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United States District Court, Southern District of New York

May 16, 2003


The opinion of the court was delivered by: John Koeltl, District Judge.


On December 10, 2002, a jury trial began on the claims of Anthony Amaker ("Mr. Amaker") against four officers of the New York State Department of Correctional Services, Corrections Officer ("C.O.") Sergeant Thomas Woliver ("Sgt. Woliver"), C.O. Michael Rhynders ("C.O. Rhynders"), C.O. Douglas Decker ("C.O. Decker"), and C.O. Barry Cook ("C.O. Cook"). On November 3, 1995, the plaintiff was involved in a struggle at the Greenhaven Correctional Facility ("Greenhaven") where the plaintiff was incarcerated and where the defendants were employed. At trial, Mr. Amaker alleged Sgt. Woliver, C.O. Rhynders, and C.O. Decker violated 42 U.S.C. § 1983 by using excessive force against him in the course of that struggle in violation of his Eighth Amendment rights. Mr. Amaker also claimed that defendants Sgt. Woliver and C.O. Rhynders used excessive force in retaliation for inmate grievances that he had filed against them and thus violated his rights under the First Amendment. Finally, the plaintiff alleged that defendant C.O. Cook was liable under 42 U.S.C. § 1983 for failing to intervene to protect him, also in violation of the Eighth Amendment. The jury rejected each of the plaintiff's claims in the verdict returned on December 17, 2002. Judgment was filed dismissing the case on December 19, 2002. The plaintiff, who was represented by counsel at trial, now moves pro se to vacate the judgment pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure.

Rule 60(b) allows the Court to "relieve a party . . . from a final judgment, order, or proceeding." Fed.R.Civ.P. 60(b). Rule 60(b) provides an extraordinary remedy that is granted only when the movant can demonstrate that "exceptional circumstances" justify the relief requested. See Employers Mut. Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-24 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate `exceptional circumstances' justifying the extraordinary relief requested."); Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994) ("This Circuit has indicated . . . that since 60(b) allows extraordinary judicial relief, it is invoked only if the moving party meets its burden of demonstrating `exceptional circumstances.'").

Specifically, the plaintiff seeks relief pursuant to Rule 60(b)(3) which allows the Court to vacate a verdict in the case of "fraud . . ., misrepresentation, or other misconduct of an adverse party." Fed.R.Civ.P. 60(b)(3). "Rule 60(b)(3) is typically `invoked where material information has been withheld or incorrect or perjured evidence has been intentionally supplied.'" Walther v. Maricopa Int'l Investment Corp., No. 97 Civ. 4816, 2002 WL 31521078, at *3 (S.D.N.Y. Nov. 12, 2002) (quoting Matter of Emerg. Beacon Corp. v. Barr, 666 F.2d 754, 759 (2d Cir. 1981)). "[A] Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits." Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989).

Rule 60(b) also contains a catch-all provision permitting relief for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). The Court of Appeals for the Second Circuit has held that this provision is "properly invoked where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (internal citation omitted). "Finally, although a pro se litigant . . . should not be impaired by the harsh application of technical rules, they are not excused from the requirement that they produce highly convincing evidence to support a Rule 60(b) motion." Dais v. Lane Bryant, Inc., No. 97 Civ. 2011, 2002 WL 417242, at *2 (S.D.N.Y. Mar. 15, 2002) (internal citations and quotation marks omitted).

The plaintiff's first allegation is that he was denied the ability to put on witnesses, including character and rebuttal witnesses, at trial. (Affirmation of Anthony Amaker dated Dec. 27, 2002 ("Amaker Aff.") ¶ 1.) Prior to trial, defense counsel sought to preclude the plaintiff from calling eight witnesses who allegedly had witnessed the incident precipitating this litigation. These witnesses were Phillip Marshall, Dave Campbell, Larry Laraque, Kenneth West, Robert Moretti, David Bowen, D. Mercado and R. Rivera. None of the witnesses, with the exception of Mr. Bowen, was identified by the plaintiff in responses to interrogatories served during discovery. (Declaration of Ellen M. Fitzgerald dated Jan. 29, 2003 ("Fitzgerald Decl.") ¶ 7.) Mr. Bowen now uses the name Aaron Nelson ("Mr. Nelson"). (Id. at ¶ 14.)

In the interests of justice, the Court denied the defendants' motion in limine to preclude the testimony. Precluding the witnesses from testifying "would deprive the plaintiff, who was previously representing himself pro se, of any opportunity to introduce any evidence supporting his version of the events at issue other than his own testimony." (Order dated Dec. 3, 2002 ("Dec. 3, 2002 Order") at 1.) The Court required, however, that before testifying, the witnesses would be made available to be deposed by defense counsel.*fn1 (Id. at 2.) The Court's willingness to allow the plaintiff to call the unidentified witnesses belies the assertion of favoritism towards the defendants.

Five of the witnesses, Mr. Nelson, Mr. Mercado, Mr. Campbell, Mr. Laraque and Mr. Moretti, were inmates in the custody of the New York State Department of Correctional Services ("DOCS") at the time of trial, (Fitzgerald Decl. ¶ 7), and the Court directed that they be produced pursuant to writs of habeas corpus ad testificandum. (Dec. 3, 2002 Order at 2.) Defense counsel made out writs for each of the five incarcerated witnesses and had them signed by Judge Keenan, serving as Part I judge, and had the writs delivered to the appropriate facilities. (Fitzgerald Decl. ¶ 13; Writs of Habeas Corpus Ad Testificandum attached as Ex. C to Fitzgerald Decl.) Two of the witnesses, Mr. Campbell and Mr. Nelson, refused to attend any court proceedings. (Notices of Refusal to Testify attached as Exs. E & F to Fitzgerald Decl.) The remaining three incarcerated witnesses were moved to the Metropolitan Correctional Center ("MCC") prior to the date fixed for trial. (Fitzgerald Decl. ¶ 16.)

The plaintiff contends that defense counsel made out the writs for his incarcerated witnesses but that it was the job of plaintiff's counsel, Kenneth Richardson, to do so. (Amaker Aff. ¶¶ 1-2.) It is of no consequence that defense counsel prepared the writs. Defense counsel's actions, in direct response to this Court's Order, do not constitute fraud or deceit of any sort.

Mr. Amaker also claims that defense counsel knowingly failed to make out writs for seven persons in an attempt to preclude the plaintiff from calling these witnesses at trial. (Amaker Aff. ¶ 1.) There is absolutely no support for the plaintiff's claim that Ms. Fitzgerald had any ill motive in failing to make out writs for any of these persons — Gregory Moses, Bruce Curry, Filberto Rivera, James Baggett, Ronald Cooper, Mr. Bowen or Mr. Marshal. First, the first five persons listed were never identified by the plaintiff prior to trial and thus there was no reason for defense counsel to make out writs for these witnesses on the plaintiff's behalf. (See Joint Pre-Trial Order dated Nov. 1, 2002, signed by the Court Dec. 10, 2002 ("Joint Pre-Trial Order").) Second, defense counsel did, in fact, make out a writ for Mr. Bowen under his current name, Aaron Nelson.*fn2 (See Writ of Habeas Corpus ad Testificandum for Aaron Nelson attached as Ex. C to Fitzgerald Decl.) Third, there is no indication that Mr. Marshall was in custody at the time of trial and thus no writ was required to obtain his testimony. (See Fitzgerald Decl. ¶¶ 6-7.) There is certainly no clear and convincing evidence of any material misrepresentation by defense counsel with regard to making any of these witnesses available at trial.

The plaintiff alleges that he was arbitrarily prevented from presenting Dr. Richard Tobey as a rebuttal witness at trial. (Amaker Decl. ¶ 2.) Dr. Tobey treated C.O. Decker at St. Francis Hospital on November 4, 1995 for injuries C.O. Decker received when he was kicked by Mr. Amaker during the November 3, 1995 scuffle. (Tr. at 311-12; Physician Assessment dated Nov. 4, 1994 signed by Richard Tobey, MD ("Tobey Report") attached as Ex. A to Affidavit of Anthony D. Amaker sworn Mar. 3, 2003 ("Amaker Reply Aff.").) But at trial, plaintiff's counsel never sought to introduce Dr. Tobey's testimony or the doctor's report, which defense counsel had provided to the plaintiff on December 6, 2002. (Fitzgerald Decl. ¶ 17.) Moreover, when asked at trial about the size of the cut that he received from the kick, C.O. Decker testified, "I think it was, I don't know, quarter-inch, half-inch long, something like that. I can't say exactly the dimensions now." (Tr. at 313.) Contrary to Mr. Amaker's assertion that C.O. Decker's testimony was inconsistent with the doctor's report, Dr. Tobey in fact noted the existence of a "1 cm avulsion laceration below left eyelid" in his assessment. (Tobey Report.) Neither the Court nor Ms. Fitzgerald played any role in the plaintiff's failure to present Dr. Tobey or C.O. Decker's medical records in rebuttal. Thus, there could be no exceptional circumstances associated with this unproffered testimony and unproffered evidence that would be cause to vacate the jury verdict.

The rebuttal case put on by the plaintiff consisted of the airing of a videotape depicting a medical exam that Mr. Amaker received at Greenhaven on November 3, 1995 immediately following the altercation giving rise to this litigation. During trial, the parties reviewed the videotape together in the courtroom outside the presence of the jury. Prior to playing the tape for the jury, plaintiff's counsel read the following stipulation into evidence:

It is hereby agreed by and between the parties that the videotape about to be shown is a copy of a videotape that was prepared by the Green Haven Correctional Facility in the regular course of business and it fairly and accurately documents what occurred on November 3, 1995, at the time of Mr. Amaker's admission to the special housing unit at Green Haven.
The parties stipulate that the videotape will be admitted into evidence as Plaintiff's Exhibit L.
(Tr. at 466.)

The plaintiff now alleges that he never saw the videotape that was shown to the jury and that the videotape was "a fabrication to mislead the jury as to how much time it took for plaintiff to receive medical treatment." (Amaker Aff. ¶ 5.) There is certainly no evidence to support this assertion, which flies in the face of the above-quoted stipulation.*fn3 Moreover, defense counsel correctly notes that the issue of the length of time that it took for the plaintiff to receive medical care was wholly irrelevant to the issues at trial. The Court had already granted summary judgment dismissing the plaintiff's claim for deliberate indifference to any injuries allegedly caused by the November 3, 1995 incident. Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388, at *8 (S.D.N.Y. Mar. 29, 2002).

The plaintiff claims that defense counsel prevented Mr. Richardson from communicating with the three inmate witnesses who agreed to testify but whom the plaintiff never called at trial. Mr. Amaker's allegations include, among other things, that the defendants asked the Bureau of Prisons ("BOP") to separate the witnesses, and that the witnesses were subjected to cold temperatures and showers at the MCC in order to deter them from testifying. (Amaker Aff. ¶¶ 6-7.) The plaintiff contends that Ms. Fitzgerald had the BOP house the potential witnesses and the plaintiff in a special section of the MCC, and had the MCC deny them phone calls, visits, and showers. (Amaker Aff. ¶ 1.) The plaintiff also claims that defense counsel interfered with Mr. Richardson's ability to interview the incarcerated witnesses.

Defense counsel attests that at no time did she have contact with anyone at the MCC or the BOP regarding the conditions of Mr. Amaker's confinement or that of any of the other inmate witnesses. (Fitzgerald Aff. ¶ 30.) Mr. Amaker's counsel never complained about any inability to talk to any witnesses. Rather, having interviewed various witnesses, Mr. Amaker's counsel chose not to call them. There is no evidence that defense counsel had any improper contact with officials at the MCC or the BOP, including for the purpose of preventing the plaintiff or his counsel from speaking with potential witnesses.

The plaintiff alleges that the Court improperly admitted evidence of the plaintiff's prior misdemeanor and felony convictions in violation of Rules 609(a)(1) and 609(b) of the Federal Rules of Evidence. (Amaker Aff. ¶¶ 3, 7.) The Court will consider this a claim for relief under Rule 60(b)'s catch-all provision providing relief for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). The admission of evidence of the plaintiff's prior convictions was not improper under the law and does not present exceptional circumstances warranting vacatur of the verdict.

The admissibility of the plaintiff's prior felony conviction for second degree murder and his conviction for assaulting C.O. Decker on November 3, 1995 were the subjects of motions in limine prior to trial. By Order dated December 3, 2002, the Court rejected the plaintiff's motion to preclude the admissibility of his criminal conviction for assaulting C.O. Decker as irrelevant and unfairly prejudicial under Rules 401 and 403 of the Federal Rules of Evidence. The Court found that:

The conviction is plainly relevant because it supports the defendants' contention that the plaintiff assaulted one of the corrections officers and that the corrections officers did not engage in an unprovoked attack on the plaintiff. The conviction is a finding against the plaintiff. See Allen v. McCurry, 449 U.S. 90 (1980) (finding that principles of collateral estoppel and res judicata apply in suits under 42 U.S.C. § 1983). It is not unfairly prejudicial because any relevance comes from the fair relevance of the conviction to the issues in this case. The conviction is not an appeal to an unfair purpose of the evidence such as prejudice or sympathy. The evidence is relevant and the probative value of the evidence is not outweighed by any danger of unfair prejudice. See Fed. R. Evid. 403; United States v. Gilliam, 994 F.2d 97, 104 (2d Cir. 1993) (Walker, J. concurring) ("Evidence is not unfairly prejudicial to the extent that it serves the proper purpose for which it is potentially admissible.")
(Dec. 3, 2002 Order at 4-5.) The misdemeanor conviction was allowed into evidence not to impeach the defendant but for its independent evidentiary value. The admission of the misdemeanor conviction does not present the extraordinary circumstances necessary for the Court to vacate the jury verdict pursuant to Rule 60(b)(6).

Mr. Amaker also argues that the Court improperly denied the plaintiff's application to exclude evidence of Mr. Amaker's 1989 felony conviction for second degree murder. The plaintiff is now serving a sentence for this conviction. However, the felony conviction is admissible under Rule 609 as a conviction for a crime punishable by imprisonment in excess of one year for the purpose of attacking the credibility of the witness. See Fed.R.Evid. 609(a)(1). Evidence of Amaker's second degree murder conviction is "not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." Fed.R.Evid. 609(b) (emphasis added). The plaintiff contends that the conviction should not have been admitted because it was outside the time limit established by Rule 609(b). However, the plaintiff is currently incarcerated as a result of the conviction and thus the conviction is plainly admissible under Rule 609(b).

The plaintiff alleges that he was wrongfully precluded from playing audiotapes of the depositions of C.O. Decker, Sgt. Woliver, and C.O. Rhynders at trial. The depositions were the subject of a motion in limine by the defendants who sought to preclude their use at trial. Plaintiff's counsel failed to respond to the motion and the Court granted the motion by default. (Dec. 3, 2002 Order at 4.) The Court made a point, however, of reminding the plaintiff in the Order that the deposition testimony could be used to impeach the deposed defendants should they testify at trial, as the defendants conceded they would do. (Id.) The Court also stated that the prior testimony could be admitted under Rule 801(d)(2) of the Federal Rules of Evidence as a prior statement by a party opponent. (Id.) The Court reiterated this fact to plaintiff's counsel at trial out of the hearing of the jury. (Tr. at 233.)

The plaintiff contends that he was denied the opportunity to play the audiotapes at trial and thus the jury could not hear important intonations in the deponents' speech. However, there is no reason to believe that playing the tapes in their entirety, as the plaintiff requested, would have provided evidence helpful to the jury that would not merely have been cumulative under Rule 403. Despite this fact, the Court gave plaintiff's counsel the opportunity make any further applications if plaintiff's counsel believed, after hearing the defendants' testimony, that the tapes were in fact admissible evidence. (Id.) The plaintiff made no further application, instead choosing to play the previously discussed videotape as his sole rebuttal case. (Id. at 468.) The Court's decision to grant the defendants' motion to preclude — on which the plaintiff defaulted — was wholly proper. In addition, despite the default, the Court reminded the plaintiff about the ways in which the audiotapes might be used, but the plaintiff never pursued the Court's invitation. There was no error and no "extreme and undue hardship" justifying vacatur under Rule 60(b)(6). DeWeerth, 38 F.3d at 1272.

The plaintiff claims that his First Amendment rights were violated because he was not allowed to address the Court. The plaintiff was represented by counsel at trial and his counsel was never prohibited improperly from addressing the Court or the jury. The plaintiff was also given then complete opportunity to testify fully with respect to his version of the events at issue. There was no violation of the plaintiff's rights under the First Amendment.

Finally, the plaintiff objects to the charge given by the Court to the jury regarding Mr. Amaker's rights under the Eighth Amendment. The Court gave the parties multiple opportunities to comment on the charge both before and after it was read to the jury. (Tr. at 422-23; 428-30; 496-98, 546.) However, plaintiff's counsel never objected to the charge on such grounds. (Id.) Having failed to raise the objection before the jury retired to deliberate, the plaintiff has waived his right to do so. Fed.R.Civ.P. 51 ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); see also Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 112 (2d Cir. 2002); Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 55 (2d Cir. 1992).

Moreover, the charge was proper as it was given. Violations of the Eighth Amendment contain both subjective and objective components. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); Romano v. Howarth, 998 F.2d 101, 104-05 (2d Cir. 1993). The plaintiff objects to the charge on the ground that the charge did not address "contemporary standards of decency." (Amaker Aff. ¶ 8.) This appears to be an objection to the Court's description of the objective component of an Eighth Amendment violation. See Blyden, 186 F.3d at 263 ("The objective component of the Eighth Amendment test is also context specific, turning upon "`contemporary standards of decency.'") (quoting Hudson v. McMillan, 503 U.S. 1, 8 (1992)). The Court addressed the objective prong of the test in its charge to the jury as follows:

The objective prong is satisfied if the plaintiff shows that he suffered some harm as a result of the use of force by the defendant you are considering.
The plaintiff need not show that he has suffered significant injury, but at the same time not every push or shove violates a prisoner's constitutional rights.
The Eighth Amendment does not prohibit a de minimus use of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.
(Tr. at 522-23.) This language is consistent with the Second Circuit Court of Appeals' instruction that, "Objectively, the plaintiff must establish that the deprivation alleged is `sufficiently serious' or `harmful enough,' to reach constitutional dimensions. Hence, a de minimis use of force will rarely suffice to state a constitutional claim. . . . Not every push or shove . . . violates a prisoner's constitutional rights." Romano, 998 F.2d at 105 (internal citation omitted).

While "evolving standards of decency" require that "extreme deprivations" be shown to make out a "conditions-of-confinement" claim, no significant injury is required in an excessive use of force claim because contemporary standards of decency are always violated when prison officials maliciously and sadistically use force to cause harm. McMillan, 503 U.S. at 8-9. In this case, the Court's instruction was a correct explanation of the objective component of an excessive force claim under the law set forth by the Supreme Court and the Court of Appeals for the Second Circuit.


Any remaining arguments are either moot or without merit. There is basis to vacate the judgment pursuant to Rules 60(b)(3) or (6) of the Federal Rules of Civil Procedure. Therefore, the plaintiff's motion is denied.


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