The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
Plaintiff John E. James, III ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. This action went to jury trial on November 9, 2009, against 1) Defendants Beer, German, Martinez, Torres, Trotter, and Vogel for excessive force in violation of the Eighth Amendment, 2) Defendants Edmond, Lemos, Maldonado, and Trotter for deliberate indifference to a serious medical need in violation of the Eighth Amendment, and 3) Defendants Beer, Edmond, German, Lemos, Maldonado, Martinez, Rabe, Torres, Trotter, and Vogel for retaliation in violation of the First Amendment. On November 13, 2009, the jury returned a verdict in favor of all Defendants. Judgment was entered on November 17, 2009, pursuant to the jury verdict and in favor of Defendants.
On December 2, 2009, Plaintiff filed a motion for new trial. (Court Doc. 366.) On December 18, 2009, Defendants filed their opposition to the motion. (Doc. 368.) On January 5, 2010, Plaintiff filed his reply.*fn1
On December 2, 2009, Plaintiff also filed a motion for certificate of appealability. The Court will deny this motion as unnecessary. Pursuant to 28 U.S.C. § 2253, certificates of appealability are only needed to appeal final orders in habeas corpus cases. No certificate is needed to appeal this section 1983 action. Accordingly, Plaintiff's motion for certificate of appealability is DENIED as unnecessary.
Federal Rule of Civil Procedure 59(a) provides that: "[A] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Rule 59 does not specify the grounds on which a motion for a new trial may be granted. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Rather, the court is "bound by those grounds that have been historically recognized." Id. "Historically recognized grounds include, but are not limited to, claims 'that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.'" Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). A new trial may be granted only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice. Molski, 481 F.3d at 729; Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir. 2000).
In considering a motion for a new trial, the court may weigh the evidence and assess the credibility of witnesses, and the court need not view the evidence in the light most favorable to the prevailing party. Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d 176, 190 (9th Cir. 1989). However, it is not enough that the trial judge would have reached a different verdict from the jury. United States. v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999); Roy v. Volkswagen of America, Inc., 896 F.2d, 1174, 1176 (9th Cir. 1990). After weighing the evidence, the trial judge faces a difficult task:
It may be doubted whether there is any verbal formula that will be of much use to trial courts in passing on motions [for a new trial on the grounds that the verdict is against the clear weight of the evidence]. Necessarily all such formulations are couched in broad and general terms that furnish no unerring litmus for a particular case. On the one hand, the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter.
Probably all that the judge can do is to balance these conflicting principles in the light of the facts of the particular case. If, having given full respect to the jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake ...