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February 25, 1994


The opinion of the court was delivered by: JOHN T. NIXON

 Pending before the Court is plaintiff's motion for a new trial (Docket Entry No. 131) and plaintiff's motion to amend motion for a new trial (Docket Entry No. 32). Plaintiff moves this court to grant a new trial and enter default judgments against defendant Oscar E. Denning and defendant Jarius Johnson. Upon review of the record and for the reasons stated below, the Court denies plaintiff's motions.


 Emmanuel Mitchell ("Mitchell") filed suit against several prison guards and the warden and associate warden of Tennessee State Penitentiary under 42 U.S.C. § 1983. Mitchell alleged that his Eighth and Fourteenth Amendent rights were violated by the use of or the authorization of the use of excessive force against him and by his placement in an unsanitary prison cell. The case was tried to a jury, which found in favor of the defendants.


 A. Motion For a New Trial

 Mitchell asserts that allowing the verdict to stand would be a miscarriage of justice because the verdict is against the weight of the evidence. See King v. Davis, 980 F.2d 1236, 1237 (8th Cir. 1992). Further, plaintiff contends that the trial was procedurally flawed because of the admission of certain evidence, the composition of the pool from which the jury was chosen, and the jury instructions. (Docket Entry No. 131 at 13-16, 17, 18-19.) The Court rejects both of plaintiff's arguments.

 The Court may grant a motion for a new trial under Rule 59 of the Federal Rules of Civil Procedure if the verdict is against the weight of the evidence, Duncan v. Duncan, 377 F.2d 49 (6th Cir. 1967), cert. denied, Fain v. Duncan, 389 U.S. 913, 88 S. Ct. 239, 19 L. Ed. 2d 260 (1967), if the judge determines that the jury's findings of fact are clearly erroneous, United States v. United States Gypsum, 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948), or if the trial was procedurally unfair, General Am. Life Ins. Co. v. Central Nat'l Bank of Cleveland, 136 F.2d 821, 822-23 (6th Cir. 1943) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 194, 85 L. Ed. 147 (1940)).

 Mitchell's motion for a new trial is also based on his contention that prejudicial and hearsay evidence were admitted at trial. (Docket Entry No. 131 at 13-16.) Specifically, Mitchell argues that Defendant's Exhibit 1, a prison memorandum dated August 22, 1988, should have been excluded. Mitchell asserts that because the memorandum states that he threw urine at prison officials on July 7, 1988, the evidence prejudiced the jurors as to the events of July 5, 1988, the date when Mitchell was allegedly beaten and placed in an unsanitary cell. Further, Mitchell argues that the memorandum is hearsay.

 The Court rejected Mitchell's objections at trial and rejects them on his motion for a new trial. The Court concludes that exclusion of the prison memorandum under Rule 403 of the Federal Rules of Evidence would have been unwarranted. Under Rule 403, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." In balancing the probative value of the evidence against its potential to prejudice, the Court concluded that the memorandum would not have a tendency to suggest to the jury a decision on an improper basis. See Fed. R. Evid. 403, advisory committee's note. The memorandum's report of events on July 7, 1988 would not necessarily lead the jury to conclude that the defendants were not involved in unconstitutional conduct on July 5, 1988. The Court, having reconsidered plaintiff's objection, maintains its decision to admit the memorandum.

 As to Mitchell's allegation that the memorandum was hearsay, the Court finds otherwise. The prison memorandum is a business record and as such is an exception to the hearsay rule. Fed. R. Evid. 803(6). The Court concludes that the memorandum was properly admitted as evidence.

 Mitchell bases his motion for a new trial in part on his challenge to the jury that was selected to decide his case. (Docket Entry No. 131 at 17.) Subsequent to voir dire and in open court, Mitchell moved to stay the proceedings asserting that the jurors were selected from a venire that was racially unrepresentative. Mitchell did not object to defense counsel's striking of Black jurors. The judge denied the motion and the jury ultimately decided in favor of defendants. The jury that decided Mitchell's case was chosen from a venire of twenty persons, of which one was Black. The jury that was ultimately impaneled in the case consisted of six White jurors. Mitchell repeated this objection in his motion.

 The Court interprets Mitchell's motion as an allegation that the Jury Selection and Service Act, 28 U.S.C. § 1861 to § 1878, was violated in that the selection of the jury was racially discriminatory. The Jury Selection and Service Act (the "Act") is the statutory scheme for jury selection in the district courts. Section 1861 is a broad policy statement that informs the entire Act: "all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community . . ." *fn1" Further, the Act forbids discrimination based on race, color, religion, sex, national origin, or economic status, 28 U.S.C. § 1862, and requires each district court to implement a written plan for the random selection of jurors and to achieve the goals of sections 1861 and 1862. 28 U.S.C. § 1863.

 The procedures for challenging jury selection on the ground of substantial noncompliance with the Act are outlined in § 1867(c) as follows:

In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury.

 The meaning of the time limitations of the Act are clarified by the legislative history. The House Report on the Jury Selection and Service Act of 1968, Pub. L. No. 90-274, § 101, 82 Stat. 59 states: "Subsections (a), (b), and (c) specify that challenges must be offered before the voir dire begins. And if the challenging party discovered, or in the exercise of diligence could have discovered, the grounds for the challenge earlier, the challenging motion must be made within 7 days of that earlier date." H.R. Rep. No. 1976, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 1792, 1805. Case law also supports the view that statutory challenges must be made before voir dire. See United States v. Young, 570 F.2d 152, 153 (6th Cir. 1978) (holding that requirements of the statute are strictly enforced and challenges raised for the first time on appeal are untimely).

 The Court concludes that because Mitchell's attack on the validity of the jury selection process was made subsequent to voir dire, his challenge is time-barred. Although Mitchell did raise his challenge in court, he did not do so in the ...

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