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denying a 60(b) motion from the same plaintiff because the plaintiff did “not describe any attempts to obtain this public record evidence”
Summary of this case from Lurch v. ChaputOpinion
96 Civ. 213 (DLC)
June 3, 2002
William Hemric, Pro Se, New York, NY, for plaintiff.
Michael Tiliakos, City of New York Law Department, New York, NY, for defendant.
OPINION AND ORDER
Plaintiff William Hemric ("Hemric") moves for relief pursuant to Rule 60(b), Fed.R.Civ.P., from an Opinion of March 19, 2002 ("March 19 Opinion") in which summary judgment was granted to defendant the City of New York (the "City") on the sole remaining claim, a Monell claim, in Hemric's lawsuit. For the reasons that follow, the motion for Rule 60(b) relief is denied.
BACKGROUND
Hemric brought this Section 1983 action for damages he sustained when assaulted by a prison guard while Hemric was incarcerated on Rikers Island. In his complaint, filed on January 12, 1996, Hemric sued two corrections officers and the City for the assault and asserted that there was widespread tolerance of corrections officer abuse of prisoners that constituted a municipal policy or practice and that had led to an assault against him. Defendants filed a motion for partial summary judgment on November 1, 1999. Through an Opinion rendered on August 30, 2000 ("August 30 Opinion"), the Monell claim filed against the City was dismissed because Hemric had submitted no evidence in support of his allegation that there was a municipal practice to tolerate corrections officer abuse of prisoners. Hemrie v. City of New York, No. 96 Civ. 213 (DLC), 2000 WL 1234594 (S.D.N.Y. Aug. 31, 2000).
At the time he filed his complaint, Hemric was represented by counsel. While discovery was ongoing, Hemric's counsel withdrew on June 30, 1998. At that time, the case was placed on the suspense docket to permit the Pro Se Office of this District to assist Hemric in obtaining representation. The case was reassigned to this Court on March 10, 2000. Following the October 2000 trial of this action, this Court, working together with the Pro Se Office, attempted without success to secure representation for Hemric. In connection with these efforts to secure representation for Hemric, proceedings were delayed for several months in 2001.
In opposition to the dismissal of the Monell claim, Hemric argued that the Court should consider a newspaper account of a warden's testimony that brutality is ingrained at the prison and the many pages of testimony taken in other cases that were in Hemric's possession and that reflected a prison policy to ignore reports of inmate abuse. Hemric did not submit any of the documents he described in his Opposition.
The plaintiff's last name is properly spelled, Hemric.
Plaintiff proceeded to trial from October 16 to 18, 2000, and received a verdict in his favor against one corrections officer and an award of $10,000 in damages. Following trial, Hemric moved for a new trial limited to the question of damages and for reconsideration of this Court's award of summary judgment for the City on his Monell claim. In a decision dated February 13, 2001, and entered February 14, 2001. ("February 13 Opinion"), plaintiff's motion for a new trial on the issue of damages was denied, and plaintiff's motion for reinstatement of the Monell claim was granted based on evidence presented at trial that had not been presented by Hemric in opposition to the summary judgment motion. Hemric v. City of New York, No. 96 Civ. 213 (DLC), 2001 WL 118561 (S.D.N.Y. Feb. 13, 2001).
The City filed a timely motion for reconsideration of the February 13 Opinion, asserting that the evidence on which the Court relied in the February 13 Opinion as supporting Hemric's Monell claim was largely in Hemric's possession when he opposed the defendants' summary judgment motion and thus cannot constitute "newly discovered evidence" for purposes of Rule 60(b)(2), Fed.R.Civ.P. In an Opinion and Order dated March 19, 2002 ("March 19 Opinion"), the City's motion for reconsideration was granted. Accordingly, summary judgment was granted to the City on Hemric's Monell claim, and the Clerk of Court entered judgment for the plaintiff based upon the jury's verdict. Hemric now moves for relief from the judgment pursuant to Rule 60(b)(2), Fed.R.Civ.P., and for the reinstatement of the Monell claim based on newly discovered evidence.
DISCUSSION
Rule 60(b) sets forth the grounds on which a court can rescind or amend a final judgment or order. Rule 60(b)(2) provides relief when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation. Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993) (per curiam). "A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances." United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). The party seeking relief from judgment has a demanding standard to meet.
Rule 60(b) provides in relevant part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)
Rule 60(b), Fed.R.Civ.P.
The movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.Id. at 392 (citation omitted). Properly applied, "Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments," and it cannot be used as a substitute for appeal. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). A motion seeking relief pursuant to Rule 60(b) is addressed to the sound discretion of the district court. Id.
The "newly discovered evidence" advanced by Hemric in support of this motion consists of the minutes of two public meetings of the New York City Board of Correction, held on September 13 and December 14, 1994, approximately eight and five months, respectively, before the assault on Hemric. At the September meeting, then Commissioner of the Department of Correction, Anthony Schembri, explained that in an effort to combat violence in the jails, "[a] poster has been placed in every jail receiving room announcing that all inmates who assault staff will be arrested, that a report will be included in the inmate's pre-sentence investigation, and that a consecutive sentence will be requested and obtained." At the December meeting, Schembri reported that "because of the Department's message to inmates that they will be prosecuted if they assault staff, inmate violence on staff is down 8% from July 1994 to December 1994." Hemric appears to be asserting in connection with this "newly discovered evidence" that Assistant Deputy Warden Angelo Manzi ("Manzi") gave inaccurate testimony at Hemric's trial when he failed to describe these posters when asked at trial whether there was a Department policy regarding assaults on staff.
The testimony to which Hemric points is as follows:
Q: What is the Department of Corrections' policy regarding assault on staff?
A: The department doesn't have a policy regarding assault on staff. They have a policy regarding the legal authority for the proper use of force and the use of force.
Q: What I was referring to, is there a policy for dealing with an assault on staff, the aftermath of it?
A: There is investigative procedures.
Q: Is rearrest one of the available procedures?
A: In some instances, yes.
Q: In what type of instance would you use the rearrest procedure?
A: The serious injuries to staff is one of the criteria that we would utilize.
Q: What are the other criteria?
A: There are numerous. If it involves an inmate using a weapon against staff, regardless of the injuries, since he used a weapon, and also determined what type of felony it would be. In the course of an incident, if drugs was recovered, if a weapon was recovered during an incident. There are many — there are certain circumstances where injuries to staff is not the only criteria that we utilize.
There are several problems with Hemric's argument. The meeting minutes are not "newly discovered evidence." The meeting minutes were available at the time Hemric opposed the defendants' summary judgment motion and at trial, and Hemric has made no showing that the minutes could not have been obtained with due diligence. In general, documents in the public record are not considered newly discovered evidence. See, e.g., Ramos v. Matke Realty, Ltd., No. 98 Civ. 3582 (RPP), 1999 WL 61437, at *3 (S.D.N.Y. Feb. 4, 1999); Albany Port Dist. Comm'n v. Cibro Petroleum Prod., Inc. (In re Winimo Realty Corp.), No. 97 Civ. 9307 (JSR), 1998 WL 872500, at *4 (S.D.N.Y. Dec. 15, 1998); Bourne Co. v. Walt Disney Co., No. 91 Civ. 344 (LLS), 1994 WL 263482, at *1 (S.D.N.Y. June 10, 1994),aff'd, 68 F.3d 621 (2d Cir. 1995); United States v. All Right, Title Interest in Property Premises Known as 710 Main Street, Peekskill, N.Y., 753 F. Supp. 121, 127 (S.D.N.Y. 1990). While it may have been difficult for Hemric, as a pro se, incarcerated, indigent plaintiff, to procure the minutes, Hemric does not describe any attempt to obtain this public record evidence. While a court should make reasonable allowances for a pro se plaintiff, a pro se litigant is not excused from producing "highly convincing evidence in support of motions to vacate a final judgment." Leonard v. Lowe's Home Centers, Inc., No. 00 Civ. 9585 (RWS). 2002 WL 548745, at *3 (S.D.N.Y. Apr. 12, 2002) (citation omitted).
More importantly, however, the meeting minutes are not relevant to Hemric's Monell claim. Because the Department of Correction had concluded (albeit erroneously) that Hemric had assaulted Department staff, and yet did not arrest Hemric for the assault, Hemric asserts that the Department "departed from department policy" in his case. A failure to prosecute inmates for assaults on guards is not sufficiently probative of the City's failure to train and supervise its officers to prevent their assaults on inmates.
Finally, Hemric's principal argument regarding the newly discovered evidence appears to relate to the reliability of Manzi's trial testimony. The Monell claim was dismissed before trial and any newly discovered evidence must support that dismissed claim. Even if the newly discovered meeting minutes could add to the impeachment of Manzi's trial testimony, that testimony has not been a basis for a decision to dismiss the Monell claim, and any attack on the reliability of the Manzi testimony will not help to reinstate the claim. In sum, Hemric has not shown that the meeting minutes, whether alone or in combination with Manzi's trial testimony, constitute evidence of a Department policy of improperly conducted investigations, of prison assaults, of ignoring inmate abuse by officers, of unfounded discipline of inmates, or any other policy that resulted in a violation of Hemric's civil rights.
CONCLUSION
The plaintiff's motion for relief from the judgment and for the reinstatement of his Monell claim is denied.
SO ORDERED: