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April 26, 1994

LOUIS MANN, et al., Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY


 The present action is before the court upon two motions, both filed by plaintiff, Bashir Hameed (hereinafter "plaintiff"). The first motion is to set aside the verdict of the jury and to enter a judgment in favor of the plaintiff, a procedure provided by Rule 50(b) of the Federal Rules of Civil Procedure. In the event the first motion is denied, plaintiff makes an alternative second motion to set aside the verdict of the jury and the judgment entered thereon and to grant a new trial, a procedure provided by Rules 50(b) and 59(a) of the Federal Rules of Civil Procedure.


 The plaintiff also claimed that it was improper for the defendants to issue a misbehavior report and subject plaintiff to a disciplinary hearing because such actions had a chilling effect on his freedom of speech guaranteed under the First Amendment of the United States Constitution. Furthermore, plaintiff claims that the State regulation under which he was punished, Rule 104.12, is unconstitutionally over-broad and vague and thus, is violative of the First and Fourteenth Amendments.

 On October 26, 1993, a jury trial commenced before the undersigned. Upon defendants' motion pursuant to Rule 50 of the Federal Rules of Civil Procedure, the court dismissed the complaint as against defendants Coughlin and Selsky. Defendant Coughlin was dismissed from the case because his personal involvement in the complained of events were not sufficiently established. Further, defendant Selsky was dismissed from the case because the court concluded that his involvement in the administrative disciplinary process utilized throughout the New York State prison system as applied to the plaintiff warranted a decision that he be absolutely immune from liability under 42 U.S.C. § 1983. This was because defendant Selsky's involvement in this case was akin to that of a judge who is protected by absolute immunity.

 On November 4, 1993, the jury returned a verdict in favor of the remaining defendants on all claims. On November 9, 1993, the Office of the Clerk in Binghamton, New York, entered the judgment thereon. By Notice of Motion dated November 17, 1993, plaintiff seeks to have the verdict set aside and judgment as a matter of law entered in his favor, or in the alternative, a new trial granted pursuant to Fed.R.Civ.P. 50(b) and 59(a). Furthermore, plaintiff seeks an amendment of the judgment under Fed.R.Civ.P. 59(e) and 60(a).


 The Second Circuit has clearly enunciated the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that,

the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). Rule 50 of the Federal Rules of Civil Procedure governs the procedure for removing a judgment from the verdict-winner by the use of either a motion for a directed verdict pursuant to Rule 50(a), or a motion for a judgment notwithstanding the verdict pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14. The court is mindful of the fact that effective December 1, 1991, Rule 50's use of the term "judgment not withstanding the verdict" was abandoned for the term "judgment as a matter of law," but it is noted that the standard for granting the motion has not altered in any way. See Fed.R.Civ.P. 50 Advisory Committee's note, 1991 Amendment.

 A less stringent standard applies to a motion to set aside the verdict and for a new trial pursuant to Rules 50(b) and 59(a). "A trial court should grant such a motion when convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice." Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987); see Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir. 1986). It is now well settled law that a trial judges's disagreement with the jury's verdict is not sufficient reason alone to grant the motion for a new trial. Mallis, 717 F.2d at 691; see Saloomey v. Jeppesen & Co., 707 F.2d 671, 679 (2d Cir. 1983). It is in light of these standards in which the court determines plaintiff's two pending alternative motions.


 Initially, plaintiff contends that the misbehavior report he was provided with prior to the hearing gave him inadequate notice of the charges brought against him because it was virtually identical to other reports issued to inmates on B-2, and also because it contained no particularized reference that plaintiff was being charged as a leader in the incident. Thus, it is contended that since defendants' only evidence on this claim was reliance on the language of the rule itself, there is "no legally sufficient evidence from which a ...

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