FLORENCE BELL and EARNEST BELL, SR., as personal representatives for EARNEST BELL, JR., deceased, Plaintiffs-Appellees, v. ROBERT JOHNSON et al., Defendants, ALLEN BLATTER, Defendant-Appellant.
No. 03-2634
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 20, 2005
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 05a0182p.06. Argued: January 25, 2005. Before: MOORE and GILMAN, Circuit Judges, GWIN, District Judge.*
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COUNSEL
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OPINION
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KAREN NELSON MOORE, Circuit Judge. This First Amendment retaliation claim relates to a series of events that we have addressed in three prior published decisions. Two of those decisions came in a related case, Thaddeus-X v. Blatter, 110 F.3d 1233 (6th Cir. 1997), vacated on grant of rehearing en banc and aff‘d in part by en banc court, Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc), and one in a prior appeal in this case, Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002) (“Bell I”). Following our order of remand in Bell I, the First Amendment retaliation claim went to trial, and the jury returned a verdict in favor of Plaintiff-Appellee Earnest Bell, Jr. (“Bell”)1 and against Defendant-Appellant
I. BACKGROUND
In Bell I, we summarized much of the factual background to this case as follows:2
Bell is a former prisoner at the State Prison for Southern Michigan in Jackson. In 1993-94, Bell was serving a sentence for armed robbery. He was assigned to administrative segregation during his stay at Jackson because he was diagnosed with AIDS and had engaged in consensual sex with another inmate. Bell was paroled in 1994. Bell returned to Jackson later that year after he violated his parole by failing a drug test. When he returned to prison, Bell was once again assigned to administrative segregation based upon his prior sexual misconduct.
In administrative segregation, prisoners are housed alone in cells with steel doors. Prisoners in segregation are locked in their cells for twenty-three hours each day, but are allowed to spend one hour in the prison yard, where the inmates are placed in cages to isolate them. Because prisoners in segregation are not allowed to congregate, the prisoners communicate with each other by yelling through cracks under the cell doors, passing notes through guards, or sliding notes between cells using paper and string.
In April 1994, Bell sought legal assistance in pursuing a variety of civil rights claims from a jailhouse lawyer named Thaddeus-X who was housed in a nearby cell. On April 20, 1994, Bell and Thaddeus-X signed a legal assistance agreement, which was approved by a deputy warden. With Thaddeus-X‘s assistance, Bell filed a lawsuit against seventeen prison guards and administrators, including Sgt. [Allen] Blatter and Officer Mark Stimpson. Bell‘s suit alleged a number of claims, including a challenge to his placement in administrative segregation. Before the lawsuit was filed, prison guards assisted Bell by providing him with writing materials and by passing papers and legal materials between Bell and Thaddeus-X.
Bell claims that the guards began treating him differently after the lawsuit was filed. The guards began refusing to provide Bell with writing supplies or to pass legal materials between Bell and Thaddeus-X. According to Bell, and fellow inmate Eric Waddell, Bell‘s lawsuit was common knowledge among the guards because Thaddeus-X frequently boasted about the suit, and because the prisoners on the floor had discussed the suit by shouting from cell to cell. In response to what he perceived to be undue harassment by several of the prison guards, Bell sent a “Notice of Litigation” to the seventeen named defendants
in his lawsuit on June 3, 1994. The notice explained that Bell had filed a federal lawsuit against the named defendants and warned that “[a]ny further harassment or retaliation will be reported immediately to [the district judge] by plaintiff.” On June 6, 1994, Sgt. Blatter conducted a search of Bell‘s cell while Bell was in the prison yard for his daily hour of “yard time.” When Bell returned to his cell, he found the cell in disarray, and he noticed that some of his legal papers and his medical diet snacks had been taken. Waddell, whose cell was directly across the hall from Bell‘s, saw Blatter enter the cell and leave with papers and Bell‘s snacks. Bell testified that he was allowed to keep the medical snacks in his cell because he had AIDS and he needed extra food to slow his weight loss. At trial, Blatter admitted to conducting the cell search and to removing Bell‘s medical snacks, although he denied taking any legal papers. Blatter also acknowledged that the food was given to Bell for medical reasons.
Bell filed two grievances concerning the June 6 search of his cell. On June 7, 1994, Bell spoke with Sgt. Blatter and asked him about the legal materials. According to Bell, Blatter responded by telling Bell that “if [he] knew what was good for him, that [he] better write the courts [and] have the litigation dismissed.” On June 8, the prison staff moved Thaddeus-X from the second floor to the base level of administrative segregation, making it very difficult for Bell to communicate with him about the lawsuit. That day, Bell filed an amended complaint describing the retaliatory cell search on June 6.
On June 15, 1994, notice of Bell‘s lawsuit was officially received by the prison litigation coordinator on behalf of defendants Blatter and Stimpson. On June 20, 1994, Officer Stimpson allegedly came to Bell‘s cell and told Bell that he “was going to pay” for filing the lawsuit. While Bell was in the prison yard on June 20, Sgt. Blatter and Officer Stimpson again searched Bell‘s cell. Bell returned to find that more of his legal materials were missing. Waddell observed this search from his cell and saw Blatter and Stimpson confiscate Bell‘s food and legal papers. Bell filed another grievance four days later seeking the return of his property.
Michigan Department of Corrections (“MDOC”) policy regulates shakedowns of prisoners’ cells. MDOC Policy Directive 04.04.110 provides that “no search shall be conducted for the purpose of harassing or humiliating a prisoner.” The policy further instructs prison staff to “use reasonable care in conducting the search to protect and safeguard the prisoner‘s property and . . . attempt to leave searched areas in a similar condition to what they were prior to the search.” Prison staff are also directed to enter the cell search into the cell-search log and to complete a contraband-removal record and a notice of intent to conduct an administrative hearing whenever non-dangerous contraband is removed from a prisoner‘s cell. No entry was made in the cell-search log, nor was any notice of intent filed, in connection with either the June 6 or the June 20 search of Bell‘s cell.
Bell stated that his legal materials were never returned to him. He eventually was able to obtain copies from his sister, who had kept duplicates of some of his filings. Bell testified that he became angry and afraid as a result of the actions of prison officials regarding his lawsuit. He explained: “I was angry. It got to the point where I was kind of skeptical from going to the yard. I had started being afraid because my medical snacks, they could have started to, doing anything to my food . . .
.”
Bell I, 208 F.3d at 597-98 (citations and footnote omitted, alterations in Bell I). A magistrate judge recommended that Bell‘s other claims be dismissed, but that his First Amendment retaliation claim (relating to the June 6, 1994 and June 20, 1994 searches) be allowed to go forward, and the district judge adopted this recommendation. The case was held pending our decision in a related case, Thaddeus-X, 175 F.3d 378, involving a separate claim by Bell and “his jailhouse lawyer, Thaddeus-X.” Bell I, 208 F.3d at 600. Following our en banc decision in Thaddeus-X, Bell‘s First Amendment retaliation claim went to jury trial (“Trial No. 1”) from January 17 to January 18, 2001. At the close of Bell‘s case, the defendants moved for judgment as a matter of law pursuant to
The damage award of $1500.00 in compensatory damages with no award for punitive damages was against the great weight of the evidence at trial considering the egregiousness of Blatter‘s conduct and the effect such conduct had on Bell. Blatter should have been punished for his conduct. Clearly, the jury found that Blatter not only retaliated against Bell for filing a lawsuit, but also that he tried to cover up his misconduct by telling falsehoods. The jury‘s award of only $1500.00 in compensatory damages as a consequence is seriously flawed. See Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045-46 (6th Cir. 1996). Bell is therefore entitled to present his case for damages to a second jury. The verdict is simply not one which a jury, given the evidence detailed above and applying the instructions on the law set forth above, could reasonably have reached. The evidence shows that Blatter‘s conduct was wanton and oppressive and is such that the “jury awarded damages in an amount substantially less than unquestion[ably] proved by the . . . uncontradicted and undisputed evidence.” Walker v. Bain, 257 F.3d 660, 67[4] (6th Cir. 2000).
Joint Appendix (“J.A.”) at 103-104 (Memorandum and Order Granting Plaintiff‘s Motion for a New Trial on Damages (“Order Granting New Trial”)) (omission in Order Granting New Trial).
On September 23, 2003, a status conference took place, off the record, in the district judge‘s chambers. At this conference, the district judge made several comments that led defendants to request that the district judge recuse himself from the case. According to Blatter,
[d]uring the course of the status conference, the trial court informed Blatter‘s counsel, John L. Thurber, that he should inform his supervisor that the Court would try the instant case as many times as necessary until a jury reached a verdict of at least $9,000.00. The Court also handed counsel for both sides a note left over from the jury‘s deliberations which contained several numbers on it which presumably showed several possible verdicts. Finally, the Court informed Mr. Thurber that it would award Bell‘s counsel, Paul Reingold, all of his fees for a previous appeal because the
Court had spoken with Lynn Branham, the Dean of Cooley Law School in Grand Rapids, and she indicated that authority existed which would allow appellate fees to be awarded outside of the 150% cap contained in the Prison Litigation Reform Act . . . .
J.A. at 109 (Brief in Support of Recusal) (citations omitted). In his order denying the recusal motion, the district judge provided some clarification and adopted a portion of Bell‘s description of the “context” of the comments, but did not explicitly repudiate any of the statements attributed to him by Blatter‘s attorneys.3 J.A. at 148-49 (Order Denying Recusal Motion). The district judge also noted that “[t]he undersigned‘s comments at the status conference were not intended to be taken literally, as Bell‘s counsel recognizes, but rather were an attempt, perhaps a bit heavy-handed, to resolve the case short of a third trial. Rhetorical promiscuity is not the same as bias.” J.A. at 150 (Order Denying Recusal Motion). The case again went to jury trial (“Trial No. 3”), and this trial resulted in a verdict of $6,000 in compensatory damages and $28,000 in punitive damages against Blatter, who then filed this appeal.
II. ANALYSIS
A. Jurisdiction
As Bell sued under
B. Motion for New Trial
We review a decision granting a motion for a new trial for abuse of discretion. Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir.), cert. denied, 519 U.S. 935 (1996).4
[t]he scope of review of a damage award is extremely narrow. A trial court may not grant a new trial on the ground of insufficient damages unless the jury verdict is one that could not reasonably have been reached. The remedy of a new trial for inadequate damages is appropriate only where the evidence indicates that the jury awarded damages in an amount substantially less than unquestionably proved by the plaintiff‘s uncontradicted and undisputed evidence. Thus, if the verdict is supported by some competent, credible evidence, a trial court will be deemed not to have abused its discretion in denying the motion.
Walker v. Bain, 257 F.3d 660, 674 (6th Cir. 2001) (citations omitted), cert. denied, 535 U.S. 1095 (2002).
Here, Blatter has conceded, among other things, that Bell‘s initial lawsuit constituted protected First Amendment conduct; that Blatter entered, searched, and “removed food” from Bell‘s cell while Bell was in the yard on June 6, 2004, but did not list this search into the jail‘s Administrative Segregation Second Floor Log Book (“Log Book”); and that Blatter (together with Stimpson) entered and searched Bell‘s cell while Bell was out in the yard on June 20, 2004, but did not enter this search into the Log Book. J.A. at 531 (Stipulation of Facts). In addition, according to its verdict form, the jury found that: (1) Blatter took “an adverse action against the Plaintiff that would deter a person of ordinary firmness from continuing to exercise his rights under the First Amendment”; (2) Blatter‘s “adverse action [was] motivated at least in part by Plaintiff Bell‘s protected conduct”; (3) Blatter failed to “show that he would have taken the same action in the absence of the protected activity”; (4) Blatter‘s “conduct [was] the proximate cause of injuries to Plaintiff Bell”; (5) $1,500 was the appropriate “amount of damages [to] compensate the Plaintiff for the injuries he received as a consequence of Defendant Blatter‘s actions”; and (6) Blatter did not “act wantonly or oppressively, as defined on pages 24 and 25 of these instructions, to violate the Plaintiff‘s right not to be retaliated against,” and Bell was accordingly not entitled to punitive damages. J.A. at 58-59 (Verdict Form for Allen Blatter - Retaliation).5
Given these findings, the district judge did not abuse his discretion in granting a new trial. Considering the evidence presented at trial, the jury‘s answers to questions one through four of the verdict form were in conflict with its answer to question
The uncontradicted and undisputed evidence indicates that Blatter acted oppressively in retaliating against Bell‘s exercise of his First Amendment rights. We must uphold the district court‘s decision unless we have “a definite and firm conviction” that the district court “committed a clear error of judgment in the conclusion it reached.” Holmes, 78 F.3d at 1045 (internal quotations omitted). As the facts of this case do not justify such a firm conviction, we must affirm the district judge‘s decision to order a new trial on damages.
C. Motion for Recusal
We review a lower court‘s denial of a recusal motion for abuse of discretion. Youn v. Track, Inc., 324 F.3d 409, 422 (6th Cir. 2003). The main federal recusal statute7 provides in relevant part:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .
Even accepting Blatter‘s account of the off-the-record status conference, it is apparent that the district judge did not abuse his discretion in declining to recuse himself pursuant to § 455.8 First, a statement by the district judge that he would continue to retry the case until Bell received a total verdict of at least $9,000 was not improper as long as the district judge believed that a verdict of less than $9,000 would be against the clear weight of the evidence, requiring him to grant a motion for a new trial pursuant to
Second, the district judge‘s decision to discuss (or share with counsel) the piece of paper found in the jury room does not demonstrate bias, prejudice, or the appearance of partiality.10 It was simply an effort by the district judge to facilitate a
Third, the district judge‘s statement that he was inclined to award attorney fees (and that those fees might exceed those normally allowed by the Prison Litigation Reform Act) showed neither bias nor the appearance of partiality. The district judge was simply providing the parties with additional information that might affect their decisions as to whether it would be appropriate to settle the case. At most, this statement demonstrated that the district judge thought that Bell had presented a meritorious case at trial. An opinion of the merits of the case, resulting from a judge‘s experience with the case in the course of his or her official duties, is not sufficient to justify § 455 recusal unless it demonstrates a “deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. at 555. Such is manifestly not the case here, where the district judge both had substantial experience with the case and expressed an opinion clearly justified by the evidence presented at trial.11
We must uphold the district court‘s recusal decision unless we have “a definite and firm conviction that the trial court committed a clear error of judgment.” Youn, 324 F.3d at 422 (internal quotation omitted). Although we do not condone the statements attributed to the district judge during the September 23, 2003 status conference, which the judge himself conceded were “a bit heavy-handed,” we do not have a firm conviction that the statements made in the context of encouraging a settlement constituted a clear error of judgment. We therefore affirm the district judge‘s decision not to recuse himself from this case.
III. CONCLUSION
As the district judge did not abuse his discretion, either in granting the new trial or in declining to recuse himself from the case, we AFFIRM the judgment of the district court.
Notes
Contrary to Blatter‘s argument, the undersigned did not indicate that this case was worth $9000.00 and no other verdict would be accepted. Rather, the undersigned indicated, as it had in the order granting a new trial, that this amount appeared reasonable to resolve both Bell‘s claim for damages and the attorney fees likely to be awarded, including fees incurred on appeal, if Bell was successful at trial. At all times, however, counsel and the undersigned understood that this was a matter for the parties to decide. Indeed, when it became clear that settlement was not likely, the undersigned set the case for trial.Joint Appendix (“J.A.”) at 151 (Order Denying Recusal Motion).
An act or a failure to act is “wantonly” done, if done in reckless or callous disregard to, or indifference to, the rights of one or more persons, including the injured person. An act or a failure to act is “oppressively” done, if done in a way or manner which injuries [sic], or damages, or otherwise violate [sic] the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority [or] power, or by taking advantage of some weakness, or disability, or misfortune of another person.J.A. at 102-03 (Order Granting New Trial) (quoting jury instructions) (emphasis added).