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Howard v. Connett

United States District Court, D. Nevada

October 17, 2017

REGINALD C. HOWARD, Plaintiff,
v.
BRIAN CONNETT, et al., Defendants.

          ORDER PLAINTIFF'S MOTION FOR ATTORNEY FEES (ECF NO. 200) DEFENDANTS' MOTION FOR NEW TRIAL (ECF NO. 221)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Defendants' Motion for New Trial (ECF No. 221) and Plaintiff's Motion for Attorney Fees (ECF No. 200). This case arises from various constitutional violations brought under 42 U.S.C. 1983, which occurred to the Plaintiff Reginal C. Howard, while incarcerated at the Southern Desert Correctional Center (“SDCC”). Specifically, Plaintiff's claims relate to First, Eighth, and Fourteenth Amendment violations at the hands of various Defendants, including numerous correctional officers, lieutenants, and the religious adviser. At trial, the Plaintiff advanced eight counts and prevailed on six.

         On November 6, 2015, the jury returned a verdict as follows (ECF No. 193):

1. Count 1
a. Count 1: 8th Amendment Excessive Force against Defendant Joseph Lewis: found in favor of Defendant Joseph Lewis.
b. Count 1: 8th Amendment Excessive Force against Defendant Jimmy Jones: found in favor of Defendant Jimmy Jones.
2. Count 2
a. Count 2: 14th Amendment Due Process against Defendant Ron Jaeger: the Court found in favor of Plaintiff Howard. The jury awarded $3, 000 in compensatory damages and $4, 000 in punitive damages.
3. Count 3
a. Count 3: 1st Amendment Free Exercise against Defendant Ron Jaeger: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $1000 in punitive damages.
b. Count 3: 1st Amendment Free Exercise against Defendant Vincent Raybourn: The Jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $1000 in punitive damages.
4. Count 4
a. Count 4: 8th Amendment Excessive Force against Defendant Rene Galvan: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $4000 in punitive damages.
5. Count 5
a. Count 5: 1st Amendment Free Exercise against Defendant Brian Connett: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $2, 200 in punitive damages.
b. Count 5: 1st Amendment Free Exercise against Defendant Julio Calderin: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $2, 200 in punitive damages.
c. Count 5: 14th Amendment Equal Protection against Defendant Brian Connett: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $2, 200 in punitive damages.
d. Count 5: 14th Amendment Equal Protection against Defendant Julio Calderin: The jury found in favor of Plaintiff Howard and awarded $1000 in compensatory damages and $2, 200 in punitive damages.

         Defendants move for a new trial on every claim and every issue. Defendant state the following as grounds for the motion:

1. Prejudicial misstatements during closing argument by opposing counsel;
2. Cumulative verdicts awarded for same harm under multiple legal theories;
3. Punitive damage awards against the clear weight of the evidence;
4. Error in jury instructions; and
5. Erroneous admission of prejudicial prior bad act evidence In the alternative, Defendants ask for remittitur.

         For the reasons stated below, the Court GRANTS in part and DENIES in part Defendants' Motion (ECF No. 221).

         The Court also addresses Plaintiff's Motion for Attorney Fees. ECF No. 200. For the reasons stated below, the Court GRANTS the Motion for Attorney Fees at the rate capped by the Prison Litigation Reform Act (“PLRA”).

         II. DEFENDANTS' MOTION FOR NEW TRIAL, ECF No. 200

         A. Legal Standard

         Pursuant to Fed.R.Civ.P. 59(a), a new trial may be granted in an action in which there has been a trial by jury “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” “The grant of a new trial is ‘confided almost entirely to the exercise of discretion on the part of the trial court.'” Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)).

         Because “Rule 59 does not specify the grounds on which a motion for a new trial may be granted . . . .[courts] are thus bound by those grounds that have been historically recognized.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Such historical grounds include 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[.]” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940); see also Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir. 2000). “[E]rroneous jury instructions, as well as the failure to give adequate instructions, are also bases for a new trial.” Murphy, 914 F.2d at 187.

         The trial court “is not limited to the grounds a party asserts to justify a new trial, but may sua sponte raise its own concerns about the . . . verdict. Ultimately, the district court can grant a new trial under Rule 59 on any ground necessary to prevent a miscarriage of justice.” Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014) (citations omitted).

         B. Remittitur

         “If the amount of damages awarded [by a jury] is excessive, it is the duty of the trial judge to require a remittitur or a new trial.” Linn v. United Plant Guard Workers, 383 U.S. 53, 65-66 (1966). “A remittitur must reflect the maximum amount sustainable by the proof.” Oracle Corp. v. SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014) (quotation omitted).

         “When the court, after viewing the evidence concerning damages in a light most favorable to the prevailing party, determines that the damages award is excessive, it has two alternatives. It may grant defendant's motion for a new trial or deny the motion conditional upon the prevailing party accepting a remittitur. The prevailing party is given the option of either submitting to a new trial or of accepting a reduced amount of damage which the court considers justified. If the prevailing party does not consent to the reduced amount, a new trial must be granted. If the prevailing party accepts the remittitur, judgment must be entered in the lesser amount.” Fenner v. Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir. 1983).

         C. Discussion

         a. Prejudicial Statements By Opposing Counsel

         First, Defendants argue that a new trial is warranted because the verdict was unfairly influenced by counsel's multiple improper statements made during closing argument. “The trial court has broad discretion in the control of closing arguments, and this court will not reverse a judgment because of statements made in the arguments of counsel unless they were so prejudicial that a failure to declare a mistrial was an abuse of discretion.” People of the Territory of Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir. 1988) (citation omitted). For misconduct in closing arguments to warrant reversal, it must “so permeate[ ] the trial as to the lead to the conclusion that the jury was necessarily influenced by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (citation omitted). Whether or not the comments were objected to, and whether or not opposing counsel moved for a mistrial, are relevant to the determination of prejudice. See Id. (“The trial court, which is in a far better position to gauge the prejudicial effect of improper comments . . . found it was not [so prejudicial as to merit a new trial] . . . . Most of counsel's comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument.”).

         1. “Golden Rule” Violation

         Defendants argue that Plaintiff's counsel violated the “Golden Rule” by asking the jurors to put themselves in Plaintiff's position when he stated “I doubt that any of you have been challenged the way that Mr. Howard has been challenged to protect himself.” (Tr. at 20, Nov. 4, 2015.)

         The “Golden Rule” to which Defendants refer is used primarily in the context of criminal trials, where prosecutors request a juror to think of themselves in the place of the victim. See Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002) as amended, 315 F.3d 1062 (9th Cir. 2002) (quoting Drayden v. White, 232 F.3d 704, 712-13 (9th Cir.2000)) (“In his closing argument, the prosecutor asked the jury to ‘think of yourself as Rosemary Janet Cobb' and described the crimes committed against her from her perspective. In doing so ‘[he] inappropriately obscured the fact that his role is to vindicate the public's interest in punishing crime, not to exact revenge on behalf of an individual victim.'”).

         Defendants objected to counsel's statement and the Court sustained the objection. However, the Defendants did not at that time nor at any time after seeking an instruction or move for a mistrial.

         Plaintiff responds by arguing that the statement was meant to contextualize the actions Plaintiff complained of. Plaintiff argues that Mr. Barrick was merely expressing his doubt that the jurors had ever been in Mr. Howard's position; he was not asking them to place themselves in it and sympathize with Plaintiff. He appears to have only been emphasizing to jurors that their own life experiences may not be the appropriate frame of reference for evaluating Mr. Howard's actions or credibility. Moreover, the lack of prejudicial impact is reflected by the fact that the jury did not enter judgment against Defendants Lewis and Jones despite Mr. Barrick's statements.

         The Court finds that counsel's statement did not clearly violate the Golden Rule. The Court does not find that the portion of the closing argument referenced sought to have the jurors consider a perspective or information that was improper. In fact, the argument here appears to be exactly the opposite to the Golden Rule. The argument appears to merely have pointed out to the jury that the prison setting is different than a real world setting in the context of the disputes at issue. This is not an empathy or sympathy argument, rather it is a factual argument about the nature of the circumstances in which the disputed acts occurred. In the context of the entire closing argument by Plaintiff, the Court understood this reference to be asking the jury to remember the prison setting and not rely just upon their common sense applied to a non-prison setting. Indeed, the Defendants themselves often referred, during questioning and closing arguments, to the nature of the prison setting to argue to the jury why the Defendants may have taken the actions they did.

         In addition, the Court finds that the jury's split verdict-granting one Eighth amendment claim and denying the other-further undermines Defendants' argument that the statement had a prejudicial effect. See United States v. Drummondo-Farias, 622 Fed.Appx. 616, 618 n.4 (9th Cir. 2015) (citations omitted) (“That the jury in fact rendered a split verdict shows that the jury followed the trial court's instructions.”) cert. denied, No. 15-7305, 2016 WL 207387 (U.S. Jan. 19, 2016); see also United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (“The best evidence of the ...


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