WASHINGTON v. GILMORE et al
MEMORANDUM OPINION on Plaintiff's 178 MOTION for Judgment as a Matter of Law and 179 MOTION for a New Trial. A separate Order will be entered. Signed by Magistrate Judge Lisa Pupo Lenihan on September 15, 2022. (kcb)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 18 - 342
Magistrate Judge Lisa Pupo Lenihan
ECF Nos. 178, 179
MEMORANDUM OPINION ON PLAINTIFF’S POST TRIAL MOTIONS
For the reasons set forth below, Plaintiff’s Motions for Judgment as a Matter of Law
pursuant to Fed. R. Civ. P. 50(b) and Motion for a New Trial pursuant to rule 59(a) (ECF Nos.
178 and 179) will be denied.
II. Factual and Procedural History
The parties are familiar with the facts of the case, which need not be restated in detail
here. This case was tried to a jury commencing on July 18, 2022 1 and ending on July 19, 2022
with a defense verdict. ECF No. 172. Plaintiff was represented during the trial by counsel
appointed by the Court on a pro bono basis. The case involved an allegation of the use of
excessive force by Defendant Jones on March 28, 2017. Also named in the Complaint was
Robert Gilmore as supervisor of Officer Jones. Gilmore was dismissed on July 18, 2022 on an
Jury selection took place on July 6, 2022. The Court was advised that day that one of the defense attorneys tested
positive for Covid, (ECF No. 169) so no proceedings took place for the 5 days as required by the CDC. From July
12-14 another of Plaintiff’s cases was tried to a jury (C.A. No. 18-340). This trial followed.
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oral Motion pursuant to Fed. R. Civ. P. 50(a) presented at the close of Plaintiff’s case. A similar
motion was made on behalf of Defendant Jones and was denied. ECF Nos. 170, 171. No motions
were made by Plaintiff. Plaintiff’s pro bono attorney, Jason Piatt, filed a Motion to Withdraw as
Counsel immediately after the case and these motions were filed by Plaintiff proceeding pro se.
Defendant filed a response on August 31, 2022. ECF No. 183.
III. Applicable Standard
A. Motion For Judgment Rule 50(b)
Federal Rule of Civil Procedure 50 guides motions for judgment as a matter of law when
“the facts are sufficiently clear that the law requires a particular result”. Weisgram v. Marley Co.,
528 U.S. 440, 447 (2000) (citing 9A C. Wright & A. Miller, Federal Practice and Procedure §
2521, p. 240 (2d ed. 1995)). At the conclusion of the non-moving party’s case, the moving party
may make a motion for judgment as a matter of law any time before submission to the jury. Fed.
R. Civ. P. 50(a)(2). If judgment as a matter of law is not granted under 50(a), a party may renew
the motion under 50(b) after the entry of judgment. Fed. R. Civ. P. 50(b). A 50(b) motion “can
only be made on grounds specifically advanced in a motion for a directed verdict at the end of
plaintiff's case.” Kars 4 Kids Inc. v. Am. Can!, 8 F.4th 209, 220 (3d Cir. 2021) (citing Kutner
Buick, Inc. v. Am. Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989)). If a defendant fails to raise
an issue in a Rule 50(a)(2) motion with “sufficient specificity to put the plaintiffs on notice,”
they waive their right to raise the issue in a Rule 50(b) motion. Id. (citing Williams v. Runyon,
130 F.3d 568, 571-72 (3d Cir. 1997)).
B. Motion For a New Trial Rule 59(a)
Federal Rule of Civil Procedure 59(a) states in relevant part as follows:
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issues - and to any party - as follows:
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(A) after a jury trial, 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 ordering of a new trial pursuant to Rule 59 is within the sound discretion of the
district court. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1017 (3d Cir. 1995). Reasons
for granting a new trial include verdicts which are against the weight of the evidence or
prejudicial errors of law. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993); Brown v.
Nutrition Mgmt. Servs. Co., 370 F. App’x 267, 268-70 (3d Cir. 2010). Taking the latter first,
when the basis for the motion is an alleged error concerning the court’s evidentiary rulings or
jury instructions – that is, when it concerns a matter within the discretion of the trial court - a
District Court must first determine whether an error was made during the course of the trial, and
then determine “whether that error was so prejudicial that refusal to grant a new trial would be
‘inconsistent with substantial justice.’” Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600,
601 (E.D. Pa. 1989) (quoting Fed. R. Civ. P. 61), aff'd, 922 F.2d 184 (3d Cir.1990). Whether any
error committed by the court was harmless is governed by Federal Rule of Civil Procedure 61. 2
Thus, “[u]nless a substantial right of the party is affected,” a non-constitutional error in a civil
case is harmless. Linkstrom v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir.1989). “Absent a
showing of substantial injustice or prejudicial error, a new trial is not warranted and it is the
court’s duty to respect a plausible jury verdict.” Montgomery County v. MicroVote Corp., 152
F.Supp.2d 784, 795 (E.D. Pa. 2001). A court, “should do so only when “the great weight of the
“Unless justice requires otherwise, no error in admitting or excluding evidence-or any other error by the court or a
party-is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the proceeding, the court must disregard errors and defects that do
not affect any party’s substantial rights.” Fed. R. Civ. P. 61; cf. Fed. R. Evid. 103(a) (“Error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”).
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evidence cuts against the verdict and ... [ ] a miscarriage of justice would result if the verdict
were to stand.” Leonard v. Stemtech Int'l Inc., 834 F.3d 376, 386 (3d Cir. 2016).
The United States Court of Appeals for the Third Circuit has further indicated that the
District Court’s discretion to grant a new trial is more limited when the alleged ground is that the
verdict is against the weight of the evidence. Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d
Cir. 1999). In this instance, new trials “‘are proper only when the record shows that the jury’s
verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be
overturned or shocks our conscience.’” Greenleaf, 174 F.3d at 366 (quoting Williamson v.
Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)); EEOC v. Delaware Dep’t of Health
and Soc. Servs., 865 F.2d 1408, 1413 (3d Cir. 1989). “[T]his stringent standard is necessary to
ensure that a district court does not substitute its judgment of the facts and credibility of the
witnesses for that of the jury.” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1076
(3d Cir. 1996) (citations omitted). The movant bears the burden of proof on a Motion for a New
Trial. Whelan v. Teledyne Metal Working Prods., No. CA 01-1316, 2006 WL 39156, at *7 (W.D.
Pa. 2006). And the party seeking a new trial must meet a high threshold in order to obtain this
“extraordinary relief.” Ponzini v. PrimeCare Med., Inc., 269 F. Supp. 3d 444, 575 (M.D. Pa.
2017), aff'd in part, vacated in part sub nom. Ponzini v. Monroe Cnty, 789 F. App'x 313 (3d Cir.
Plaintiff’s Motion for a Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b)
must be denied. No motion for judgment as a matter of law was made by Plaintiff under Rule
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50(a) at trial. 3 Therefore, the only pending motion is one for a new trial under Rule 59. See Pa.
R. Civ. P. 50(b).
Plaintiff claims that the verdict was against the weight of the evidence and the damages
inadequate for a number of reasons. First, he alleges that the video shown was “inadequate”
because the Defendants copied it and somehow altered it to show only what they wanted. ECF
No. 179 p.2. This is the first time this issue has been raised. At no time did Plaintiff ask that
other video be shown. No objection was made at trial, no evidence was offered as to this theory
and the issue was not preserved. A “party who fails to object to errors at trial waives the right to
complain about them following trial.” Seneca Ins. Co. v. Beal, 820 F. App'x 106 (3d Cir. 2020)
(quoting Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998)).
Plaintiff also argues ineffective assistance of counsel; however, that is not grounds for a
new trial. His attorney did an excellent job both before and during the trial. In addition, not only
is there no right to effective counsel in a civil case, there is no right to counsel at all in a civil
matter. Delker v. Blaker, 488 F. App’x. 650, 651 (3d Cir. 2012), Turner v. Rogers, 564 U.S. 431,
433 (2011). The Court made numerous attempts to find counsel for Plaintiff and did so in
Attorney Piatt. See ECF Nos. 112, 117, 118, 119.
Plaintiff makes conclusory statements about unfairness: “the judge did not properly
instruct the jury;” “the evidence viewed in favor of the Plaintiff sufficiently supported the
verdict;” “the Court unfairly selected jury members;” and “the pretrial publicity unfairly
Had Plaintiff made such a motion, it would have been denied. Defendant Jones did testify differently at trial than
he had at deposition. He admitted this on the witness stand on cross and the Court still allowed Plaintiff to use the
deposition testimony, over the objection of Defendant’s counsel, to impeach Defendant Jones. Defendant also
objected to using a video portion of the deposition, which the Court also overruled. However, as Jones did admit that
he testified differently at his deposition, he could reasonably argue that allowing the deposition in as impeachment
was error. The Court’s ruling was for the purpose of giving Plaintiff every opportunity to present his evidence. Yet,
the jury chose to find Defendant Jones credible. There was no basis to grant judgment in favor of Plaintiff at the
close of the case. The evidence presented by Defendant was sufficient to support a verdict in his favor.
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prejudiced the jury.” Plaintiff is not specific as to the issue with the jury charge. The Court
considered the charge as proposed by the parties, used most of what was proposed by Plaintiff,
and also had a charging conference. ECF No. 156, 168. Without knowing what in the charge was
erroneous, the Court is unable to address this issue. The Court did not select any members of the
jury. Jury selection was done by the parties and Plaintiff was present throughout. There was no
pretrial publicity about the case.
Finally, Plaintiff disagrees with the jury verdict and seems to argue that the verdict was
against the weight of the evidence. This jury verdict does not meet the high “against the weight
of the evidence” standard, as it neither resulted in a miscarriage of justice nor was conscienceshocking. To the contrary, Plaintiff testified at length about what happened to him and the jury
heard conflicting evidence from Defendant, and duly made credibility assessments as to each
witness, including Plaintiff. See Ponzini v. Primecare Medical, Inc., 269 F. Supp. 3d 444, 548
(M.D. Pa. 2017), aff’d in part, vacated in part sub nom. Ponzini v. Monroe Cnty., 789 F. App’x 313
(3d Cir. 2019). (“Where evidence is in conflict and subject to two interpretations, the trial judge
should be reluctant to grant a new trial.”); Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 48586 (3d Cir.1965) (“[T]he mere assertion of any witness does not of itself need to be believed, even
though he is unimpeached in any manner; because to require such belief would be to give a
quantitative and impersonal measure to testimony’…. [T]he trier of fact, whether the issue be one of
an excessive or inadequate verdict, is at liberty within the bounds of reason to reject entirely the
uncontradicted testimony of a witness which does not convince the trier of its merit.”); id. (holding
that where jury might have rationally weighed factors in evidence in reaching its decision, rejection
of some uncontradicted testimony fell within bounds of reason).
Nothing in this case supports a contention that the verdict of the jury, reached after hearing
all of the testimony and deliberating, should be disturbed.
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The Court granted Defendant Gilmore’s request for dismissal pursuant to Rule 50(a)
following the close of Plaintiff’s case. ECF Nos. 170, 171. Gilmore was named as a Defendant
on the basis that he was Defendant Jones’ supervisor. It is well settled that a “defendant in a civil
rights action must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation
omitted)). A plaintiff must show this personal involvement through allegations of participation,
personal direction or actual knowledge and acquiescence, and these allegations “must be made
with appropriate particularity.” Rode, 845 F.2d at 1207.
In the context of a defendant who is alleged to have performed in a supervisory role,
courts have identified two general instances in which either the conduct of that supervisordefendant or the policies and procedures of that supervisor-defendant may amount to personal
involvement and thereby warrant a finding of individual, supervisory liability for a constitutional
tort. First, supervisory liability may attach if the supervisor personally “participated in violating
the plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge
of and acquiesced” in a subordinate’s unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995)). Second, liability may attach if the supervisor, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist.,
882 F.2d 720, 725 (3d Cir. 1989)).
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As no evidence had been presented that Gilmore was personally involved in the incident,
or that he established or maintained a policy or practice which directly caused the constitutional
harm, the Court finds no reason to reverse its ruling pursuant to Fed. R. Civ. P. 50(a).
For the reasons set forth above, the Court finds that Plaintiff’s Motions for Judgment as a
Matter of Law pursuant to Fed. R. Civ. P. 50(b) and Motion for a New Trial pursuant to rule
59(a) (ECF Nos. 178 and 179) should be denied. A separate Order will be entered.
Dated: September 15, 2022
By the Court:
Lisa Pupo Lenihan
United States Magistrate Judge
Jerome Junior Washington
1 Rockview Place
Bellefonte, PA 16823
Counsel of Record
(Via CM/ECF electronic mail)
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