United States District Court, W.D. Wisconsin
JAMES A. LEWIS, Plaintiff,
ANGELA McLEAN and JOSEPH CICHANOWICZ, Defendants.
D. PETERSON DISTRICT JUDGE
James Lewis, who is now appearing pro se, has filed a
post-trial motion asking me to set aside the judgment entered
by this court on January 8, 2019, after a jury trial on his
Eighth Amendment claims against prison staff. Dkt. 155. Lewis
filed his motion while he was still represented by counsel,
so I could not properly consider it. But because the motion
indicated that there had been a breakdown in the
attorney-client relationship, I asked Lewis's counsel to
clarify his continued representation of Lewis. Dkt. 160.
Lewis's counsel has now withdrawn from the case, Dkt.
161, so I can address Lewis's motion.
motion, Lewis asks me to do three things: (1) set aside the
January 8, 2019 jury verdict finding defendants not liable
for violating his Eighth Amendment rights; (2) grant him a
new trial; and (3) hold a hearing on the conduct of his
counsel. I denied Lewis's request for a hearing on the
conduct of his counsel in a previous order. Dkt. 160. But the
issue whether to set aside the verdict and hold a new trial
remains unresolved. For the reasons stated below, I will deny
construe Lewis's motion as a motion for a new trial under
Federal Rule of Civil Procedure 59(a). Under Rule 59(a),
“[a] new trial may be granted if the verdict is against
the clear weight of the evidence or the trial was unfair to
the moving party.” Clarett v. Roberts, 657
F.3d 664, 674 (7th Cir. 2011) (citations omitted). “A
new trial should be granted only when the record shows that
the jury's verdict resulted in a miscarriage of justice
or where the verdict, on the record, cries out to be
overturned or shocks [the] conscience.” Davis v.
Wisconsin Dep't of Corr., 445 F.3d 971, 979 (7th
Cir. 2006) (internal quotation marks omitted).
“Although the court examines the evidence to determine
whether the jury's verdict was based on that evidence,
the court does not make credibility determinations or weigh
the evidence.” Whitehead v. Bond, 680 F.3d
919, 925 (7th Cir. 2012).
the majority of Lewis's arguments in favor of setting
aside the jury verdict focus on his allegation that he
received ineffective assistance of counsel. See Dkt.
155, at 9-26. But a civil litigant has no constitutional
right to counsel, let alone effective assistance of counsel.
Wolfolk v. Rivera, 729 F.2d 1114, 1119-20 (7th Cir.
1984). It follows that ineffective assistance of counsel is
not a basis for altering or setting aside a judgment under
Rule 59. See Dupree v. Laster, 389 Fed.Appx. 532,
534 (7th Cir. 2010) (“[T]here is no Sixth-Amendment
right to effective assistance of counsel in a civil case, so
[plaintiff's] dissatisfaction with counsel's
performance does not warrant a new trial.”); see
also Stanciel v. Gramley, 267 F.3d 575, 580-81 (7th Cir.
only argument that Lewis makes that doesn't
concern the effectiveness of his counsel concerns his alleged
request on the second day of trial to represent himself and
conduct his own cross-examination of defendant Angela McLean.
According to Lewis, he told his counsel “to ask the
court if he could cross-examine McLean himself” on the
morning of January 8. Dkt. 155, at 18. Lewis says that later,
just as trial was about to start, his counsel told him that
“the judge would not allow it.” Id. at
19. Lewis says that “the court erred when it did not
hold a colloquy to find out what Lewis's issues were when
it refused to allow Lewis to represent himself and
cross-examine McLean.” Id. But I never
received any request from Lewis or his counsel indicating
that Lewis wished to conduct the cross-examination himself.
Nor does the transcript indicate that anyone ever made such a
request. If Lewis wished to proceed pro se on the second day
of trial, he should have brought that issue to my attention
at that time, not in a post-trial motion.
Lewis does not specifically make this argument, I have also
considered whether the jury verdict is against the weight of
the evidence. In considering this question, I must view the
evidence in the light most favorable to the prevailing
parties. Kapelanski v. Johnson, 390 F.3d 525, 530
(7th Cir. 2004). I conclude that the jury's verdict is
well-supported by the evidence. I will assume, for purposes
of this motion, that Lewis proved that had a serious medical
need, and that defendants knew of it. The critical question
is whether a reasonable jury could find that Cichanowicz and
McClean had not demonstrated deliberate indifference. Or, as
the jury instructions now phrase the issue, whether
Cichanowicz and McClean did not consciously fail to take
reasonable measures to provide treatment for Lewis's
serious medical need.
testified that he sought guidance from the Health Services
Unit, which McClean provided. McClean testified that she
wanted to render assistance to Lewis, but that security
concerns prevented her from entering Lewis's cell. Both
Cichanowicz and McClean testified that they had observed
Lewis move his extremities, so they knew that he was not
paralyzed. There was no indication that he had lost
consciousness or that he was bleeding, circumstances that, by
prison policy, would have prompted an immediate cell entry.
The jury could reasonably find that neither Cichanowicz and
McClean had consciously failed to take reasonable measures to
provide treatment for Lewis's serious medical need.
Lewis has not shown that the jury's verdict resulted in a
miscarriage of justice, his motion for a new trial is denied.
ORDERED that plaintiff James A. Lewis's motion to alter
or amend ...