Simcoe v. Gray, 670 F. App'x 725

Background

Plaintiff Thomas B. Simcoe (pro se) sued three Niagara Falls police officers under 42 U.S.C. § 1983 for excessive force and failure to intervene following his arrest after a violent domestic incident with his then‑wife.
A jury returned a verdict for the officers on the excessive‑force claim; the district court later entered judgment for defendants on the failure‑to‑intervene claim.
Simcoe appealed, raising (among other arguments) that the verdict was against the weight of the evidence and that defendants submitted fabricated evidence (a rope, a photo, and police dispatch audio).
He also challenged evidentiary rulings: the admission of audio recordings, the exclusion of prior complaints against Lieutenant Gray (Rule 404(b)), the district court’s refusal to appoint pro bono counsel, and denial of his motion for court‑appointed experts.
The Second Circuit reviewed these claims for the appropriate standards (abuse of discretion for evidentiary rulings, deference to the jury on credibility/weight) and affirmed the district court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Verdict against the weight of the evidence	Verdict lacked support; jury should have found for Simcoe	Jury verdict is entitled to deference; district court procedures were proper	Not reviewed as a new weight‑of‑evidence claim on appeal; in any event, sufficient evidence supported the verdict
Fabricated evidence (rope/photo/audio)	Items were fabricated; admission tainted trial	Evidence was authentic or admissible; district court did not abuse discretion	Simcoe failed to preserve some objections; district court did not abuse discretion admitting audio; rope conceded similar by Simcoe
Preclusion of cross‑examination about prior complaints (404(b))	Prior complaints show pattern/absence of mistake and are admissible	Prior acts were of limited probative value; district court properly excluded them after in camera review	Exclusion affirmed under abuse‑of‑discretion standard; probative value did not outweigh prejudice
Denial of appointed counsel	Pro se status impaired ability to present case; counsel should have been appointed	Simcoe competently presented case; no abuse of discretion in denying counsel	District court did not abuse its discretion given Simcoe’s demonstrated ability to present facts
Denial of court‑appointed experts	Needed expert assistance to prove injuries/evidence	Evidence not complex; Simcoe could testify and subpoena treating physicians	No abuse of discretion; experts unnecessary to evaluate the evidence
JMOL on failure‑to‑intervene	Officers failed to intervene for constitutional violations	No constitutional violation occurred; failure‑to‑intervene claim fails without underlying violation	Affirmed: because jury found no excessive force, the failure‑to‑intervene claim fails

Key Cases Cited

Scientific Holding Co. v. Plessey Inc., 510 F.2d 15 (2d Cir. 1974) (verdict‑against‑weight argument cannot be raised first on appeal)
Sojak v. Hudson Waterways Corp., 590 F.2d 53 (2d Cir. 1978) (remand for new trial where verdict is wholly without legal support may be required to prevent manifest injustice)
Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005) (appellate court cannot reweigh evidence or reassess witness credibility)
United States v. Morrison, 153 F.3d 34 (2d Cir. 1998) (review of district court authenticity rulings for abuse of discretion)
Ramey v. Dist. 141, Int’l Ass’n of Machinists, 378 F.3d 269 (2d Cir. 2004) (issues not preserved by objection are generally not reviewable on appeal)
United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992) (Rule 404(b) admissibility reviewed for abuse of discretion)
Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990) (district courts have broad discretion in admitting prior‑act evidence)
Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) (standards for appointing counsel for indigent civil litigants)
Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994) (failure‑to‑intervene claim requires proof of an underlying constitutional violation)