Lowe v. Ballard et al

Filing 255

MEMORANDUM OPINION AND ORDER directing that the 253 RENEWED MOTION by Keith Lowe for Judgment as a Matter of Law and MOTION for a New Trial are DENIED. Signed by Judge Joseph R. Goodwin on 10/7/2022. (cc: counsel of record; any unrepresented party) (mfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KEITH LOWE,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-03929

RONNIE WILLIAMS,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the court is Plaintiff Keith Lowe’s renewed motion for judgment
as a matter of law and motion for a new trial. [ECF No. 253]. For the reasons below,
the motions are DENIED.
I.

Background
This matter arises out of an incident in 2019 where Defendant Ronnie Williams

used pepper spray on Mr. Lowe, an inmate at Mount Olive Correctional Complex
(“MOCC”). Mr. Lowe, litigating pro se, claimed that Mr. Williams violated his right
to be free from excessive force under the Eighth Amendment to the United States
Constitution and 42 U.S.C. § 1983 and that Mr. Williams battered him. After a twoday trial, the jury unanimously found by a preponderance of the evidence that Mr.
Williams was entitled to the protection of qualified immunity with respect to Mr.
Lowe’s claims, insulating Mr. Williams from liability. [ECF Nos. 245, 246, 247].

Mr. Lowe presently argues that he is entitled to judgment as a matter of law
and a new trial due to the following alleged errors at the trial: 1) excluding depositions
of Steve Caudill and other MOCC officers that would have supported “an unwritten
practice of opening inmates[’] cell doors to fight them[;]” 2) “den[ying] [Mr. Lowe’s]
[j]ury instruction[;]” 3) prejudicing Mr. Lowe by requiring him to wear restraints
during the trial; 4) “not granting [Mr. Lowe] judgment as a matter of law[;]” and 5)
admitting evidence that was precluded by motions in limine. [ECF No. 253, at 1–2].
In response, Mr. Williams argues: 1) the depositions Mr. Lowe sought to admit
were not taken in this matter, but in a 2011 case, and their exclusion was fully
litigated at trial; 2) Mr. Lowe waived any argument on jury instructions because he
did not object to them as offered at trial; 3) Mr. Lowe represented himself in this civil
matter, had no right to be placed in street clothes, and has cited no authority for his
proposition that he was unfairly prejudiced by wearing restraints during trial; 4) Mr.
Lowe’s naked assertion of entitlement to judgment as a matter of law is a conclusory
statement without legal support; and 5) Mr. Lowe fails to specify the evidence that
was admitted in error, and any evidence admitted in violation of orders on motions
in limine was admitted on Mr. Lowe’s on motion. [ECF No. 254, at 1–2].
I first address Mr. Lowe’s renewed motion for judgment as a matter of law,
including his fourth assignment of error. Then I address Mr. Lowe’s motion for a new
trial with regard to his remaining assignments of error.
II.

Renewed Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(b) authorizes a party to renew his motion

for judgment as a matter of law after the return of the jury verdict. “[J]udgment as a
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matter of law may be granted only if . . . the only conclusion a reasonable jury could
have reached is one in favor of the moving party.” Drummond Coal Sales, Inc. v.

Norfolk S. Ry. Co., 3 F.4th 605, 610 (4th Cir. 2021) (quoting Int’l Ground Transp. v.
Mayor & City Council of Ocean City, MD, 475 F.3d 214, 218–19 (4th Cir. 2007)).
Courts reviewing a jury’s verdict must construe the facts—including all inferences
drawn from the evidence—in a light most favorable to the non-moving party and in
support of the jury’s verdict. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
150–51 (2000). The court must affirm if a “rational trier of fact” could have reached
the jury’s conclusion. Id. at 153.
I conclude that a rational trier of fact could have reached the jury’s conclusion
here—a verdict for Mr. Williams. An inmate’s claim of Eighth Amendment excessive
force involves an objective component regarding the sufficiency of force used, which
was satisfied and not in dispute here, and a subjective component, upon which this
case hinged. Dean v. Jones, 984 F.3d 295, 302 (4th Cir. 2021). “The crucial question
under the Eighth Amendment’s subjective component is one of motive: whether the
officer acted ‘in a good faith effort’ to protect safety or maintain discipline, or
‘maliciously and sadistically for the very purpose of causing harm.’” Id. at 308
(quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). Similarly, the defense of
qualified immunity involves a two-step procedure “that asks first whether a
constitutional violation occurred and second whether the right violated was clearly
established.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

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Whether there was a constitutional violation in this case depended entirely on
disputed material facts, so I denied Mr. Williams’s motions for summary judgment,
as well as Mr. Lowe’s motion for judgment as a matter of law after all the evidence
was entered at trial, and submitted the case to the jury. [ECF Nos. 136, at 6 (“[T]here
is no useful video evidence of the interactions between Lowe and Williams or the other
officers leading up to or during the use of the pepper spray.”); 185]. Construing the
facts and all inferences drawn from the evidence in support of the jury’s verdict, a
rational jury crediting Mr. Williams’s account reasonably could infer that he deployed
pepper spray into Mr. Lowe’s cell in a good faith effort to maintain discipline and
protect safety because Mr. Lowe had refused to comply with his commands.
Mr. Williams’s affidavit—which Mr. Lowe moved into evidence as Plaintiff’s
Exhibit 9—supports his account and provides a sufficient evidentiary basis for a
reasonable jury to return a verdict in his favor. [ECF Nos. 250-9; 254, at 2]. In it, Mr.
Williams states that he believed using pepper spray on Mr. Lowe was necessary to
gain compliance because Mr. Lowe “was refusing to follow loud, clear verbal
commands to show his hands . . . and appeared to be pulling something from under
his clothing[.]” [ECF No. 250-9, at 6]. On his cross-examination, Mr. Lowe admitted
that he was pepper sprayed as he was attempting to conceal a contraband cell phone
in his clothing, and he agreed that it was reasonable for Mr. Williams to believe that
Mr. Lowe was retrieving something, such as weapon, from his pants based on their
respective positions inside and outside of Mr. Lowe’s cell. On this evidence alone,

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introduced by Mr. Lowe, a rational trier of fact could have returned a verdict for Mr.
Williams.
The jury was instructed that it is clearly established law in the Fourth Circuit
that using chemical agents in quantities greater than necessary, for the sole purpose
of inflicting pain, or on a docile or compliant prisoner each demonstrate malicious
behavior, satisfying the subjective component of an Eighth Amendment violation.
Nevertheless, the jury credited Mr. Williams’s testimony and the evidence supporting
that pepper spray was deployed in a good faith effort to maintain discipline and
protect safety, such that Mr. Williams was entitled to the protection of qualified
immunity. Finding this conclusion rational, 1 I affirm the jury’s verdict and DENY
Mr. Lowe’s renewed motion for judgment as a matter of law.
III.

Motion for a New Trial
Rule 59(a) provides that courts may grant a new trial 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). Under this standard, “[a] new trial will be granted
if (1) the verdict is against the clear weight of the evidence, or (2) is based upon
evidence which is false, or (3) will result in a miscarriage of justice, even though there
may be substantial evidence which would prevent the direction of a verdict.” Cline v.

Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (citation omitted). Unlike the

See Jackson v. Morgan, 19 F. App’x 97, 102 (4th Cir. 2001) (upholding use of pepper spray twelve
times when inmate refused to comply with commands to move from his cell); Williams v. Benjamin, 77
F.3d 756, 763 (4th Cir. 1996) (finding no Eighth Amendment violation where officer deployed pepper
spray after prisoner asked “Why?” in response to command); Norris v. Detrick, 918 F. Supp. 977, 984
(N.D. W. Va. 1996) (upholding use of two blasts of pepper spray when inmate refused to return to his
cell during lockdown).
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court’s restraint when considering a Rule 50(b) motion, in making this determination,
the court may “weigh the evidence and consider the credibility of witnesses.” Id.
(citation omitted). I address each of Mr. Lowe’s remaining assignments of error in
turn, but I find that even considering the alleged errors, Mr. Lowe does not meet the
standard for granting a new trial.
1. Excluding Depositions
At trial, Mr. Lowe sought to admit depositions of two individuals who were not
parties or witnesses to this matter that were taken in a 2009 excessive force case
brought by Mr. Lowe. He argued that the depositions were relevant to show an
“unwritten practice of opening inmates[’] cell doors to fight them.” [ECF No. 253, at
1]. Mr. Williams objected, arguing that the depositions were irrelevant because he
was not involved in the 2011 case in any capacity and that it was improper to admit
deposition testimony when Mr. Lowe had not shown that the deponents were
otherwise unavailable under the Federal Rules of Evidence and Civil Procedure. Mr.
Williams also argued that while evidence of an alleged policy or practice of depriving
inmates of their constitutional rights would be relevant to a Monell claim, Mr. Lowe
did not bring such a claim in this action. I sustained the objection.
“[E]rrors in admitting or excluding evidence” are not grounds for a new trial
“[u]nless justice requires[.]” Fed. R. Civ. P. 61. An evidentiary error is harmless and
does not require a new trial when it does not affect a party’s substantial rights—in
this case, whether it can be said with a high probability that the error did not affect
the judgment. U.S. ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375 (4th Cir. 2015).
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First, I do not find that the depositions were excluded in error, for the same reason I
held at trial: Depositions of nonparties which were not taken in this matter were only
admissible as evidence at trial if the standards laid out in Federal Rule of Civil
Procedure 32(a)(4) or Federal Rule of Evidence 804(b)(1) were met, and Mr. Lowe did
not show that they were.
Moreover, even if excluding the depositions was erroneous, I do not find that
justice requires a new trial because the alleged error did not affect Mr. Lowe’s
substantial rights or the jury’s verdict. Mr. Lowe sought to introduce the depositions
to show “an unwritten practice of opening inmates[’] cell doors to fight them.” [ECF
No. 253, at 1]. While evidence of an alleged policy or practice of depriving inmates of
their constitutional rights would be relevant to certain claims of supervisory liability,
Mr. Lowe did not bring such a claim against Mr. Williams in this action. Furthermore,
Mr. Lowe was informed that he was free to cross-examine Mr. Williams as to his
knowledge of any official or unofficial practices at MOCC, and Mr. Lowe was free to
testify as to his personal knowledge of the same. To the extent Mr. Lowe elicited any
testimony on the subject, the jury did not find it persuasive. I therefore find that
exclusion of the depositions did not affect Mr. Lowe’s substantial rights.
2. Jury Instructions
Mr. Lowe asserts he is entitled to a new trial because his jury instruction was
denied. However, Mr. Lowe never submitted proposed jury instructions to the court
prior to trial in accordance with the scheduling order [ECF No. 177], and he stated
on the record after reviewing the court’s proposed final jury instructions that he had
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no objections. “A party may assign as error . . . a failure to give an instruction, if that
party properly requested it and—unless the court rejected the request in a definitive
ruling on the record—also properly objected.” Fed. R. Civ. P. 51(d)(1)(B). I do not find
any error affecting the substantial rights of the parties within the jury instructions
as given. See Fed. R. Civ. P. 51(d)(2); see also [ECF No. 242] (granting in part Mr.
Lowe’s motion for spoliation instructions). Accordingly, Mr. Lowe is not entitled to a
new trial on this basis.
3. Restraints
Mr. Lowe asserts that he was prejudiced in front of the jury by representing
himself in full restraints and because he “could barely move [his] hands from his
[waist] . . . .” [ECF No. 253, at 2]. I first note that Mr. Lowe brought this case pro se
and did not move for appointment of counsel. 2 The trial court has discretion to order
physical restraints on a party without depriving them of their right to a fair trial
“when the court has found those restraints to be necessary to maintain safety or
security; but the court must impose no greater restraints than are necessary, and it
must take steps to minimize the prejudice resulting from the presence of the
restraints.” See Davidson v. Riley, 44 F.3d 1118, 1122–23 (2d Cir. 1995) (collecting
cases). If the trial court has evaluated the safety and security concerns, has taken
steps to minimize the restraints and their prejudicial effects, and has given a
cautionary instruction to the jury, there is likely no denial of due process. Id. at 1123–

There is no constitutional right to counsel in civil cases, and the Fourth Circuit has instructed that
courts should exercise their discretion to appoint counsel for pro se civil litigants “only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
2

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24; Billups v. Garrison, 718 F.2d 665, 669 (4th Cir. 1983) (“A trial judge must be given
wide latitude in arriving at his decision to impose restraints, and to base his decision
on the information available to him at the time of trial.”).
First, in evaluating the safety and security concerns presented by this trial,
and in consideration of Mr. Lowe’s violent criminal history, I found Mr. Lowe to
present a substantial threat to the security of my courtroom and a substantial risk of
attempting escape. Mr. Lowe was previously convicted of first-degree murder and is
serving a sentence of life without mercy. See [ECF 123, at 1–3]. The federal marshals
apprised me of Mr. Lowe’s past attempts at escaping from state custody, informing
my conclusion that requiring Mr. Lowe to wear full restraints during the trial was
necessary to maintain the safety and security of the jury, the public, Mr. Williams,
counsel, my staff, and myself. See Woods v. Thieret, 5 F.3d 244, 248 (7th Cir. 1993)
(“[T]he trial court may rely heavily on the marshals in evaluating the appropriate
security measures to take with a given prisoner . . . .”). Additionally, this case was
brought by Mr. Lowe as an inmate against a prison official for an incident that
occurred in a maximum-security correctional facility. The jury certainly would be
made aware of the fact that Mr. Lowe was a prisoner no matter his appearance, thus
diminishing any prejudicial effect. See id. at 249 (quoting Holloway v. Alexander, 957
F.2d 529, 530 (8th Cir. 1992) (“[T]he shackles added nothing to the trial . . . [for] [n]o
prejudice can result from [the jury] seeing that which is already known.”)).
Second, I made substantial effort to mitigate any prejudicial effect of the
necessary restraints. I instructed the jury that Mr. Lowe, as a pro se litigant, had a

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constitutional right to represent himself and that his decision to represent himself
had absolutely no bearing on the merits of his claims and should have no bearing on
the jury’s decisions regarding the facts. I further instructed the jury that the fact that
Mr. Lowe is incarcerated, as well as Mr. Lowe’s appearance in a prison uniform and
shackles, should not affect their consideration of his evidence or deliberation of his
case. I instructed the jury that they were to consider Mr. Lowe’s case the same as
they would any other party who brought a civil case before the court. I further
minimized any prejudice imposed by his appearance in restraints by allowing him to
argue and testify from behind counsel table, as well as allowing him the assistance of
court personnel and various federal marshals who provided Mr. Lowe’s exhibits and
other documents to witnesses, opposing counsel, and the court. Given these
mitigation efforts, I do not find that Mr. Lowe’s appearance during the trial
substantially contributed to the verdict obtained or any miscarriage of justice.
4. Motions in Limine
Finally, Mr. Lowe states that I erred “by allowing the Defendants to enter
evidence that was not allowed in, from Motion [in] Limine.” [ECF No. 253, at 2]. Mr.
Lowe filed two motions in limine [ECF Nos. 169, 170], and I granted his motions only
as to the issues in paragraphs 1–5 of his motion in limine to preclude Mr. Williams
from putting on certain evidence about Mr. Lowe’s criminal history. [ECF Nos. 170,
204]. Given that any information preliminarily excluded by my order on Mr. Lowe’s
motions in limine was later introduced at trial by only Mr. Lowe himself, I do not find

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that any erroneous evidentiary ruling of mine affected a substantial right of Mr.
Lowe’s or the judgment reached in this case. See supra Section III.1.
IV.

Conclusion
Mr. Lowe’s renewed motion for judgment as a matter of law and motion for a

new trial [ECF No. 253] are DENIED. The court DIRECTS the Clerk to send of copy
of this Order to counsel of record and any unrepresented party.
ENTER: October 7, 2022

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