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MORELLO v. JAMES

June 17, 1992

VINCENT MORELLO, Plaintiff,
v.
CHARLES JAMES, J. NOWAKOSKI and HAROLD J. SMITH, Defendants.



The opinion of the court was delivered by: KENNETH R. FISHER

 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, 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 5, 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

 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, slip opn. at 9166 (2d Cir., April 9, 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, P 59.08[5], 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 brief had been found or that plaintiff had aborted his efforts. James did not ignore plaintiff's request for assistance. On the contrary, he assigned the task to the second-in-command at Collins. It was plaintiff who abandoned his search for the brief at Collins by not providing Williams with additional information which would have facilitated the search.

 The jury's verdict indicates that they agreed that superintendent James acted consistently with plaintiff's constitutional rights when plaintiff notified him of his missing legal brief. The jury verdict was not seriously erroneous' or a miscarriage of justice. Therefore, plaintiff's motion for a new trial with respect to superintendents Smith and James is denied.

 C. The Jury Instructions

 With respect to the improper jury instructions claim, the Second Circuit has held that "when jury instructions, taken as a whole, give the jury a misleading impression or inadequate understanding of the law, a new trial is warranted." Carvel Corporation v. Diversified Management Group, 930 F.2d 228, 232 (2d Cir. 1991) (granting a motion for a new trial on the ground that the jury instructions were misleading); Plagianos v. American Airlines, Inc., 912 F.2d 57, 59 (2d Cir. 1990).

 The jury received proper instructions following the trial in this action. The court followed Second Circuit precedent in denying plaintiff's request to charge the jury that "gross negligence" would establish a due process violation. Footnotes 12 and 16 of the proposed jury charge, distributed to the parties prior to summations, discuss at length the law governing the Court's denial of plaintiff's request to charge the "gross negligence" standard. The discussion is reproduced here.

 Although the Supreme Court has left open the question whether gross negligence or reckless conduct (in the civil law sense) may make out a constitutional violation under the Due Process Clause, Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 667, 89 L. Ed. 2d 251 n. 3 (1986), and so evidently has at least one panel of the Second Circuit, Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), this circuit has, however, taken the lead with the seventh Circuit in holding that deliberate indifference or recklessness are the only "alternative degrees of intent" which will establish a constitutional violation. Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991) (Eighth Amendment); Stubbs v. Dudley, 849 F.2d 83, 86-87 (2d Cir. 1988) (Eighth and Fourteenth Amendments); Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir. 1986) (Due Process Clause); Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (Eighth Amendment and Due Process Clause); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974). The Seventh Circuit adopted the second Circuit's approach in Archie v City of Racine, 847 F.2d 1211, 1218-20 & n.8 (7th Cir. 1988) (en banc) (due process clause), although it had formulated a similar approach stressing that recklessness in the criminal law sense as the appropriate constitutional standard dividing state tort law from the constitutional threshold. See Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985), which was cited with approval by the Supreme Court in two Eighth Amendment cases. Wilson v. Seiter, 115 L. Ed. 2d 271, 111 S. Ct. 2321, 2325 (1991); Whitley v. Albers, 475 U.S. 312, 321, 106 S. Ct. 1078, 1085, 89 L. Ed. 2d 251 (1986). See also, Duane v. Lane, 959 F.2d 673, 676 (7th Cir. 1992). Recent seventh Circuit cases persuasively hold that proof of "gross negligence" only is insufficient to establish liability because it is an "indistinct" species of ordinary negligence which was held insufficient in Daniels. McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991) ("Wilson [v. Seiter] resolved the conflict between the objective and subjective understandings of recklessness in favor of Franzen's subjective standard."); id. 944 F.2d at 348 ("our in banc opinion in Archie extended its [Franzen's] approach to cognate questions under the due process clauses"); Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991) ("We held in Archie that neither negligence nor even gross negligence is a sufficient basis for liability.") These persuasive holdings, and the unbroken line of Second Circuit authority showing that the only permissible "alternative degrees of intent" are recklessness and deliberate indifference, paved the way for the approach the court took in the jury charge.

 With respect to the appropriate standard for supervisory liability, the court instructed the jury on the standards of deliberate indifference and recklessness as stated in footnote #16. The court stated in footnote #16 that in light of Wilson v. Seiter, and City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct 1197, 1204-05, 1206, 103 L. Ed. 2d 412 (1989), and the rejection of gross negligence for correction officer liability for the reasons stated above, it would be anomalous to charge a lesser standard for a supervisor. In Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), the Second Circuit required a showing of "reckless" management of subordinates, and Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060-66 (2d Cir. 1989) resolved the case according to the deliberate indifference standard notwithstanding a simple reference to the earlier cases which mentioned "gross negligence." See also Bass v. Coughlin, 790 F.2d at 263 (allegations of supervisory liability must be "sufficient to implicate them in his claim of deliberate indifference"); Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979) ("the failure to . . . supervise law enforcement officers must be so grossly negligent as to constitute 'deliberate indifference'") (emphasis supplied). Therefore, this court properly instructed the jury on the level of intent required to make out a due process violation against the defendants. See also, Collins v. City of Harker Heights. Texas, 117 L. Ed. 2d 261, 112 S. Ct. 1061, 1070 (1992); Scott v. Kelly, 962 F.2d 145, slip opn. at 3080 (2d Cir. April 15, 1992).

 Plaintiff also moves for a new trial on the ground that the court improperly instructed the jury that plaintiff's prior felony conviction could be considered in determining his credibility. Fed. R. Evid. 609(a), which was amended in 1990, governs the admissibility of prior felony convictions in a civil action. "As a result of the 1990 amendment, . . . witnesses in civil cases may be impeached by any felony conviction . . . subject to the balancing provisions of Rule 403." 3 Weinstein's Evidence P 609[06], at 609-72 (1991). To prevent undue prejudice to the plaintiff under Rule 403, the court ruled that defense counsel could only raise the prior ...


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