United States District Court, E.D. Pennsylvania
of his fifty-four prisoner pro se cases filed
without paying fees, serial litigant Charles Talbert sued
Philadelphia Department of Prisons Commissioner Blanche
Carney and Wardens Gerald May and Terrance Clark alleging
they placed him in administrative segregation from November
2017 until February 2018 in retaliation for his earlier
lawsuits against them.He alleged they placed him in segregation
for an indefinite period without notice. We addressed
dozens of pre-trial motions including limiting evidence of
his criminal history except as to the correctional
officers' basis for segregation. He allowed volunteer
experienced counsel to withdraw representation before trial.
We entered detailed findings on summary judgment motions
finding the correctional officers failed to demonstrate
undisputed facts explaining the administrative segregation.
Given the disputed facts, we proceeded to a jury trial on Mr.
Talbert's procedural due process and First Amendment
retaliation claims. The Commissioner and Wardens credibly
testified they did not know of the lawsuits against them.
They admitted documents showing weekly reviews of Mr.
Talbert's segregated status. Mr. Talbert cross-examined
them. The jury returned a verdict in favor of Commissioner
Carney and Wardens May and Clark. Disappointed in the verdict
and challenging the witnesses' credibility, Mr. Talbert
now moves to set aside the verdict or for a new trial. We
deny his motions for post-trial relief.
Talbert now moves for a new trial arguing (1) Commissioner
Carney and Wardens May and Clark committed fraud and perjury
through false testimony; (2) the jury's verdict ran
contrary to the weight of the evidence; (3) we improperly
admitted evidence of Mr. Talbert's earlier criminal
record, prison infractions, and misconduct generally; (4) he
could not depose Commissioner Carney or Warden May concerning
the request for transfer and authorization forms because they
violated our discovery order and did not timely turn over
documents; and, (5) he would have deposed parties and
obtained witnesses if we appointed him counsel. Mr. Talbert also
moves under Rule 50(b) for judgment as a matter of law
arguing (1) Commissioner Carney and Wardens May and Clark
committed fraud and perjury; (2) Commissioner Carney and
Wardens May and Clark failed to produce discovery under our
scheduling order; (3) the record reflects Mr. Talbert's
transfer must have been retaliation for previous lawsuits he
filed against corrections' staff; and, (4) the
Philadelphia Department of Prisons transferred him from
general population at Curran-Fromhold Correctional Facility
to administrative segregation at the Detention Center without
motions lack merit and we deny his requested relief.
We deny Mr. Talbert's motion for a new
Rule 59(a)(1)(A), we "may, on motion, grant a new trial
on all or some of the issues -and to any party ... after a
jury trial, for any reason for which a new trial has ... been
granted in an action in federal court." Rule 59 does not
provide specific grounds to grant a new trial, leaving the
decision to our discretion. We may order a new trial where
there is "substantial error in the admission or
exclusion of evidence; error in the court's instructions
to the jury' where the jury's verdict [is] inadequate
or excessive; or where the verdict [is] against the weight of
the evidence." Our Court of Appeals cautions we should
order a new trial "only when 'the great weight of
the evidence cuts against the verdict and ...  a
miscarriage of justice would result if the verdict were to
Rule 60(b), we may grant relief "only where
extraordinary justifying circumstances are
present." Rule 60(b)(3) allows us to relieve Mr.
Talbert from the final judgment for "[f]raud (whether
previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party." But he
"bears a heavy burden" to establish Commissioner
Carney and Wardens May and Clark "engaged in fraud or
other misconduct, and . . . this conduct prevented [Mr.
Talbert] from fully and fairly presenting his
case." "We view Rule 60(b) motions as
'extraordinary relief which should be granted only when
extraordinary justifying circumstances are
present.'" "Evidence to support a new trial
under Rule 60(b)(3) must be clear and
Talbert moves for a new trial arguing (1) Commissioner Carney
and Wardens May and Clark committed fraud and perjury through
false testimony; (2) the jury's verdict ran contrary to
the weight of the evidence; (3) we improperly admitted
evidence of Mr. Talbert's earlier criminal record, prison
infractions, and misconduct generally; (4) he could not
depose Commissioner Carney or Warden May concerning the
request for transfer and authorization forms at the heart of
his claim; and, (5) he would have deposed parties and
obtained witnesses if we appointed him counsel. We decline to
order a new trial.
Carney and Wardens May and Clark did not commit
fraud or perjury.
Talbert alleges Commissioner Carney and Wardens May and Clark
committed fraud by perjuring themselves. He argues they lied
about their knowledge of four earlier lawsuits Mr. Talbert
filed against them.
witness commits perjury if he 'gives false testimony
concerning a material matter with the willful intent to
provide false testimony, rather than as a result of
confusion, mistake, or faulty
memory.'" Each of the witnesses testified they did
not recall receiving copies of the earlier civil actions Mr.
Talbert filed against them. Each of the witnesses testified
they were unaware of the suits, or the actions their counsel
took in resolving them. They swore the City's legal
counsel handled the matters until such time as necessary for
no basis to find the witnesses gave false testimony
"with the willful intent to provide false
testimony." Mr. Talbert argued they did not give
faithful testimony. The jury rejected his theory. We find
their testimony credible.
The verdict did not run contrary to the weight of the
"must not substitute [our] judgment regarding the facts
and witness credibility for that of the
jury." We may only do so "where a
miscarriage of justice would result if the verdict were to
stand." Mr. Talbert does not sufficiently adduce
facts demonstrating the jury's verdict is contrary to the
weight of the evidence or "a miscarriage of justice
would result if the verdict were to
stand." Mr. Talbert merely alleges, with no
supporting facts, "the verdict was against the weight of
the evidence which resulted in a miscarriage of justice. Rule
Talbert fails to cite overlooked evidence. In Fallow
field Development Corp. v. Strunk, Judge Hutton found
the jury's verdict supported by the great weight of the
evidence. After explaining our Court of
Appeals' standard for overturning a jury's verdict on
the ground the verdict contradicted the weight of the
evidence, Judge Hutton examined the record with respect to
specific facts in contention.
contrast, Mr. Talbert does not cite evidence the jury
ignored. We asked the jury to review witness credibility. The
jury did so and returned a verdict for Commissioner Carney
and Wardens May and Clark. Mr. Talbert does not convince us
"a miscarriage of justice would result if the verdict
were to stand."
We did not improperly admit evidence of Mr. Talbert's
enjoy "broad discretion on evidentiary rulings."
"Errors in evidentiary rulings are not harmful unless
substantial prejudice results." Federal Rule of Civil
Procedure 61 provides: "[n]o error in admitting or
excluding evidence ... is ground for granting a new trial,
for setting aside a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order. At every stage of
the proceeding, [we] must disregard all errors and defects .
. . not affect[ing] any party's substantial
decision to allow testimony concerning Mr. Talbert's
earlier prison infractions did not substantially prejudice
his rights. We only allowed references to Mr. Talbert's
earlier prison misconduct in testimony concerning the
procedures and processes by which Commissioner Carney and
Wardens Clark and May made administrative segregation
decisions. This included fifty-one incidents between April
2014 and April 2019, in thirty-four of which the Philadelphia
Department of Prisons adjudicated Mr. Talbert
ruled on Mr. Talbert's motion in limine to exclude all
references to his prison misconduct record. Mr. Talbert
argued reference to his earlier prison misconduct
"demonstrate [sic] (A) unfair prejudice[;] (B) confusing
the issues [;] (C) misleading the jury[; and] (D) cumulative
evidence." We granted in part and denied in part
Mr. Talbert's motion in limine.We decided "[u]pon
demonstrating foundation, Defendants may introduce evidence
of their contemporaneous knowledge of, and reasons for, the
placement of the Plaintiff based on specific prison
misconduct history, criminal convictions for assaults,
terroristic behavior or harassment, and earlier inmate
separation orders as not barred by F.R.E. 404(b) and the
prejudice in introducing this evidence does not outweigh the
probative value of the evidence to the
defense." We ordered "[d]efendants may not
introduce evidence of pretrial detentions or incarcerations
not involving prison disciplinary citations, non-violent
crimes, or conduct after their placement decisions unless as
rebuttal evidence if Plaintiff opens the door to the
jury's examination of conduct after the placement
complied with our Order. We properly admitted the adduced
Commissioner Carney and Wardens May and Clark did not violate
our discovery order.
Talbert argues Commissioner Carney and Wardens May and Clark
failed to honor our May 22, 2019 Order by only turning over
documents at the August 29, 2019 final pretrial conference.
He alleges delay prevented him from deposing Commissioner
Carney or Warden May because the "document[s] could have
foreseeably been a tool to depose other prison officials with
knowledge" of the documents and the underlying
circumstances underpinning his lawsuit.
22, 2019, we ordered Commissioner Carney and Wardens May and
Clark to produce: "(a) a signed certification confirming
of all copies produced to date are true and correct copies of
the original documents maintained within the Defendants'
possession, custody or control; (b) [c]opy of Plaintiff s
handwritten grievances from October 31, 2017 through March
2019; (c) [a] 11 documents evidencing decisions and knowledge
relating to the transfer of Plaintiff from general population
at Curran-Fromhold to administrative segregation in the
Detention Center; (d) [a] 11 policy statements as to the
reasons for placing persons in administrative segregation
since January 1, 2018; (e) [a] 11 documents relating to
Plaintiffs access to Islamic reading material and ability to
speak with his Islamic Imam while in the Detention Center;
(f) [d]ocuments relating to an alleged February 27, 2019
assault upon Plaintiff; (g) Plaintiffs medical records since
February 1, 2019; and (h) [a] privilege log of all withheld
documents." We ordered Commissioner Carney and
Wardens May and Clark to mail these documents not already
produced to Mr. Talbert by May 31, 2019.
11, 2019, Commissioner Carney and Wardens May and Clark moved
for a time extension to comply with our May 22, 2019
Order. Counsel explained a family emergency
required his brief absence from the case and his failure to
meet the May 31, 2019 discovery deadline. On June 12,
2019, we granted the motion and ordered Commissioner Carney
and Wardens May and Clark to comply and respond to Mr.
Talbert's discovery request by June 14,
28, 2019, we denied Mr. Talbert's motion for sanctions or
default judgment arising from Commissioner Carney and Wardens
May and Clark partially redacting alleged security risk
information in documents they turned over to Mr.
Talbert. We also ordered them to hand deliver
specific pages of discovery for our in camera review
by July 1, 2019. They did so, and we found the documents
we reviewed in camera "relate solely to
internal security guidelines for correctional officers
concerning specifics as to timing, review and protocol in
managing persons housed in administrative segregation and
[the documents'] disclosure is not material to the
ongoing prosecution of claims in this case . ..
Carney and Wardens May and Clark did not violate our Order.
They appropriately moved for time extensions, which we
granted, and otherwise complied with our Order.
Mr. Talbert is not entitled to a lawyer.
a defendant who cannot afford counsel for his criminal case,
an indigent litigant in a civil case . . . has no . . .
constitutional right to counsel." We denied Mr.
Talbert's request for appointment of counsel in a
pretrial order. We found Mr. Talbert "demonstrated
skill and understanding of our civil rights laws and
procedure. He candidly swears he knows more than the lawyers
but seeks counsel solely to fund his discovery. He wants a
lender, not a lawyer."
Talbert did have an attorney, J. Michael Considine, Jr., who
entered his appearance on December 28, 2018. On March 16,
2019, Mr. Talbert requested Mr. Considine withdraw because
Mr. Talbert "does not need Considine to represent
him." Eleven days later, Mr. Talbert filed an
"Emergency Motion for Appointment of Counsel and/or
Pretrial Conference," but subsequently apologized in his
"Motion to Apologize for Motion to Withdraw" and
requested we "[k]indly continue to have Mr. Considine
as [his] counsel!" Then, on April 18, 2019, Mr.
Considine moved to withdraw.
April 25, 2019 hearing, Mr. Talbert admitted he only wanted
counsel to fund his deposition expenses, and the only
significant difference between appointed counsel and himself
is "the financial means to do
depositions." Mr. Talbert emphasized his extensive
legal work in this case, as well as his previous trial and
appellate litigation experience in our Circuit. With Mr.
Talbert's consent, we granted Mr. Considine's request
to withdraw as Mr. Talbert's attorney. On July 1,
2019, we declined to refer Mr. Talbert's case to our
volunteer panel of attorneys because he "demonstrated an
ability to handle litigation through his extensive pro
se experience, which includes appearances in our Court
of Appeals and successfully negotiating a settlement for
Talbert vigorously represented his interests before and
during trial. From April 18, 2018, when Mr. Talbert first
sued Commissioner Carney and Wardens May and Clark, until
September 4, 2019, the first date of his trial, Mr. Talbert
filed twenty-nine motions,  including motions for summary
judgment, motions for appointment of counsel, motions for
judgment on the pleadings, a motion for a preliminary
injunction, and motions to compel discovery. The docket
reflects 160 entries before the trial.
Talbert is not entitled to a new trial because he chose to
proceed without counsel.
We deny Mr. Talbert's motion for judgment ...