United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
December 4, 2018, Barber moved for a new trial and to alter
or amend the judgment. (Docs. 160 & 161). 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.
Procedural History and Background
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
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.
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).
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).
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.
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
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,
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 . . . .
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.
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.
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.
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.
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.
Motion for New Trial and/or to Alter or Amend Judgment (Doc.
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.).
Motion to Alter or Amend the Judgment
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)
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.
Motion for Judgment as a Matter of Law
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. (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).
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 ...