First, that he was a citizen of the United States. Second, that the conduct complained of occurred and was committed by defendants while they were acting under the color and authority of the State of New York. Third, that this conduct deprived the plaintiff of the rights secured to him by the Constitution or laws of the United States by subjecting him to excessive force. Fourth, that the defendants' conduct was the proximate cause of injury and resulting damages sustained by the plaintiff.
(Tr. 105.) Though I did not discuss further the first prong, (see Tr. 106) ("I will now talk to you somewhat more about the latter three elements."), mere mention of it was sufficient error to taint the jury instructions. Plagianos v. American Airlines, Inc., 912 F.2d 57 (2d Cir. 1990) ("A new trial is warranted if, taken as a whole, the jury instructions gave a misleading impression or inadequate understanding of the law.").
I raised the issue of the improper jury charge at a post-trial conference on April 1, 1997. The jury charge was not the original reason why the April 1 conference was scheduled.
THE COURT: I've been here for a long time and I have seen many cases that were tried, some very good, some of them bad, but none with as little substance as this one had. If the verdict had been any other than a rapid one for the defendants I would have set it aside.
There is absolutely no basis for this lawsuit whatsoever. Under the circumstances both sides are advised to submit to my chambers by the 1st of April their views as to why Rule 11 should not be invoked and why attorneys' fees should not be assessed under 1988 as against the plaintiff and attorneys' fees and costs against those who signed the complaint or whatever documents have been submitted to the Court.
(Tr. 117.) (Emphasis added.) At the conference, the parties were told that a new trial was a possibility. I asked counsel to speak to their clients, to each other, and then to the Court. Four months later, my chambers contacted the litigants to determine the status of the case. The Court subsequently received a letter, dated August 16, 1997, in which Loren Glassman wrote, "Mr. Colon is adamant that we retry [the case]."
Despite Plaintiff's position, however, a new trial may be neither the proper nor the necessary result. The issue of judgment as a matter of law was raised twice during the trial. The first time was after Plaintiff rested.
MR. LEONG: The defendants would move for a judgment as a matter of law under Rule 50. Plaintiff has failed to prove his case against any specific defendant and also that the weight of the evidence, especially in view of the videotape, that no reasonable jury can find in plaintiff's favor.
(Tr. 33.) I denied the motion. The second time was after the defense rested.
THE COURT: I know that there will be a motion to dismiss at the end of the entire case?
MR. LEONG: Yes, your Honor.
THE COURT: You'll get a decision on the motion and we'll go directly through. . . .
(Tr. 72-73.) I did not rule on the motion at the close of all evidence, and the matter was not addressed again. Defendants failure to file a new motion after the jury returned a favorable verdict and when a judgment has not been entered to date, does not preclude the Court from granting the motion at this stage. See Nichols Constr. Corp. v. Cessna Aircraft Co., 808 F.2d 340, 356 (5th Cir. 1985) (holding defendant's failure to file motion for judgment notwithstanding verdict did not prevent district court from granting motion for directed verdict for which court reserved decision).
Accordingly, Defendants shall file with the Court and serve upon Plaintiff's counsel, by Tuesday, October 7, 1997, a legal brief on whether the Court should grant judgment as a matter of law. See Fed. R. Civ. P. 50. Plaintiff shall respond to Defendants' submission by Tuesday, October 14, 1997.
The final issue is sanctions. One example of Mr. Glassman's seemingly improper conduct is found in his introduction and interpretation of the videotape of the alleged incident.
MR. GLASSMAN: Your Honor, you see that there is a time on this tape?
THE COURT: Yes.
MR. GLASSMAN: I believe that something actually starts to happen at about 14:23 or 24, so there is going to be another five minutes of nothing here.
THE COURT: Let it run.
MR. GLASSMAN: Okay.
(Tr. 27.) (Emphasis added.) Interestingly, the videotape shows that Plaintiff started a fire in his prison cell during this "nothing" period. Mr. Glassman denied that his client had done anything to break a rule or regulation of the prison. Clearly this could be argued only if the evidence of the fire was suppressed. Further, Mr. Glassman's assertion in his opening statement that Plaintiff "was taken from his cell violently," (Tr. 11), is contradicted by the videotape's content.
Nevertheless, the reemergence of the unsettled matter of sanctions five months after trial could chill Mr. Glassman's ability to advocate his client's desire to retry the case. The possible, though tenuous, inference that sanctions are being dangled as a judicial sword to quell a litigant's day in court must be avoided. Thus, sanctions will not be imposed.
DATED: New York, New York
September 5, 1997
KEVIN THOMAS DUFFY, U.S.D.J.