The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Pending before the Court is Plaintiff Kenneth Ashford's motion for new trial. (Doc. No. 135.) Though Plaintiff never filed a brief in support of his motion*fn1 , Defendants responded with a brief in opposition. (Doc. No. 136.) Plaintiff has not replied to Defendants' brief, thus the motion is deemed ripe for disposition. For the reasons that follow, the motion will be denied.
On March 25, 2004, Plaintiff Kenneth Ashford, acting pro se, filed a complaint in this court alleging a violation of his rights under 42 U.S.C. § 1983. (Doc. No. 1.) Specifically, Plaintiff asserted that he was assaulted on March 28, 2002, when Defendant Officers Bruce Bartz, Scott Doellinger, Jacob Clevenger, and Rick Eisenhart arrested him for burglarizing the Red Rose Lounge. Plaintiff alleged that Defendant Bartz kicked him in the face and back at the time of his arrest for burglary, used his head as a "battering ram" to exit the Red Rose Lounge, and later punched him in the chest at the Hellam Township Police Department holding cell.
(Doc. No. 1 at 2; Doc. No. 119 at 1-2.) Plaintiff sustained "injuries [to his] face nose, teeth, mouth, back, and leg." (Doc. No. 1 at 1.) Plaintiff made no specific allegations of assault against the other officers present but sufficiently stated failure to intervene claims against them. (Id.)
After pretrial motions were denied, the Court appointed attorneys Justin Weber, Natalie Einsig, and Thomas Schmidt of Pepper Hamilton, LLP, to represent Plaintiff. (Doc. Nos. 89-91.) With the advice and consultation of his appointed attorneys, Plaintiff settled his claims with Spring Garden Township Officers Clevenger and Eisenhart prior to trial. (Doc. No. 134.) Plaintiff also voluntarily withdrew his claims against Defendant Doellinger shortly before trial. (Doc. No. 133.)
Trial began August 3, 2009. (Doc. No. 124.) On August 4, 2009, the jury returned a verdict in favor of Defendant Bartz, the only remaining defendant in the litigation. (Doc. No. 129.) Judgment was entered against Plaintiff and in favor of Defendant Bartz that same day. (Doc. No. 130.)
On September 9, 2009, Plaintiff's motion for new trial pursuant to Federal Rule of Civil Procedure 59 was received by the Clerk of Court. (Doc. No. 135.) Plaintiff filed the motion pro se. Although 37 days had passed from the date of the judgment, the motion was dated August 14, 2009, in two places. (Id. at 2-4.) Defendants responded to the motion on October 14, 2009. (Doc. No. 136.) No reply brief was filed.
Plaintiff asserts five grounds to support his motion for new trial, though his precise arguments are unclear. The Court interprets them as follows:1) the jury verdict is not supported by the great weight of the evidence; 2) the Court erred in allowing the claims against all Defendants except Defendant Bartz to be withdrawn; 3) the videographic evidence presented at trial proved Defendant Doellinger used excessive force; 4) the attendance of prison guards near Plaintiff and the admission of evidence related to other convictions resulted in an unfair trial and; 5) witness Renee Kutziller Snider's testimony is inadmissible because she was not the EMT who treated him on the day of the arrest. (Doc. No. 135 at 1-2.) Plaintiff's two-page motion presents no additional facts, argument, or explanation of these five claims for relief.
Before turning to the merits of these claims, the untimely docket date of the motion requires the Court to begin with a discussion of whether it has jurisdiction over the motion.
A. Timeliness and Jurisdiction
Federal Rule of Civil Procedure 59(b) provides that a motion for new trial "must be filed no later than 10 days after the entry of judgment." Fed. R. Civ. P. 59(b)*fn2 . "The ten day period is jurisdictional," thus the Court cannot extend the deadline, even for good cause, if it finds that Plaintiff failed to file within the ten-day period. Smith v. Evans, 853 F.2d 155, 157, 161 n.3 (3d Cir. 1988) ("We emphasize that the district courts are without authority to act on untimely 59(e) motions."). In fact, the Rules explicitly provide that "a court must not extend the time to act under Rule 59(b) . . . ." Fed. R. Civ. P. 6(b).
In this case, Plaintiff's motion was post-marked September 8, 2009, and was not received by the Court until September 9, 2009, significantly past the ten-day deadline. The September 9, 2009, docket date does not end the matter in this case, however, because a pro se prisoner's filing is deemed filed the day it was placed in the prison mailing system rather than the date it is received by the Court. Houston v. Lack, 487 U.S. 266 (1988) (holding that pro se prisoner notices of appeal are deemed filed at the time they are delivered to ...