Gayle v. Kelly

• Decision Date: 09 December 1996
• Docket Number: No. 95-2770,95-2770
• Citation: 104 F.3d 355
• Parties: NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. Gregory GAYLE, Plaintiff-Appellant, v. Walter KELLY, Traviss, C.O., D. Hojnicki, C.O., Attica Medical Dept., L. Midura, C.O., Attica Medical Housing Unit, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 355

104 F.3d 355

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

Gregory GAYLE, Plaintiff-Appellant, v. Walter KELLY, Traviss, C.O., D. Hojnicki, C.O., Attica Medical Dept., L. Midura, C.O., Attica Medical Housing Unit, Defendants-Appellants.

No. 95-2770.

United States Court of Appeals, Second Circuit.

Dec. 9, 1996.

Appeal from the United States District Court for the Western District of New York.

APPEARING FOR APPELLANT: GREGORY GAYLE, PRO SE, OSSINING, NEW YORK

APPEARING FOR APPELLEES: ROBERT A. FORTE, ASSISTANT ATTORNEY GENERAL, NEW YORK, NEW YORK

W.D.N.Y.

AFFIRMED.

Before WALKER and LEVAL, Circuit Judges, and STANTON, ^* District Judge.

This cause came on to be heard on the transcript of record from the United States District Court for the Western District of New York (Maxwell, M.J.), and was submitted.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff Gregory Gale's complaint alleged, inter alia, that defendant Hojnicki, a prison guard, violated the Eighth Amendment by using excessive force against plaintiff during an altercation that occurred in Attica Correctional Facility on August 9, 1988. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before a magistrate judge with the right to appeal directly to this court. Following a four-day trial, a jury found Hojnicki and the other defendants not liable, and judgment for defendants was entered on July 6, 1995. On July 7, 1995, plaintiff moved for a new trial pursuant to Federal Rule of Civil Procedure 29 on the ground that the verdict was against the weight of the evidence. On October 26, 1995, the magistrate judge denied the motion.

Plaintiff, appearing pro se, appealed from the magistrate judge's order denying plaintiff's motion for a new trial. On August 28, 1996, a panel of this court dismissed certain of plaintiff's claims, and directed appellees to file a supplemental brief on the sole issue of whether the magistrate judge applied an incorrect standard in denying plaintiff's Rule 29 motion. We now consider this issue.

A district court's denial of a motion for a new trial made on the ground that the verdict is against the weight of the evidence is generally unreviewable on appeal. Haywood v. Koehler, 78 F.3d 101, 104 (1996). An exception to this rule exists where a party alleges that the district court entertaining the Rule 29 motion applied an incorrect legal standard. See Piesco v. Koch, 12 F.3d 332, 344 (2d Cir.1993). In such a case, we will examine the trial court's legal basis for denying the Rule 29 motion.

The standard a district court should apply when considering a motion for a new trial is well-established: a new trial may not be granted unless the district court views the jury's verdict as "seriously erroneous." In making this assessment, a court may "weigh the evidence [itself] and need not view it in the light most favorable to the verdict winner," Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978), although the law is clear that when "the resolution of the issues [depends] on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial," Metromedia Co. v. Fugazy, 983 F.2d 350, 361, 363 (2d Cir.1992), cert. denied, 508 U.S. 952 (1993).

In the present case, the magistrate judge properly held that a court may grant a new trial only where the jury's verdict is seriously erroneous. Gayle v. Kelly, Case No. 88-CV-972, slip op. at 2 (W.D.N.Y., filed Oct. 26, 1995). However, by stating that a district court considering a new trial motion (1) is to view the evidence in the light most favorable to the nonmoving party; (2) is not to weigh the evidence independently; and (3) shall grant the motion only where there is but one conclusion that reasonable jurors could--but have failed--to reach, id. (citing Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 494 (2d Cir.1995)), the...