Opinion
Case No. 97-3209-JWL
December, 2000
MEMORANDUM AND ORDER
Plaintiff, a prisoner incarcerated at the Johnson County Adult Detention Center (JCADC), brought an Eighth Amendment excessive use of force claim against defendant, a prison guard at JCADC. On September 21, 2000, after a trial to the court, the court issued a written Memorandum and Order entering judgment in favor of defendant on plaintiff's claim (Doc. 250). Pursuant to Fed.R.Civ.P. 59, plaintiff filed a motion on September 29, 2000 requesting a new trial or an amendment of the court's judgment (Doc. 253). In his motion, plaintiff also moved for a 30 day extension in which to file his memorandum in support of the motion. Without waiting for the court's permission, plaintiff filed a Memorandum in Support of Motion for New Trial and Motion to Alter or Amend Judgment on October 18, 2000 (Doc. 260). Defendant has moved to strike plaintiff's supporting memorandum (Doc. 262). For the reasons stated below, the court grants plaintiff's request for an extension of time to file a supporting memorandum, but the court ultimately denies plaintiff's motion for a new trial or an amendment of judgment. The court denies defendant's motion to strike plaintiff's supporting memorandum.
Also before the court is a motion by plaintiff requesting the court to release property submitted as evidence during trial to the attorney defending him in a Kansas state criminal case (Doc. 259). For the reasons stated below, this motion is also denied.
Plaintiff's Motion for a New Trial or for an Amendment of Judgment
As an initial matter, the court must determine whether or not to consider plaintiff's substantive arguments in favor of a new trial and amended judgment. Within the ten day time period mandated by Rule 59, plaintiff filed a motion "pursuant to Rule 59(a), (b), and (d) requesting a new trial and separately that the court alter or amend its judgment entered on the docket in this case on 9-22-00." Plaintiff's motion set forth no further basis for relief, requesting instead an extension of time to file a supporting memorandum. Defendant responded that plaintiff's motion must be denied because it fails to meet the pleading requirements of Fed.R.Civ.P. 7(b). Rule 7(b) states, in relevant part, "An application to the court for an order shall be by motion which . . . shall state with particularity the grounds therefor, and shall set forth the relief or order sought."
Plaintiff is a prisoner who is proceeding pro se. "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Under this liberal pleading standard, the court finds that plaintiff's motion satisfies Rule 7(b). Plaintiff's motion stated that plaintiff was seeking a new trial or an amended judgment based on Fed.R.Civ.P. 59(a), (b), and (d). Moreover, plaintiff explained in his motion that prison officials had seized some of his legal materials, making it difficult for him to prepare his filings. Given these conditions, plaintiff's motion is sufficient to alert the court as to the relief he is seeking and the federal rule which allows him to so seek. See 2A Moore's Federal Practice, ¶ 7.05 at 7-15, 7-16 (1984) (noting that the particularity requirement of Rule 7(b) is "flexible"); Lynn v. Nelson, No. 00-3155-DES (D.Kan. June 23, 2000) ("Giving petitioner's motion the liberal construction to be afforded pleadings filed by pro se litigants, . . . the court liberally construes petitioner's request [for an extension of time to file a motion to alter and amend under Rule 59(e)] as a timely motion under Rule 59(e).")
Next, defendant argues that the court should deny plaintiff's request for a 30 day extension of time to file a memorandum in support of his motion. Without citing any authority, defendant asserts that the jurisdictional ten day time period for filing Rule 59 motions should also govern the filing of memoranda in support of Rule 59 motions. The court disagrees. The court can conceive of no reason for such an absolute rule, especially in light of the fact that D. Kan. R. 7.1(a), the only rule requiring movants to accompany their motions with supporting memoranda, can be waived by the court. See D. Kan. R. 7.1(a) ("With the approval of the Court, parties may be relieved from the requirement of serving and filing written briefs or memoranda in support of motions."). See also Werth v. Makita Electric Workers, LTD, 950 F.2d 643, 647 (10th Cir. 1991) (Rule 59 motion for a new trial filed without an accompanying memorandum in support was not void, such that trial court could properly allow movant to present his reasons for the motion at a formal hearing); Lynn, No. 00-3155-DES, at 1 (extending pro se prisoner's time to file a brief in support of new trial motion). Thus, the court grants the portion of plaintiff's motion which requests additional time in which to file his supporting memorandum and denies defendant's motion to strike plaintiff's supporting memorandum, which is now on file.
Even after examining plaintiff's substantive argument made in his memorandum in support, however, the court denies plaintiff's motion for a new trial or for an amended judgment. First, plaintiff argues that the court "erroneously deprived Plaintiff of a continuance of the trial despite knowing that prison officials . . . egregiously placed him on lockup." At the start of trial the court made a record of its reasons for denying plaintiff's motion for a continuance, and the court will not repeat its finding here. It is sufficient to say that the court believed, and continues to believe, that defendant's own actions led to his placement in lockup, such that the court would not continue the trial on that ground. Moreover, Mr. Lynn has not presented any explanation of how and in what particulars he was unfairly prejudiced at trial as a result of the lockup. In fact, the court was very impressed with the skill and preparation evident in Mr. Lynn's presentation. In the end, it simply did not believe him concerning the crucial aspects of the incident.
Second, plaintiff asserts that "the Court erroneously denied Plaintiff of having a trial by jury as requested in writing [on 8-7-00] . . . and as requested orally on 8-14-00." While the Seventh Amendment provides a right to trial by jury, that right is one that may be waived by the parties. See Lampkin v. International Union, et. al., 154 F.3d 1136, 1147 (10th Cir. 1998). Here, plaintiff waived his right to a jury trial by stipulating in the Pretrial Order (Doc. 210) to a trial by the court. See id. Additionally, plaintiff orally waived his right to a jury trial in open court on July 26, 2000. See Doc. 211. "[W]here the right to demand a jury has been waived, the trial court is vested with a broad degree of discretion in determining whether a jury trial shall nonetheless be granted." Hazelrigg v. American Fidelity Casualty Co., 241 F.2d 871, 873 (10th Cir. 1957). Ordinarily, once a party waives his right to a jury trial, he may not revoke that waiver. See Sewell v. Jefferson County Fiscal Court, 863 F.2d 461, 466 (6th Cir. 1988) (citing Hanlon v. Providence College, 615 F.2d 535 (1st Cir. 1980)). See also General Business Services, Inc. v. Fletcher, 435 F.2d 863, 864 (4th Cir. 1970) (renewed demand for jury trial, made five days after pretrial order recited a valid waiver of jury trial, did not preserve right); Country (Social) Club v. Sutherland, 411 F.2d 599, 600 (5th Cir. 1969) ("The record reflects that both parties in open court expressly and unequivocally agreed to waive their rights to a jury trial . . . . This waiver was effective and binding."); West v. Devitt, 311 F.2d 787, 788 (8th Cir. 1963) ("The mere fact that petitioner had changed his mind would not of itself require the court to set aside the procedural order made."). In this case, plaintiff attempted to revoke his waiver by requesting a jury trial only one week before the trial was scheduled to begin (and again on the literal eve of trial). The court found it inappropriate to grant such an untimely request, particularly when plaintiff's only asserted reason for changing his mind was the court's refusal to grant his motion for continuance. See Plaintiff's Aug. 7, 2000 Letter. The court does not believe that its ruling was erroneous and will not grant plaintiff's Rule 59 motion on this ground.
Third, plaintiff objects to the portion of the court's Memorandum and Order which stated that "plaintiff has demonstrated a propensity to engage in vindictive behavior, such as his baseless hauling of attorney Kevin Case into court on a subpoena to interrogate him on irrelevant matters." Plaintiff asserts that his questioning of Mr. Case was not irrelevant because Mr. Case "was the atty. of record for the state of Kansas in securing a fraud upon the courts and vindictive retaliation for legitimate 1st Amendment rights exercise [sic], when a 'filing restrictions injunction' was imposed contrary to KS. S.Ct. Rule 145 . . . and the list of cases cited as a basis was the case at hand here and atty. Case admitted in the trial of this case that he had not done any investigation of the facts as required by K.S.A. 60-211." The court finds plaintiff's argument to be without merit. It fails to demonstrate how Mr. Case's securement of a "filing restrictions injunction" was in any way relevant to the issue before the court in this case-whether or not defendant violated plaintiff's Eighth Amendment right to be free from excessive force by his jailors. His very argument here supports the court's conclusion that plaintiff bears ill will against Mr. Case and was either seeking to inconvenience him by forcing him to appear or to make a testimonial record for some purpose unrelated to the trial at hand.
Finally, plaintiff raises for a third time the allegation that the video recording of the Johnson County Jail booking room on May 16, 1996, which was produced by Police Chief John Douglass, was "altered/edited." As previously discussed at trial and in the court's Memorandum and Order, there is no evidence before the court which convinces the court that the video tape was tampered with in any way. Plaintiff has submitted no new evidence with his instant motion. Thus, the court will not grant plaintiff a new trial nor amend its judgment on this basis.
The remaining paragraphs of plaintiff's supporting memorandum simply rehash arguments made by plaintiff at trial. As stated in the court's Memorandum and Order, and despite plaintiff's argument to the contrary, the court has indeed "thoroughly considered the evidence and argument presented at trial." The court will not readdress its findings here. It is firmly convinced that justice was done. Plaintiff's motion for a new trial or for an amendment of judgment is denied.
Plaintiff's Motion for Release of Property
The additional motion pending before the court is Plaintiff's Motion for Order Releasing the Overland Park Police Department's Mugshot and Booking Room Video (Doc. 259). At trial, pursuant to a subpoena by plaintiff, Police Chief Douglass produced a mugshot photograph of plaintiff and a video recording of the Johnson County Jail booking room on May 16, 1996. Now plaintiff seeks the release of these items to his present attorney, Tom Bartee, for use in plaintiff's Kansas state criminal case. The court does not have the power to grant plaintiff the relief he seeks. The court holds trial exhibits for use in the litigation in which they are submitted only. Following the litigation, the court returns the exhibits to their rightful owner. The court has no right or power to convert the property owned by the Overland Park Police Department for use by plaintiff. Accordingly, plaintiff's motion for release of the exhibits is denied.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's motion for a new trial or an amendment of the court's judgment (Doc. 253) is granted to the extent that plaintiff seeks a 30 day extension in which to file a memorandum in support and denied in all other respects.
IT IS FURTHER ORDERED BY THE COURT that defendant's motion to strike plaintiff's supporting memorandum (Doc. 262) is denied.
IT IS FURTHER ORDERED BY THE COURT that plaintiff's motion for an order releasing the Overland Park Police Department's mugshot and booking room video tape (Doc. 259) is denied.
IT IS SO ORDERED.