United States District Court, N.D. New York
KOTLER Plaintiff, pro se
OF THE NEW YORK STATE ATTORNEY GENERAL GREGORY J. RODRIGUEZ,
AAG WILLIAM A. SCOTT, AAG Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
Frederick J. Scullin, Jr. Senior United States District Judge
trial was held between November 30, 3016, and December 2,
2016, at the conclusion of which the jury returned a verdict
in favor of Defendants. Plaintiff now moves for judgment as a
matter of law pursuant to Rule 50 of the Federal Rules of
Civil Procedure or, in the alternative, for a new trial
pursuant to Rule 59 of the Federal Rules of Civil Procedure.
See Dkt. No. 266. Defendants oppose this motion.
See Dkt. No. 271.
Kerry Kotler filed a complaint seeking compensatory and
punitive damages under 42 U.S.C. § 1983, alleging, among
other things, that Defendants planted a weapon in his prison
cell and then disciplined him for possession of that weapon
in retaliation for his participation as a member of the
Inmate Grievance Resolution Committee ("IGRC") and
for filing individual grievances in violation of his rights
under the First Amendment. See Dkt. No. 1.
trial, Plaintiff called Gregory Stanley, John Donelli, and
Defendants Daily, Dann, Charland, and Jubert as
witnesses. Plaintiff also testified. Defendants
called a single witness, Defendant Jubert. At the end of the
third day of trial, the jury returned a unanimous verdict in
favor of Defendants. See Dkt. No. 261.
now moves for judgement as a matter of law or, in the
alternative, for a new trial. See generally Dkt. No.
266. Plaintiff raises five grounds to support his motion.
First, Plaintiff argues that the verdict is against the
weight of the evidence because the timing of the search of
his cell and packing of his possessions is, according to him,
temporally impossible. Second, Plaintiff contends that the
Court erred in sending information into the jury room, in the
form of a response to the jury's question, which was not
entered into evidence. Third, Plaintiff asserts that the
Court erred in prohibiting him from putting all of his
grievance records into evidence. Fourth, Plaintiff argues
that the Court fast-tracked the trial in a manner that denied
him full and fair due process. Finally, Plaintiff asserts
that the Court erred in dismissing his due process claim
against Defendant Jubert.
Rule 50(b) motion for judgment as a matter of law
argue that Plaintiff cannot bring a motion pursuant to Rule
50 "without a showing that a ruling is required to
prevent 'manifest injustice'" because he failed
to move for judgment as a matter of law before the Court
submitted the case to the jury. See Dkt. No. 271 at
5 (quoting Henry v. Dinelle, 929 F.Supp.2d 107, 114
(N.D.N.Y. 2013)). Defendants contend that "[m]anifest
injustice 'exists only when a jury's verdict is
'wholly without legal support.'" See
Id. (quoting Henry, 92 F.Supp.2d at 114
(quotation omitted)). Defendants argue that Plaintiff cannot
show that a manifest injustice has been done because he
"failed to prove that the Defendants planted a weapon on
him or that they retaliated against [him] for his grievance
activity." See id.
contrary, Plaintiff argues that "defendants' account
of what occurred lacks the 'window of opportunity'
necessary to be physically possible"; and, thus, the
verdict was a "manifest injustice." See
Dkt. No. 272 at 1. Plaintiff also argues that the Court
"stated prior to the verdict that it would hear the
parties' motions at a later time." See id.
50(b) of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
If the court does not grant a motion for judgment as a matter
of law made under Rule 50(a), the court is considered to have
submitted the action to the jury subject to the court's
later deciding the legal questions raised by the motion. No
later than 28 days after the entry of judgment -- or if the
motion addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged -- the
movant may file a renewed motion for judgment as a matter of
law and may include an alternative or joint request for a new
trial under Rule 59.
Fed. R. Civ. P. 50(b).
pre-requisite for a post-trial motion for judgment as a
matter of law is a motion seeking relief on similar grounds
during the trial. See Exxon Shipping Co. v. Baker,
554 U.S. 471, 485 n.5 (2008) (stating that "[a] motion
under Rule 50(b) is not allowed unless the movant sought
relief on similar grounds under Rule 50(a) before the case
was submitted to the jury" (citations omitted)).
Plaintiff admits, he did not make a Rule 50(a) motion during
trial. However, Plaintiff may still seek relief
pursuant to Rule 50(b) "to prevent manifest
injustice." Lore v. City of Syracuse, 670 F.3d
127, 153 (2d Cir. 2012) (citations omitted). Plaintiff's
only argument in this regard is that the verdict is against
the weight of the evidence.
support of this argument, Plaintiff focuses on certain timing
issues that he asserts demonstrate that Defendants conspired
to plant a weapon in his cell. Plaintiff contends that
"an 8:35/am I-2 Dorm Log entry indicates all of [his]
property was 'secured in officers' storage room'
and [Defendant Daily] could not have been in [his] cube
searching the property between the time of 8:35/am and
9:20/am as he claimed if the property was secured in storage
at the time." See Dkt. No. 266-2 at 2.
Furthermore, Plaintiff asserts that Defendant Daily claimed
downloaded the photograph of the weapon up front in the
administration building at 9:20/am; and if [he] had just
completed the search of [P]laintiff's property at
9:20/am, there was no time available for [Defendant Daily] to
secure [P]laintiff's property in the officers'
storage room, secure a ride up front, travel through multiple
gates and check points, secure the camera box key, then the
camera, take a photograph of the weapon, plug the camera into
the computer, upload the photographic image taken, and then
type up the language that appears at the bottom of the
digital image he created, before 9:20/am.
Plaintiff contends that Defendant Daily's testimony was
not credible, ...