Avery et al v. City of Milwaukee et al

Filing 134

ORDER signed by Judge Rudolph T. Randa on 6/9/2015. 130 Defendants' MOTION for Judgment As a Matter of Law DENIED. 133 Plaintiff's MOTION to Reconsider Dismissal of Brady Claims/Conform the Pleadings to the Evidence DENIED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM DAMON AVERY,
Plaintiff,
-vs-

Case No. 11-C-408

CITY OF MILWAUKEE, et al.,
Defendants.
DECISION AND ORDER
The defendants move for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(a). Also before the Court is the plaintiff’s
motion to reconsider the dismissal of his Brady claims and/or to conform the
pleadings to the evidence. Both motions are denied.
Rule 50(a) provides that the Court may grant a motion for judgment as
a matter of law if a party “has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, …” This standard
“mirrors the standard for granting summary judgment. Thus, [the Court]
must view the evidence and all reasonable inferences drawn from that
evidence in the light most favorable to the party against whom judgment was
granted.” Alexander v. Mt. Sinai Hosp. Med. Ctr., 484 F.3d 889, 902 (7th Cir.
2007). Avery presented evidence that the defendants fabricated Avery’s

statements about the murder of Maryetta Griffin. Avery also presented
evidence that the defendants fabricated evidence related to jailhouse
informants Antron Kent, Jeffery Kimbrough, and Keith Randolph, which was
used to convict Avery at trial. If credited, this evidence could form a legally
sufficient basis to find in favor of Avery on his due process claims.
As for the Brady claims,1 the Court explained in its summary
judgment ruling that the duty to disclose exculpatory evidence under Brady
“‘drops out’ because Avery knew what he said (or didn’t say) to the jailhouse
informants, …” ECF No. 82, Decision and Order at 13. Avery now argues that
the Court should revive his Brady claims because Kimbrough testified in the
instant civil trial that he told defendant Timothy Heier that he did not want
to testify at Avery’s criminal trial. Further, Kimbrough testified that he told
Heier that his previous statements about overhearing Avery confess to the
Griffin murder were false. This “new evidence” goes back to the same concept:
if Kimbrough was lying, Avery knew that he was lying. Thus, Avery was
perfectly capable of cross-examining Kimbrough in that regard at his criminal
trial. See Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007); Sornberger v.
City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006). False statements by a

Brady v. Maryland, 373 U.S. 83 (1963) is a “due process case that entitled
criminal defendants to be shown exculpatory evidence (including evidence usable to
impeach a prosecution witness) in the possession of prosecutors, …” Gauger v. Hendle,
349 F.3d 354, 360 (7th Cir. 2003).
1

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prosecution witness cannot form the basis of a claim on the theory that “by
failing to correct the statement the prosecution deprived the defendant of
Brady material, that is, the correction itself.” Gauger, 349 F.3d at 360.
Avery also requests leave to amend his complaint to bring a Brady
claim based upon Patricia McCoy’s testimony in the instant civil trial that
defendant Hein/Spano paid her with money and drugs. Fed. R. Civ. P. 15(b)
(Amendments During and After Trial.) Under this provision, a district court is
“well within its discretion” to deny a motion seeking to add a new theory of
liability if the defendant has not consented to it. Reynolds v. Tangherlini, 737
F.3d 1093, 1106 (7th Cir. 2013). The Court will exercise that discretion here.
The alleged fabrication of evidence is and was the focus of this case, not the
credibility of Patricia McCoy. See Kier v. Comm’l Union Ins. Co., 808 F.2d
1254, 1258 (7th Cir. 1987) (affirming denial of leave to amend where claim
“was neither an issue previously contemplated by the parties nor properly
addressed by the already completed discovery”).
NOW THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1. Defendants’ motion for judgment as a matter of law [ECF No. 130]
is DENIED; and
2. Avery’s motion to reconsider the dismissal of his Brady claims [ECF
No. 133] is DENIED.

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Dated at Milwaukee, Wisconsin, this 9th day of June, 2015.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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