Morello v. James, 85-CV-1430L.

• Decision Date: 17 June 1992
• Docket Number: No. 85-CV-1430L.,85-CV-1430L.
• Citation: 797 F. Supp. 223
• Parties: Vincent MORELLO, Plaintiff, v. Charles JAMES, J. Nowakowski and Harold J. Smith, Defendants.
• Court: U.S. District Court — Western District of New York

797 F. Supp. 223

Vincent MORELLO, Plaintiff, v. Charles JAMES, J. Nowakowski and Harold J. Smith, Defendants.

No. 85-CV-1430L.

United States District Court, W.D. New York.

June 17, 1992.

James C. Gocker, Harris, Beach & Wilcox, Rochester, N.Y., for plaintiff.

Charles D. Steinman, Asst. Atty. Gen., Rochester, N.Y., for defendants.

DECISION AND ORDER

FISHER, United States Magistrate Judge.

In this action pursuant to 42 U.S.C. § 1983, plaintiff claimed that the defendants violated his constitutional rights by intentionally depriving him of a legal brief which had been prepared by an inmate law clerk for a pending state court appeal. Plaintiff's property was allegedly lost when he was transferred from the Collins Correctional Facility (Collins) to the Attica Correctional Facility (Attica) on November 7, 1983. At that time plaintiff and correction officer Nowakowski packed and inventoried plaintiff's property at Collins. Plaintiff claimed that his property included 11 file folders containing legal documents and an appellate brief. According to his claim, when plaintiff's property was returned to him at Attica on November 13, 1983, 2 of his 11 legal file folders were missing, one of which contained his appellate brief for an action pending in the Appellate Division. Plaintiff alleged that corrections officer Nowakowski searched his bags and stole the missing legal materials. Defendants deny any personal involvement in the missing legal brief.

Charles James is the former Superintendent of Collins and Harold Smith is the former Superintendent of Attica. They were alleged to be liable as supervisors.

A jury trial was held in this matter between October 1 and October 4, 1991. The jury found that the defendants did not violate plaintiff's constitutional rights.

Plaintiff's counsel filed a Motion for a New Trial pursuant to Fed.R.Civ.P. 59(a) on behalf of the plaintiff and a Motion to Withdraw from representation of the plaintiff on October 18, 1991. This court granted the motion to withdraw on October 18, 1991. Plaintiff also submitted a letter in support of the Motion for a New Trial dated October 5, 1991, which was filed with the Court on November 20, 1991 (docket entry # 70). In plaintiff's pro se submission he moves for a new trial under Fed. R.Civ.P. 59, or in the alternative for a motion not withstanding the verdict pursuant to Fed.R.Civ.P. 50(b).

A. Overview

Plaintiff moves for a new trial on the grounds that (1) the court declined plaintiff's request that the jury be charged that Smith and James could be held liable for the loss of plaintiff's legal brief if their conduct amounted to "gross negligence," (2) the court improperly charged the jury that it could consider plaintiff's prior felony conviction on the issue of credibility despite the fact that the prior felony did not relate to his veracity, (3) the verdict was against the weight of the evidence, and (4) the court improperly charged the jury in regard to plaintiff's Court of Claims remedy.

Plaintiff's pro se submission offers the following additional grounds in support of a new trial: (1) that the jury improperly used the "beyond a reasonable doubt" standard, (2) the jury did not follow a "conviction of its justice," (3) the defendants offered testimony which was irrelevant to the action and prejudicial to plaintiff, (4) that the verdict was against the weight of the evidence, and (5) the jury improperly relieved the defendants of liability.

The defendants maintain that the jury was properly charged, and that the objections now being raised by plaintiff were fully adjudicated in connection with the trial. Defendants contend that the jury's verdict was supported by the evidence presented at trial. In addition, defendants maintain that the issue of plaintiff's Court of Claims' remedy was resolved against plaintiff in Love v. Coughlin, 714 F.2d 207 (2d Cir.1983), and that the jury instructions followed that case.

Each of plaintiff's contentions are without merit and the motion for a new trial is denied.

B. The Weight of the Evidence

The standard for granting a motion for a new trial has been left to judicial discretion by Federal Rule of Civil Procedure 59(a). "The district court `ordinarily should not grant a new trial unless it is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Hygh v. Jacobs, 961 F.2d 359, 365-66 (2d Cir.1992) (finding that the record amply supported the findings of liability against the defendant) (citing Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir.1988); Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir.1983); Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978)).

In Bevevino, the Second Circuit approved the standard set forth in 6A Moore's Federal Practice, ¶ 59.085, at 59-160 through 59-161 (2d ed. 1973), on a motion for a new trial:

The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.

Bevevino v. Saydjari, 574 F.2d at 684. In addition, "the court may weigh the evidence itself and may consider issues of credibility." In re Joint Eastern & Southern Districts Asbestos Litigation, 762 F.Supp. 519, 526 (E.D.N.Y., S.D.N.Y.1991).

The jury verdict in this case should stand. Plaintiff claimed at trial that he and corrections officer Nowakowski packed up his belongings at Collins for his transfer to Attica. Plaintiff claimed that Nowakowski took possession of his property at Collins and was therefore responsible for his missing legal brief. The evidence presented was undisputed that plaintiff assisted Nowakowski when he packed up plaintiff's belongings at Collins; they each recorded 11 file folders. It was also undisputed that there were only 9 file folders when plaintiff's belongings were received at Attica. Both the plaintiff and Nowakowski testified that the bags were sealed in the plaintiff's presence at Collins. The defense theory questioned whether the legal brief even existed. Nowakowski testified that he did not take plaintiff's legal brief nor did he have any recollection of the brief. There was no direct evidence presented to show that Nowakowski stole or lost plaintiff's legal brief, nor did plaintiff present a motive for such action. Plaintiff did not present evidence that he knew Nowakowski prior to November 7, 1983, when plaintiff was transferred from Collins to Attica. The jury verdict with respect to Nowakowski was not a manifest injustice nor did it seem unreasonable given the testimony that was presented. The jury may have decided that someone, other than Nowakowski, was responsible for the missing legal brief. The jury may have also decided that the legal brief never existed. Nowakowski's testimony did not contain any inconsistencies, nor is there any reason in the record to question his testimony that he did not remove a legal brief from plaintiff's personal belongings.

Similarly, with regard to former superintendents James and Smith, a new trial is not warranted. Plaintiff essentially claimed that both superintendents exhibited a reckless disregard for or were deliberately indifferent to his efforts to recover his missing legal brief. In support of plaintiff's claim against Smith, he presented a copy of a memo he sent to P. Priestly, the Records Coordinator at the Attica Correctional facility, explaining that his legal brief was missing and requesting information on how he could locate it. Plaintiff's Exhibit 8. Plaintiff received a reply from R.D. Case, a corrections officer in the Head Clerk's Office at Attica, explaining that the items he inquired about were not found with his personal property, and advising him to write to the inmate record coordinator at Collins. The defense theory was that corrections officer Case did all that was asked of him and more to locate plaintiff's legal brief at Attica. Defendants maintained that Smith requested the assistance of the corrections staff to find plaintiff's legal brief. Although the plaintiff argued that Smith's efforts were inadequate, the verdict was neither seriously erroneous nor a miscarriage of justice. Although this court has conducted a review of the trial testimony in this case, I am not inclined to disagree with the credibility judgment of the jury absent some inconsistency in the testimony or some other compelling reason.

With regard to superintendent James, plaintiff attempted to show that James failed to assist him in recovering his missing legal brief. Plaintiff attempted to present evidence that Collins had a pervasive problem with the loss of inmates' personal property. James testified that he always took appropriate steps to remedy the situation when he was made aware of one.

Plaintiff wrote to superintendent James shortly after his transfer to Attica. Plaintiff's Exhibit 4. Plaintiff requested James' assistance in locating his legal brief. James made a notation on the document to Mel Williams, the Deputy Superintendent at Collins, to "please check into this especially the legal papers." Mel Williams testified that, although he could not recall, he most likely conducted a search to locate plaintiff's legal brief. Williams testified that he wrote to plaintiff requesting additional information to search for the missing brief. Williams testified that plaintiff did not respond to that request. Although Williams testified that he could not be certain, he described his likely response to plaintiff's inaction as an assumption that either the...