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SHAW v. RAPONE

February 3, 1984

James SHAW
v.
Thomas C. RAPONE, Leo Levandowski, Kenneth Matty, Joyce Mendham and Nicholas DiGregorio



The opinion of the court was delivered by: KELLY

 KELLY, District Judge.

 Presently before the court are: Defendants' Motion to Amend the Court's Findings of Fact and Conclusions of Law and Order of November 29, 1983, pursuant to the Federal Rules of Civil Procedure, Rule 52 or, in the alternative, Motion for a New Trial Pursuant to the Federal Rules of Civil Procedure, Rule 59; Plaintiff's Petition for Attorneys' Fees and Costs Pursuant to 42 U.S.C. § 1988; and Plaintiff's Motion to Amend and Make Additional Findings of Fact and Conclusions of Law Pursuant to the Federal Rules of Civil Procedure, Rule 52(b). These motions are addressed seriatim.

  I.

 Defendants' Motion to Amend the Court's Findings of Fact, Conclusions of Law, or Alternatively Motion for New Trial

 On November 17, 1983, a non-jury trial was held on plaintiff's civil rights claims against certain employees of the Delaware County Prison (DCP). On November 29, 1983, the Court entered judgment in favor of plaintiff and against defendant Leo Levandowski on plaintiff's claim that he was disciplined by DCP officials without due process of law. The Court found that plaintiff was confined to his cell for an alleged disciplinary infraction for a period of three to seven days. James Shaw v. Warden Thomas C. Rapone, et al. No. 82-0949, slip op. at 4 (E.D.Pa. November 29, 1983). Additionally, the Court found that plaintiff was confined without notice of hearing as required by regulations, such confinement being a violation of the due process clause. Id. at 9-10.

 During direct examination at trial, plaintiff testified that he was confined in disciplinary lock-up for one week. Transcript at 61-62. Ozzie Trader, a fellow inmate at DCP, corroborated plaintiff's testimony by stating that plaintiff was in lock-up for at least several days, maybe more. Id. at 85-86.

 During the direct examination of defendant Rapone, defendant was asked how long plaintiff had been confined in disciplinary lock-up. Defendant Rapone testified he did not remember. Defense counsel then attempted to read aloud to the witness his prior deposition testimony. Plaintiff's counsel objected at this point and the Court sustained the objection, holding that defense counsel could not lead his own witness through the use of a witness' prior deposition testimony. Defense counsel made no further reference to the deposition transcript and no offer of proof was made by defense counsel as to the witness' deposition testimony. (Transcript 137-138)

 Defendants contend that the Court erred in excluding the deposition testimony of defendant Rapone. Defendants submit that anything may be used to refresh the recollection of a witness and that it was proper to use the deposition testimony of defendant Rapone for this purpose. Defendants request that the Court amend its judgment or, in the alternative, grant leave to take additional testimony from defendant Rapone.

 District courts have broad discretion in regard to the admissibility of evidence. Parliament Insurance Co. v. Hanson, 676 F.2d 1069, 1073 (5th Cir.1982); Weinstein's Evidence, § 612[01] (1st Ed., 1980). The seminal case in the Third Circuit with respect to refreshment of recollection is United States v. Riccardi, 174 F.2d 883 (3d Cir.1949); cert. denied, 337 U.S. 941, 69 S. Ct. 1519, 93 L. Ed. 1746 (1949). In Riccardi, the Third Circuit devolved to the district judge the burden to ascertain whether the witness was testifying upon or from a record or from his own recollection. United States v. Riccardi, 174 F.2d at 889.

 "The trial judge must determine whether the device of refreshing recollection is merely a subterfuge to improperly suggest to the witness the testimony expected of him." United States v. Riccardi, 174 F.2d at 889; See also, Parliament Insurance Co. v. Hanson, 676 F.2d 1069, 1073 (3d Cir. 1982). I am convinced that defense counsel's use of defendant Rapone's deposition testimony would have been such a "subterfuge to improperly suggest" the desired testimony.

 Defendants rely upon United States v. Booz, 451 F.2d 719 (3d Cir.1971) such reliance is misplaced. In Booz the witness' memory had been refreshed before trial and counsel admitted to evidence the F.B.I. report. Here defendants' counsel attempted to read the deposition aloud in the presence of the fact-finder. In Booz the Third Circuit stated: "The rule in cases of refreshed recollection is that the writing may not be admitted into evidence or its contents even seen by the jury." United States v. Booz, 451 F.2d at 725.

 Plaintiff's Petition for Attorneys' Fees ...


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