of images." (Tr. pp. 75, 82-83, 116). Indeed, Edwards testified
that fifteen minutes of footage was missing from one camera. (Tr.
p. 82, 107-08).
3. Medical Evidence
Ruffin presented the expert testimony of Dr. Jeffrey Burkes, an
oral maxillofacial surgeon and forensic dentist. Burkes testified
that Ruffin's injuries were caused by "multiple trauma to [his]
two teeth, probably as a result of either punching or kicking."
(Tr. p. 149). According to Burkes, the "multiple cracks" or
"fractures" in Ruffin's teeth could not have occurred as a result
of a single blow or impact, such as a fall on a flat floor, but
rather would have resulted from "forces hitting the teeth at
different angles at different times." (Tr. p. 152, 155). In
addition, Ruffin's teeth were "forced upward," indicating "more
than one type of force impact[ed] on his teeth." (Tr. pp.
152-53). Although Burkes admitted on cross that upward
displacement of the teeth could be consistent with a fall against
a radiator, on re-direct he testified that such a fall could not
account for the multiple fractures seen in Ruffin's teeth. (Tr.
pp. 162, 170).
Ruffin's treating dentist at Sullivan, Dr. Kevin McGraw, did
not dispute Burkes's conclusions. Indeed, he confirmed that
Ruffin's teeth were "pushed upward into the socket." (Tr. pp.
316-17). Fuller did not call an expert witness to contradict
B. Prior Proceedings
Ruffin commenced this action pro se on March 5, 1999, seeking
damages under 42 U.S.C. § 1983 for Fuller's excessive use of
force against him while he was incarcerated at Sullivan. In
December 1999, the Court appointed counsel for plaintiff and
subsequently permitted counsel to amend the complaint and to
conduct additional discovery.
On September 28, 2000, after a four-day trial, the jury
returned a verdict finding that plaintiff had not proven by a
preponderance of the evidence that defendant subjected him to
excessive force in violation of his constitutional rights. I did
not enter judgment in the case; instead, by Order dated October
5, 2000, I advised the parties that I was considering granting a
new trial sua sponte pursuant to Fed. R.Civ.P. 59(d). In the
Order, I stated that I was concerned that the jury's verdict
might be seriously erroneous or that a miscarriage of justice
would occur if the verdict were permitted to stand because: (1) I
was convinced that plaintiff had been kicked by one or more of
the corrections officers in question; (2) I had serious questions
as to the truthfulness of the testimony of the defendant and the
other corrections officers in question; and (3) I was troubled
that the original surveillance tapes of the incident were
To give defendant an opportunity to be heard and an
opportunity, in particular, to address the concerns I raised in
the October 5, 2000 Order, I ordered him to show cause, in
writing, why a new trial should not be ordered. Both parties
submitted briefs thereafter.
A. Rule 59 Standard
Rule 59(d) permits a district court, no later than ten days
after entry of judgment, to order a new trial sua sponte "for
any reason that would justify granting one on a party's motion."
Fed.R.Civ.P. 59(d). A new trial may be granted if: (1) "the jury
has reached a seriously erroneous result," (2) "the verdict is a
miscarriage of justice," and (3) the verdict is "against the
weight of the evidence." DLC Mgmt. Corp. v. Town of Hyde Park,
163 F.3d 124, 133 (2d Cir. 1998) (quoting Song v. Ives Labs.,
Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)). Indeed, the Second
Circuit has stated that "[a] district court should grant a new
trial if it `is convinced that the jury reached a seriously
erroneous result or that the verdict is a miscarriage of
justice.'" United States v. Landau, 155 F.3d 93, 104 (2d Cir.
1998) (emphasis added) (quoting Smith v. Lightning Bolt
Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988)).
"[A] new trial may be granted even if there is substantial
evidence supporting the jury's verdict." DLC Mgmt., 163 F.3d at
134; accord Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d
Cir. 2000). In evaluating a motion for a new trial, "a trial
judge is free to weigh the evidence himself, and need not view it
in the light most favorable to the verdict winner." DLC Mgmt.,
163 F.3d at 134. When weighing the evidence the Court will
necessarily consider the credibility of the trial witnesses.
See, e.g. Landau, 155 F.3d at 104 ("It is inherent in the
proposition that the district judge may weigh the evidence that
the judge will consider the credibility of witnesses."). Of
course, "[a] jury's credibility assessments are entitled to
deference," and the judge may not "freely substitute his or her
assessment of the credibility of witnesses for that of the jury
simply because the judge disagrees with the jury." Id. at
104-05; see also DLC Mgmt., 163 F.3d at 134 (jury's verdict
should not be set aside unless it is "egregious") (quoting
Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir.
1992), cert. denied, 510 U.S. 908, 114 S.Ct. 290, 126 L.Ed.2d
239 (1993)). "[P]rinciples of deference" do not, however,
"override the trial judge's duty to see that there is no
miscarriage of justice." Landau, 155 F.3d at 105 (internal
quotations omitted); see Manley v. AmBase Corp., 121 F. Supp.2d 758,
773 (S.D.N.Y. 2000) (granting new trial).
Here, a new trial is warranted because the jury's verdict was
against the weight of the evidence presented at trial, and
permitting the verdict to stand would result in a miscarriage of
I am firmly convinced that Ruffin was kicked in the teeth,
apparently, as he and Howell testified, by Fuller: In the
circumstances of this case, kicks to Ruffin's mouth would have
been an unreasonable and excessive use of force, a fact
acknowledged by Jordan. (Tr. p. 284). Plaintiff's dental expert
convincingly testified that plaintiff's injuries were
inconsistent with a fall on a flat floor — or as defense counsel
posited, a radiator — and that instead the injuries were caused
by multiple blows of force to the mouth. As the expert testified,
the x-rays of the two cracked teeth showed that the two teeth had
been fractured in different places in different directions (both
lateral and horizontal); the fractured teeth had been pushed up
with a hard force (as confirmed by plaintiff's dentist); and the
immediately adjacent teeth were not damaged. These facts — not
contested by defendant — are wholly consistent with multiple
kicks to the mouth. They are inconsistent, however, with a fall
on a flat surface, such as a floor or bed.
In contrast to the medical expert's convincing testimony is the
frankly incredible testimony of the officers that none of them
saw how Ruffin sustained his traumatic injuries. I have serious
questions as to the truthfulness of other portions of the
testimony of the officers, as well. For example, all three
officers testified at trial that the incident was triggered when
Ruffin kicked at Ramirez. The videotape did not support the
officers' contention. Indeed, Ramirez had testified at his
that Ruffin kicked at him with his left leg but when he was shown
the videotape at trial, Ramirez conceded that this was
"impossible." (Tr. p. 197-200). Likewise, Jordan testified that
during the incident he did not use a night stick or baton to
subdue Ruffin. (Tr. at 288). Yet, when he was shown a frame from
the videotape, he acknowledged that he was in fact holding a
baton. (Id.). Indeed, the videotape shows him apparently
swinging the baton at Ruffin.
Defendant argues that the question of how plaintiff was injured
"comes down to an issue of witness credibility." (Def.Mem. p. 9).
This is, of course, correct; reconciling inconsistent versions of
events naturally involves an assessment of credibility. Defendant
further argues that the above noted inconsistencies in the
officers' testimony are either not truly inconsistent (for
example because Ramirez testified that he was "not a hundred
percent" sure which leg Ruffin kicked with) or "immaterial." I
disagree. The officers' testimony goes directly to the heart of
their credibility about what took place during the altercation.
Admittedly, the incident happened quickly. Nevertheless, the
corrections officers' testimony strained the bounds of credulity.
Examining all the evidence presented at trial, including to some
extent the credibility of the witnesses, it is clear the jury's
verdict was against the weight of the evidence.
Moreover, the testimony and evidence introduced at trial
indicated that a critical portion of the surveillance tape made
by the camera outside Ruffin's cell was destroyed. The
corrections officer who maintained control of the tapes testified
that he exercised his judgment to copy portions of the tapes —
the portions he felt the administrative hearing officer would
need — and then permitted the original tapes to be recycled. As a
consequence, the original tape recordings were erased. The
portion of the tape showing the corrections officers returning
Ruffin to his cell immediately after the incident was erased.
This was obviously a crucial segment; if nothing indeed happened,
as defendant would suggest, then certainly the institution would
have wanted to retain that portion of the tape, to show that,
indeed, nothing had happened.
Defendant argues that by expressing this concern the Court is
"conflating" the interests of "the institution," DOCS, with that
of the defendant, Fuller, and that the Court is succumbing to
"popular prejudice" against penal institutions. (Def.Mem. p. 17).
The notion that I have a prejudice against correctional
facilities is needless to say incorrect; indeed it is offensive.
Defendant further argues that because I gave an adverse
inference instruction with respect to the missing videotape, I
should assume the jury "weighed the significance of the missing
portions of the tape" and reasonably arrived at its verdict. I do
not know if the jury considered this evidence. Whether or not it
did, however, it is clear that the verdict it rendered was
seriously erroneous in light of all the evidence presented at
For the foregoing reasons, I am convinced that no reasonable
jury having examined the testimony and evidence could have
concluded that plaintiff's constitutional rights were not
violated. The jury's verdict was seriously erroneous and, if
permitted to stand, would result in a miscarriage of justice;
accordingly, I am ordering a new trial.*fn5
Plaintiff's request to "be given the opportunity to move for
additional discovery and to amend the complaint" is denied. (Pl.
Mem. p. 1 n. 1). In January 2000, nine months prior to trial, I
specifically permitted plaintiff to add both additional
defendants and additional claims based on events occurring on the
date of the original incident. At that time, plaintiff's counsel
made the tactical decision not to amend the complaint; allowing
amendment now would cause undue prejudice to Fuller.
For the foregoing reasons, I am ordering a new trial sua
sponte pursuant to Fed.R.Civ.P. 59(d). The parties are directed
to appear for pretrial conference on January 26, 2001, at 10:30
a.m. in Courtroom 11A of the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, New York, New York 10007.