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Brook v. Carey

July 28, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Introduction and Summary

Plaintiff timely filed a motion for new trial under Fed. R. Civ. P. 59 raising four issues. An opposition was requested and timely filed. For the reasons stated herein, the motion is denied with respect to Issues 1, 2 and 4; it is deferred with respect to Issue 3.


Issue 1-- Alleged Ex Parte Discussion By The Undersigned With Defendants' Counsel Regarding Jury Instructions

The undersigned is at somewhat of a disadvantage in addressing plaintiff's assertion as the date he gives for the alleged ex parte discussion with defendant's counsel, June 12, 2008, is a date on which the Brook v, Carey, et al. trial was not in session, had not started, and the court's calendar indicates that nothing about Brook v. Carey was undertaken in court.

In any event, the Brook v. Carey trial commenced on June 16, 2008, and that was the first date plaintiff appeared physically in the undersigned's court.*fn1

In every civil rights trial at which the undersigned has presided, it is the undersigned's practice to synthesize the jury instructions submitted by the parties into a court produced version, which at some point in the trial, the undersigned disseminates to the parties for review and comment. Invariably, the court explains to the parties the logistics of what is being given to them, i.e., that the court has synthesized or narrowed the proposed instructions to the ones pertinent to the claims and evidence at trial. At no time has the undersigned discussed the substance of jury instructions without all parties to the trial being present through counsel and/or with parties representing themselves. The undersigned engaged in no such substantive ex parte discussion with defense counsel in this case -- on or off the record.

It is possible at times that counsel/pro se parties may be handed the draft jury instructions at a time when the court is not on the record. It is also possible that the undersigned might explain to the person who has just been given the instruction packet that the instructions previously submitted have been narrowed, streamlined or synthesized, and that the party will have an opportunity to comment or object on the record. However, that is all that would be said off the record.

Given that plaintiff has not pinpointed any time of day, or even the correct date, of the asserted discussion, the undersigned cannot go to a specific part of the tape recorded record to review plaintiff's assertion. However, the undersigned has gone to likely parts of that record to determine what may have been said about jury instructions. On June 17, 2008 at approximately 4:34 p.m., the undersigned referred to hearing the parties' comments and objections to the jury instructions at 11:00 a.m. the next day. There is no way of telling whether the undersigned had distributed a copy of the proposed instructions at that time, or whether that was to be done the next day. The undersigned does not recollect precisely when he may have distributed them, nor do the portions of the record listened to by the undesigned indicate that fact.*fn2 The record commences at 11:09 a.m. on the 18th of June with a discussion about the jury instructions, and by that time, it is evident that the parties had received the instructions. In his partial review, the undersigned found no place in the record where it appeared that a substantive discussion with defense counsel had been continued to an on-the-record discussion. Plaintiff never made any comment about any alleged ex parte discussion at any time during this June 18th discussion or elsewhere. Plaintiff's self-serving comment that he "didn't know how to object" is belied by the numerous times during the trial when he made his objections or thoughts known to the court and argued them with force. Moreover, after given time for review of the instructions, and after hearing plaintiff's discussion of points pertinent to the instructions, plaintiff stated twice that he had no objections to the instructions. June 18, 11:28 a.m. and 11:30 a.m.*fn3

Finally, plaintiff's assertion is completely discounted by the fact that the court made no changes to the packet of jury instructions after argument on those instructions except to add sua sponte an addition to the instructions on supervisorial liability which favored plaintiff.

Again, the undersigned engaged in no substantive discussion about the instructions during this trial except at times when both counsel and plaintiff were present.*fn4

Plaintiff's motion for new trial on this ground is denied.

Issue 2 -- Alleged Severe Limitations Placed on ...

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