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Dizak v. B. Hawks

United States District Court, N.D. New York

January 13, 2020

STUART DIZAK, Plaintiff,
B. HAWKS, and D. ROGERS, Defendants.

          DECISION & ORDER

          Thomas J. McAvoy Senior, U.S. District Judge.


         Plaintiff Stuart Dizak, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. The claims that remained for trial were for Eighth Amendment excessive force against Defendant Bruce Hawks, Eighth Amendment failure to intervene against Defendant Donald Rogers, and First Amendment retaliation against Defendant Hawks. The trial resulted in a verdict in favor of the defendants on all claims. See Dkt. No. 225. Dizak, who was represented at trial by pro bono counsel, Christopher V. Fenlon, Esq., now moves pro se for a new trial pursuant to Federal Rule of Civil Procedure 59(a). See Dkt. No. 243; see also Dkt. Nos. 245 (exhibits in support of motion); 246 (Pl. letter & exhibits in further support of motion); 247 (Pl. letter & exhibits in further support of motion). The defendants oppose Dizak's motion, Dkt. No. 250, and applied to the Clerk for taxation of certain costs incurred in defending the action. Dkt. No. 229. Dizak files two (2) replies to the defendants' opposition to his motion, Dkt. Nos. 253 (Reply); 255 (Supplemental Reply), and opposes the defendants' application for taxation of costs. See Dkt. No. 239.

         For the reasons that follow, Dizak's motion for a new trial is denied, and the defendants' application for taxation of costs is granted in part and denied in part.


         As recounted by Attorney Fenlon during his opening statement to the jury, Dizak asserted that beginning in September 2012, Hawks, a correction officer at Greene Correctional Facility (“Greene”), began harassing and threatening Dizak for, inter alia, his participation in Jewish services and meals at Greene. Dizak contended that Hawks threatened that if Dizak filed a grievance for this harassment, Hawks would retaliate by filing a Tier III misbehavior report resulting in Dizak being placed in the Special Housing Unit ("SHU"). On October 26, 2012, Dizak purportedly prepared a letter to the Superintendent of Greene regarding Hawks' harassment and threats. However, believing that sending such a letter could subject him to further harassment and reprisals, Dizak initially kept the letter hoping that Hawks' harassment would cease -- but it did not.

         Dizak testified that on the morning of December 11, 2012, he went to Jewish religious services at the prison Chapel. After the services ended, Dizak asked to speak to the prison rabbi, Susan Gulack, in private. He asked Rabbi Gulack to take him off the list of inmates who could attend Jewish meals and services ("the Jewish callout list"). Dizak testified that when Rabbi Gulack asked why he wanted to be taken off the Jewish callout list, he explained the incidents of harassment he had been having with Hawks and said he wanted to avoid any further harassment. Dizak also explained that he had drafted a letter to the Superintendent outlining the incidents of harassment from Hawks but had not mailed it. Dizak testified that after he explained the situation to Rabbi Gulack, she went into her office and made a telephone call to some unknown individual. According to Dizak, when Rabbi Gulack returned, she told Dizak that she was going to try to arrange it so that either Dizak or Hawks would be moved, and instructed Dizak to return later that day with the letter to the Superintendent. Dizak testified that he was already on the Jewish callout list for Hanukkah services later that day.

         The facts at trial indicated that at approximately 4:30 P.M. on December 11, 2012, on his way to the Chapel, Dizak crossed by Hawks' guard station seemingly without incident. Dizak had with him the letter he had written to the Superintendent. However, Hawks called to the next guard station and told the guard to instruct Dizak to return to Hawks' station. Dizak returned as instructed, and the parties have differing accounts of what occurred next.

         Dizak asserted that when he returned to Hawks' station, Hawks demanded to see the letter so he could read what Dizak was saying about him. Because of the contents of the letter, Dizak refused and indicated that he wanted to give the letter to a corrections sergeant. Dizak contended that when Rogers, a corrections sergeant, arrived, Dizak attempted to give the letter to him but Hawks attacked Dizak without provocation while Rogers stood by and watched. Dizak asserted that as a result of Hawks' conduct, he sustained significant injuries, including two black eyes and head trauma causing diminishing mental capacity and memory loss. Dizak also contended that Hawks filed an inmate misbehavior report, falsely claiming that Dizak had refused orders to turn over the letter and attempted to flee. The facts indicated that Hawks charged Dizak with (i) violent conduct, (ii) failure to comply with a direct order, (iii) refusal of a search/frisk; and (iv) inference with an employee. At a Tier III hearing, the charges against Dizak were upheld and Dizak was penalized with, among other things, six months SHU time. Upon review by the Superintendent, Dizak's penalty was reduced to four months SHU time, and in September 2014, the New York State Supreme Court, Appellate Division, Third Department, vacated the violent conduct determination. Dizak's SHU time was consequently reduced to three months and fifteen days, although he had already served all of that time.

         The defendants maintained that when Dizak returned to Hawks' station, he was questioned about items he possessed. Dizak retrieved an envelope and a pad of paper from his coat, but refused to provide all the items to Hawks or Rogers. The defendants contended that when Dizak refused multiple direct orders to provide the items, Rogers directed that Dizak be placed in mechanical restraints. The defendants further contended that Dizak refused to allow himself to be placed in restraints and attempted to depart the area, in violation of the defendants' orders. The defendants asserted that at this point, Hawks, along with non-defendant Correction Officer D. Lavallee, used physical force to restrain Dizak, and did so in a manner consistent with their training. The defendants further contended that the officers used the level of force necessary to ensure Dizak's compliance. As a result, the defendants asserted, Dizak suffered only minor injuries. The defendants contended that no officer used excessive force against Dizak, and because they were justified in their actions and in bringing valid Tier III charges against Dizak, they did not unlawfully retaliate against him.

         After hearing the evidence, the jury returned a verdict in favor of the defendants on all claims.


         The Court first addresses Dizak's motion for a new trial.

         a. Rule 59 Standard of Review

         The Court may “grant a new trial on all or some of the issues . . . for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]” Fed.R.Civ.P. 59(a)(1)(A). “The general grounds for a new trial are that (1) the verdict is against the clear weight of the evidence; (2) the trial court was not fair; (3) substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions to the jury; or (4) damages are excessive.” Lawson v. Cty. of Suffolk, 920 F.Supp.2d 332, 339 (E.D.N.Y. 2013)(citing 12 Moore's Federal Practice, § 59.13[1] at 59-43 (3d Ed. 2005)). “A district court should grant a new trial motion if it ‘is convinced that the jury has 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) (quoting Smith v. Lighting Bolt Productions, Inc., 835 F.2d 966, 970 (2d Cir. 1987)); see Greenaway v. County of Nassau, 327 F.Supp.3d 552, 560 (E.D.N.Y. 2018)(“Essentially, to grant a Rule 59 motion, a district court ‘must conclude that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice....'”)(quoting Maureen Christensen v. County of Dutchess, N.Y., 548 Fed.Appx. 651, 653 (2d Cir. 2013)). Such a motion may be granted “even if there is substantial evidence to support the jury's verdict.” Id. Though 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. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998), a jury's verdict should “rarely be disturbed.” Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (per curiam); see also Carroll v. Cty. of Monroe, 712 F.3d 649, 653 (2d Cir. 2013); Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417-18 (2d Cir. 2012). Evaluations of the evidence should be made with a “high degree of deference ... to the jury's evaluation of witness credibility..., ” ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97-98 (2d Cir. 2014) (internal quotation marks and citation omitted), and “a trial judge's disagreement with the jury's verdict is not a sufficient reason to grant a new trial.'” Lawson, 920 F.Supp.2d at 344 (internal quotation marks and citation omitted).

         b. Analysis

         1. Pro Bono Counsel's Representation

         Dizak's motion for a new trial is based primarily upon the allegation that he received ineffective assistance from Attorney Fenlon both at, and in preparation for, his jury trial. See Dkt. No. 243; Dkt. Nos. 245-247. Dizak alleges that Attorney Fenlon's representation at trial was “in violation of his duty to adequately represent Mr. Dizak by ignoring his desire to not have the witness Rabbi Gulack to testify for the plaintiff. And as a result of this strategic decision the Rabbi wound up being a hostile witness that benefitted the opposing side and caused the verdict to be in favor of the defense.” Dkt. No. 243 at p. 1. Plaintiff also takes issue with the discovery decisions issued in this case, apparently contending that Attorney Fenlon was ineffective in failing to resolve these matters in Plaintiff's behalf. See Dkt. No. 243, 3-5. In addition, Plaintiff asserts that "one of the most significant issues that Attorney Fenlon failed to address" was that the defendants were justified in their use of force because Plaintiff attempted to flee yet he was not charged with attempted escape. Id., at 6. Plaintiff also alleges that Attorney Fenlon offered faulty settlement guidance, and failed to advise him of the defendants' ability to seek costs at the close of trial. See Dkt. No. 246-2 at p. 1; see also Dkt. No. 239. Finally, Plaintiff seems to allege that his defense attorney in his criminal case resulting in his incarceration had acted improperly, Dkt. No. 246-2 at p. 2, and that Attorney Fenlon and this criminal defense attorney conspired to provide Plaintiff with ineffective counsel. Dkt. No. 247. Although not specifically argued, the Court treats these pro se contentions as asserting that Attorney Fenlon's conduct deprived Plaintiff of a fair trial. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)(“As we have repeatedly stated, ‘[w]e liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.'”)(quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)).

         A. Calling Rabbi Gulack to Testify

         In response to Dizak's challenge to Attorney Fenlon calling Rabbi Gulack to testify, the defendants argue that although they are not privy to the conversations between Plaintiff and his trial counsel, the New York Rules of Professional Conduct recognizes that clients typically defer to their attorneys' decisions to call witnesses based on the attorneys' special knowledge and skill. Dkt. No. 250, at 2-3 (citing N.Y. Rules of Prof. Conduct, 1.2(a)).[1] They assert that under the circumstances, no violation of the New York rules occurred because it appears that Dizak deferred to Attorney Fenlon's decision to call Rabbi Gulack. Id., at 2. In reply, Plaintiff asserts that he did not defer to Attorney Fenlon's decision to call Rabbi Gulack, and argues that this decision is “[f]ar more than ineffective assistance of counsel, closer to intentionally subverting the trial.” Dkt. No. 253, at 1, ¶1, see id., at ¶ 3.

         Despite Dizak's objection, [2] Attorney Fenlon did not breach his duty of representation or deprive Plaintiff of a fair trial by calling Rabbi Gulack as a witness. Although Rabbi Gulack testified that she had no recollection of a meeting with Dizak in December 2012, her testimony provided probative evidence supporting Dizak's account of his discussion with her that morning. Rabbi Gulack testified that in 2012 she had regular meetings with Jewish inmates on Tuesdays at Greene, and that she worked during Hanukkah except on those holidays where there was a religious prohibition on driving. This testimony supported Plaintiff's contention that he met with Rabbi Gulack earlier in the day on December 11, 2012, [3] and was headed to Hanukkah services at the time of the incident in issue.[4] Rabbi Gulack also testified that during her 19-year tenure working at DOCCS facilities, including at Greene, she sometimes attempted to resolve disputes between inmates and staff by contacting her supervisor (the Deputy Superintendent of Programs), a captain, or the Deputy Superintendent of Security. This testimony supported Plaintiff's contention that Rabbi Gulack made a phone call after Dizak explained why he wanted to be taken off the Jewish callout list, and supported Dizak's contention that Rabbi Gulack said she was going to attempt to resolve the conflict between Hawks and Dizak on the evening of December 11, 2012. Further, Rabbi Gulack testified that she recognized Dizak's name and face, and remembered that he had been moved out of Greene in 2012. This testimony supported Plaintiff's contention that he had had interactions with Rabbi Gulack while at Greene. Thus, the decision to call Rabbi Gulack to testify supported the objectives of ...

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