18‐379‐pr Johnson v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of March, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

GLENN JOHNSON, Plaintiff‐Appellant,

v. 18‐379‐pr

SARAN PERRY, Correction Officer, PEDRO RODRIGUEZ, Correction Officer, Defendants‐Appellees,

CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTION, DIXON, Correction Officer, MAYERS, Correction Officer, Shield #6645, BOWERY, Captain, Defendants.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* The Clerk of the Court is directed to amend the official caption to conform to the above. FOR PLAINTIFF‐APPELLANT: Glenn Johnson, pro se, Malone, New York.

FOR DEFENDANTS‐APPELLEES: Jeremy W. Shweder, Jonathan A. Popolow, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Pauley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Glenn Johnson, appearing pro se on appeal, sued

corrections officers under

alleging excessive force. Johnson contended

that on August 20, 2014, while in the custody of the New York City Department of

Correction (ʺDOCʺ) on Rikers Island, defendants‐appellees Officers Saran Perry and

Pedro Rodriguez used excessive force against him. After a two‐day trial, at which

Johnson was represented by counsel, the jury returned a verdict in favor of Officers

Perry and Rodriguez (collectively, ʺDefendantsʺ).1 Johnson appeals from the district

courtʹs denial of his motion for a new trial pursuant to Federal Rule of Civil Procedure

59. On appeal, Johnson argues that the district court erred in (1) ruling that the verdict

was not against the weight of the evidence, (2) denying an adverse inference instruction

1 Johnsonʹs claims against all defendants other than Officers Perry and Rodriguez were dismissed before trial, and Johnson did not appeal the dismissal of those claims.

2 regarding the destruction of video surveillance, and (3) excluding evidence of officer

Perryʹs disciplinary history. We assume the partiesʹ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

A trial court may not grant a motion for a new trial unless ʺit is convinced

that the jury reached a seriously erroneous result or that the verdict is a miscarriage of

justice.ʺ Ali v. Kipp,

(2d Cir. 2018) (alteration and internal quotation

marks omitted). We generally review a district courtʹs denial of a motion for a new

trial for abuse of discretion. See

ʺIt is a deferential standard, which reflects district

courtsʹ significant . . . latitude to exercise their inherent discretionary authority.ʺ

We ʺwill reverse a judgment only if the district court (1) based its decision on an error of

law, (2) made a clearly erroneous factual finding, or (3) otherwise rendered a decision

that cannot be located within the range of permissible decisions.ʺ

(internal

quotation marks omitted).

I. Weight of the Evidence

A motion for a new trial under Rule 59(a) on the ground that the juryʹs

verdict is against the weight of the evidence must overcome the ʺhigh degree of

deference . . . accorded to the juryʹs evaluation of witness credibilityʺ and the

admonition that ʺjury verdicts should be disturbed with great infrequency.ʺ ING Global

v. United Parcel Serv. Oasis Supply Corp.,

, 97‐98 (2d Cir. 2014) (alterations

3 omitted) (quoting Raedle v. Credit Agricole Indosuez,

(2d Cir. 2012)).2

The district court did not abuse its discretion by denying Johnsonʹs motion

for a new trial as against the weight of the evidence. As the district court observed, the

jury was presented with competing narratives: Defendants maintained that their use

of force was necessary given the escalating nature of the altercation, and Johnson

asserted that Defendantsʹ use of force was entirely unprovoked. The district court

further noted that the jury heard sufficient evidence to find that no excessive force was

used, and that it had ample reason to question Johnsonʹs testimony given the conflicting

versions of events. The jury was entitled to make credibility determinations in

reaching its verdict, and the record contained more than adequate evidence to sustain

its ultimate conclusion. Accordingly, in light of the evidence presented, the district

court did not abuse its discretion in upholding the juryʹs verdict.

2 Despite conflicting decisions in this Circuit regarding whether we can review the weight of the evidence supporting a jury verdict on a Rule 59 motion, we assume here that the district courtʹs Rule 59 decision is reviewable. See Hughes v. Town of Bethlehem, 644 F. Appʹx 49, 50 n.1 (2d Cir. 2016) (summary order) (reviewing district courtʹs denial of a Rule 59 motion for a new trial on the ground that the verdict was against the weight of the evidence for abuse of discretion, despite conflicting precedent). But see Baker v. Dorfman,

(2d Cir. 2000) (recognizing that ʺwhere a district court denies a motion for a new trial made on the ground that the verdict was against the weight of the evidence, such a ruling is not reviewable on appealʺ) (internal quotation marks omitted)). We need not resolve any discrepancy, however, in light of the disposition of this appeal.

4 II. Denial of Adverse Inference Instruction

Johnson challenges the district courtʹs denial of an adverse inference

instruction regarding the absence of certain surveillance videos. ʺWe review a district

courtʹs decision on a motion for discovery sanctions for abuse of discretion.ʺ

Residential Funding Corp. v. DeGeorge Fin. Corp.,

(2d Cir. 2002). A party

seeking an adverse inference instruction based on the alleged spoliation of evidence

must establish (1) ʺthat the party having control over the evidence had an obligation to

preserve it at the time it was destroyed,ʺ (2) ʺthat the records were destroyed with a

culpable state of mind,ʺ and (3) ʺthat the destroyed evidence was relevant to the partyʹs

claim or defense such that a reasonable trier of fact could find that it would support that

claim or defense.ʺ Chin v. Port Auth. of N.Y. & N.J.,

(2d Cir. 2012)

(internal quotation marks omitted). Because Johnson did not establish these elements,

the district court did not abuse its discretion in denying the request for the instruction.

At trial, the DOC investigator testified that no footage captured any aspect

of the physical altercation between the parties. Johnson merely showed that two video

cameras existed in the long corridor where the incident occurred and that video footage,

which showed Johnson walking though the metal detector the morning of the incident

in question, had been purged after 90 days pursuant to DOC policy. Johnsonʹs counsel

thoroughly explored whether video footage of the incident existed, and the district

court found there was ʺno evidence supporting [Johnsonʹs] contention that relevant

5 evidence had been spoliated.ʺ Dkt. No. 146 at 7. Moreover, Johnsonʹs counsel argued

extensively to the jury during summation about the video footage, or lack thereof.

Given these circumstances, and the lack of evidence suggesting that any evidence was

destroyed with a culpable state of mind, the district court acted well within its

discretion in declining to grant an adverse inference instruction.

III. Exclusion of Disciplinary History

We review a district courtʹs evidentiary rulings for abuse of discretion and

will not disturb such rulings unless they are manifestly erroneous. See Manley v.

AmBase Corp.,

(2d Cir. 2003). ʺUnless justice requires otherwise, no

error in admitting or excluding evidence ‐‐ or any other error by the court or a party ‐‐ is

ground for granting a new trial, for setting aside a verdict, or for vacating, modifying,

or otherwise disturbing a judgment or order.ʺ Fed. R. Civ. P. 61.

The district court properly exercised its discretion in excluding Officer

Perryʹs disciplinary history where the unrelated use‐of‐force incident was found to be

irrelevant and substantially more prejudicial than probative. A district court has wide

latitude to admit or exclude evidence under Federal Rule of Evidence 404(b) and ʺits

ruling will not be overturned on appeal absent abuse of discretion.ʺ United States v.

Langford,

(2d Cir. 1993).

As the district court noted, the incident involving Officer Perry, which

post‐dated the altercation with Johnson, was completely dissimilar from the allegations

6 of force used against Johnson. In addition, although there was disagreement as to how

the pepper spray was administered in this case, Officer Perry did not deny having used

force against Johnson. Lastly, the district court rejected Johnsonʹs use of this evidence

to show Officer Perryʹs ʺwrongful intent to abuse her position,ʺ observing that excessive

force is determined under an objective standard of reasonableness. Dkt. No. 146 at 8.

Officer Perryʹs state of mind was therefore irrelevant. See Kingsley v. Hendrickson,

(2015). Thus, the district court did not abuse its discretion by ruling

that the potential for unfair prejudice substantially outweighed the probative value of

Officer Perryʹs disciplinary history. See Fed. R. Evid. 403.

Accordingly, the district court did not abuse its discretion in denying

Johnsonʹs motion for a new trial. We have considered all of Johnsonʹs remaining

arguments and find them to be without merit. For the foregoing reasons, the

judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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