United States District Court, E.D. New York
MARSHALL SCOTT BLUTH, Attorney for Plaintiff
& FITCH, Attorney for Plaintiff
ZACHARY CARTER Jenny Weng Joshua J. Lax Attorneys for
MEMORANDUM AND ORDER
STERLING JOHNSON JR, UNITED STATES DISTRICT JUDGE
facts and circumstances surrounding this action have been
endlessly recounted in briefs upon briefs and orders upon
orders. Familiarity with each side's version, and the
case's procedural-posture, is assumed. At trial, witness
testimony was inconsistent, to say the least, but there is no
disputing that Plaintiff suffered a fracture of her lateral
tibial plateau during the encounter with Officer Reilly.
jury reviewed the evidence and decided what to believe. They
believed that Ms. Brim suffered a constitutional deprivation
at the hands of Officer Reilly in the form of excessive force
when the encounter landed her in the hospital with a broken
leg. They also/ believed that Officer Reilly intended to
inflict emotional distress on her during that altercation.
They awarded her $30, 000 on each of those claims.
City filed a motion pursuant to' Federal Rule of Civil
Procedure ("Rule") 50, seeking judgment as a matter
of law in its favor on both claims. Plaintiff filed a Rule 59
motion seeking a new trial on the issue of damages. Plaintiff
argued that the award of $30, 000 for her injuries related to
the jury's finding of excessive force was grossly
inadequate. These motions were referred to Magistrate Judge
Ramon E. Reyes for a Report and Recommendation
Report was issued on August 16, 2016 and recommended granting
Plaintiffs motion for a new trial on damages, an entering
judgment as a matter of law in favor of the City on
Plaintiffs claim of intentional infliction of emotional
distress. Only the City filed objections to the Report. <
A district court judge may designate a magistrate judge to
hear and determine certain motions pending before the Court
and to submit to the Court proposed finding of fact and a
recommendation as, to the disposition of the motion.
See 28 U.S.C. § 636(b)(1). Within 10 days of
service of the recommendation, any party may file written
objections to the magistrate's report. See id-
Upon de novo review of those portions of the record
to which; objections were made, the district court judge may
affirm or reject the recommendations. See
id- The Court is not required to review, under a
de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the report and recommendation to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections
may waive the right to appeal this Court's Order.
See 28 U.S.C, § 636(b)(1); Small v.
Sec'y of Health and Human Servs:; 892 F.2d
15, 1 6 (2d Cir. 1989).
Report and Recommendation by Judge Reyes took issue, if you
will, with two of those findings.
the Report found that there was no evidence that Ms. Brim
suffered the "severe" emotional distress necessary
for a jury verdict in her favor, but that she only endured
"conventional pain and suffering." Neither side
objects to this finding, and so it is hereby adopted. The
$301, 000 award for intentional infliction of emotional
distressed is set aside and this Court holds as a matter of
law for the City on that Count.
although Ms. Brim suffered a fractured leg, was handcuffed to
a hospital bed for 17 days, endured pain and suffering and
subsequently required the use of crutches and leg braces, the
City argues that the $30, 000 award is not insufficient
compensation. The City somehow got into the collective minds
of the jury and said;
More importantly, plaintiffs credibility in general was under
attack. She was cross examined at length regarding her
Medicaid fraud, inconsistency between her Medicaid documents,
her testimony and her tax returns, Further, it, is possible
that the jury in assessing what damages plaintiff was
entitled to, may have considered that her general attitude
against authority and dishonesty in civil society made her
less worthy of compensation than someone else. The jury may
have believed, based on the Court's instructions, that
because plaintiff was lawfully arrested in this case, and
continued to commit felonious acts through to trial through
her Medicaid fraud, ...