United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON STEVEN DUXBURY’S MOTION FOR NEW TRIAL, REMITTITUR OR QUALIFIED IMMUNITY
Leo T. Sorokin United States District Judge
After a three day trial, the jury determined that Steven Duxbury (“Duxbury”), a thirty-three-year Department of Correction (“DOC”) employee (now retired) who served as the Director of Treatment for the Pondville Correctional Center (“Pondville”), violated the First Amendment rights of Matthew Giorgio (“Giorgio”) and Colin Traver (“Traver”) (collectively “Plaintiffs”) during their incarceration as pre-release inmates at Pondville. Specifically, Plaintiffs’ 42 U.S.C. § 1983 claim asserted that Duxbury failed to provide them with access to smudging-a Native American religious ceremony-during their incarceration at Pondville, and that he threatened Plaintiffs’ pre-release status if they continued to pursue smudging. The jury awarded compensatory damages in the amount of $50, 001.00 to Giorgio and $50, 000.00 to Traver. The jury also awarded them punitive damages in the amount of $500, 000.00. Subsequently, Duxbury filed an assented-to Motion to Vacate the Punitive Damages Award, Doc. 205, which the Court ALLOWED, Doc. 209, and thus, those portions of Duxbury’s motions, Docs. 128 and 154, which address punitive damages are DENIED AS MOOT. The Court now addresses the remaining issues presented by Duxbury’s motions.
I. NEW TRIAL
Pursuant to Federal Rule of Civil Procedure 59, Duxbury seeks a new trial, asserting that: (1) this Court neglected to properly investigate evidence of jury misconduct; (2) the jury’s verdict is against the weight of evidence; (3) Duxbury is qualifiedly immune from damages under 42 U.S.C. § 1983 as a matter of law; (4) the verdict was the result of passion and prejudice; and, (5) there existed a conflict of interest between the assigned DOC attorney and Duxbury. For the following reasons, Duxbury’s Motion for a New Trial is DENIED.
A. Jury Misconduct
Duxbury argues that the jury entered into premature deliberations which the Court failed to investigate and address. On the third day of trial, before closings and deliberation, the jury sought, in writing, answers to three questions. Doc. 121 at 16. The courtroom discussion, in relevant part, was as follows:
THE DEPUTY CLERK: They’re all here, [referring to the jury in the jury room], but they’ve given me a list of questions.
THE COURT: All right. So they have three questions. I'll read them to you. One -- this is unsigned.-- did it come from all the jurors?
THE DEPUTY CLERK: It came from all of them. They all grouped together and put their questions together.
THE COURT: Oh. All right. One, dates Giorgio and Traver were admitted into Pondville and discharged. Two, dates Traver was admitted into Norfolk and discharged. Three, requesting one complete copy of the religious services handbook. Well, those seem pretty easy. We’re giving them the religious service handbook, right? That’s Exhibit 7.
MR. MCCORMICK: It’s 7 and 8.
THE COURT: 8 is the excerpt, seven is - all right. Is it -- it may be that they’ve heard testimony about those dates. I think they have. But just to answer their questions, what are the - MR. MCCORMICK: I believe - THE COURT: Giorgio -- Traver came to Pondville first, right?
MR. MCCORMICK: Yes, Your Honor. And I believe that would be May 12, 2009.
THE COURT: May 12, 2009. Do you agree with that, Mr. McFarland?
MR. MCFARLAND: I agree, Your Honor.
THE COURT: All right. And then Mr. And then Mr. Traver left Norfolk in December of - MR. MCFARLAND: December 21st, Your Honor.
THE COURT: December 21, 2009 and that’s when he went to Norfolk?
MR. MCCORMICK: Yes, Your Honor.
THE COURT: And then he was discharged from Norfolk to the streets, so to speak, on what - MR. MCCORMICK: April 27, 2010.
THE COURT: All right. And he never returned to Pondville, right?
MR. MCCORMICK: No, Your Honor.
THE COURT: And then Mr. Giorgio arrived at Pondville - MR. MCCORMICK: On May 22nd -- May 21st of 2009.
THE COURT: And he was discharged from Pondville to the street?
MR. MCCORMICK: On March 16th, Your Honor.
THE COURT: Of 2010.
MR. MCCORMICK: Yes, Your Honor.
THE COURT: So if this is correct and you both agree, then what I would tell them is the answer to question number one, is Mr. Giorgio was admitted to Pondville on May 21, 2009, and discharged and released --discharged from Pondville and released on March 16, 2010. Mr. Traver was admitted to Pondville on May 12, 2009. He was moved or transferred from Pondville to MCI Norfolk on December 21, 2009, where he remained until he was discharged and released from Norfolk on April 27, 2010. And as to their -- that would answer questions one and two. As to question three, I have said they’re receiving that. It's Exhibit 7, with excerpted eight, and they’ll have all those exhibits when they deliberate. Is that agreeable to both of you.
MR. MCCORMICK: Yes, Your Honor.
MR. MCFARLAND: Yes, Your Honor.
THE COURT: All right. So I will explain the answers to those questions when they come in and then we’ll have closing argument and then jury instruction and then they’ll deliberate.
MR. MCCORMICK: Your Honor, I loathe to bring this up, but I question how the jurors even came up with these questions, if they’re not - THE COURT: Deliberating.
MR. MCCORMICK: Deliberating.
MS. KENNEDY: Yeah.
THE COURT: I thought about that and here’s what I will do -- or here’s my thought and here’s what I propose doing. My thought is that I told the jurors in the preliminary instructions that they were entitled to ask questions, so they are entitled to ask questions. So in that sense, the asking questions is both permissible while they’re sitting here. They can think about - nothing prohibits them from thinking about the case when they’re not in the courtroom and composing a question and they understand that they’re about to have closing arguments and they may have thought this is their last -- this is their chance, and they haven’t had it. It’s true that the fact that it appears to be from Ms. Simeone’s report, a group question, rather than an individual question, suggests in some way they did - they at least may have talked about the case. If you’re both agreeable, then what I’ll do is I’m going to answer the questions, tell them -- and I will tell them that they are -- one of my instructions has been and remains that they're not to discuss the case among -- with -- either with anyone else or among themselves until they commence deliberations, and they haven’t yet commenced deliberations. And to the extent that this is--to the extent that they talked about-it’s unclear to me whether they actually talked about the case, or whether the one person said, I'm going to ask these questions, and everyone else just said, okay, and I’d like to know that, too, which doesn’t really seem like a violation of the rule in a meaningful way. In any way, in any event, I’ll just tell them to the extent that if they have any discussion about these events or otherwise, put that out of your mind until after closing arguments.
Is that agreeable?
MR. MCCORMICK: That’s agreeable to me, Your Honor.
MR. MCFARLAND: Yes. Your Honor. That’s fine.
THE COURT: All right. Why don’t you go get the jury. (The jury enters the courtroom.)
. . .
The COURT: … Ms. Simeone gave me three questions that were posed by one or more of you. The first question was the dates Giorgio and Traver were admitted into Pondville and discharged, second, the dates Traver was admitted into Norfolk and discharged, and third, requesting one complete copy of the religious services handbook. So let me answer, I’ve talked to the lawyers and I have answers that they both agree with for you. With respect to Mr. Giorgio, he was admitted to Pondville on May 21, 2009 and he remained there until he was discharged and released on March 16, 2010. Mr. Traver was admitted to Pondville on May 12, 2009. He remained there until December 21, 2009, when he was transferred to MCI Norfolk, where he remained until he was discharged and released on April 27, 2010. Regard -- I think that fully answers questions one and two. With respect to question three, the answer is, you will have that. Exhibit 7 is a complete copy of the religious services handbook. It is in evidence. And Exhibit 8 is an excerpt from Exhibit 7, the excerpt concerning Native Americans. When - what’s going to happen this morning in a moment is you'll hear closing arguments from the lawyers and after closing arguments, I'll give you -- read to you my instructions on the law. Then you will return to the jury room and actually not commence deliberations. You will wait, not long, probably a minute, maybe five minutes, until we deliver to you three things. A written copy of my jury instructions, a written jury verdict form, which has the specific questions for you to answer in rendering your verdict, which I will explain to you when I give you my instructions and a copy of all of the documents and photographs that were admitted into evidence. The reason why you don’t have them when you literally walk out of the room is it takes us -- the lawyers use them in the course of their arguments sometimes and it takes us a minute, sometimes five minutes to collect them. Ms. Simeone will then deliver them to you in the jury room. At that point, you can commence your deliberations. Now, before that point, in that brief window of time, just as I’ve been telling you throughout the case, don't discuss the case among yourselves, don't discuss it with anyone else, keep an open mind.
You should do that during that brief window of time until you have it. Because until you have the instructions and the evidence, you’re not ready to commence your deliberations and then you would be. Insofar as - it’s unclear to me whether these three questions are a question from one of you, or a question from all of you. So insofar as a question from all of you, which then would begin to suggest that perhaps you had discussed the case -- somebody came up with the questions and then everyone else said, well, I like these questions, or there was some at least brief discussion about it, I remind you that you haven’t heard the instructions on the law yet and you haven’t heard the closing arguments, so you should keep an open mind. To the extent that there was any brief or minor discussion just about these questions and how to formulate them or what questions you might have had, I ask you to put that out of your mind. Any comments that any one of you might have made to any of the others, you should have an open mind now, you should keep an open mind until after you’ve heard the closing arguments and the instructions and then until you begin the deliberations. All right?
Counsel, are you ready to ...