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Davis v. Meisner

United States District Court, W.D. Wisconsin

July 20, 2018

JAMES JERMAINE DAVIS, Plaintiff,
v.
MICHAEL MEISNER, et al., Defendants.

          OPINION & ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE.

         From October 16-18 of 2017, this court held a jury trial on plaintiff James Davis's First and Eighth Amendment claims in this civil lawsuit. Prior to this, the court had concluded that Davis was capable of representing himself at trial, so Davis proceeded pro se on his claims that (1) defendant Sandra Ashton retaliated against Davis by issuing him false conduct reports accusing him of sexual harassment and assault because he filed grievances against her; (2) defendants Ashton, Ronald Swenson, Tracy Kopfhamer, and Michael Rataczak used excessive force during an October 29, 2013, cell extraction following Davis's suicide attempt; (3) defendants Theodore Anderson, Kevin Pitzen, and Randy Schneider failed to intervene to stop this use of excessive force during that incident; and (4) defendant Philip Kerch was deliberately indifferent to Davis's injuries following the cell extraction. The jury returned verdicts of no liability on all claims.

         Davis then filed a renewed motion for judgment as a matter of law or a new trial. (Dkt. 163.) I am denying this motion because Davis has not met the heavy burden of establishing that the verdicts lacked basis or constituted a miscarriage of justice warranting either judgment in his favor or a new trial.

         OPINION

         Davis offers three arguments in support of his motion: (1) judgment as a matter of law is appropriate under Federal Rule of Civil Procedure 50 because the jury lacked a legally sufficient evidentiary basis to find that defendants did not use excessive force, did not fail to intervene, and did not act with deliberate indifference to his medical needs after the October 29, 2013, incident; (2) a new trial is appropriate under Federal Rule of Civil Procedure 59(a) because the verdict was against the manifest weight of the evidence; and (3) the court abused its discretion in denying Davis's request for recruitment of counsel. I will address these arguments in turn:

         I. Motion for judgment as a matter of law

         F.R. Civ. Pro. 50(a)(1) provides:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may ... (B) grant a motion for judgment as a mater of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.”

         Rule 50(a)(2) required Davis to make this motion before the case was submitted to the jury; Rule 50(b) allows him to renew this motion after a jury verdict against him. Defendants argue that Davis didn't actually move for a judgment as a matter of law; instead he merely moved to “change the verdict” after the jury reached its verdict. While Davis responds that he did move for judgment as to his excessive force claim against Rataczak, his failure to protect claim against Schneider, and his deliberate indifference claim against Kerch, this assertion is not supported by the record. That alone would be a basis to deny Davis's post-trial motion, but Davis would lose on the merits in any even because the jury had sufficient evidence to conclude that Davis failed to meet his burden on each of his claims.

         Davis's motion is based on his belief that the jury's credibility determinations were wrong. Courts considering motions under Rule 50 do not make credibility determinations or weigh the evidence. See Waite v. Board of Trustees of Ill. Comm. College Dist. No. 508, 408 F.3d 339, 343 (7th Cir. 2012) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097 (2000)). In support of his position, Davis recounts his own testimony as well as that of Hipolito Claudio Jr., Nikko Krohn, Robert Gant, and Curtis Daniels, pointing out that each of these witnesses' supported his contentions that he was the victim of excessive force on October 29, 2013, and that he did not actually try to sexually assault Ashton. Davis is correct that his witnesses corroborated his version of events, but this does not get him around the fact that the defendants' witnesses provided a different version of events. Davis argues that the jury should have either discounted the defense witnesses' testimony or construed their testimony in a way that supported Davis's claims. This is Davis's gloss of the adverse characterizes their testimony:

• David Melby's testimony about the investigation into Ashton's allegations that Davis sexually assaulted her was evasive;
• Kevin Pitzen testified that he wasn't present for the October 29, 2013, incident because he was supervising another matter;
• Sandra Ashton was repeatedly impeached with prior inconsistent testimony about the incidents (and indeed, Ashton could not remember all of the details of her interactions with Davis and contradicted her own affidavit at times);
• Theodore Anderson was contradictory and evasive and testified that he did not know why he did not write that Davis was resisting ...

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