Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT DERRICK BRYANT Plaintiff v. MERIDEN POLICE DEPARTMENT, ET AL Defendants

: : : : : : : :

NO. 3:13CV449(SRU)

JUNE 27, 2016

OBJECTION TO PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE FOR A NEW TRIAL The defendants hereby object to plaintiff’s “Motion For Judgment As A Matter of Law, Or In The Alternative For A New Trial”, filed on June 6, 2016.

See Doc. No. 141 (“Pl. Mot.”).

As set forth below, plaintiff is barred from moving for judgment as a matter of law (“JMOL”) because he did not do so during trial.

In addition, he is not entitled to a new trial because

the jury’s verdict was not against the weight of the evidence, seriously erroneous, or a miscarriage of justice.

Thus, his

motion should be denied in its entirety. I.

INTRODUCTION In this civil rights action brought pursuant to 42 U.S.C. §

1983, plaintiff alleged that, on March 9, 2011, defendants subjected him to excessive force and an unreasonable search in the course of his arrest on Hanover Street in Meriden, and later in a Meriden Police Department holding cell.

A jury trial on

these Fourth Amendment claims, as well as derivative state law 1

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 2 of 18

claims1, was held between April 20 and April 28, 2016.

The trial

evidence included twenty-six (26) exhibits and testimony from thirteen witnesses.

See Doc. Nos. 131, 132.

Plaintiff did not

make a Rule 50(a) motion for JMOL before the case was submitted to the jury on April 27, 2016.

The jury returned a verdict for

defendants Cerejo, Egan, Palmer and Slezak on all counts on April 28, 2016.2 With respect to the Fourth Amendment claims addressed in plaintiff’s motion, the jury specifically found that plaintiff failed to establish by a preponderance of the evidence that he: (1) was subjected to excessive force or an unreasonable search by defendants Cerejo, Palmer or Egan at the scene of his arrest; and (2) was subjected to excessive force or an unreasonable search by defendants Egan or Slezak in the department holding cell.

See Doc. No. 134, Verdict Form, pp. 1-2, 7, 9.

Court entered judgment for defendants on May 9, 2016.

The Plaintiff

filed the instant motion on June 6, 2016. II.

STATEMENT OF FACTS The “Statement of Facts” in plaintiff’s motion, like the

subsequent arguments, does not contain a single citation to the trial transcript, and merely sets forth his own version of

Plaintiff’s motion makes no mention of the state law claims so defendants do not address them herein. 2 The Court granted defendants’ Rule 50(a) motion for JMOL in favor of defendants Merrigan and Pekrul after plaintiff rested on April 26, 2016. See Doc. No. 124-1. 1

2

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 3 of 18

disputed facts.

For instance, plaintiff claims in his motion,

as he did at trial, that he went to the Old Dutch Liquor Store on the date of his arrest “to return a wallet that had been left in his vehicle by a friend of his older sister.” 1.

Pl. Mot., p.

The evidence did not compel the jury to credit this far-

fetched explanation why a confidential informant, who was more than twice plaintiff’s age and had been enlisted by Detective Cerejo to help set up a “street rip”, got into plaintiff’s vehicle in the Old Dutch parking lot.

The jurors were entitled

to infer instead, based on the evidence and common sense, that plaintiff went to the liquor store to sell the informant crack cocaine. Similarly, the trial evidence did not establish, as plaintiff suggests, that “he had no opportunity or means to resist the action of the officers” once he was removed from his vehicle.

Id.

There is no dispute that he refused to show his

hands when officers approached the vehicle, and there was ample evidence that he was shoving his hands down his pants at the time.

Moreover, plaintiff acknowledges in the body of his

motion that Detective Cerejo, Detective Visconti, and Officer Egan all testified that plaintiff was “pushing, pulling, struggling, wrestling, and kicking” them “for the entire duration of the time that he was there in the parking lot.” Mot., p. 6.

The jury was entitled to credit this testimony. 3

Pl.

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 4 of 18

The trial evidence also did not compel a finding that plaintiff “presented no apparent threat to the safety of the officers, and made very little movement” in the holding cell. Detective Visconti, Officer Egan, and Officer Slezak testified unequivocally that plaintiff continuously refused to cooperate with them and resisted their efforts to strip search him up to the moment the bag of crack was recovered.

And while plaintiff

may contend that the holding cell video “does not show” Officer Egan retrieve the crack cocaine — indeed, he must do so because he denies that he had crack cocaine on him that day — the jury was free to conclude otherwise.

Particularly after it heard

Officer Egan testify to the specific moment in the video when he retrieved the narcotics from plaintiff and handed it to Detective Visconti.

See Pl. Ex. 12, 16:26:45.

Simply put, the jury was required to evaluate the witnesses’ credibility to resolve the disputed facts on which plaintiff’s Fourth Amendment claims turned.

They heard

competing testimony about the parties’ relevant conduct at the arrest scene and in the holding cell, and were not compelled to credit plaintiff’s version of events.

In fact, plaintiff gave

them every reason not to do so: Q. And then finally, sir, you’ve acknowledged that you smoked marijuana, but you deny that you had crack cocaine on you the day of the incident? A.

I did not. Yes I deny it. 4

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 5 of 18

Q. But isn’t it true, sir, that you have smoked crack in your life? A.

No. I have not.

… Q. And at page 38, line 12, I asked you: “Have you ever smoked crack in your life?” And what was your answer? A.

My answer was yes, but –

Q.

Hold on, sir.

A.

“I have.”

It says “I have.”

Q. Thank you, sir. So the jury has just heard you say you never smoked crack, and you did smoke crack, so which is it? A. I have not. Maybe you misheard me at the deposition, perhaps, but-Q.

When it says I have smoked crack?

A.

Yes. Maybe you misheard me or maybe--

Q. That could be misconstrued as I have not smoked crack? A.

I don’t recall telling you that. I do not.

Q. All right, well, I also asked you when, and what was your answer, page 38, line 15? A.

I don’t recall telling you that. I do not.

Q. Question, next question: Was it before or after this March 9, 2011 incident? A.

I want to say before, but I’m not sure.

5

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 6 of 18

See Ex. A, Testimony of Derrick Bryant (“Trial Tr.”), pp. 97-98.3 The weight of the evidence did not support the self-serving version of disputed facts set forth in plaintiff’s motion.

The

jury resolved these disputes issues based on reasonable inferences drawn from the evidence and undisputed facts of this case. III.

LEGAL STANDARD/ARGUMENT A. RULE 50(b) STANDARD Under Federal Rule of Civil Procedure 50(b), a “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.”

Fed.R.Civ.P. 50(b)(emphasis added).

The term

“renewed” connotes the requirement that a post-verdict Rule 50(b) motion must be preceded by a pre-verdict Rule 50(a) motion for JMOL.

See Fed.R.Civ.P. 50, 1991 Advisory Committee Notes,

Subdivision (b) (“A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.”); see also Cruz v. Local Union Number 3 of the Int'l Bhd. Of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir.1994)(same).

This rule is

designed “to avoid making a trap of” Rule 50(b) motions, which

This testimony was not the only evidence to impeach plaintiff at trial. As but another example, the jury heard Dr. Sunderland explain that plaintiff lied to him about this civil action and his prior drug use. Even the complaint plaintiff himself filed with the MPD directly contradicted his position at trial that he had no drugs on him and did nothing wrong. See Def. Ex. S (“I know what I was doing was wrong…”). 3

6

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 7 of 18

are made when it no longer “remains possible for the party against whom the motion is directed to cure the defects in proof that might otherwise preclude him from taking the case to the jury.”

Oliveras v. American Export Isbrandsten Lines, Inc., 431

F.2d 814, 816 (2d Cir. 1970)(quoting 5 Moore, Federal Practice ¶ 50.08 at 2539). Unlike defendants, plaintiff did not make a Rule 50(a) motion for JMOL before the case went to the jury.

He thus

waived his right to challenge the verdict with a Rule 50(b) motion. See Walling v. Holman, 858 F.2d 79, 82 (2d Cir.1988) (“Appellants are precluded from challenging the sufficiency of the evidence because they failed to move for a directed verdict at trial in accordance with Fed.R.Civ.P. 50(b).”).

In this

Circuit, an untimely motion for JMOL can be granted only to correct the “manifest injustice” of a verdict which is “wholly without legal support.” Pahuta v. Massey–Ferguson, Inc., 170 F.3d 125, 129 (2d Cir.1999) Malmsteen v. Berdon, LLP, 369 Fed. Appx. 248, 249 (2d Cir. 2010).

Plaintiff does not assert such

error or even mention the “manifest injustice” exception in his brief.

As in past cases, this Court should decline to consider

the exception for this reason alone. See Cotto v. City of Middletown, 2016 WL 223692, at *14 n. 10 (D. Conn. Jan. 19, 2016)(“The Second Circuit also recognizes an exception to correct ‘manifest injustice.’ Because the defendants do not 7

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 8 of 18

assert any such gross error, however, I see no need to consider that exception.”)(citation omitted).

In any event, the

exception cannot apply because verdict in this case was supported by the law and weight of the evidence. B. RULE 59 STANDARD Rule 59 allows a court “to grant a new trial after a jury trial for any reason for which a new trial has heretofore been granted in an action at law in federal court.” P. 59.

See Fed. R. Civ.

Where, as here, the moving party seeks a new trial “on

the grounds that the verdict was against the weight of the evidence,” the district court can “weigh the evidence” and is not required to “view it in the light most favorable to the verdict winner.”

DLC Management Corp. v. Town of Hyde Park, 163

F.3d 124, 133–34 (2d Cir.1998) (internal quotations and citations omitted). However, the Second Circuit has instructed that a new trial “should not be granted unless the court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Indus., 462 F.3d 74, 82 (2d Cir. 2006).

Kosmynka v. Polaris In performing this

analysis, district courts “should rarely disturb a jury's evaluation of a witness's credibility.”

DLC Management Corp.,

163 F.3d at 134 (internal citation and quotation marks omitted)

8

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 9 of 18

C. PLAINTIFF IS NOT ENTITLED TO A NEW TRIAL ON HIS FOURTH AMENDMENT CLAIMS4 Plaintiff has not met his burden to demonstrate that the weight of the evidence entitles him to a new trial on his search or force claims.

Like his “statement of facts,” the legal

arguments in his motion merely invite this Court to credit his disputed version of relevant events because the jury did not do so.

Tellingly, they include no citations to specific trial

testimony, because consideration of this evidence would erase any notion that the jury’s verdict was “seriously erroneous” or a “miscarriage of justice.” Kosmynka, 462 F.3d at 82. i.

The Verdict On Plaintiff’s Unreasonable Search Claims Was Not Against The Weight Of The Evidence

The jury’s verdict on plaintiff’s unreasonable search claims was not against the weight of the evidence.

With respect

to these claims, the jury was instructed to apply the test of reasonableness under the Fourth Amendment, and specifically to “consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and

Because plaintiff has not shown that he is entitled to a new trial, he has necessarily failed to meet the “more stringent standard” applied to timely motions for JMOL. Giles v. Rhodes, 171 F. Supp. 2d 220, 229 n. 5 (2001)(“Having failed to meet the ore relaxed requirements of Rule 59(a), which allows me to consider credibility and the weight of the evidence and does not require me to view the evidence in the light most favorable to [defendants], it is axiomatic that plaintiff cannot satisfy Rule 50(b)’s standards.”). 4

9

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 10 of 18

the place in which it is conducted.”

See Doc. 128, Jury

Instructions, p. 15. As to the scene of his arrest, plaintiff concedes that the jury could conclude from the evidence that he was “observed through the vehicle window attempting to secrete a bag of crack cocaine” into his pants.

Pl. Mot., p. 6.

He further

acknowledges the evidence that he subsequently obstructed efforts to arrest and control him by “pushing, pulling, struggling, wrestling, and kicking” Detective Visconti, Detective Cerejo and Officer Egan “for the entire duration of the time that he was there in the parking lot.”

Id.

To deflect attention from these concessions, plaintiff simply dissembles the record to argue that “the evidence from Detective Cerejo” established that his “pants and underwear came down to such a level that his penis was exposed because the officers pulled them down.” See Pl. Mot., pp. 18-19.

The

portion of the IA report to which plaintiff cites for this proposition actually contradicts it and weighs in favor of defendants.

See Pl. Ex. 6, p. 10 (“Detective Cerejo stated that

they stood him up and walked him to the patrol car at which time the pants of the suspect fell down.

He states that the suspect

said that his penis was hanging out of his underwear and he pulled the suspects pants up.”).

Plaintiff also ignores the

fact that Detective Cerejo reported in the IA, and testified at 10

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 11 of 18

trial, that the officers “did not search [plaintiff] at all” in the parking lot, because “all [they] were able to do was to get his arms under control and handcuffed…”

Id.

Simply put, the

evidence did not compel a finding that plaintiff was searched at all at the scene of his arrest, let alone that he was subjected to an unlawful search. More frivolous is plaintiff’s contention that “it can only be surmised” from the evidence “that the jury concluded that the cocaine was found in the anal cavity.”

Pl. Mot., p. 10.

Plaintiff points to no evidence for this argument and relies on his self-serving conclusion that it “was impossible for contraband to remain merely in [his] butt cheek[s].” Pl. Mot., pp. 10-11.

To the contrary, the jury heard Detective Visconti,

Officer Slezak and Officer Egan testify that no anal cavity search was performed, and the court reiterated as much in the jury instructions.

See Doc. No. 128, Jury Instructions, p. 15

(“The defendants deny that Bryant was ever subjected to a body cavity search, or that their strip search to receive contraband was unreasonable.”). The only evidence of an anal cavity search was plaintiff’s testimony.

The jury was compelled to credit this evidence,

which was not supported by the holding cell video, and subject to scrutiny in light of plaintiff’s concession that he did not

11

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 12 of 18

report this so called “sexual assault” to physicians at Hartford Hospital the day after his arrest.

See Trial Tr., 84.

One could reasonably conclude from the trial evidence that plaintiff was subjected to no more than an authorized strip search in the holding cell.

The evidence further supported the

conclusion that this search was: (1) supported by reasonable suspicion that plaintiff was concealing contraband inside his underwear, and (2) conducted in a reasonable manner under the circumstances5.

See Jury Instruction, p. 15.

As to the latter

consideration, plaintiff argues that, even assuming he was in “possession of a small quantity of contraband,” the search was necessarily conducted in an unreasonable manner because “the videotape evidence dispositively shows that there was no resistance by Bryant while in the holding cell.” 12.

Pl. Mot., p.

This is simply not so. The holding cell video was the subject of extensive,

sequence by sequence testimony from Detective Visconti, Officer Egan and Officer Slezak, each of whom described plaintiff’s resistance to being searched, the threat and considerations this raised in their minds, and their responsive conduct, up to the point the drugs were recovered an plaintiff finally relaxed.

As discussed supra, the jury could reasonably conclude from the evidence that no strip search was performed until plaintiff was in the privacy of a holding cell, a location which weighed in favor of a finding that it was conducted in a reasonable manner. See Jury Instructions, p. 15. 5

12

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 13 of 18

The jury was free to credit this testimony and use it to place the video evidence in proper context.

This pure credibility

evaluation should not be disturbed simply because plaintiff disagrees with it. In sum, the weight of the trial evidence supported the a determination that plaintiff was not searched until he was in the holding cell, and that the search in the holding cell was supported by reasonable suspicion and conducted in a reasonable manner.

The verdict on plaintiff’s unreasonable search claims

must accordingly stand. ii.

The Verdict On Plaintiff’s Excessive Force Claims Was Not Against The Weight Of The Evidence

The weight of the evidence adduced at trial was not against the verdict on plaintiff’s excessive force claims.

First, the

fact that plaintiff had to be “restrained by three police officers” in the parking lot did not necessarily weigh in his favor, as it speaks directly to his crazed level of resistance at the time of his arrest.

See Pl. Mot., p. 17.

Moreover, the

jury was not constrained to credit testimony that plaintiff was “beaten, kicked, punched and struck with a gun while he lay defenseless in the parking lot pavement.”

Id.

This evidence

was contradicted by the officers on scene, each of whom documented their uses of force6 on Hanover Street and testified

6

See Defendants’ Exhibits A-D.

13

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 14 of 18

to when why they used such force.

Moreover, plaintiff’s

exaggerated theory of a brutal police beating was simply not consistent with the undisputed fact that he suffered no serious injuries and declined medical treatment at the MPD. See Def. Ex. U. Plaintiff again advances his own interpretation of the evidence by arguing that “[a]nyone observing this video can readily see that Bryant at all times was lying prone face down on the ground making only imperceptible movement if any.” Mot., p. 18.

Pl.

The fact remains that the jury observed this video

multiple times during trial, and considered it in conjunction with testimony from the parties about what occurred before, during and after the events captured in it.

It was reasonable

to conclude from the totality of this evidence that the force used to arrest plaintiff was reasonable under the circumstances. Thus, the defense verdict on tis force claim was neither “seriously erroneous” nor a “miscarriage of justice.” Kosmynka, 462 F.3d at 82. As to the holding cell, plaintiff again misstates the evidence to contend that “it was objectively unreasonable for Slezak to use a taser at all on Bryan, a handcuffed arrestee who was unarmed, in a relatively small holding cell with four (4) officers with him if we accept the time when the taser use is

14

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 15 of 18

admitted.7”

Pl. Mot., p. 16.

In fact, the video established

conclusively that only Officers Slezak and Egan were present in the holding cell when the taser was used; and that plaintiff’s hands were cuffed in front of his body, where he could swing them and strike Officer Egan or, as is depicted in the video, reach toward his groin to access whatever contraband he had concealed in his pants. See Pl. Ex. 12, 16:26:15.

The video

also shows Officer Slezak display the taser long before he actually used it; and Slezak testified that he warned plaintiff to cease resisting Officer Egan’s efforts to strip search him while displaying it.

The jury was free to credit this testimony

and infer from the video that plaintiff did not heed this warning, and instead made the sudden movement which led to the takedown and use of taser. Plaintiff’s argument that the “testimony of Officer Slezak that he used the taser on Bryant only once is seriously undermined by the documentary evidence” is also unfounded. Mot., p 15.

Pl.

He cites to no specific evidence to support it, and

Officer Slezak’s use of force report and the taser download report were consistent with his testimony.

See Def. Ex. D, I.

Plaintiff is simply wrong to suggest that the video somehow establishes that the “taser was used for approximately ten seconds. [PExhibit 11 at 16:25:1130].” See Pl. Mot., p. The jury could reasonably conclude from the testimony of Officer Slezak, and the taser download report (Def. Ex. I), that plaintiff was subjected to single drive stun cycle, which lasted no more than 5 seconds, at 16:26:20 of the video. 7

15

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 16 of 18

Even putting this documentary evidence aside, the jury was entitled to credit Officer Slezak’s testimony of a single drive stun cycle and reject plaintiff’s equivocal testimony that he was tased “two or three times.”

Pl. Mot., p. 16.

Moreover,

plaintiff’s motion ignores the most crucial aspect of the taser use: the result.

The evidence supported a finding that it ended

plaintiff’s resistance long enough for Officer Egan to observe and retrieve the narcotics plaintiff been fighting so hard to conceal; which in turn prompted plaintiff to relax and submitto the completion of the strip search without further incident or physical force.

See Pl. Ex. 12, 16:26:45 - 16:31:40.

As held in Supreme Court authority cited in plaintiff’s motion, “[t] he core judicial inquiry is not whether a certain quantum of injury was sustained, but rather whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to harm.”

Pl. Mot.,

pp. 16-17 (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). The trial evidence supported a reasonable conclusion that the use of force in the holding cell was a good faith and effective effort to “restore discipline” so a lawful – and successful – strip search for reasonably suspected contraband could be completed.

Because the verdict on this force claim was not

against the weight of the evidence, seriously erroneous, or a miscarriage of justice, there is no legal basis to disturb it. 16

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 17 of 18

IV.

CONCLUSION WHEREFORE, for the foregoing reasons, defendants

respectfully request this Court to deny plaintiff’s “Motion For Judgment As A Matter of Law, Or In The Alternative For A New Trial” it its entirety.

DEFENDANTS, KENNETH EGAN, JOHN SLEZAK, DEXTON PALMER, JOHN CEREJO, MICHAEL MERRIGAN, AND ROBERT PEKRUL BY/s/ James N. Tallberg James N. Tallberg Federal Bar No.: ct17849 Patrick D. Allen Federal Bar No.: ct28403 Karsten & Tallberg, LLC 500 Enterprise Drive, Ste.4B Rocky Hill, CT 06067 T: (860)233-5600 F: (860)233-5800 [email protected]

17

Case 3:13-cv-00449-SRU Document 142 Filed 06/27/16 Page 18 of 18

CERTIFICATION I hereby certify that on June 27, 2016, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing.

Notice of this filing will

be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing.

Parties may access this filing through the

Court’s system.

/s/ James N. Tallberg James N. Tallberg

18