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Andre Jacobs v. Pennsylvania Department of Correctons

June 7, 2011

ANDRE JACOBS, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTONS, JEFFERY A. BEARD, ) ET AL., DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff inmate Andre Jacobs ("Jacobs" or "plaintiff") brought this prisoner civil rights action, pro se, pursuant to 42 U.S.C. § 1983 against the following defendants: Pennsylvania Department of Corrections ("DOC"); the DOC secretary, Jeffery Beard ("Beard"); and DOC officials and employees assigned to the State Correctional Institution at Pittsburgh ("SCI-Pittsburgh"), including Thomas McConnell ("McConnell"), Carol Scire ("Scire"), Gregory Giddens ("Giddens"), Allen Lynch ("Lynch"), Robert Bittner ("Bittner"), Captain J. Simpson ("Simpson"), Kristin P. Ressing ("Ressing"), Michael Ferson ("Ferson"), Shelly Mankey ("Mankey"), William Stickman ("Stickman"), Frank Cherico ("Cherico"), and David McCoy ("McCoy"). Jacobs asserted at trial: a) federal claims under § 1983 for violations of his constitutional right to access to the courts, retaliation and conspiracy, and b) a Pennsylvania state claim for defamation.

Commencing on November 3, 2008, plaintiff's claims were tried before a jury. (See Trial Tr. 1, Nov. 3, 2008 (ECF No. 165)). On November 24, 2008, the jury returned a verdict in favor of defendants Lynch, Bittner, Simpson, Ressing, Ferson, Mankey, Stickman, Cherico, McCoy and Beard on all claims. (See Verdict Slip 2-5, dated Nov. 24, 2008 (ECF No. 193)). The jury found against defendants Giddens and McConnell on plaintiff's access to the courts claim (Id. at 1, 2); against defendants Giddens, Scire and McConnell on plaintiff's conspiracy claim (Id. at 3); against defendants Giddens, Scire and McConnell on plaintiff's retaliation claim (Id. at 4); and against defendant Giddens on plaintiff's defamation claim. (Id. at 5.) The jury awarded compensatory damages in the aggregate amount of $120,000*fn1 and punitive and/or special damages in the aggregate amount of $65,000,*fn2 for a total award of $185,000. (Id. at 6-8.)

Prior to and following the verdict, defendants moved under Federal Rule of Civil Procedure 50(a) and (b) for judgment as a matter of law on several of plaintiff's claims. (See Trial Tr. 72-75, Nov. 6, 2008 (ECF No. 168); Trial Tr. 168-169, Nov. 17, 2008 (ECF No. 170); Trial Tr. 11-15, Nov. 24, 2008 (ECF No. 172)). On December 3, 2008, defendants filed a Rule 50 motion for judgment as a matter of law (ECF No. 136) and a brief in support (ECF No. 137). On July 31, 2009, defendants filed a supplemental brief in support of their Rule 50 motion (ECF No. 179). Plaintiff submitted written responses to defendants' Rule 50 motion. (See ECF Nos. 144-45, 185.)

On September 11, 2009, the court held oral argument on the Rule 50 motion. On September 21, 2009, the court issued a memorandum opinion (the "Memorandum Opinion") granting defendants' motion with respect to the conspiracy claims against Scire and McConnell, and with respect to the access to courts claim against Scire, McConnell and Giddens. See Jacobs v. Pennsylvania Dept. of Corrs., Civ. A. No. 04-1366, 2009 WL 3055324, at **22, 27-28 (W.D. Pa. Sept. 21, 2009). (ECF No. 189.) The Rule 50 motion was denied in all other aspects. By reason of that ruling, the aggregate amount of compensatory damages awarded was reduced to $75,000 and the aggregate amount of punitive or special damages awarded was reduced to $40,000.

On October 1, 2009 defendants McConnell, Scire and Giddens filed a second renewed motion for judgment as a matter of law, pursuant to Rule 50, or for a new trial or remittitur, pursuant to Rule 59 (the "Motion") (ECF No. 196), and a brief in support (ECF No. 197). Defendants seek the following relief: 1) judgment as a matter of law in favor of Giddens on plaintiff's state claim for defamation and on his § 1983 federal claim for conspiracy; and 2) to strike or for a remittitur of amounts awarded by the jury for: a) compensatory damages for property, harm to reputation, mental anguish, and humiliation,*fn3 and for mental harm; *fn4 and b) punitive damages or special damages, as set forth more specifically below. On June 9, 2010, Jacobs filed a response to the Motion (ECF No. 223) and a brief in support (ECF No. 224).

II. Motion for Judgment as a Matter of Law or New Trial and For Remittitur

A. Standard of Review

1. Motion for Judgment as a Matter of Law

Federal Rule of Civil Procedure 50 provides in relevant part: Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling (a) Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged--the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. . . .FED. R. CIV. P. 50.

As noted above, the court deferred ruling on defendants' Rule 50(a) motion and ruled upon defendants' Rule 50(b) motion in its Memorandum Opinion dated September 21, 2009. Rule 50 does not provide for a second renewed motion, once defendants' Rule 50(b) motion is decided by the court. Therefore, as discussed below under the relevant issues, the court will treat defendants' second renewed Rule 50 motion for judgment as a matter of law on plaintiff's state law claims for defamation and § 1983 claims for conspiracy as a motion for reconsideration*fn5 of the court's Memorandum Opinion.

2. Motion for New Trial

Federal Rule of Civil Procedure 59(a) provides, in relevant part:

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues -- and to any party -- as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; . . . .FED. R. CIV. P. 59(a)(1).

Rule 59(a) does not set forth specific grounds on which a court may grant a new trial. "The decision to grant or deny a new trial is confided almost entirely to the discretion of the district court." Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)); see Coney v. NPR, 312 F. App'x 469, 471 (3d Cir. 2009). The scope of a district court's discretion in evaluating a motion for a new trial depends upon whether the motion is based upon a prejudicial error of law or a verdict alleged to be against the weight of the evidence. See Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). When the motion involves a matter within the sound discretion of the trial court -- such as the court's evidentiary rulings, points of charge to the jury, or a prejudicial statement made by counsel -- the district court has wide latitude in ruling on the motion. Foster v. Nat'l Fuel Gas Co., 316 F.3d 424, 429-30 (3d Cir. 2003).

3. Motion for Remittitur

Federal Rule of Civil Procedure 59 provides, in relevant part:

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. FED. R. CIV. P. 59(e).*fn6

Under Rule 59, a party may move to alter or amend a judgment "'to correct clear error [of law] or prevent manifest injustice."' Pediatrix Screening, Inc. v. TeleChem Int'l, Inc., 602 F.3d 541, 546 (3d Cir. 2010) (quoting N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (alteration in original)). A motion to alter or amend judgment is subject to the "sound discretion of the district court." Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 272 (3d Cir. 2001).

B. Discussion

In the Motion defendants request the court to reconsider in part the Memorandum Opinion, which dealt with defendants' previous Rule 50 motions for judgment as a matter of law. See Jacobs, 2009 WL 3055324. In the Memorandum Opinion the court determined, among other things: 1) plaintiff adduced evidence at trial sufficient to support the jury's verdict related to plaintiff's state claim of defamation and his § 1983 federal claim of conspiracy against Giddens; and 2) plaintiff did not adduce evidence sufficient to support the jury's verdict related to plaintiff's § 1983 federal claims of conspiracy against McConnell and Scire. Id. at **8, 12, 13.

Defendants now: 1) pursuant to Rule 50, a) renew their motion for judgment as a matter of law on plaintiff's state law defamation claim against Giddens; and b) request the court to enter judgment as a matter of law in favor of Giddens and against plaintiff on the § 1983 claim of conspiracy based upon the court's determination in the Memorandum Opinion that there was not sufficient evidence of record to hold Scire or McConnell liable for conspiracy*fn7; 2) pursuant to Rule 59(e), move to strike the verdict or for remittitur a) to the extent the jury awarded compensatory damages for: i) plaintiff's property with respect to his § 1983 claims of retaliation against defendants McConnell and Giddens, and conspiracy against Giddens, in the aggregate amount of $25,000; ii) mental harm with respect to plaintiff's § 1983 retaliation claims against McConnell, Scire and Giddens and § 1983 conspiracy claim against Giddens, in the aggregate amount of $30,000; and iii) harm to plaintiff's reputation in the amount of $10,000 and for mental anguish and humiliation in the amount of $10,000 with respect to his state law claim for defamation against Giddens; and b) to the extent the punitive damage awards are excessive under the circumstances. The court will address each request.

1. Rule 50 Issue

a. State Law Defamation Claim against Giddens -- judgment as a matter of law*fn8

Defendants argue that Giddens is entitled to judgment on plaintiff's state law defamation claim as a matter of law. In the alternative, defendants argue that Giddens is entitled to judgment on plaintiff's defamation claim because the verdict was against the weight of the evidence. Defendants maintain that Giddens is entitled to sovereign immunity because the evidence established that he wrote the purportedly defamatory statement while he was "employed as the LTSU Lieutenant on the 2-10 shift at SCI-Pittsburgh." (Defs.' Br. in Supp. Mot. 5 (ECF No. 197)). In support, defendants rely upon a three-part test set forth in Ismael v. Ali, No. Civ. A. 99-1932, 2007 WL 336286 (W.D. Pa. Jan. 31, 2007), to determine whether an employee is acting within the scope of his employment at the relevant time:

An employee is acting within the scope of his employment if the conduct: (1) is the kind the employee is employed to perform; (2) occurs substantially within the authorized time and space limits; and (3) is actuated, at least in part, by a purpose to serve the master. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (citing Restatement (Second) of Agency § 228 (1958)). Ismael, 2007 WL 336286, at *2.

Defendants argue that, based upon the analysis set forth in Ismael, Giddens was acting within the scope of his employment when he wrote the allegedly defamatory statement.*fn9

Defendants assert that Giddens indicated that it was part of his duties to respond to inmate grievances and that he responded to plaintiff's grievance within the time and space limits of his job. Defendants conclude that Giddens' response to plaintiff's grievance was actuated by a purpose to serve the master. Defendants rely upon, among other decisions, Yakowicz v. McDermott, 548 A.2d 1330 (Pa. Commw. Ct. 1988) (finding that an allegedly defamatory written performance evaluation by the Commonwealth agency's deputy chief counsel was within scope of his duties and therefore he was entitled to the protections of sovereign immunity), and Brumfield v. Sanders, 232 F.3d 376 (3d Cir. 2000).

Defendants contend that the court - in its Memorandum Opinion -- mischaracterized plaintiff's defamation claim as "'based upon statements made by Giddens in connection with a misconduct report issued against [Plaintiff].'" (Defs.' Br. in Supp. Mot. 7 (ECF No. 197) (quoting Jacobs, 2009 WL 3055324, at *4 (emphasis added)). Defendants note that the defamatory statement was contained in a response to a grievance plaintiff submitted with respect to the confiscation of his legal papers from another inmate -- as opposed to a misconduct report which could have resulted in a discipline against Jacobs. Defendan ts argue that this distinction undermines the court's conclusion that [f]rom this evidence, the jury could have found that Giddens' actions were not 'clearly incidental' to the business of the DOC or to his duties as a corrections officer, since Giddens was not acting in the interests of his employer, but rather was working in his own interest to discredit Jacobs and cover up Jacobs' grievances against him.

Id. (quoting Jacobs, 2009 WL 3055324, at *8). Defendants argue that the instant case is not similar to the decision in Shuman Estate v. Weber, 419 A.2d 169 (Pa. Super. Ct. 1980), relied upon by the court in its Memorandum Opinion, where the Pennsylvania Superior Court determined that an employee pursuing a personal errand was not acting within the scope of his employment. Instead, defendants direct the court's attention to decisions they believe are more closely related to the instant matter, i.e., the decisions in Yakowicz (holding that allegedly defamatory statements in a written performance evaluation by a Commonwealth agency's deputy chief counsel were within scope of his duties) and Brumfield (holding that statements, including false statements, of federal prison employees given in the course of an official governmental investigation are insulated against a state tort claim of defamation).

Plaintiff responds that defendants presented the same argument that Giddens was acting within the scope of his employment when he defamed plaintiff's character at least two times before and the court rejected that argument both times. Plaintiff argues that the distinction between whether the court referred to the DOC document containing the defamatory comments as a misconduct report or a grievance is of no moment. Plaintiff contends that it is what Giddens wrote in the document that gives rise to his liability for defamation against Jacobs and whether he was acting within the scope of his employment when he did so.

Defendants essentially reargue the same issues decided by the court in its Memorandum Opinion related to this matter. The court concluded that plaintiff presented sufficient evidence as a matter of law with respect to his defamation claim against Giddens. With respect to plaintiff's defamation claim, this court stated:

Jacobs brought a state law defamation [claim] against defendant Giddens, alleging that Giddens defamed him by making false statements that Jacobs fabricated the grievance in which he claimed that his legal documents were improperly confiscated. At trial, defendant Giddens raised the affirmative defense of sovereign immunity. The jury found for plaintiff on the defamation claim. (Trial Tr. Nov. 19 & 24, 2008 at 6.)

The jury returned a verdict in favor of Jacobs and against Giddens with respect to Jacobs' defamation claim based upon statements made by Giddens in connection with a misconduct report issued against Jacobs. Prior to submitting the claim to the jury, defendants argued that the defamation claim should be dismissed because Giddens was acting within the scope of his employment when he issued the misconduct report and was covered by sovereign immunity. This court determined that there were genuine issues of material fact with respect to whether Giddens was acting within the scope of his employment when he made the allegedly defamatory statements and submitted the issue to the jury. Giddens argues that the jury had insufficient evidence to conclude that he was not acting within the scope of his employment at the time of the defamatory statements.

Jacobs, 2009 WL 3055324, at *4 (emphasis added).

In the Memorandum Opinion the court referenced both the grievance submitted by plaintiff -- and to which Giddens responded - and a misconduct report issued against Jacobs by Giddens. Upon review of the record, the court finds that Giddens' defamatory statement about Jacobs was made in Giddens' response to Jacobs' grievance involving Giddens *fn10 -- not in a misconduct report. In fact, no misconduct report was filed against Jacobs with respect to the matters referred to in the defamation statement. Defendants' contention, however, that the court's ruling on the issue is undermined by such distinction is not persuasive in the specific context of this case; rather, the mistake amounts to no more than harmless error. United States v. Riley, 621 F.3d 312, 323-24 (3d Cir. 2010) (finding that the test for harmless error is whether it is highly probable that the error did not contribute to the judgment). When making a harmless error determination, the Court of Appeals for the Third Circuit, in Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007), instructed:"the crucial inquiry is the impact of the error on the minds of the jurors in the total setting." Hassine [v. Zimmerman], 160 F.3d [941] at 955 [(3d Cir. 1998)] (citations and internal quotation marks omitted). "While the nature of the evidence against [Ditch] is important, we must also examine the phases of the trial affected by the error, and determine whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error." Id. "In doing so, we must of necessity weigh the impact of evidence on the jury and cannot help but make a judgment as to how the jury would reasonably perceive [Ditch's] version of the events with and without the [denial of counsel] violation." Id.Ditch, 479 F.3d at 256.

As noted, no misconduct was issued against Jacobs for the grievance. A misconduct was referenced in Giddens' response to the grievance. During the trial, plaintiff requested the court's permission to ask Stickman, the deputy secretary for the western region of the DOC at the relevant time, whether he was familiar with the misconduct that was referenced in the grievance at issue. The following colloquy took place:

JACOBS: Just briefly, Your Honor. Throughout the course of this litigation, as well as this grievance process, a misconduct number was referenced in these grievances, as well as in Defendant Stickman's response to my admissions. I would like permission to ask Mr. Stickman questions concerning this misconduct and whether or not it corresponds with this particular grievance.

COUNSEL FOR

DEFENDANTS: I'm not sure I understand what he's asking.

COURT: He's saying there's a misconduct that's referenced in the grievance. He wants to ask him if he's familiar with the misconduct.

JACOBS: In this, in these admissions he stated that the grievance No. 63417 corresponds with the misconduct that was issued to Mr. Lyons on 8/14/2003. This was all part of the conspiracy to cover up this incident.

I got evidence that this misconduct does not correspond with the grievance. It has nothing to do with the grievance. So, this misconduct was entered all, into this incident in furtherance of this conspiracy to conceal this incident.

COUNSEL FOR DEFENDANTS: He can argue that, but I don't know - - I mean, the request for admissions doesn't say there was a conspiracy, and that we - -THE COURT: Well, the admission was denied; is that correct? . . .

JACOBS: No. The admission, no. The admission states that, that they do correspond. He, that Mr. Stickman said that this misconduct relates to that grievance. . . .

I want to introduce this evidence to show it does not.

COUNSEL FOR

DEFENDANTS: Can I see the admission again? The question is grievance

No. 63417 does not correspond with the misconduct report 580895 issued to inmate Eric Lyons. This statement is denied as stated. It's the response.

JACOBS: So, he's denying that the misconduct does not correspond with the grievance. . . . It either does or it doesn't.

COUNSEL FOR

DEFENDANTS: Well, for one thing, I don't believe that the grievance -- the misconduct report number is, is not the misconduct report number that was issued to inmate Eric Lyons. So, that may have been the basis for the denial.

JACOBS: That's the number that's on the form. That's the one that they reference.

COUNSEL FOR DEFENDANTS: Do we have the misconduct that was issued to Eric Lyons? JACOBS: Here it is, right here. . . .

COUNSEL FOR DEFENDANTS: I see my confusion. This is not the misconduct we've been talking about throughout the whole trial. It's an entirely new misconduct.

JACOBS: It's nothing new about it. It's in the grievance response. COUNSEL FOR DEFENDANTS: This misconduct doesn't deal with either the 151 or the two pages.

JACOBS: That's my point. That's my point. This misconduct was used in part of the grievance process as part of the conspiracy to cover up the actual incident that took place. They try to make -- they never made reference to the 151,the 151 pages that was taken. They didn't reference that misconduct in there. They referenced some other misconduct.

Trial Tr. 122-26 , Nov. 17, 2008 (ECF No. 170).

This mistake in the Memorandum Opinion -- referring to a misconduct rather than a grievance -- is harmless because Giddens' response to plaintiff's grievance was not part of his duties. The crux of the issue is whether evidence was adduced to show that Giddens' response was not within the scope of his employment. Plaintiff offered evidence to show that Giddens' response to his grievance involving Giddens was against an express policy of the DOC. (Trial Tr. 117, Nov. 17, 2008 (ECF No. 170); Pl.'s Ex. 36, DOC Policy Statement VI.B.1.e. ("If the Facility Grievance Coordinator determines that the issue being grieved is in accordance with DC-ADM 804, the Facility Grievance Coordinator [shall] designate a staff member to serve as the Grievance Officer for that issue. The Facility Coordinator shall not designate a staff member to serve as a Grievance Officer who was identified by the inmate as being involved in the issue.) (underline emphasis added).

In plaintiff's cross-examination of Stickman, the following testimony took place:

JACOBS: Is it appropriate for the person that is being complained against to be the investigating officer?

STICKMAN: The majority of the time that's not how it was done. In rare occasions, or on some - -

JACOBS: Your Honor, I'm just asking about the policy, statement of policy.

Is it appropriate under the DOC?

STICKMAN: At times.

JACOBS: It is appropriate? STICKMAN: At times.

JACOBS: For the person that's being complained against to investigate the complaint against them?

STICKMAN: Not always, but there were instances where it was done. JACOBS: Is that appropriate under the policy?

STICKMAN: I believe, I believe the policy covers it, and it can happen, yes.

JACOBS: Do you recognize that policy. It's the DC Administrative

804. And this policy governs the procedures for processing inmate grievances; correct?

STICKMAN: Yes.

JACOBS: Are you familiar with ...


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