Barber v. Hood

          MEMORANDUM OPINION AND ORDER ^[1]

          JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.

         On December 4, 2018, Barber moved for a new trial and to alter or amend the judgment. (Docs. 160 & 161).^[2] Defendants Jefferson Dunn (“Dunn”), Dr. Hugh Hood (“Dr. Hood”) and Dr. Roy Roddam (“Dr. Roddam, ” and, together with Dr. Hood, the “Doctors”; the Doctors are, together with Dunn, the “Defendants”) oppose that motion, (doc. 163 & 164), and Barber has filed a reply in support, (doc. 165). Defendants have also filed a bill of costs, (doc. 166), which Barber has moved to strike, (doc. 167). Defendants oppose that motion. (Doc. 169). The motions are fully briefed and ripe for review. For the reasons stated below, Barber's motions are DENIED, and Defendants are awarded costs as set out below.

         I. Procedural History and Background

         Barber is a death row prisoner suffering from end-stage osteoarthritis. This 42 U.S.C. § 1983 case is about Barber's allegation he was denied a hip replacement in violation of his Eighth Amendment rights by the Doctors, who are physicians at the prison where Barber is incarcerated, and by Dunn, who is Commissioner of the Alabama Department of Corrections (“ADOC”).

         On March 30, 2018, the undersigned granted summary judgment to some of the defendants in this action on all of Barber's claims and denied it as to the Doctors and Dunn on some claims. (Doc. 82). Specifically, Barber's claims the Doctors and Dunn were deliberately indifferent in (1) denying him medical care and/or (2) by failing to intervene to ensure he received constitutionally adequate medical care survived summary judgment, with both claims proceeding against the Doctors for damages and injunctive relief and against Dunn (in his official capacity) for injunctive relief only. (Id.).

         On May 9, 2018, the undersigned set this case for a pretrial conference. (Doc. 90). Prior to that conference, Barber moved to expedite a hearing on his claims for injunctive relief. (Doc. 91). In that motion, Barber argued the trial should bifurcated, and his claims for injunctive relief should be resolved at a bench trial prior to the jury trial on his claims for damages. (Id.). Although Defendants did not file any opposition to the motion, the undersigned set the motion for a hearing. (Doc. 93). Following the hearing, the undersigned directed the parties to brief issues related to Barber's motion. (Doc. 95). In his brief, Barber withdrew the request for separate trials, stating: “After reviewing the applicable case law, it is Plaintiffs position that this Court should order the jury trial to proceed as scheduled, and to permit the parties to simultaneously present evidence regarding the equitable and legal claims in the case, presenting evidence pertaining only [to] the equitable claims outside the presence of the jury during breaks.” (Doc. 99 at 1). Accordingly, the undersigned denied Barber's motion. (Doc. 102).

         Prior to trial, both parties filed motions in limine, (docs. 117, 118 & 119), most of which were opposed, (docs. 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131 & 132). One of the parties' joint motions in limine and one of Barber's motions in limine are relevant to this motion. In their sixth joint motion in limine, the parties requested they be barred, inter alia, from “making any disparaging remarks as to whether any party is represented by attorneys who come from ‘out of town.'” (Doc. 118 at 1). In Barber's first motion in limine, he sought to bar evidence that he had been convicted of murder and sentenced to death. (Doc. 119 at 2-8). The undersigned granted the sixth joint motion in limine as agreed, (doc. 139 at 3), and Barber's first motion over Defendants' objections, (id. at 19-24).

         The case went to trial on October 29, 2018. Barber called eleven witnesses in his case-in-chief. Following direct examination by counsel for Barber and cross-examination by counsel for the Doctors, counsel for Dunn questioned three of these witnesses outside the presence of the jury: orthopedic surgeon Dr. Thomas Powell, Dr. Hood, and Barber's expert, Dr. Robert Cusick (who is also an orthopedic surgeon). Barber's counsel took advantage of her opportunity to conduct redirect examination of Dr. Powell outside the jury's presence, but had no additional questions for Dr. Cusick or Dr. Hood.

         On October 31, 2018, after Barber rested, Defendants moved for judgment as a matter of law. (Doc. 150). After oral argument by the parties, the undersigned orally denied the motion as to the Doctors, but granted it as to Dunn. The undersigned stated on the record that Barber had not produced sufficient evidence with respect to Dunn for either Eighth Amendment claim.

         Following that ruling, the Doctors began their case-in-chief. After calling several other witnesses, the Doctors called Warden Leon Bolling (“Warden Bolling”). The following exchange took place:

Q: But you never had the concern because you were never told of any problems by anybody that Mr. Barber was having any, any concerns?

A: No, sir. I didn't have no issues with other inmates in that unit, that, uh, death row inmates, uh, his name is Willie Minor . . . .

         Defense counsel finished direct examination of Warden Bolling shortly after this testimony. Before Barber's counsel cross-examined Warden Bolling, she requested a sidebar and informed the court that she had heard the words “death row inmates” in violation of the ruling in limine. Neither the undersigned, nor defense counsel, nor the court reporter had heard the phrase, so the undersigned advised the parties he would return to chambers to listen to the recording of the proceedings and determine if the phrase had been said. After listening to the recording several times, the undersigned confirmed Warden Bolling had said the words “death row, ” albeit indistinctly. In chambers, the undersigned reviewed the recording with counsel.

         Barber's counsel then moved for a mistrial on the jury trial portion of the case, but to continue on the claims for injunctive relief. The parties also discussed the propriety of a limiting instruction, but Barber rejected this idea because it could call attention to the testimony rather than curing its effects. The undersigned denied the motion for a partial mistrial, and Barber moved for a mistral on all aspects of the case. Based on the fact Warden Bolling's mention of “death row” was muffled and only clearly audible after playing back the recording several times with the knowledge it had been said, the undersigned concluded the jury had likely not heard the phrase. Further, the undersigned concluded the instruction to the jury that they should not consider his status as a prisoner was sufficient to mitigate the prejudice even if the jury had heard “death row.” Accordingly, the undersigned denied the motion for a mistrial.

         The defense called its final witnesses and rested. When Barber declined to call rebuttal witnesses, the Doctors renewed their motion for judgment as a matter of law; the undersigned denied that motion. After finalizing jury instructions, the parties gave closing arguments. During the defense's closing argument, defense counsel characterized the Doctors as saying “we are being accused of all of this stuff by these lawyers from Chicago and Atlanta” and referred to interpreting evidence “like the lawyers from Chicago thought that you interpreted it.” Barber's counsel objected to the second of these on the basis that the ruling in limine on the parties' sixth joint motion prohibited argument about attorneys from “out of town”; defense counsel asserted his comments had not been disparaging and did not fall within the ruling. The undersigned sustained the objection, and defense counsel did not mention Chicago or Atlanta again.

         On November 2, 2018, the jury rendered a verdict for the Doctors. (Doc. 156). After dismissing the jury, the undersigned spoke with the members of the jury collectively and asked them whether they had heard a witness use the words “death row” at any point during the trial. Several jurors affirmatively stated they had not, and no juror indicated he or she had heard “death row” mentioned. The undersigned entered final judgment on that verdict on November 6, 2018, taxing costs against Barber. (Doc. 157).

         On December 4, 2018, Barber filed the instant motion and amended motion for a new trial and/or to alter or amend the judgment. (Docs. 160 & 161). After the motion was fully briefed, (see docs. 163, 164 & 165), Defendants filed a bill of costs on January 3, 2019. (Doc. 166). Barber then moved to strike the bill of costs as untimely filed. (Doc. 167).

         IT. Analysis

         A. Motion for New Trial and/or to Alter or Amend Judgment (Doc. 161)

         Barber's post-judgment motion is premised on three alleged errors. First, Barber claims the undersigned mistakenly granted Dunn's motion for judgment as a matter of law because it was made pursuant to the inapplicable Rule 50 and did not comply with the applicable Rule 52. (Doc. 161 at 1-2). Overlapping with this to some extent is Barber's argument that the court should grant injunctive relief notwithstanding the verdict. (Id. at 13-17). Second, Barber alleges he is entitled to a new trial due to Warden Bolling's invocation of “death row” in violation of the ruling in limine. (Id. at 2). Finally, Barber contends defense counsel's remarks about “Chicago” violated the undersigned's ruling in limine and rendered the trial unfair. (Id.).

         1. Motion to Alter or Amend the Judgment

         Barber argues the judgment should be altered or amended pursuant to Fed.R.Civ.P. 59(e). That Rule “provides no specific grounds for relief, and ‘the decision to alter or amend judgment is committed to the sound discretion of the district judge.'” Taylor v. First N. Am. Nat. Bank, 331 F.Supp.2d 1354, 1355 (M.D. Ala. 2004) (quoting American Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985)). “Only three grounds are available to support the motion: (1) manifest error of fact; (2) manifest error of law; or (3) newly discovered evidence.” In re Daughtrey, 896 F.3d 1255, 1280 (11th Cir. 2018) (citation omitted).

         Barber does not directly state it, but his motion appears to be premised on the second ground: in his view, the judgment constitutes a manifest error of law because (1) the undersigned erroneously granted the motion for judgment as a matter of law and (2) the court could, and should, still grant injunctive relief for Eighth Amendment violations irrespective of the jury's verdict.

         a. Motion for Judgment as a Matter of Law

         Barber argues the undersigned erroneously granted Dunn's motion for judgment as a matter of law because the motion was brought pursuant to Fed.R.Civ.P. 50, which is not available in nonjury proceedings, and the undersigned did not comply with the requirements of Fed.R.Civ.P. 52.^[3] (Doc. 161 at 11-13). Under Rule 52,

If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under controlling law, can be maintained or defeated only with a favorable finding on that issue . . . . A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).

Fed. R. Civ. P. 52(c).

         Barber states the undersigned “did not provide analysis of [his] decision” to grant judgment as a matter of law to Dunn. (Doc. 161 at 12). However, Rule 52 permits the court to state findings of fact and conclusions of law on the record in the alternative to presenting them in an opinion or memorandum. Fed.R.Civ.P. 52(a)(1). The undersigned did so, stating at the close of Barber's case-in-chief that Barber had presented no ...