conflict of interest on the part ofpro bono counsel. His request for a
new trial on this basis is denied.

III.

Request for an Adverse Inference Instruction and Alleged Discovery
Misconduct

Turning next to Plaintiffs contention that he was entitled to an adverse inference
instruction due to purported discovery misconduct by Defendants, this issue was
thoroughly litigated prior to the commencement of trial, and the Court issued a Decision
and Order(Dkt. 125) setting forth in detail the reasons for its denial of Plaintiffs request.
Plaintiffs current motion sets forth no new information or previously unconsidered

grounds so as to justify revisiting the Court's prior decision. See Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("The standard for granting a [motion for
reconsideration] is strict, and reconsideration will generally be denied unless the moving

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party can point to controlling decisions or data that the court overlooked—^matters, in other

words, that might reasonably be expected to alter the conclusion reached by the court.").
Further, there is no support in the record for Defendant's contention that defense

counsel deliberately withheld relevant documentary evidence.

In connection with

Plaintiffs request for an adverse inference instruction, defense counsel explained that the

documents at issue either did not exist or had been destroyed prior to being requested by
Plaintiff pursuant to the Department of Corrections and Community Supervision's

document retention policy. (See Dkt. 125 at 1-2). The Court found that Defendants had
not been under a duty to preserve the documents in question when they were destroyed.
(Id. at 4-6).

Plaintiff now argues that defense counsel lied to the Court when he represented that
the documents in question either had been destroyed or had never existed. (See Dkt. 137

at 3-4). Plaintiff has proffered no evidence to support his conclusory allegations that
defense counsel was untruthful. The Court is "entitled to rel[y] upon the presumption that

attorneys, as officers ofthe court, make truthful representations to the court." United States
V. VendettU No. lO-CR-00360-RJA-JJM, 2013 WL 5522860, at *13 (W.D.N.Y. Jan. 22,

2013) (quotation omitted), report and recommendation adopted, 2013 WL 5522434
(W.D.N.Y. Oct. 3,2013);see also Theodore v. State ofNew Hampshire,614 F.2d 817,822

(1st Cir. 1980)("Attorneys are officers of the court and a judge has the right, in most
circumstances, to rely on their representations to him.").

The Court notes that Plaintiffs invocation of Brady v. Maryland, 373 U.S. 83
(1963), in this context is misplaced. (See Dkt. 137 at 1 (contending that Plaintiffis making
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a "Brady claim")). Brady relates to the production of exculpatory evidence in connection

with criminal charges and has no applicability here. In any event, as the Court has already
noted, Plaintiff has failed to provide evidentiary support for the claim that defense counsel
withheld documents.

For the reasons discussed above,the Court declines to revisit its ruling on Plaintiffs

request for an adverse inference instruction and further finds that Plaintiff has not shown

that defense counsel engaged in discovery misconduct.
IV.

Defense CounsePs Remarks

The Court next considers Plaintiffs argument that defense counsel made improper,

prejudicial remarks during closing arguments and during oral argument. In particular.

Plaintiff contends that defense counsel "told the Court and jurors that Plaintiff had not filed
a separate class action petition, but that he had filed a petition ... with that portion being
removed because he failed to meet the required standards." (Dkt. 135 at 9). Plaintiff claims
that these remarks were false and prejudicial. {Id.).

"[A] party seeking a new trial on the basis of opposing counsel's improper

statements to the juiy faces a heavy burden, as rarely will an attorney's conduct so infect a
trial with undue prejudice or passion as to require reversal." Marcic v. Reinauer Transp.

Cos., 397 F.3d 120, 124 (2d Cir. 2005)(quotation and original alterations omitted). The
comments Plaintiff complains of do not rise to this level.

As an initial matter. Plaintiff has failed to provide citations to the trial transcript and
has instead apparently relied solely on his own recollection ofdefense counsel's comments.
As a general matter, specific reliance upon the trial transcript is necessary to demonstrate
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a party's entitlement to reliefon a Rule 59 motion based upon determinations made at trial.
See Ayala v. Resales, No. 13 C 4425, 2015 WL 4127915, at *1 (N.D. 111. July 8, 2015)
(noting that "while the Court has attempted to the best of its ability to address [p]laintiffs
claims on the merits," the plaintiffs "failure to provide all ofthe necessary record citations
makes it impossible for this Court to properly address his claims of error," and thus,"any
arguments lacking necessary record support are, in the first instances, denied as waived");

Ratliffv. City ofChicago,No. lO-CV-739,2013 WL 3388745, at *1 (N.D.111. July 8,2013)
(on a motion for a new trial,"to the extent that citation to the record would be necessary to

support a position,[djefendants' failure to cite to the trial record or the pretrial conference
record will not be excused"); Parr v. Nicholls State Univ., No. CIV.A. 09-3576, 2012 WL

1032905, at *3 (E.D. La. Mar. 27, 2012)(denying the motion for a new trial, noting that

"without the benefit ofcitation to the trial transcript, the Court has no basis for determining
that any error occurred"); Terranova v. Torres, No.04-CV-2129(CS),2010 WL 11507383,
at *4 (S.D.N.Y. June 23, 2010)(declining to grant the plaintiffs' motion for a new trial

based upon challenged evidentiary rulings where the plaintiff failed to "cite pertinent
sections of the trial transcript so as to identify the particular evidentiary rulings to which
he refers, and does not provide any legal support for his arguments"), aff'd sub nom.
Terranova v. New York,676 F.3d 305(2d Cir. 2012). In other words, on the current record,
the Court has no basis from which to conclude that Plaintiffs recollection accurately
reflects defense counsel's comments.

Moreover, even accepting Plaintiffs recitation of defense counsel's comments as
correct. Plaintiff has failed to demonstrate his entitlement to a new trial. As noted above,
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Plaintiff contends that, in his summation, defense counsel "told the Court and jurors that
Plaintiff had not filed a separate class action petition, but that he had filed a petition ...
with that portion being removed because he failed to meet the required standards." (Dkt.
135 at 9).

This alleged statement by defense counsel, as recited by Plaintiff, is not an entirely
accurate summary ofthe procedural history ofthis case. Plaintiff attempted to assert class

action claims in the instant matter, and on April 6,2011,the Honorable Michael A. Telesca

issued a Decision and Order in which he declined to determine whether it was appropriate

to certify a class, but informed Plaintiff that his allegations as they then stood were
insufficient to support the existence of a cognizable class, and that he would need to set
forth additional allegations to satisfy the requirements of Federal Rule of Civil Procedure

23(a) and (b). (Dkt. 8 at 4-5). Judge Telesca thereafter dismissed certain of Plaintiffs
claims and ordered him to file a Second Amended Complaint. (Dkt. 23). Plaintiff filed a

Second Amended Complaint on December 20, 2013, which did not purport to be a class

action complaint, but did allege that Plaintiff had been retaliated against for attempting to
file a class action lawsuit. (Dkt. 25).

However, even accepting Plaintiffs recollection that defense counsel incorrectly
said the Court had dismissed his class action claims when in actuality Plaintiff voluntarily

dropped them after being informed of the inadequacy of his allegations, this minor
inaccuracy was immaterial to the point that defense counsel was making in his closing
argument—namely that Plaintiff had an opportunity to present his class action allegations
to the Court and was ultimately able to pursue his own individual claims. In addition, no
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contemporaneous objection was made to defense counsel's remarks.

Under these

circumstances, the Court finds that the statements identified by Plaintiff were not unduly
prejudicial and do not warrant a new trial.

To the extent that Plaintiff contends defense counsel made improper comments to
this Court during oral argument, again. Plaintiff has not provided any citations to support
this claim, nor has he explained why this would provide a basis for a new trial. In any
event, at no point during its decision-making in this case was the Court influenced by
defense counsel's alleged inaccurate recounting of the matter's procedural history, and so
no prejudice to Plaintiff occurred.
V.

Weight of the Evidence

Finally, Plaintiff makes a cursory argument that the verdict was unsupported by the

weight ofthe evidence. (See Dkt. 137 at 6). Plaintiff has not elaborated on this contention,
but instead states merely that "the Court should based upon the exhibits attached to both
complaints in support of each allegation view the weight of the evidence itself, without
assigned counsel involvement due to the conflict of interest [sic]." (Id.).

"When considering a motion for a new trial under Rule 59(a)on the ground that the

jury's verdict is against the weight of evidence, the Court gives a high degree of deference
to the jury's evaluation of witness credibility and in light ofthe principle thatjury verdicts

should only rarely be overturned." Vale v. City ofNew Haven,No.3:11-CV-00632(JAM),
2017 WL 4572218, at *1 (D. Conn. Oct. 14, 2017). "Where a party attempts to meet the

heavy burden of overturning a jury verdict based upon the weight of the evidence, the
failure to present the Court with record evidence to substantiate its claims—standing
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alone—^provides sufficient basis to deny the motion." Anderson v. Aparicio, 25 F. Supp.
3d 303, 309(E.D.N.Y. 2014), aff'dsub nom. Anderson v. County ofSuffolk, 621 F. App'x
54(2d Cir. 2015).

Plaintiffs motion fails, on its face, to meet the heavy burden necessary to warrant
overturning the jury's verdict. Plaintiff has failed to set forth any explanation for his
argument, but instead merely asks the Court to review all the exhibits he attached to his
Complaints—many of which were not admitted into evidence at the trial—and make its
own assessment ofthe weight ofthe evidence. It would be inappropriate and a usurpation
of the jury's role for the Court to grant Plaintiffs request. Moreover, to the extent
Plaintiffs argument regarding the weight of the evidence is based on his claim that pro
bono counsel suffered from a conflict of interest, the Court has already rejected that claim,
as discussed above. There is no basis on the instant record for the Court to disturb the

jury's findings or to grant a new trial.
CONCLUSION

For the foregoing reasons. Plaintiffs motion for a new trial (Dkt. 135) and the
supplement thereto(Dkt. 137) are denied.
SO ORDERED.

ETIL

_

tates District Judge
Dated:

July 9, 2019
Rochester, New York

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