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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 ...

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