(PC) Harrington v. Scribner et al, No. 1:2005cv00624 - Document 151 (E.D. Cal. 2009)
Court Description: ORDER DENYING plaintiff's motion for new trial, document 145 ; order signed by Judge Oliver W. Wanger on 9/25/2009. (Rooney, M)
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(PC) Harrington v. Scribner et al Doc. 151 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GARRICK HERRINGTON, 10 Plaintiff, 11 12 vs. 13 A.K. SCRIBNER, et al., 14 15 16 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-624 OWW/GSA P MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL (Doc. 145) On August 12, 2009, Plaintiff Garrick Herrington, proceeding 18 in pro per, filed a motion for new trial pursuant to Rule 59, 19 Federal Rules of Civil Procedure following a jury trial in which 20 the jury found against him on all his claims. 21 Plaintiff’s action pursuant to 42 U.S.C. § 1983, claimed 22 that, while incarcerated at California State Prison Corcoran, 23 Defendants Fuhlrodt, Hicks, Lowden and Wood violated his Eighth 24 Amendment rights arising from a fall on a wet floor that occurred 25 during a lockdown on May 5, 2004, and that Defendants Poulos, 26 Scribner and Yamamoto violated his right to equal protection by 1 Dockets.Justia.com 1 placing him on lockdown status because of his race, although the 2 curfew established the prison was on partial lockdown due to 3 incidents of racial violence. 4 Defendants Fuhlrodt, Lowden and Poulos’ motion for judgment under 5 Rule 50, Federal Rules of Civil Procedure, based on the absence 6 of evidence as to these defendant 7 Defendants as a matter of law. 8 favor of Defendants Hicks, Scribner, Wood and Yamamoto and 9 against Plaintiff. 10 At trial, the Court granted and entered judgment for these The jury returned a verdict in A motion for new trial “may be granted to all or any of the 11 parties and on all or part of the issues ... for any of the 12 reasons for which new trials have heretofore been granted in 13 actions at law in the courts of the United States.” 14 Federal Rules of Civil Procedure. 15 ‘confided almost entirely to the exercise of discretion on the 16 part of the trial court.’” Murphy v. City of Long Beach, 914 F.2d 17 183, 186 (9th Cir.1990). 18 manifest errors of law or fact, but ‘the burden of showing 19 harmful error rests on the party seeking the new trial.’” Boston 20 Scientific Corp. v. Johnson & Johnson, 550 F.Supp.2d 1102, 1110 21 (N.D.Cal.2008). 22 discretion insofar as it is based on claims that ‘the verdict is 23 against the weight of the evidence, that the damages are 24 excessive, or that, for other reasons, the trial was not fair to 25 [the] party moving; and may raise questions of law arising out of 26 alleged substantial errors in admission or rejection of evidence Rule 59(a), “The grant of a new trial is “A new trial may be ordered to correct “A motion for new trial may invoke the court’s 2 1 or instructions to the jury.’” Id., quoting Montgomery Ward & Co. 2 v. Duncan, 311 U.S. 243, 251 (1940). 3 Plaintiff asserts he is entitled to a new trial because the 4 Court abused its discretion in denying his repeated requests for 5 appointment of counsel to represent him in the prosecution of 6 this action. 7 As was ruled repeatedly in this action, Plaintiff does not 8 have a constitutional right to appointed counsel. 9 Rowland, 113 F.3d 1520, 1525 (9th Cir.1997). Rand v. The Court cannot 10 require an attorney to represent Plaintiff pursuant to 28 U.S.C. 11 § 1915(e)(1). 12 Southern District of Iowa, 490 U.S. 296, 298 (1989). 13 exceptional circumstances, the Court may request the voluntary 14 assistance of counsel pursuant to Section 1915(e)(1). 15 F.3d at 1525. 16 compensating counsel, the Court will seek volunteer counsel only 17 in the most serious and exceptional cases, by evaluating both the 18 likelihood of success on the merits and the ability of the 19 plaintiff to articulate his claims pro se in light to the 20 complexity of the legal issues involved. Mallard v. United States District Court for the In certain Rand, 113 Without a reasonable method of securing and Id. 21 At trial, Plaintiff proved himself to be intelligent, 22 articulate, well-organized, and as a pro se advocate, the equal 23 of many licensed attorneys who appear before the Court. 24 Court stated this on the record. 25 opening statement, effectively questioned witnesses, moved 26 exhibits into evidence, and gave a logical and persuasive closing The He was able to present an 3 1 argument. 2 counsel. 3 Plaintiff was not prejudiced by the absence of Plaintiff’s motion for a new trial on this ground is DENIED. 4 As demonstrated at the trial, the issues were not complex and 5 Plaintiff was well able to articulate his claims. 6 appointment of counsel is discretionary and the standard for 7 abuse of discretion high, Plaintiff has not demonstrated that the 8 Court’s discretion was abused. 9 showing that voluntary counsel would have been available. 10 Because Further, Plaintiff makes no Plaintiff further asserts that he “requested that the Court 11 grant the appointment of an impartial expert and an impartial 12 industrial hygienist,” but that this motion “was never addressed 13 by the Court during the time the case was switched from one 14 District Judge to another, then back again.” 15 apparently refers to “Plaintiff’s Request for Referral for 16 Voluntary Counsel and/or Appointment of Experts” filed on July 17 21, 2009, 18 District Judge O’Neill denied this motion on July 22, 2009 (Doc. 19 109), but did not address the request for appointment of expert 20 witnesses. 21 Plaintiff (Doc. 103), approximately one week before trial. Plaintiff’s motion for new trial on this ground is DENIED. 22 Plaintiff did not make this request until the eve of trial 23 despite the fact that the case was pending for four years before 24 the trial. 25 action to appoint an expert. 26 Nor is the court under a duty in a private civil Defendants did not call an expert. Plaintiff contends he is entitled to a new trial because of 4 1 the Court’s denial of Plaintiff’s request for a continuance when 2 Plaintiff’s medication was not transported to the Court by prison 3 officials. 4 July 28, 2009, after the jury was selected and dismissed by the 5 Court for the mid-day break, Plaintiff requested a continuance of 6 the trial until the following morning so that he might be taken 7 back to the Fresno County Jail for his pain medication, which had 8 not been transported with him. 9 Order Directing Medication to Be Transported Court [sic] with Plaintiff asserts that on the first day of trial, Plaintiff had filed a “Motion for 10 Plaintiff” on July 29, 2009, the second day of trial. 11 asserts that the Court denied his request for continuance and 12 then relied on the Deputy Attorney General representing the 13 defendants to check with jail authorities to ascertain whether 14 Plaintiff needed the pain medication. 15 General spoke with the prison doctor who had prescribed 16 Plaintiff’s medication and informed the Court that the doctor 17 stated that Plaintiff’s missing his afternoon dosage would cause 18 Plaintiff some physical discomfort, but would not affect 19 Plaintiff’s ability to think or concentrate. 20 Plaintiff The Deputy Attorney Plaintiff asserts that it was error for the Court to rely on 21 the Deputy Attorney General, “who would naturally seek an 22 advantage,” that the doctor had never examined Plaintiff or 23 reviewed his case, that Plaintiff made clear that the medication 24 was to be taken “as needed,” and his examination of witnesses 25 after the mid-day recess “was unfocused and ineffective because 26 he was forced to suffer severe discomfort and pain.” 5 This is a 1 categorical misrepresentation. 2 Harrington needed his meds and whether he could proceed. 3 Plaintiff stated he could do so. 4 obtain and provide Plaintiff his meds and the next day of trial 5 Plaintiff confirmed HE HAD RECEIVED AND TAKEN HIS MEDS. 6 subject was not mentioned again nor did Plaintiff ever say he was 7 affected in any way that interfered with his trial presentation. 8 9 The court inquired whether Mr. The Court ordered the DOC to The Plaintiff’s motion for new trial on this ground is DENIED. Plaintiff demonstrated no difficulty during the afternoon session 10 on July 28, 2009 in presenting his case and, other than 11 expressing that he had some discomfort in his back and legs, did 12 not raise any further objection to continuing with the trial or 13 that he could not focus or concentrate because of his pain. 14 Plaintiff has not shown that he was prejudiced by the denial of 15 the continuance. 16 Plaintiff argues he is entitled to a new trial because of 17 the Court’s endorsement of the Deputy Attorney General’s request 18 that Plaintiff put on his prisoner witnesses first so that there 19 would be no need for other transportation orders. 20 asserts: 21 22 23 Plaintiff Although the Court made mention of not wanting to prejudice the Plaintiff’s case, in the same sentence, the Court stated that it would be helpful if this were to occur. Plaintiff felt unduly swayed to acquiesce to this request. 24 25 26 At the time, Plaintiff had requested, and been denied, the earlier mentioned continuance and did not want to draw the ire of the Court. However, many of the 6 Defendants were eventually dismissed from the case because they were never tied to Plaintiff’s claims. Plaintiff contends that he had planned to cross-examine all of the Defendants prior to calling any prisoner witnesses. However, in order to please the Court at the behest of the Deputy Attorney General, Plaintiff felt that he had no choice but too [sic] call prisoner witnesses well prior to the time he had planned to. 1 2 3 4 5 6 Plaintiff’s motion for new trial on this ground is DENIED. 7 The Deputy Attorney General asked the Court to inquire when 8 Plaintiff intended to call inmate witnesses Applin and Piazza to 9 the stand in order to avoid transportation of these witnesses on 10 the second day of trial and the expense of transporting these 11 witnesses. The Court advised Plaintiff that he could present his 12 case any way he wanted to and that he could call his witnesses in 13 any order he desired. Plaintiff did not call witness Piazza to 14 the stand until the second day of trial. Plaintiff was not 15 forced or coerced into calling his prisoner witnesses out of 16 order and he demonstrates no specific prejudice to him as a 17 result of his decision to call the prisoner witnesses first. 18 Plaintiff was afforded the opportunity and did call witnesses in 19 the order of his preference. 20 Plaintiff moves for a new trial on the ground that because 21 he was precluded from cross-examining Defendants Scribner and 22 Yamamoto about the E.O.P. program after Defendants’ counsel had 23 opened the door. Plaintiff asserts: 24 25 26 At both re-directed examinations of these Defendants, counsel elicited testimony concerning an E.O.P. inmate who attempted murder on staff during the relevant time of 7 the case. Plaintiff attempted to elicit on re-cross examination the fact that other inmates fell under the same remedial plan, especially the inmate who was the initial cause of the racially discriminatory lockdown leading to Plaintiff’s injury, but was prohibited by the Court. 1 2 3 4 5 Plaintiff contends that the Court’s ruling was improper: Plaintiff sought to elicit admissions by both of these Defendants that inmates are reclassified from CCCMS, in the housing unit on the facility and re-classified as E.O.P. frequently. Specifically, Plaintiff sought to show that the Defendants’ claims of isolation on the part of the E.O.P. program was untrue and that it was merely a classification of the Coleman v. Wilson remedial plan, which the entire facility was classified for. 6 7 8 9 10 11 Plaintiff does not know whether or not the fact that this remedial plan is partially the cause for this Court’s federal ‘takeover’ of the prison medical and mental health programs was the reason for prohibiting such questioning. However, the limiting of such caused prejudice to Plaintiff’s case while giving the testimony an undue and artificial veracity in the eyes of the jury. 12 13 14 15 16 17 As Defendants respond, the Court correctly ruled that 18 questions of Defendants Scribner and Yamamoto about the 19 classification of mental health (EOP and CCCMS) inmates was 20 irrelevant. 21 Yamamoto was for racial discrimination. 22 evidence that Facility 3B, where Plaintiff was housed, was locked 23 down when a black inmate assaulted two officers in the visiting 24 room. 25 because Facility 3B was not locked down when a Hispanic EOP 26 inmate attacked a correctional officer in another housing unit of Plaintiff’s claim against Defendants Scribner and Plaintiff presented Plaintiff argued that the lockdown was discriminatory 8 1 the same facility. Yamamoto testified that Facility 3B was not 2 locked down because of the EOP inmate’s assault because the 3 investigation revealed the Hispanic EOP inmate had a personal 4 grudge against the specific correctional officer and that the 5 assault was an isolated incident. 6 testified that EOP inmates, regardless of race, are usually 7 returned to normal programs faster than general population 8 inmates because of the mental health needs of the EOP inmates and 9 because EOP inmates are usually determined not to be involved in Yamamoto and Scribner also 10 conspiracies or riots. Plaintiff sought to elicit testimony on 11 re-cross examination about the different classifications of EOP 12 and CCCMS inmates, where they were housed, and what yards they 13 were allowed access to. 14 objected on the grounds of relevance and beyond the scope of 15 direct examination, Plaintiff did not explain the connection 16 between the classifications and his race discrimination claim. 17 In his motion for new trial, Plaintiff again fails to show how 18 the classification of EOP inmates, application of Coleman v. 19 Wilson, or the appointment of a federal receiver is relevant to 20 his claim that Black inmates were treated differently from other 21 inmates during the lockdown from March to July 2004. After the Deputy Attorney General 22 Plaintiff moves for a new trial on the ground that the 23 Court’s answers to the jury’s question during deliberations were 24 misleading. 25 26 The jury sent the following question to the Court during deliberations: 9 What is a ‘serious risk of injury.’ define. 1 Please 2 Is the fact that the areas around all the showers are always wet, constituting a ‘serious risk of injury’? 3 4 Plaintiff asserts that the Court searched the Westlaw 5 database for the answer to the first question while stating to 6 the parties that the second question was the jury’s job. After 7 not finding any decisional authority defining a “serious risk of 8 injury,” the Court began to opine that the risk needed to be 9 known. Plaintiff argued that the Court’s intent on instructing 10 the jury that the officer had to have some heightened and 11 specific knowledge would mislead the jury. Plaintiff cited 12 Farmer v. Brennan, 511 U.S. 825, 842 (1994), as stating the 13 knowledge can be demonstrated by circumstantial evidence and that 14 factfinder may conclude that a prison official knew of a 15 substantial risk from the very fact that the risk was obvious. 16 Plaintiff asserts that evidence was presented that “the safe 17 working practices of the Defendants specifically acknowledged 18 that wet concrete floors are a substantial risk.” Plaintiff 19 contends that the Court “assured Plaintiff that he would not give 20 such supplemental instruction and would merely answer the jury’s 21 quesiton [sic].” Plaintiff asserts: 22 23 24 25 26 The Court began to instruct the jury concerning the prison officials & requisite need fro [sic] knowledge of the risk. The Court stated several times that the official ‘needed to know’ that a substantial risk was present. This instruction, while emphasizing that the prison official had to know, gave a legally incorrect heightened knowledge 10 1 2 3 component to the case. Subsequently, the Court’s nonresponsive and misleading answer to the jury’s question caused them to veer from the inferred debate of whether or not the condition complained of posed a ‘substantial risk of injury.’ 4 5 6 7 8 At best the Court should have read the correct language of ‘substantial risk of harm’ to correct the ‘serious risk of hazard,’ and stated that this is what the jury was empaneled to decide alone. The Court’s personal view of some heightened component of knowledge by the prison official mislead [sic] the jury and caused sever [sic] prejudice to Plaintiff [sic] case. 9 Defendants argue that, because Plaintiff’s oral motion for a 10 new trial on this ground was denied, Plaintiff cannot again move 11 for a new trial but must move for relief from judgment or order 12 under Rule 60(b), Federal Rules of Civil Procedure. 13 However, a motion for new trial on the ground of 14 instructional error is appropriate. “[E]rroneous jury 15 instructions, as well as the failure to give adequate 16 instructions, are ... bases for a new trial.” Murphy v. City of 17 Long Beach, supra, 914 F.2d at 187. 18 Plaintiff’s motion for new trial on this ground is DENIED. 19 The jury’s question did not, as Plaintiff contends, ask whether 20 knowledge of a substantial risk could be imputed or inferred. 21 The Court and counsel researched authorities to determine how 22 “serious risk” had been defined by case law. Neither the Court 23 nor counsel located a case where “serious risk” was defined in 24 the context of a physical condition on prison grounds. Under the 25 circumstances, the Court instructed the jury that it was for them 26 11 1 to determine whether the wet floor condition outside the shower 2 stall where Plaintiff fell amounted to a “substantial risk of 3 serious harm.” 4 “substantial” from a dictionary. 5 “knowledge” or what knowledge had to be known or could be known 6 by prison officials. 7 The Court defined the terms “serious” and The Court never referred to Further, Defendants assert there was no evidence that the 8 wet floor outside the shower stall constituted a “substantial 9 risk.” Hicks testified at trial that he was familiar with the 10 Code of Safe Practices identified in Plaintiff’s Exhibit PX55. 11 The Code of Safe Practices stated that floors and walkways were 12 to be kept free of debris, water, and other slippery substances 13 and that wet floor signs were to be posted when mopping or spills 14 occurred. 15 introduced into evidence and that Hicks merely testified as to 16 his understanding of what the Code of Safe Practices meant. 17 Hicks did not testify that the wet walkway created a substantial 18 risk of harm. 19 allowed the jury to determine whether the wet walkway near the 20 shower stall amounted to a “substantial risk of serious harm.” Defendants note that Plaintiff’s Exhibit PX55 was not Therefore, Defendants argue, the Court properly 21 For the reasons stated: 22 Plaintiff’s motion for a new trial is DENIED. 23 24 IT IS SO ORDERED. 25 Dated: September 25, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 26 12
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