Born v. Monmouth County Correctional Institution

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 10-2890, 10-3109 and 10-3110
_____________
KAREN BORN,
Appellant in 10-2890
v.
MONMOUTH COUNTY CORRECTIONAL INSTITUTION;
SGT. CORNINE; OFFICER SIMONE;
PISANO, also known as PIZZANO
_____________
KAREN BORN
v.
MONMOUTH COUNTY CORRECTIONAL INSTITUTION;
SGT. CORNINE; OFFICER SIMONE;
PISANO, also known as PIZZANO
Officer Robert Pisano,
Appellant in 10-3109
_____________
KAREN BORN
v.
MONMOUTH COUNTY CORRECTIONAL INSTITUTION;
SGT. CORNINE; OFFICER SIMONE;
PISANO, also known as PIZZANO
Sergeant Cornine,
Appellant in 10-3110
_____________
Appeals from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-07-cv-03771)
District Judge: Honorable Anne E. Thompson
_____________
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2012
Before: SCIRICA, RENDELL and SMITH, Circuit Judges
(Opinion Filed: January 18, 2012)
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
Appellant Karen Born brought a section 1983 lawsuit alleging that Sergeant
William Cornine and Corrections Officer Robert Pisano violated her rights under the
Eighth Amendment to the United States Constitution. Following a trial, a jury found that
Cornine and Pisano violated Born’s rights, but that their acts were not the proximate
cause of any injury to her. On appeal, Born challenges the District Court’s instructions
on damages (particularly its refusal to give an instruction on punitive damages) and its
refusal to admit a report from a psychologist suggesting that she suffers from Complex
Post-Traumatic Stress Disorder. She requests a new trial on the issue of damages alone.
For the reasons stated below, we will deny Born’s request and affirm.
I.
Born alleges that in March 2007, when she was a prisoner in the Monmouth
County Correctional Institution (MCCI), Officer Pisano stomped on her back and that
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Sergeant Cornine observed this but did not intervene. She filed her complaint, pro se, on
August 9, 2007, requesting $200,000 in relief that she termed “restitution.” (RA46.) On
November 8, 2007, a pretrial order was entered in the case by Magistrate Judge Tonianne
Bongiovanni, directing Born to name any expert witness she intended to call at trial by
April 24, 2008.
On January 8, 2009, the parties appeared before Judge Bongiovanni for a pretrial
conference and filed their joint pretrial memorandum, which did not identify any expert
witnesses. It appears from the record that Born requested that an expert be appointed for
her to establish that she suffers from post-traumatic stress disorder (PTSD), but that
Judge Bongiovanni denied this request.1 The pretrial memorandum notes that Born
sought $200,000 for pain and suffering, including “psychological pain,” but does not
mention punitive damages. (RA61.)
On February 19, 2009, Pisano filed a motion for summary judgment, claiming that
Born failed to exhaust administrative remedies, as required of a prisoner litigant under the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The District Court denied that
motion on July 9, 2009.
The parties attended a pretrial conference on May 18, 2010, before Judge Anne E.
Thompson. Born indicated that she would be the only witness at trial, and that her
request for an expert had been denied by Judge Bongiovanni.
1
There is no transcript of the January 8, 2009, conference before Judge Bongiovanni.
There is only a copy of the joint pretrial memorandum, which was marked up and signed
by Judge Bongiovanni. The only indication in the record that Born requested an expert is
a handwritten notation on the joint pretrial memorandum, which states, “Request for
expert denied re: PTSD.” (RA67.)
3
A jury trial commenced on June 8, 2010. Born testified that Pisano used excessive
force against her, that Cornine acquiesced in this, and that, as a result, she sustained
injuries (including psychological damage). Defense counsel sought to cross-examine
Born, using records related to Born’s previous contacts with police in order to “impeach
her testimony with reference to the source of her psychological damage.” (RA228.) The
District Court denied this request.
Among the documents that defendants sought to introduce and impeach Born with
was a July 31, 2009 report authored by Russell M. Holstein, Ph.D., a psychologist. The
report, which was based solely on two instances in which Dr. Holstein met with Born,
noted that Born “presents the signs of complex post-traumatic stress disorder and in
addition a good deal of preoccupation particularly with the police.” (RA263.) The report
made no mention of Pisano, Cornine, or any of the events at issue in Born’s lawsuit.
Born made a request, in front of the jury, to have that report “submitted to the jury
as evidence that [she has] post traumatic stress disorder as a result of this incident.”
(RA170.) The following colloquy then took place:
THE COURT: I don’t know where that’s coming from, Ms. Born. I heard
you say that from the witness stand. What connection that would have to
these defendants, I don’t know that you’ve shown that in any way.
MS. BORN: I intend to show it in --
THE COURT: Do you intend to call a doctor or --
MS. BORN: I have a --
THE COURT: -- or someone -- some medical expert on that?
…
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MS. BORN: I made a request but I was denied that request to provide an
expert. So the answer’s no.
RA170.
The District Court refused Born’s request to submit Dr. Holstein’s report to the jury,
saying that it was not evidence that the defendants caused Born to suffer from PTSD.
(RA204-05.) Defendants requested a curative instruction, arguing that Born had
mischaracterized the report in front of the jury. The District Court issued the following
instruction to the jury:
[P]laintiff has suggested that she has a medical report to support this
and that another judge . . . barred her from presenting the report and barred
her from presenting the author of the report as a witness.
I direct you that you must disregard these statements entirely, as they
are not issues before you, for legal reasons. Just for legal reasons, that is
not before you. So just disregard that entirely. Any evidence as to which
an objection was sustained by the Court and any evidence ordered stricken
by the Court must be entirely disregarded.
(RA365.)
After Born rested, Cornine moved to dismiss the allegations against him, claiming
that Born had failed to offer sufficient evidence that he saw the alleged incident involving
Pisano or that he had an opportunity to intervene. The District Court denied that motion.
At the charging conference, defense counsel objected to the inclusion of an
instruction on punitive damages. The District Court indicated that it would not instruct
the jury on punitive damages because neither Born’s complaint nor the pretrial
memorandum discussed punitive damages. Born responded that, as a pro se plaintiff, she
did not know that she had to specifically request punitive damages, nor that her general
request for damages would not be considered a request for punitive damages. The
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District Court reiterated that it would not instruct the jury on punitive damages, but told
Born that she could renew her motion after the jury returned its verdict. The District
Court told Born that, even if she had requested punitive damages in a timely way, she
would not be entitled to them absent an award of nominal or compensatory damages.
The jury found that Pisano used excessive force on Born and that Cornine ignored
or acquiesced in that conduct, both in violation of Born’s constitutional rights. However,
the jury found that the defendants’ acts did not “play a substantial part in bringing about
injury or damage” to Born. (RA259.) The District Court therefore entered a judgment of
no cause of action against Born.
Born now appeals, requesting a new trial solely on the issue of damages. Pisano
and Cornine cross-appeal the District Court’s denial of summary judgment in their favor
based on Born’s supposed failure to exhaust administrative remedies under the Prison
Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a), and the District Court’s refusal to
admit evidence of Born’s prior complaints against police. They also argue that, if Born is
successful in her appeal, the appropriate remedy would be to remand for a new trial as to
all issues, rather than a trial solely on the issue of damages. Cornine, furthermore, cross-
appeals the District Court’s denial of his motion to dismiss at the close of Born’s case.
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II.
A.
Born appeals the District Court’s decision to disallow into evidence the report of
Dr. Holstein, which states that Born “presents the signs of complex post-traumatic stress
disorder and in addition a good deal of preoccupation particularly with the police.” (RA
263.) We review a district court’s evidentiary rulings for abuse of discretion. Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141 (1997).
We find no abuse of discretion in the District Court’s determination that the report
should be excluded from evidence because it makes no connection between Born’s signs
of PTSD and the alleged conduct of the defendants. Defendants would have been
unfairly prejudiced by the introduction of Dr. Holstein’s report. A jury could have
misinterpreted Dr. Holstein’s report as suggesting that Pisano and Cornine caused Born’s
alleged PTSD, when the report in fact makes no mention of them or the events
surrounding this lawsuit. Defendants never had a chance to depose Dr. Holstein, nor did
they have the opportunity to present their own expert in rebuttal because Born did not
seek to introduce this report until trial.
To the extent that Born challenges on appeal Judge Bongiovanni’s denial of her
request for an expert regarding PTSD, we again find no abuse of discretion. Federal Rule
of Evidence 706 provides that a District Court may “order the parties to show cause why
expert witnesses should not be appointed.” Fed. R. Evid. 706(a). Such a court-appointed
expert is entitled to compensation either “from any funds that are provided by law” or,
from “the parties in the proportion and at the time that the court directs - - and the
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compensation is then charged like other costs.” Fed. R. Evid. 706(c). We understand
that some courts have held that Rule 706 can be used to appoint an expert for an indigent
civil litigant and apportion the costs of such expert to the other side. See Ledford v.
Sullivan, 105 F.3d 354, 360 (7th Cir. 1997); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir.
1996); McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated and
remanded on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991);
Webster v. Sowders, 846 F.2d 1032, 1038-39 (6th Cir. 1988); U.S. Marshals Serv. v.
Means, 741 F.2d 1053, 1058 (8th Cir. 1984). We, however, have never so held. Cf.
Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (finding no statutory authority
for courts to pay expert witness fees of indigent civil litigants; not mentioning Fed. R.
Evid. 706). Even if we were to allow such a use of Rule 706, the exercise of such
authority would (by the very terms of the Rule) be in the discretion of district court
judges, and we see no basis for saying that there was an abuse of discretion in not
ordering the defendants here to pay for Born to hire an expert witness. See Hannah v.
United States, 523 F.3d 597, 601 n.2 (5th Cir. 2008); Means, 741 F.2d at 1059 (noting
that litigants should be tasked with paying expert fees for their indigent opponents only in
“compelling circumstances”).
In support of her argument, Born contends that the jury asked to rehear the portion
of the transcript in which she tried to introduce Dr. Holstein’s report. See D.D.E. # 134
(Trial Tr., June 10, 2010) at 98-99.2 She contends that “[t]his proves that the jury wanted
2
The parties apparently did not feel it necessary to include this jury request in the
appendix. They also provided only select portions of the trial transcript, often omitting
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to hear evidence from an expert proving that plaintiff had suffered emotional damage as a
result of [defendants’ conduct].” Appellant’s Reply to Sergeant Cornine’s Br. at 3. Even
if it were true that the jury wanted such evidence, this does not establish that Dr.
Holstein’s report should have been admitted, nor that the District Court erred by not
appointing an expert for Born. The jury request is not relevant to any procedural or
evidentiary ruling. The fact that the jurors wanted such a report demonstrates a genuine
risk that they might give such evidence undue weight despite the report’s failure to
mention the defendants and the defendants’ inability to cross-examine Dr. Holstein. The
District Court did an admirable job attempting to limit the damage caused by Born’s
reference to this report in front of the jury and did not abuse its discretion.
B.
Born also argues that the District Court erred by not instructing the jury on the
issue of punitive damages. Born contends that she should be forgiven for not specifically
requesting punitive damages at any point before trial because she is a pro se litigant and
was not aware of any requirement that she make a specific request for punitive damages.
Federal Rule of Civil Procedure 8(a)(3) states that “[a] pleading that states a claim
for relief must contain . . . a demand for the relief sought, which may include relief in the
alternative or different types of relief.” Federal Rule of Civil Procedure 15(b) allows for
the amendment of pleadings at trial, saying that a district court “should freely permit an
not just passages that would be useful to this Court for context, but also portions of the
transcript that they cite in their briefs. See 3d Cir. L.A.R. 30.3(a) (2011) (“Relevant
portions of a trial transcript, exhibit, or other parts of the record referred to in the briefs
must be included in the appendix at such length as may be necessary to preserve
context.”).
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amendment when doing so will aid in presenting the merits and the objecting party fails
to satisfy the court that the evidence would prejudice that party’s action or defense on the
merits.” Though we exercise plenary review over the district court’s decision to deny a
request to send the issue of punitive damages to the jury where that issue has been
properly pleaded, Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 207 (3d Cir. 1996), we
review the denial of a motion for leave to amend a complaint for abuse of discretion,
Douglas v. Owens, 50 F.3d 1226, 1235 (3d Cir. 1995).
To the extent that Born tried to amend her complaint at trial to include a demand
for punitive damages, the District Court was correct to reject her request. Because Born
did not request punitive damages until after the close of evidence at trial, defendants
never had an opportunity to set forth defenses or introduce mitigating evidence.
Furthermore, a punitive damages claim affects a defendant’s settlement position,
especially where the defendant is indemnified by an insurer that does not cover the
defendant’s liability for punitive damages. Cf. Variety Farms, Inc. v. N.J. Mfrs. Ins. Co.,
410 A.2d 696, 703 (N.J. Super. Ct. App. Div. 1980) (“Public policy does not permit a
tortfeasor to shift the burden of punitive damages to his insurer.”). We have previously
expressed our view that it is “unfair and substantially prejudicial to permit the injection of
a new and different prayer for relief after trial at the very end of the case.” United States
v. 47 Bottles, More or Less, Each Containing 30 Capsules of an Article Labeled in Part
“Jenasol RJ Formula „60‟”, 320 F.2d 564, 573 (3d Cir. 1963) (finding district court
abused its discretion by allowing United States to amend its condemnation libel to
include a prayer for injunctive relief after trial). The District Court expressed its view
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that amending Born’s complaint at the end of trial to include a claim for punitive
damages would be unfairly prejudicial. RA216 (“[A] defendant, knowing that they’re
facing punitive damages, could respond with certain other kinds of evidence. So you
can’t add it at the conference over jury charge.”). We do not think the District Court
abused its discretion in refusing to allow such an amendment.
On the topic of jury instructions, Born argues that
Judge Thompson’s curative jury instruction to ignore anything related to
plaintiff’s PTSD confused and mislead [sic] the jury to the point where they
ignored any emotional distress that plaintiff testified she suffered because
they wrongly interpreted any emotional distress, anguish or pain and
suffering of plaintiff from the unjust assault of her to be that of PTSD.
Appellant’s Reply to Cornine’s Br. at 18. The District Court clearly instructed the jury
that it was permitted to consider Born’s evidence of emotional anguish and award her
compensation for emotional damages she sustained because of defendants’ conduct. See
D.D.E. # 134 (Trial Tr., June 10, 2010) at 43 (“You should consider her testimony with
regard to pain, suffering, emotional anguish, personal limitation and discomfort. . . . The
law recognizes as proper items for recovery pain, physical, mental suffering, discomfort,
distress, disability that a person may endure as a consequence of the defendant’s
conduct.”); RA255 (“The damages you award should be proportional to the actual loss
sustained, whether the loss is physical or mental or emotional.”). The curative instruction
related to Born’s contention that she could produce an expert and an expert report in no
way conflicted with the Court’s clear instruction that mental suffering and emotional
distress were compensable if proximately caused by defendants’ violation of Born’s
constitutional rights.
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C.
We find no merit in any of the other grievances Born describes in her briefs. Born
appears to complain that there were twelve jurors, and not fewer, but she has no right to a
civil jury of fewer than twelve people. See Fed. R. Civ. P. 48(a) (“A jury must begin
with at least 6 and no more than 12 members . . . .”). As the committee note to the 1991
Amendment to Rule 48 notes, “[t]he use of jurors in excess of six increases the
representativeness of the jury and harms no interest of a party.”
Born argues that she is entitled to costs under Federal Rule of Civil Procedure
54(d) because of the jury’s finding that Pisano used excessive force upon her and that
Cornine ignored or acquiesced in that conduct. Born mistakes a finding in her favor on
the verdict form for a determination that she is the “prevailing party” under Rule 54. As
we recently noted, “the plaintiff in a [42 U.S.C.] § 1983 case must prove that a
constitutional violation has occurred, and that it was the proximate cause of his or her
injuries.” Burns v. Pa. Dep‟t of Corr., 642 F.3d 163, 181 (3d Cir. 2011) (citing Carey v.
Piphus, 435 U.S. 247, 260 (1978)). The jury here found that the defendants violated
Born’s rights, but that their acts did not “play a substantial part in causing or bringing
about injury or damage to plaintiff.” RA259-60. The jury so found despite the fact that it
was instructed on (and the verdict sheet mentioned) its authority to award nominal
damages. RA256; see D.D.E. # 134 (Trial Tr., June 10, 2010) at 80 (“If you didn’t find
that there was any basis for any injury that would be compensable in money damages,
you could award her one dollar, but that would be only if the attack did take place”); id.
at 81 (“[I]f this happened, the plaintiff would be able to recover money damages from
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Defendant Cornine, compensatory damages, and if you felt that there was no money
warranted, then you could nominal [sic] damages of one dollar.”). Having failed to prove
that the defendants’ violation of her civil rights caused her any injury, Born is not a
prevailing party and is not entitled to costs under Fed. R. Civ. P. 54(d). 3
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
3
Because the District Court judgment was entered in Pisano and Cornine’s favor, their
cross-appeals are rendered moot by our decision to deny Born’s appeal.
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