Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General MICHAEL BRODSKY Assistant Attorney General State Bar No. 019406 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendant James UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ANDRE ALMOND DENNISON, Plaintiff, v. CONRAD LUNA, et al., Defendants.

Case No: CIV 03-2373 PHX-SRB (JRI)

DEFENDANT JAMES' RESPONSE TO PLAINTIFF'S MOTION FOR NEW TRIAL [Doc. # 258]

Defendant James, through undersigned, responds in opposition to Plaintiff's Motion for New Trial. This Response is supported by the following Memorandum of Points and Authorities: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This matter proceeded to a trial before a jury on June 26-29, 2007. Plaintiff Dennison, a prisoner in the Arizona Department of Corrections, alleged that on May 1, 2003, while Dennison was leaving a reclassification hearing at the Rynning unit, Defendant, Correctional Officer III Vince James, violated Dennison's First Amendment rights by shoving and macing him in retaliation for his having previously filed a lawsuit

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against Officer Jennifer Thelen. Dennison maintained that James and other officers filed false reports to cover up the truth. Officer James denied inmate Dennison's allegations that he retaliated against him for any reason. Officer James testified that he used force against Dennison when Dennison assaulted him after refusing to follow James' direct order. As a result of Dennison's assault, Officer James and the responding incident management team used the amount of force reasonably necessary to enforce the inmate's compliance with prison rules and secure the safe and orderly operation of the prison. Officer James further testified that he did not know Officer Jennifer Thelen at the time of this incident and had no knowledge that inmate Dennison had filed a lawsuit against her. Following deliberations, the jury returned a verdict against Plaintiff and for Defendant James. II. LEGAL ARGUMENT Federal Rule of Civil Procedure 59 provides a mechanism for the Court to order a new trial for a variety of bases, including that the verdict was against the weight of the evidence; the verdict is excessive, newly discovered evidence, or improper conduct by counsel or the Court to include instances where erroneous jury instructions likely misled or confused the jury. Granting a new trial is left to the sound discretion of the Court. See Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 433 (1966); Allied Chem. Corp. v. Daifon, Inc., 449 U.S. 33 (1980) (noting that the authority to grant a new trial "is confided almost entirely to the exercise of discretion on the part of the trial court"). A. Jury Questions.

Plaintiff's motion for a new trial centers around two questions submitted to the Court by the jury during its deliberations. In the first question the jury asked if "in order to prove retaliation does Plaintiff have to prove all three: false reports, malicious prosecution, and the assault?" and "if we do not think all 3 were proven by evidence, does

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that indicate no retaliation was proven?" In hindsight, Dennison now presumes that such question clearly indicates "that the jury believe(d) that the Defendant retaliated against the Plaintiff." [Dkt. 258, p.5] Nevertheless, he indirectly acknowledges the Court properly instructed the jury that if Defendant James did any of the three in response to a protected activity (filing lawsuit against Officer Thelen), then Defendant James retaliated against Plaintiff. In its second question, which is the cause of concern for Dennison, the jury asked "does the Plaintiff have to prove that James had knowledge of the lawsuit against Thelen prior to 5/1/03?" The lawsuit was, of course, the protected activity for which Dennison claimed that he was retaliated against by James; and James' knowledge of the lawsuit at the time in question was an essential element of Dennison's claim, for which Dennison bore the burden of proof. Accordingly, the Court properly responded to the question by instructing the jury that Plaintiff had to prove that Defendant James had knowledge of the lawsuit against Thelen prior to May 1, 2003. Plaintiff Dennison now argues that the Court erred in not giving what he describes as a "reasonable" or "necessary" inference instruction. In support, he asserts that had the Court given his "inference" instruction the jury could have inferred that Defendant James had knowledge of the lawsuit against Thelen prior to 5/1/03. Dennison further states: [t]he jury does not have to find that it is a `necessary inference' in order to accept it as fact, only a reasonable inference. Even though there may be many possible inferences made by the state of facts, Defendant James knowing of the Thelen lawsuit only has to be one of the possibilities in order for the jury to accept it as fact, not the only possibility. [Dkt. 258, p.7] Dennison apparently seeks a "possibility" standard of proof rather a preponderance of evidence. What Dennison overlooks is that the jury had already been instructed prior to deliberation that it could find one fact from proof of another. The Court's evidence

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instruction provided, in part, that "circumstantial evidence is proof of one or more facts from which you could find another fact. . . . It is for you to decide how much weight to give to any evidence" [Dkt. 250, p.4] Having been properly instructed about evidence and on the burden of proof, the jury found for defendant James; and no fundamental error was committed. B. Waiver.

Dennison has waived has waived his right to a new trial by assenting to the Court's remedy until after the verdict was returned. Rule 46 of the Federal Rules of Civil

Procedure requires any objection, or any proposal for action by the court, to be made "at the time the ruling or order of the court is made or sought."1 "(I)n a civil action, `[a] principle that strikes very deep is that a new trial will not be granted on grounds not called to the court's attention during the trial unless the error was so fundamental that gross injustice would result.'" United States v. Walton, 909 F.2d 915, 924 (6th Cir.1990) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2805, at 39 (1973)). See also Nisshow-Iwai Co. v. Occidental Crude Sales, Inc., 848 F.2d 613, 618 (5th Cir.1988)(reversing district court's grant of a new trial because issue was not raised during the trial). Here no objection was raised by Dennison to the Court's action in response to the jury's questions; and, certainly, no fundamental error occurred. CONCLUSION Simply stated, the jury found that Dennison failed to prove by a preponderance of the evidence one or more essential elements of his claim, for which he had the burden of proof. The jury was properly instructed regarding its consideration of evidence and on burden of proof. Furthermore, the Court did not commit error in its response to jury

There is an exception if the party has no opportunity to object when the decision is made. Dennison does not suggest that he had no opportunity to object to the Court's ruling, only that he was unaware that "`inference' applied to his case." [Dkt. 258, p.7]
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questions. Therefore, Defendant requests the Court deny Plaintiff's motion for a new trial. RESPECTFULLY SUBMITTED on this 20th day of August, 2007. TERRY GODDARD Attorney General s/Michael Brodsky MICHAEL BRODSKY Assistant Attorney General Attorneys for Defendant James Original e-filed this 20th day of August, 2007, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Andre Almond Dennison, #143931 ASPC - Lewis - Morey Unit P.O. Box 3300 Buckeye, AZ 85326 s/Geneva E. Johnson-Joksch Legal Secretary to: Michael Brodsky IDS04-0294/RSK:G04-20632
42272/legal files

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