Nosewicz v. Janosko

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 28, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
EDWARD JOHN NOSEWICZ,
Plaintiff - Appellant,
v. No. 20-1287
(D.C. No. 1:16-CV-00447-PAB-KLM)
JEFFREY JANOSKO, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, MORITZ, and CARSON, Circuit Judges.
_________________________________
The Adams County Sheriff’s Office (“ACSO”) arrested and jailed Edward
Nosewicz. Early the next morning, Mr. Nosewicz started screaming in his cell. Deputy
Jeffrey Janosko unsuccessfully tried to calm Mr. Nosewicz, then attempted to escort him
to a “cool down” cell. Mr. Nosewicz resisted, and Deputy Janosko took him to the
ground.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Nosewicz sued Deputy Janosko in federal district court. The case was tried on
his 42 U.S.C. § 1983 claim for excessive force in violation of the Fourteenth
Amendment.1 The jury decided for Deputy Janosko.
Mr. Nosewicz moved for a new trial. First, he argued the evidence was
insufficient to support the jury’s verdict. Second, he relied on inconsistent testimony
from Deputy Janosko and his shift supervisor, Sergeant Robert Hannah, to argue that one
of them gave false or perjurious testimony. The court denied the motion.
Mr. Nosewicz appeals, raising the same arguments. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. TRIAL EVIDENCE
Deputy Janosko testified that he first spoke to Mr. Nosewicz during the evening on
December 5, 2014. Mr. Nosewicz was “irate and upset.” App. at 1857. At around 4 a.m.
the next morning, Mr. Nosewicz started screaming about needing medical care. Deputy
Janosko and Sergeant Kenny Sherman, his use-of-force expert, both testified that Mr.
Nosewicz’s screaming risked waking other inmates and causing a dangerous disruption.
Deputy Janosko said he approached Mr. Nosewicz’s cell and asked the control
tower to open the door remotely. He talked with Mr. Nosewicz to determine what was
wrong and to calm him down. In response, Mr. Nosewicz swore at him. When Deputy
1
Mr. Nosewicz originally brought claims for excessive force and deliberate
indifference to his medical needs. In a previous appeal, we affirmed summary judgment
on the deliberate indifference claim but permitted Mr. Nosewicz to try the excessive force
claim to a jury. Nosewicz v. Janosko, 754 F. App’x 725, 735 (10th Cir. 2018)
(unpublished).
2
Janosko said he did not appreciate this disrespectful language, Mr. Nosewicz swore at
him again.
Deputy Janosko said he ordered Mr. Nosewicz to exit his cell to be transferred to a
“cool down” cell. Mr. Nosewicz refused. When Deputy Janosko walked into the cell,
Mr. Nosewicz yelled he could not enter. Deputy Janosko grasped Mr. Nosewicz’s right
arm and positioned himself behind Mr. Nosewicz in an “escort position.” See id. at 1867,
1869, 1890-91, 1893. Mr. Nosewicz pulled his right arm away and continued yelling.
Deputy Janosko ordered him to stop resisting.
Deputy Janosko testified that Mr. Nosewicz kept trying to pull away and then spun
rightward toward Deputy Janosko so they were facing each other. From that position,
Mr. Nosewicz could have hit Deputy Janosko with his unrestrained left arm. Deputy
Janosko used an arm-bar maneuver to take Mr. Nosewicz to the ground. Other officers
arrived and helped Deputy Janosko restrain Mr. Nosewicz.2
Sergeant Sherman testified about reasonable use of force under ACSO policies.
He characterized Mr. Nosewicz’s pulling his right arm away as “defensive resistance”
because “he [was] not striking or hurting the officer.” Id. at 1921. He testified that when
Mr. Nosewicz spun toward Deputy Janosko, his “defensive resistance” escalated into
“active aggression.” Id. at 1922-23. Sergeant Sherman opined that under ACSO
policies, Deputy Janosko could have responded to Mr. Nosewicz’s “active aggression”
2
A camera in the module captured video of the incident from outside Mr.
Nosewicz’s cell. The parties did not provide this footage on appeal.
3
with considerable force and that his choice of an arm-bar takedown was “at the very low
end” of the types of force he could have applied. Id. at 1923-24.
Sergeant Sherman stated that an ACSO manual recommended that a knee strike
precede an arm-bar takedown. He explained that by not striking Mr. Nosewicz before
taking him down, Deputy Janosko avoided “escalating any further” the amount of force
he applied. Id. at 1933. In conclusion, Sergeant Sherman opined that Deputy Janosko’s
use of force was “appropriate and reasonable,” and not “excessive or inappropriate.” Id.
at 1940-41.
Mr. Nosewicz gave a different account. He testified that during his arrest, officers
slammed his torso and head into the ground, causing pain. He said the arresting officers
also scratched his face and caused his wrists to bleed. Mr. Nosewicz testified that in the
afternoon before the incident, Deputy Janosko verbally antagonized him. Before his
early-morning encounter with Deputy Janosko, he had awakened with chest pain and
believed he had broken a rib or was having a heart attack. He said that during the
encounter, Deputy Janosko placed him in a chokehold, slammed his head into the
cinderblock wall, and beat him. At some point during this incident, he lost
consciousness.
Mr. Nosewicz also presented testimony from physicians Dr. Julianna Batizy-
Morley and Dr. Stephanie Chiu. They said he suffered a rib fracture, a possible heart
attack, head swelling, a laceration on his elbow, bruising, and self-reported pain in his
wrist, elbow, and chest around the time of this encounter. Both Mr. Nosewicz and Dr.
4
Mark Engelstad, Mr. Nosewicz’s family medicine doctor, testified that Mr. Nosewicz had
developed heart conditions well before his arrest and detention in December 2014.3
II. DISCUSSION
Fed. R. Civ. P. 59(a)(1)(A) provides: “The court may, on motion, grant a new trial
on all or some of the issues—and to any party— . . . after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court.”
“A motion for a new trial is generally not regarded with favor, and is granted only
with great caution.” United States v. Perea, 458 F.2d 535, 536 (10th Cir. 1972). “Courts
do not grant new trials unless it is reasonably clear that prejudicial error has crept into the
record or that substantial justice has not been done, and the burden of showing harmful
error rests on the party seeking the new trial.” 11 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2803 (3d ed. Apr. 2021 update) [hereinafter
Wright & Miller] (footnote omitted).
We review the denial of a new trial motion for an abuse of discretion. Burke v.
Regalado, 935 F.3d 960, 1026 (10th Cir. 2019). “A district court abuses its discretion if
it made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (quotations omitted). “A district court’s decision crosses the abuse-
3
In addition to the testimony described above, Deputy Janosko presented
testimony from Mr. Nosewicz’s wife and the jail nurse who handled Mr. Nosewicz’s
intake. Mr. Nosewicz presented testimony from Sergeant Gregory Blevens about Mr.
Nosewicz’s arrest, initial processing, and transport to the jail. Mr. Nosewicz testified that
before the incident with Deputy Janosko, jail staff, including Deputy Janosko, denied him
medical care. This testimony does not affect our analysis.
5
of-discretion line if it rests on an erroneous legal conclusion or lacks a rational basis in
the record.” Harmon v. City of Norman, Okla., 981 F.3d 1141, 1146 (10th Cir. 2020)
(quotations omitted).
A. Insufficient Evidence
Legal Background
a. New trial motions based on insufficient evidence
“In deciding a new trial motion based on insufficiency of the evidence, a district
court must analyze whether the verdict is clearly, decidedly or overwhelmingly against
the weight of the evidence.” Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1216
(10th Cir. 2013) (quotations omitted). We “view[] all the evidence in the light most
favorable to the prevailing party.” Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th
Cir. 2006).
b. Excessive force claims by pretrial detainees
The Fourteenth Amendment governs excessive force claims by pretrial detainees.
See Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., 978 F.3d 1165, 1171 (10th Cir.
2020). “A defendant violates the Fourteenth Amendment by purposely or knowingly
using force against a pretrial detainee that is ‘objectively unreasonable.’” Id. (quoting
Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). “Objective unreasonableness . . .
turns on the ‘facts and circumstances of each particular case.’” Id. (quoting Kingsley,
576 U.S. at 397). A jury must “make this determination from the perspective of a
reasonable officer on the scene, including what the officer knew at the time, not with the
20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. The Supreme Court in Kingsley
6
identified six non-exclusive factors to determine whether an officer’s use of force was
objectively reasonable. We list these factors as we apply them below.4
Application of the Kingsley Factors
Under the Kingsley factors, a reasonable jury had sufficient evidence to find
Deputy Janosko’s conduct was objectively reasonable under the Fourth Amendment.
Kingsley Factor A Reasonable Jury Could Have Found
1. “[T]he relationship between the need Deputy Janosko used reasonable force
for the use of force and the amount of given Mr. Nosewicz’s conduct.
force used,” Kingsley, 576 U.S. at 397.
2. “[T]he extent of the plaintiff's injury.” Mr. Nosewicz’s injuries preceded his
Id. encounter with Deputy Janosko.
3. “[A]ny effort made by the officer to Deputy Janosko exercised restraint by
temper or to limit the amount of attempting to calm Mr. Nosewicz before
force.” Id. entering his cell and choosing not to strike
Mr. Nosewicz before the arm-bar
takedown.
4. “[T]he severity of the security problem Mr. Nosewicz’s screaming risked causing
at issue.” Id. a dangerous disruption in the module and
that his spinning toward Deputy Janosko
presented a safety risk.
5. “[T]he threat reasonably perceived by Someone in Deputy Janosko’s position
the officer.” Id. would have viewed Mr. Nosewicz as
posing a threat of physical assault.
6. “[W]hether the plaintiff was actively Mr. Nosewicz actively resisted when he
resisting.” Id. spun toward Deputy Janosko.
4
There is no dispute that the district court properly instructed the jury as to the
Kingsley factors.
7
The jury had ample evidence to find that every Kingsley factor favored Deputy
Janosko and that his use of force was thus objectively reasonable. The district court thus
did not abuse its discretion when it denied Mr. Nosewicz’s motion for a new trial based
on insufficient evidence.5
B. False or Perjured Testimony
We reject Mr. Nosewicz’s argument that a new trial is warranted because Deputy
Janosko or Sergeant Hannah testified falsely or perjuriously.
Procedural History
Mr. Nosewicz’s theory of false or perjured testimony is based on an inconsistency
between Deputy Janosko’s testimony about what happened before he took Mr. Nosewicz
to the ground, and Sergeant Hannah’s testimony about what Deputy Janosko orally
reported to him after the incident. This inconsistency became apparent during pretrial
discovery.
a. Depositions and incident report
Mr. Nosewicz deposed Deputy Janosko and Sergeant Hannah. Sergeant Hannah
testified that Deputy Janosko orally reported to him that Mr. Nosewicz had “balled his
5
Mr. Nosewicz’s other arguments for insufficient evidence are unavailing. First,
he argues the district court mischaracterized the record by stating that Deputy Janosko
used an arm-bar takedown because Mr. Nosewicz tried to pull his arm away and turned
toward Deputy Janosko. Aplt. Br. at 43-48. But the record supports this view. Second,
he argues the court should not have credited Deputy Janosko’s testimony that he was
worried Mr. Nosewicz would hit him. Id. at 48-53. But this testimony is irrelevant to our
analysis because the excessive-force inquiry under Kingsley does not concern Deputy
Janosko’s subjective fears. See Kingsley, 576 U.S. at 395 (“[T]he relevant standard is
objective not subjective.”).
8
fists up” and taken “a step toward him.” App. at 1568. By contrast, when Mr. Nosewicz
asked Deputy Janosko to “[d]escribe [the incident] in detail,” Deputy Janosko did not
mention that Mr. Nosewicz had balled up his fists and taken a step toward him. Id. at
1574-75.
Also, Deputy Janosko produced an “Incident/Investigation Report” to Mr.
Nosewicz. In the report, Deputy Janosko did not say Mr. Nosewicz had balled up his
fists and taken a forward step.
b. Montgomery expert report and motion in limine
One of Mr. Nosewicz’s experts, Dan Montgomery, identified the inconsistency
between Sergeant Hannah’s and Deputy Janosko’s testimony in his report. Mr.
Montgomery said “[t]his disconnect [was] disturbing.” App. at 930. He also opined that
Sergeant Hannah should have investigated Deputy Janosko’s use of force on Mr.
Nosewicz. Deputy Janosko moved in limine to exclude Mr. Montgomery’s opinions, Mr.
Nosewicz opposed the motion, and the district court granted exclusion. Id. at 912-14,
1073-75, 1134.6
c. Trial testimony
Mr. Nosewicz called Deputy Janosko and Sergeant Hannah as trial witnesses to
elicit their inconsistent testimony. Aplt. Br. at 7-9. Both repeated their deposition
testimony. Sergeant Hannah said Deputy Janosko orally reported that Mr. Nosewicz had
6
Although the district court held that some of Mr. Montgomery’s other opinions
were admissible, he ultimately did not testify at trial, and his expert report was not
published to the jury.
9
balled up his fists and taken a forward step. Deputy Janosko testified he did not make
such a report. And Deputy Janosko also said Mr. Nosewicz did not, in fact, ball up his
fists and take a forward step.
Analysis
We address Mr. Nosewicz’s false testimony and perjurious testimony arguments
in turn.
a. False testimony
Additional legal standards
The legal test for whether false testimony warrants setting aside a jury verdict and
holding a new trial depends on when a party discovers falsity.
1) Before trial
A party who discovers false testimony before trial has several options. For
example, the party can move in limine to exclude the false testimony, present evidence of
falsity to the jury to impeach the witness, or—if the party discovers falsity on the eve of
trial—move for a continuance or for additional discovery. But Mr. Nosewicz offers no
authority that this circumstance justifies a new trial in his case.7
7
Mr. Nosewicz could have argued that although he knew about the inconsistent
testimony before the trial, the testimony caused a miscarriage of justice that justifies a
new trial. McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir.
1990) (A district judge “has the obligation or duty to ensure that justice is done, and,
when justice so requires, he has the authority to set aside the jury’s verdict.”). But he has
not made such a showing.
10
2) During trial
A party who discovers false testimony during trial can seek a new trial by
“show[ing] surprise, prejudice, and an attempt [during trial] to cure the prejudice such as
a motion for a continuance.” Hynes v. Energy W., Inc., 211 F.3d 1193, 1203 (10th Cir.
2000) (quotations and alteration omitted).
3) After trial
A party who discovers falsity after trial may invoke our five-part standard for a
new trial. When addressing such a motion, “the trial court must first be satisfied that the
challenged testimony was actually false.” United States v. Bradshaw, 787 F.2d 1385,
1391 (10th Cir. 1986). The party also must meet the following five requirements:
(1) the evidence [showing falsity] was discovered after trial;
(2) the failure to learn of the evidence was not caused by [the
movant’s] own lack of diligence; (3) the new evidence is not
merely impeaching; (4) the new evidence is material to the
principal issues involved; and (5) the new evidence is of such
a nature that in a new trial it would probably produce [a
different result].
United States v. Miller, 987 F.2d 1462, 1466 (10th Cir. 1993).
Analysis
This case falls into the first category—when a party discovers false testimony
before trial. The discovery record conclusively shows Mr. Nosewicz knew well before
trial about the inconsistency between Deputy Janosko’s and Sergeant Hannah’s
testimony. As the district court observed, Mr. Nosewicz’s argument that he was
surprised by the inconsistency “strains credulity.” App. at 1609. We see no abuse of
11
discretion by the district court and thus affirm the denial of the new trial motion based on
false testimony.
b. Perjurious testimony
Mr. Nosewicz also argues that Deputy Janosko or Sergeant Hannah committed
perjury, warranting a new trial.8 But he has identified no evidence that either committed
perjury, i.e., “knowingly ma[de] a false material statement that has the tendency to
mislead.” United States v. Hernandez, 94 F.3d 606, 611 (10th Cir. 1996) (emphasis
added). We have emphasized that “witnesses frequently disagree in their interpretation
and recollection of events, and . . . tension between witnesses’ testimony does not prove
subornation of perjury” or perjury. United States v. Henderson, 179 F. App’x 535, 540
(10th Cir. 2006) (unpublished);9 see also Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.
1991) (“Contradictions and changes in a witness’s testimony alone do not constitute
perjury and do not create an inference, let alone prove, that the prosecution knowingly
presented perjured testimony.”). The single inconsistency between Deputy Janosko’s and
8
We address this argument separately because two infrequently cited Tenth
Circuit opinions, Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949), and Motive
Parts Warehouse v. Faucet Enterprises, 774 F.2d 380, 391 (10th Cir. 1985), arguably
recognize a distinct legal standard for new trial motions based on perjurious, as opposed
to merely false, testimony. We take no position on whether there is such a distinct legal
standard.
9
Although not precedential, we find the reasoning of this unpublished opinion
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
12
Sergeant Hannah’s testimony does not establish that either made a knowing false
statement.10
* * * *
For these reasons, we affirm the district court’s denial of Mr. Nosewicz’s new trial
motion based on false or perjurious testimony.
III. CONCLUSION
We affirm the district court’s denial of Mr. Nosewicz’s motion for a new trial.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
10
We also reject Mr. Nosewicz’s argument that the court should have held an
evidentiary hearing about Deputy Janosko and Sergeant Hannah’s testimony. Mr.
Nosewicz cites only the Fourth Circuit’s decision in Phillips v. Crown Central Petroleum
Corp., 556 F.2d 702 (4th Cir. 1977), to argue a hearing was needed “to determine the
extent to which the verdict was based on false or perjurious testimony.” Aplt. Br. at 41.
In Phillips, one of the plaintiffs—a key witness—admitted after trial to having
“committed perjury . . . with respect to issues central to the litigation.” 556 F.3d at 703.
The district court did not look into the extent of the perjury and decided to “continue to
credit” the plaintiff’s trial testimony. Id. The Fourth Circuit held this was error because,
given the plaintiff’s admission, a hearing was needed to determine the extent of the
perjury. Id. at 705. By contrast, Mr. Nosewicz has not given any basis to infer that
Deputy Janosko or Sergeant Hannah committed perjury. Mr. Nosewicz therefore has not
shown the district court abused its discretion by declining to hold an evidentiary hearing.
13