BISTRIAN v. WARDEN TROY LEVI et al, 517 F.Supp.3d 335

Background

Plaintiff Peter Bistrian was a pretrial detainee in the FDC SHU in 2006, served as an orderly, and passed notes between inmates; a photocopy delivered to Steven Northington led to threats and an assault by Northington and associates in a recreation pen.
Bistrian sued under Bivens against SIS Lieutenant James Gibbs (failure to protect) and under the FTCA against the United States for a separate later assault; Bivens claims were tried to a jury and FTCA claims to the Court.
The jury found Bistrian faced a substantial risk and that Gibbs had actual knowledge, but did not find Gibbs deliberately indifferent; Bistrian timely moved for a new trial as to Gibbs.
After trial, the FBI produced a previously-unsearched “Northington Attack File” containing (a) an FBI agent’s handwritten interview notes of CO Kehinde Akano stating "first time both in cell together," and (b) clear color photos of a large "Stop Snitching" sign posted on Northington’s cell—evidence not produced earlier despite Touhy requests.
The district court held the newly produced Akano notes and color photographs were material, not merely cumulative, not discoverable earlier through reasonable diligence, and would likely have changed the jury’s verdict; the court granted a new trial as to Gibbs.
The court granted limited additional discovery: depositions of Akano (on his FBI interview and any separation), Jezior (on the photographs and any separation), and a limited deposition of Special Agent Heaney (unless the government authenticates the notes by affidavit); the court denied broad file review and an FBI records-representative deposition as unduly burdensome.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether newly discovered evidence warrants a new trial	Akano notes and color photos undermine Gibbs’s testimony about lack of separation and his claimed unawareness; would likely change outcome	Evidence is cumulative or would not have altered verdict	New trial granted: evidence material, non‑cumulative, would likely change result
Whether the new evidence is merely cumulative of trial evidence	Akano notes are contemporaneous, disinterested corroboration; color photos materially superior to prior low‑quality images	Plaintiffs’ own trial testimony and other exhibits cover same facts	Not cumulative; admits new probative value
Whether evidence could have been discovered earlier with reasonable diligence	Plaintiff issued Touhy requests in 2013/2015; FBI failed to search separate Northington file until 2020	Plaintiff could have found the materials earlier	Court finds plaintiff exercised diligence; FBI’s failure precluded earlier discovery
Scope of additional discovery	Requests broad FBI file review and depositions of multiple witnesses	Government argues burden of broad review outweighs benefit	Court orders limited targeted depositions (Akano, Jezior, limited Heaney) and denies expansive file review and an FBI records rep deposition

Key Cases Cited

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (establishes judicial remedy against federal officers for constitutional violations)
Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125 (3d Cir. 1995) (Rule 60(b)(2) new‑evidence standard applied in context of new‑trial motions)
Wagner by Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002 (3d Cir. 1995) (district court’s discretion to grant a new trial)
Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991) (characterizes a new trial as extraordinary relief)
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (procedural framework for obtaining government records/testimony)
Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995) (district court’s broad discretion to manage discovery)
Plisco v. Union R. Co., 379 F.2d 15 (3d Cir. 1967) (cited for Rule 60(b)(2) precedent on new evidence)