Baxter v. State of Tennessee et al

Filing 327

ORDER denying 323 Motion for New Trial. Signed by Judge S. Thomas Anderson on 11/18/15. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
TIMOTHY AARON BAXTER,
Plaintiff,
v.
OFFICER ARTHUR MALLORY,
SERGEANT JOHN MOFFATT, and
OFFICER ROBERT MOFFATT,
Defendants.

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No. 10-2667-STA-tmp

ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL

Before the Court is Plaintiff Timothy Aaron Baxter’s Motion for New Trial (ECF No. 326)
filed on July 27, 2015. Defendants Arthur Mallory, Robert Moffatt, and John Moffatt have
responded in opposition. For the reasons set forth below, Plaintiff’s Motion is DENIED.
BACKGROUND
On September 9, 2010, Plaintiff filed a pro se Complaint alleging claims for the violation of
his constitutional rights pursuant to 42 U.S.C. § 1983. According to the pleadings, on September 11,
2009, Plaintiff was incarcerated at the West Tennessee State Penitentiary and was traveling in a truck
driven by Officer Arthur Mallory. When Plaintiff complained to Officer Mallory that he was driving
recklessly, Officer Mallory struck Plaintiff in the head with a radio. The Complaint alleges that
Officer Mallory and Officer Robert Moffatt then began to beat Plaintiff to the ground and that
Officer Moffatt struck Plaintiff with an ax handle. Trial commenced on Plaintiff’s claims on June
24, 2015. After a three-day trial, the jury returned a verdict in favor of Defendants on June 26, 2015.
1

The Court entered its judgment on June 29, 2015.
In the Motion before the Court, Plaintiff requests a new trial pursuant to Rules 59, 60, and 61
of the Federal Rules of Civil Procedure. Plaintiff has filed in conjunction with his Motion for New
Trial a Motion for Transcript and explained that he “reserves the right to amend and brief all the
issues that are and are not included, after review of the transcripts, record and other newly discovered
evidence, to present at a requested evidentiary hearing.” Plaintiff then proceeds to list twenty-seven
separate grounds supporting his request for a new trial. Each assignment of error falls into one or
more of the following categories: (1) pretrial rulings; (2) evidentiary rulings at trial; (3) Defendants’
closing arguments and the jury instructions; (4) fraud on the Court; (5) Plaintiff’s pretrial treatment
and confinement; and (6) jury selection and juror bias. Plaintiff concludes with a request for a
transcript, an opportunity for discovery, and additional briefing all leading up to an evidentiary
hearing.
Defendants have responded in opposition to Plaintiff’s Motion. Defendants read Plaintiff’s
brief to say, at least in part, that the jury’s verdict was against the weight of the evidence in this case.
Defendants emphasize that the jury rejected Plaintiff’s claims against each of them. According to
Defendants, there was no evidence that any of them applied force to Plaintiff maliciously and
sadistically to harm him. Defendants further argue that the jury appeared to take its task seriously;
jurors remained alert, took notes, and deliberated to a unanimous verdict. Under the circumstances,
it cannot be said that the verdict was against the weight of the evidence. Defendants next argue that
Plaintiff has failed to identify any erroneous ruling from the Court, which would justify his request
for a new trial. Defendants suggest that Plaintiff was actually received the benefit of favorable
rulings and other latitude from the Court due to the fact that he acted pro se. As for Plaintiff’s claims
2

of attorney misconduct, Defendants contend that the Court addressed Plaintiff’s claims in this regard
prior to trial and that Plaintiff has not shown how the Court’s rulings caused him any prejudice.
Defendants argue that in the final analysis, Plaintiff’s Motion is merely an attempt to relitigate
several of the issues the Court has already considered and decided. While Plaintiff is understandably
disappointed in the verdict, relief under Rules 59, 60, and 61 would not be proper. As such, the
Motion for New Trial should be denied.
STANDARD OF REVIEW
Under Rule 59, after a jury trial, a court may grant a new trial “for any of the reasons for
which new trials have heretofore been granted in actions at law in the courts of the United States.”1
A new trial is appropriate when the jury reaches a seriously erroneous result as evidenced by (1) the
verdict being against the clear weight of the evidence; (2) the damages being excessive; or (3) the
trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by
prejudice or bias.2 Furthermore, “a motion for a new trial will not be granted unless the moving
party suffered prejudice.”3 In this regard the party seeking a new trial has the burden to show harmful
prejudice.4 The Sixth Circuit has explained that “the governing principle in the district court’s
consideration of a motion for a new trial is whether, in the judgment of the trial judge, such course is

1

Fed. R. Civ. P. 59(a).

2

Cummins v. BIC USA, Inc., 727 F.3d 506, 509–10 (6th Cir. 2013) (citing Static Control
Components, Inc. v. Lexmark Int’l, Inc., 697 F.3d 387, 414 (6th Cir. 2012) (internal quotation marks
and brackets omitted).
3

Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir. 2004).

4

Simmons v. Napier, No. 14-2013, 2015 WL 5449962, at *2 (6th Cir. Sept. 16, 2015)
(citing Tobin v. Astra Pharm. Prods., Inc., 993 F.2d 528, 541 (6th Cir. 1993)).
3

required in order to prevent an injustice . . . .”5 The party seeking a new trial bears “a heavy
burden.”6
Rule 60(b) of the Federal Rules of Civil Procedure provides that parties may file a motion to
alter or amend a judgment at any time after entry of that judgment.7 Rule 60(b) permits a court to
relieve a party from a final judgment, order, or proceeding under the following limited
circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of the judgment.8 Generally,
Rule 60(b) relief must be “circumscribed by public policy favoring finality of judgments and
termination of litigation.”9
Plaintiff has also requested relief under Rule 61 of the Federal Rules of Civil Procedure,
which states as follows: “Unless justice requires otherwise, no error in admitting or excluding

5

Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 544 (6th Cir. 2012) (quoting Davis
by Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 133 (6th Cir. 1990) (internal quotation marks
omitted)).
6

Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1466 (6th Cir. 1993).

7

Fed. R. Civ. P. 60(b).

8

Id.

9

Yeschick v. Mineta, 675 F.3d 622, 628 (6th Cir. 2012).
4

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 all errors and defects that do not effect any party’s
substantial rights.”10 “Under the harmless error rule, an error in admitting or excluding evidence
may furnish a basis for granting a new trial only if it affects a party’s ‘substantial rights’ or if justice
so requires.”11
ANALYSIS
Plaintiff has raised a number of issues in support of his request for a new trial. However,
Plaintiff has not shown that a new trial is required to prevent an injustice in this case. Most of
Plaintiff’s assignments of error do not warrant relief, either because Plaintiff has not shown that any
error was committed or that any error was anything more than harmless. Therefore, Plaintiff’s
Motion for New Trial must be denied.
I. Lack of Particularity or Evidentiary Support
As an initial matter, Plaintiff has failed to describe with specificity the grounds supporting his
Motion for New Trial. Federal Rule of Civil Procedure 7(b) requires that requests for a court order
be made by motion and that motions state with particularity the grounds for seeking the order.12 In
the context of Rule 59 motions for new trial, Rule 7(b) “does not require ritualistic detail but rather a

10

Fed. R. Civ. P. 61.

11

CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 584 (6th Cir. 2015).

12

Fed. R. Civ. P. 7(b)(1).
5

fair indication to court and counsel of the substance of the grounds” for the motion.13 The Sixth
Circuit has commented in dicta that a party’s “grounds in its motion for a new trial must be
‘reasonably specific’ in order to comply with the particularity requirement imposed by Rule
7(b)(1).”14
The Court holds that Plaintiff’s Motion for New Trial largely fails to comply with Rule 7(b).
Plaintiff’s Motion offers only a numbered list of what are, in many respects, conclusory assertions
about supposed errors in the proceedings and the prejudicial effect the errors had on Plaintiff’s case.
Plaintiff cites no case law or legal authority as to any of the errors and makes no legal arguments to
show why he is entitled to any relief. As the party bearing the “heavy burden” to demonstrate cause
for a new trial,15 Plaintiff’s Motion does not give Defendants reasonable notice of the grounds
supporting each of his contentions. Under the circumstances, Defendants were forced to anticipate
arguments, which may or may not have been raised in the first instance by Plaintiff. Perhaps more
importantly, the Court is left to speculate about many of Plaintiff’s arguments due to the lack of
specificity in his memorandum and the total lack of supporting authority. The Court finds that
Plaintiff’s Motion, by and large, does not provide “a fair indication to court and counsel of the
substance of the grounds” for a new trial.16
Plaintiff has also asserted a number of errors but without providing any supporting exhibits,
transcripts, or other proof to show with particularity what grounds exist for his claims. It is true that

13

Fed. R. Civ. P. 59, advisory committee’s note to the 1966 amendment.

14

Intera Corp. v. Henderson, 428 F.3d 605, 612 (6th Cir. 2005) (quoting Lack Indus.,
Inc. v. Ralston Purina Co., 327 F.2d 266, 274 (8th Cir. 1964)).
15

Miller, 989 F.2d at 1466.
6

Plaintiff filed a Motion for Transcripts (ECF No. 324) in conjunction with his Motion for New Trial.
Plaintiff argues that a trial transcript (as well as transcripts of other pretrial hearings) is required to
“protect” his Motion for New Trial, Motion for Relief from Judgment, and an unspecified
evidentiary hearing. Plaintiff also reserves his right to amend his Motion for New Trial once he has
reviewed the trial transcript and had the opportunity to identify more assignments of error supporting
his request for a new trial.
Plaintiff’s Motion for Transcripts and request to amend his Motion for New Trial simply
comes too late. The problem lies in the fact that Federal Rule of Civil Procedure 59(b) requires a
motion for new trial to be filed within 28 days of the entry of judgment,17 and Rule 6(b) prohibits the
Court from extending the time for filing a motion for new trial.18 Plaintiff filed his Motion for New
Trial within 28 days of the entry of judgment, making the request for a new trial timely. But by
waiting until the 28th day after entry of judgment to file his Motion for Transcripts, Plaintiff made it
impossible for a trial transcript to be prepared in time for his use of the transcript to support his Rule
59 Motion. Plaintiff essentially asks the Court to order the preparation of transcripts so that Plaintiff
can flesh out his skeletal Motion for New Trial at a later date, far outside of the 28-day time limit for
a motion for new trial. The Court lacks the authority to grant Plaintiff additional time to develop his

16

Fed. R. Civ. P. 59, advisory committee’s note to the 1966 amendment.

17

Fed. R. Civ. P. 59(b) (“A motion for a new trial must be filed no later than 28 days after
entry of judgment.”).
18

Fed. R. Civ. P. 6(b)(2) (“A court must not extend the time to act under Rules 50(b) and
(d), 52(b), 59(b), (d), and (e), and 60(b).”)
7

Rule 59(b) Motion. The Court now turns to consider the separate grounds for relief listed in
Plaintiff’s Motion for New Trial.
II. Pretrial Rulings
Plaintiff’s Motion raises a number of issues the Court already considered and decided in its
pretrial rulings: (1) the exclusion of Plaintiff’s witnesses Chris Rogers, John Wallace, and Ricky
Alexander; (2) Defendants’ late production of documents identifying Corporal Mawby as the
corrections officer who squeezed Plaintiff’s handcuffs at the sally port; (3) Plaintiff’s request for
appointment of counsel; (4) Plaintiff’s discovery request for Defendants’ personnel records; (5)
Plaintiff’s motion to depose Defendants and a TDOC representative; (6) the dismissal of Plaintiff’s
denial of medical treatment claim; (7) Plaintiff’s request for sickcall rosters; (8) Plaintiff’s request
for a pretrial medical examination; (9) Plaintiff’s request for the Court to conduct an in camera
review of Defendants’ personnel files; (10) Plaintiff’s objections (ECF No. 139) to an order entered
by the Magistrate Judge; (11) Plaintiff’s motion to amend his pleadings; and (12) Plaintiff’s motion
for partial summary judgment as to Defendant Robert Moffatt. Because the Court has already issued
orders or rulings on each of these issues prior to trial, the Court will treat Plaintiff’s request as
motion for revision or reconsideration of each ruling.
Rule 59(e) of the Federal Rules of Civil Procedure provides that parties can file a motion to
alter or amend a judgment within twenty-eight (28) days of entry of that judgment.19 Motions under
Rule 59(e) may be supported by any of the following reasons: (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) to prevent manifest

19

Fed. R. Civ. P. 59(e).
8

injustice.20 The Court finds that Plaintiff has made none of these showings here. On the contrary,
Plaintiff either already raised these arguments in his earlier motions or could have raised them.21
Under the circumstances, “where the movant is attempting to obtain a complete reversal of the
court’s judgment by offering essentially the same arguments presented on the original motion, the
proper vehicle for relief is an appeal.”22 Therefore, Plaintiff’s Motion for New Trial is DENIED as
to each of these grounds for relief.
III. Evidentiary Rulings at Trial
Next, Plaintiff’s Motion raises several objections to the Court’s evidentiary rulings at trial:
• allowing counsel for Defendants’ alleged misrepresentations about unspecified material
facts to impeach the testimony of Plaintiff’s witness Calvin Darnell, facts which apparently
concerned or originated with Desmond McCorkell, a witness the defense never disclosed;23
• the admission of Dustin Chumley as a witness, even though Defendants had not disclosed

20

Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009).

21

See Exxon Shipping Co. v. Baker, 128 S.Ct. 2605, 2617 n.5 (2008) (citing 11 C. Wright
& A. Miller, Federal Practice & Procedure, § 2810.1 pp. 127-128 (2d ed. 1995)); Nat’l
Ecological Found. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (explaining that Rule 59(e)
motions should not be based on legal arguments or evidence that the movant simply failed to
raise in the earlier motion).
22

Helton v. ACS Group, 964 F. Supp. 1175, 1182 (E.D. Tenn. 1997) (quoting Keweenaw
Bay Indian Cmty. v. Michigan, 152 F.R.D. 562, 563 (W.D. Mich. 1992), aff’d 11 F.3d 1341 (6th
Cir. 1993)).
23

Plaintiff actually goes further and asserts that counsel for Defendants perpetrated a
fraud on the Court. However, Plaintiff has not substantiated this claim in any way. McCorkell
was not called as a witness, and Plaintiff has not explained how Defendants used information
from McCorkell to impeach Darnell, much less how their use of the information violated the
Federal Rules of Civil Procedure or the Federal Rules of Evidence. The Court considers this and
other claims of fraud on the Court below.
9

him prior to trial;
• the admission of Defendant Arthur Mallory’s testimony contradicting the testimony of
Plaintiff’s mother Linda Riddle without additional evidence to support Mallory’s testimony;
• the introduction of Defendants’ “due process violation defense” as well as comments about
Plaintiff’s disciplinary hearing when the doctrine of res judicata should have precluded the
Defendants from contesting the outcome of the hearing;
• the admission of Plaintiff’s mental health records, which contained privileged and
confidential information and were otherwise unfairly prejudicial to Plaintiff;
• the admission of unspecified, irrelevant prison records pertaining to Plaintiff and dating
more than ten years prior to the relevant events in this case;
• the introduction of Plaintiff’s medical records from the West Tennessee Bone and Joint
Clinic without a proper foundation; and
• the exclusion of Plaintiff’s written grievances against Defendants.
Motions for new trial based on an erroneous evidentiary ruling require the Court to evaluate
the evidentiary ruling under an abuse-of-discretion standard.24 A district court abuses its discretion
by relying on clearly erroneous findings of fact, improperly applying the law, or using an erroneous
legal standard.25 However, it is not enough for the party moving for a new trial to demonstrate a
mistake in admitting or excluding evidence.26 The moving party must show that the evidentiary error

24

Cummins, 727 F.3d at 510 (citing United States v. Morales, 687 F.3d 697, 701–02 (6th
Cir. 2012)).
25

Id.

26

Kendel v. Local 17–A United Food & Commercial Workers, 512 F. App’x 472, 479
10

“amounted to more than harmless error.”27 An erroneous evidentiary ruling will justify a new trial
only if it was not harmless and affected the outcome of the proceedings.28
The Court holds that Plaintiff has not carried his burden to show that an error occurred at
trial. Plaintiff’s Motion raises these assignments of error but without providing any additional
context to specify what testimony a witness gave, whether Plaintiff raised a contemporaneous
objection to each ruling, what arguments Defendants made in response to Plaintiff’s objection, and
the reasons given by the Court for its ruling. As such, Plaintiff has not set forth the grounds for his
arguments with the particularity required under the Federal Rules of Civil Procedure. Plaintiff’s
Motion would be denied as to these issues for this reason alone.
The arguments the Court can divine from Plaintiff’s Motion do not suggest error at all. For
example, Plaintiff’s complains that Defendant Arthur Mallory was allowed to contest the testimony
of another witness but without introducing additional proof to buttress his contradictory testimony.
This objection is without merit. Whether some additional evidence calls a witness’s testimony into
doubt is a matter of cross-examination; the witness is not required to introduce other proof to
corroborate his oral testimony. Plaintiff’s argument essentially describes a classic jury question, the
credibility of witnesses offering conflicting testimony. This is not a proper basis for a new trial.29
Other objections raised in Plaintiff’s Motion relate to testimony or proof the Court allowed
Defendants to introduce in rebuttal or because Plaintiff’s own proof opened the door to an issue. The

(6th Cir. 2013).
27

Field v. Trigg Cty. Hosp., Inc., 386 F.3d 729, 736 (6th Cir. 2004).

28

Cummins, 727 F.3d at 510 (citations omitted).

29

Wallace v. FedEx Corp., 764 F.3d 571, 593 (6th Cir. 2014).
11

testimony of Plaintiff’s mother about her son’s lack of violent behavior and his generally cooperative
attitude with authority opened the door to much of the proof to which Plaintiff now objects. “When
a party offers evidence of his good character, he opens the door for the opponent to admit rebuttal
evidence of his prior bad acts.”30
And even if Plaintiff has shown with particularity that some evidentiary error occurred in this
case, Plaintiff has not shown how any error or accumulation of errors affected the outcome of the
trial. Plaintiff has asserted in conclusory fashion that some errors violated his “substantive rights to
due process.” Plaintiff has not cited any legal authority or case law to support his vague due process
claims. Without more, the Court holds that Plaintiff has not carried his burden to show that any
evidentiary ruling affected the outcome of the proceedings. Therefore, Plaintiff’s Motion is
DENIED as to these issues.
IV. Counsel’s Closing Arguments and the Jury Instructions
Plaintiff argues that counsel for Defendants improperly argued to the jury that Plaintiff’s
injuries were no more than de minimis and that the jury instructions included an improper instruction
on de minimis injuries. With respect to counsel’s closing argument, Plaintiff “must make a concrete
showing that [counsel’s] conduct consistently permeated the trial such that [Plaintiff was] unfairly
prejudiced by the misconduct.”31 In deciding this issue, the Court examines “the totality of the
circumstances, including the nature of the comments, their frequency, their possible relevancy to the
real issues before the jury, the manner in which the parties and the court treated the comments, the

30

Helfrich v. Lakeside Park Police Dep’t, 497 F. App'x 500, 509 (6th Cir. 2012).

31

Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 542 (6th Cir. 2014)
(Tompkins v. Crown Corr, Inc., 726 F.3d 830, 835 (6th Cir. 2013)).
12

strength of the case (e.g., whether it is a close case), and the verdict itself.”32 If the Court concludes
that opposing counsel did make an improper comment, the Court “may set aside the verdict only if
there is a reasonable probability that the verdict of the jury has been influenced by such conduct.”33
As for the jury instruction on de minimis injury, “[a] party needs only a slim amount of evidence to
support giving a jury instruction, but jury instructions must be reviewed as a whole to determine
whether an instruction is necessary.”34 “A party is not entitled to a new trial based upon alleged
deficiencies in the jury instructions unless the instructions, taken as a whole, are misleading or give
an inadequate understanding of the law.”35
The Court finds no reason to set aside the verdict based on the issue of whether Plaintiff’s
injuries or some part of his injuries were de minimis. Counsel’s argument to the jury was highly
relevant to Plaintiff’s claims of excessive force and a correct statement of the law. “[A] n excessiveforce claimant must show something more than de minimis force.”36 Furthermore, there was a
question of fact about what occurred in the tomato field on the occasion of the alleged assault and the
extent of Plaintiff’s injuries from the assault. These were issues for the jury to resolve. Defendants’

32

Id. (quoting Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 249 (6th
Cir.2011)).
33

Id. (quoting Balsley v. LFP, Inc., 691 F.3d 747, 761 (6th Cir. 2012)).

34

Tannenbaum v. Fed. Ins. Co., 608 F. App’x 316, 319 (6th Cir. 2015) (quoting Taylor v.
TECO Barge Line, Inc., 517 F.3d 372, 387 (6th Cir. 2008)).
35

Id. (quoting Arban v. West Pub. Corp., 345 F.3d 390, 404 (6th Cir. 2003)).

36

Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008) (citing Hudson v.
McMillian, 503 U.S. 1, 9–10 (1992)).
13

argument at closing and the instructions to the jury were proper. Therefore, Plaintiff’s Motion for
New Trial is DENIED as to this issue.
V. Fraud on the Court
Plaintiff next asserts that the following events at trial constituted a fraud on the court:
• Defendants’ failure to disclose Desmond McCorkell as a person with discoverable
information;
• Defendants’ failure to disclose Dustin Chumley as a witness to be called at trial;
• Lt. Thomas Shell’s trial testimony contradicting his earlier affidavit about interviewing all
of the inmates who witnessed the assault on Plaintiff; and
• Defendants’ failure to produce sick call rosters in discovery.
Rule 60(b)(3) gives the Court discretion to relieve a party from a final judgment in cases of fraud,
misrepresentation, or misconduct by an opposing party. The Sixth Circuit has adopted the following
definition of fraud in the context of Rule 60(b)(3): “the knowing misrepresentation of a material fact,
or concealment of the same when there is a duty to disclose, done to induce another to act to his or
her detriment.”37 “Fraud” includes “deliberate omissions when a response is required by law or
when the non-moving party has volunteered information that would be misleading without the
omitted material.”38 A party moving for relief under Rule 60(b)(3) must establish the alleged fraud

37

Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 456 (6th Cir. 2008) (citations

omitted).
14

or misrepresentation by clear and convincing evidence.39 What is more, the moving party must show
that absent the fraudulent testimony, “a jury might have reached a different conclusion.”40
The Court holds that Plaintiff has not carried his high burden to establish any fraud on the
Court by clear and convincing evidence or to show that any purported fraud altered the outcome of
the trial. None of the supposed acts of fraud went to the heart of the factual questions the jury had to
resolve in this case. The Court cannot say that any of the acts or omissions Plaintiff complains of
could even be described as fraudulent, much less that they had an effect on the jury’s verdict.
Therefore, Plaintiff’s Motion is DENIED as to these issues.
VI. Plaintiff’s Pretrial Treatment and Confinement
In his next grounds for new trial, Plaintiff argues that Defendants “through their agents,
servants, etc. interfered with a fair trial by withholding nutrition, placing Plaintiff in solitary
confinement from pre-trial conference up until trial a total of three weeks . . .” Plaintiff claims that
this treatment affected his ability to prepare for trial. While the Court finds this claim to be serious,
Plaintiff has not substantiated it in any way. Plaintiff has not filed an affidavit, setting forth his
allegations under penalty of perjury, or any other proof to support his claim. The Court also notes
that the pretrial conference occurred on June 16, 2015, and the trial began eight days later on June
24, 2015. Plaintiff’s claim that he was placed in solitary confinement for three weeks between the

38

Id. (citation omitted).

39

Travelers Cas. & Sur. Co. of Am. v. J.O.A. Const. Co., Inc., No. 09–1610, 2012 WL
154973, at * 9 (6th Cir. May 2, 2012); Info-Hold, Inc., 538 F.3d at 456.
40

Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 428 (6th Cir. 1996) (quotation

omitted).
15

pretrial conference and the trial simply lacks any support. Moreover, Plaintiff has not explained why
he waited to raise his pretrial confinement and treatment in a post-trial Motion for New Trial. At no
time during the alleged confinement or during the trial did Plaintiff ever bring this issue to the
Court’s attention. The Court notes for the record that Plaintiff did report during the trial that some of
his meals were delayed at lunch recesses. But an inconvenient delay in having lunch as soon as the
Court took a recess is not what Plaintiff has alleged in his Motion for New Trial. Perhaps most
importantly, Plaintiff has not shown how Defendants or their attorneys were responsible for
Plaintiff’s alleged mistreatment. Therefore, Plaintiff’s Motion for New Trial is DENIED as to this
claim.
VII. Jury Selection and Juror Bias
The remaining issues raised in Plaintiff’s Motion for New Trial concern the jury selection
process and the conduct of one juror in particular. Plaintiff argues that the jury pool was tainted by
the number of veniremen who had some connection to law enforcement or corrections and that the
Court abused its discretion by seating jurors over Plaintiff’s objection. Plaintiff further argues that
one juror “ignored the trial court’s instruction that she could not hold it against plaintiff that he did
not have an attorney for trial.” The Court finds these conclusory claims to be meritless.
The Supreme Court has held that “[t]he Sixth Amendment secures to criminal defendants the
right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the
community.”41 A defendant is not entitled to a jury of any particular composition, and the fact that a
certain group is underrepresented or overrepresented in a venire does not, standing alone, prove a

41

Berghuis v. Smith, 559 U.S. 314, 317 (2010).
16

defect in the jury selection process.42 Here Plaintiff objects that the jury pool included a high
number of potential jurors with some connection to law enforcement or corrections. However,
Plaintiff has no evidence to show that the procedure for selecting the venire was somehow tainted or
improper. Many of the veniremen with family members employed in law enforcement or corrections
were excused. The jurors who were selected for the panel satisfied the Court that they could
consider Plaintiff’s case impartially. Thus, the Court has no basis to conclude that the jury selection
process was defective.
As for Plaintiff’s challenges to two jurors and claim that one of the jurors exhibited bias, the
Court finds that Plaintiff’s claims are without any support. Plaintiff’s has not shown that he
challenged either juror for cause, why the Court’s decision to seat the jurors was prejudicial, or how
the presence of these two jurors on the jury affected Plaintiff’s substantial rights or the outcome of
the trial. Plaintiff has not only failed to provide any proof to establish his claim about juror bias,
Plaintiff has not raised a “colorable claim of extraneous influence” to obtain a hearing to investigate
the matter further.43 Therefore, Plaintiff’s Motion for New Trial is DENIED as to these issues.
VIII. Weight of the Evidence
At the conclusion of the trial, Plaintiff stated in open court that the jury verdict was against
the weight of the evidence, though Plaintiff has not explicitly raised this argument in his Motion for
New Trial. Even so, when a party requests a new trial on the ground that the verdict is against the
weight of the evidence, the Court will “uphold the jury verdict if it is one the jury reasonably could
have reached” and will not “set it aside simply because [the Court] think[s] another result is more

42

United States v. Smith, 463 F. App’x 564, 571 (6th Cir. 2012).

43

United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005).
17

justified.”44 In light of the proof at trial, the Court concludes that the jury could have found that
Defendants did not use excessive force against Plaintiff, even though Plaintiff was injured to some
degree. The Court cannot say that the jury’s verdict was against the weight of the evidence.
CONCLUSION
Plaintiff has not carried his burden to demonstrate why a new trial is warranted in this case.
Therefore, his Motion for New Trial is DENIED, and his Motion for Transcripts is DENIED as
moot.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: November 18, 2015.

44

Simmons, 2015 WL 5449962, at *13-14.
18