Caswell

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

REGGIE CASWELL,

Plaintiff, 9:19-cv-141

(ECC/MJK)

v.

DONALD G. UHLER, et al.,

Defendants.

Reggie Caswell, Pro Se Plaintiff

Jorge A. Rodriguez, Esq., for Defendants

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

Plaintiff Reggie Caswell brought this action under 42 U.S.C. § 1983 against multiple

Defendants arising out of his incarceration at Upstate Correctional Facility. See Dkt. No. 1. After

a five-day trial, the jury returned a verdict finding that Plaintiff failed to prove his claims by a

preponderance of the evidence. Dkt. No. 173. The Court entered judgment accordingly. Dkt. No.

174. Plaintiff’s counsel subsequently withdrew representation, and Plaintiff has since proceeded

pro se. Dkt. Nos. 176, 178. Presently before the Court are Plaintiff’s motions for (1) judgment as

a matter of law under Federal Rule of Civil Procedure 50(a) and (b), (2) a new trial under Federal

Rule of Civil Procedure 59(a), and (3) altered or amended judgment under Federal Rule of Civil

Procedure 59(e), Dkt. No. 177, and (4) Defendants’ motion for a bill of costs, Dkt. No. 175. The

motions are fully briefed, Dkt. Nos. 181, 183, 193, 195, 197, 204. For the following reasons,

Plaintiff’s motions are denied, and Defendants’ motion for a bill of costs is granted in part.

I. PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW

Plaintiff argues that he is entitled to judgment as a matter of law based on the facts as he

presents them in his motion. Dkt. Nos. 177 at 20–27; 204 at 4–18.1 Defendants respond that

Plaintiff may not move for judgment as a matter of law under Federal Rule of Civil Procedure

Rule 50(b) because he did not move for judgment as a matter of law before the jury received the

case, but even if the Court were to consider the motion, “[t]here is an abundance of evidence

supporting the jury’s verdict of no cause of action.” Dkt. No. 197-9 at 8–9.

A. Legal Standard

“The standard governing motions for judgment as a matter of law (JMOL) pursuant to

Rule 50 . . . is well established.”2 Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276,

289 (2d Cir. 1998) (internal citation omitted). “A [party] is entitled to judgment as a matter of law

if, after a party has been fully heard on an issue during trial, the Court finds that ‘a reasonable jury

would not have a legally sufficient evidentiary basis to find for the party on that issue . . . .’” In

re Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 535 (S.D.N.Y. 2011) (quoting Fed. R.

Civ. P. 50(a)(1)). In determining whether there was a legally sufficient evidentiary basis for the

jury’s conclusion, a court must “defer[ ] to the jury’s assessment of the evidence and all reasonable

inferences the jurors could draw from that evidence,” and “may not itself weigh the credibility of

witnesses or consider the weight of the evidence.” Meloff v. N. Y. Life Ins. Co., 240 F.3d 138, 145

(2d Cir. 2001) (internal citation and quotation marks omitted). “A movant’s burden in securing

1 Unless otherwise noted, citations to page numbers refer to pagination generated by the ECF

system.

2 This paragraph’s discussion of the legal standard for a Rule 50(a) motion is taken from Judge

Sullivan’s thorough discussion in Toliver v. New York City Dep’t of Corrections, 202 F. Supp. 3d

328, 333–34 (S.D.N.Y. 2016).

Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned

its verdict.” Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005).

Under such circumstances, the district court may set aside the verdict only where

there is such a complete absence of evidence supporting the verdict that the jury’s

findings could only have been the result of sheer surmise and conjecture, or there

is such an overwhelming amount of evidence in favor of the movant that reasonable

and fair minded [jurors] could not arrive at a verdict against him.

Id. (alterations and internal quotation marks omitted).

“A Rule 50(a) motion made before submission of the case to the jury is a necessary

predicate to a post-trial motion pursuant to Rule 50(b), Bracey v. Bd. of Educ. of City of Bridgeport,

368 F.3d 108, 117 (2d Cir. 2004), which essentially is a renewal of a Rule 50(a) motion after an

unfavorable verdict on the grounds specifically raised in the Rule 50(a) motion, Tolbert v. Queens

College, 242 F.3d 58, 70 (2d Cir. 2001), and, as such, is ‘limited to those grounds that were

specifically raised in the prior [Rule 50(a) motion]’.” Wierzbic v. Howard, 331 F.R.D. 32, 45

(W.D.N.Y. 2019), aff’d, 836 F. App’x. 31 (2d Cir. 2020) (quoting Galdieri-Ambrosini, 136 F.3d

at 286). In other words, “‘[a] post-trial Rule 50(b) motion for judgment as a matter of law is

properly made only if a Rule 50(a) motion for judgment as a matter of law has been made before

submission of the case to the jury.’” Edelman v. NYU Langone Health Sys., 141 F.4th 28, 41 (2d

Cir. 2025) (quoting Bracey, 368 F.3d at 117). “If a party fails to move under Rule 50(a) before

the matter is submitted to the jury but ‘later moves under Rule 50(b), the standard for granting

judgment as a matter of law is elevated, and the motion may not properly be granted by the district

court . . . except to prevent manifest injustice.’” Id. (quoting ING Glob. v. United Parcel Serv.

Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir. 2014)). “‘Manifest injustice exists where a jury’s

verdict is wholly without legal support.’” Id. (quoting ING Global, 757 F.3d at 97).

B. Analysis

As an initial matter, Plaintiff, who was represented by able counsel at the time, did not

move for judgment as a matter of law under Rule 50(a) before the case was submitted to the jury.

Only now, in his motion papers, does Plaintiff summarily state that “it is Plaintiff’s contention[ ]

that there was a complete absence of any evidence to support the jury’s verdict in this case.” Dkt.

No. 177 at 20. Given that Plaintiff’s counsel did not file a Rule 50(a) motion before the case was

submitted to the jury, Plaintiff must therefore meet the manifest injustice standard.

Plaintiff argues that the jury should have credited his version of events. See Dkt. No. 204

at 6–17. His assertions therefore “go to the proper weight afforded to the trial evidence, which is

not a proper basis for a Rule 50(b) motion.” Hutchinson v. Grace, No. 19 Civ. 270, 2022 WL

1154347, at *3 (S.D.N.Y. Apr. 19, 2022) (internal quotation and citation omitted). Furthermore,

“in deciding any Rule 50 motion, a court must give deference to all credibility determinations and

reasonable inferences of the jury, and may not weigh the credibility of witnesses or otherwise

consider the weight of the evidence.” Id. at *2 (internal quotation and citation omitted).

Indeed, as set forth in Defendants’ response, the jury could reasonably have chosen to

credit the testimony and evidence presented by Defendants. Regarding Plaintiff’s failure to protect

claims, the jury could have reasonably chosen to credit the testimony of Defendants Fletcher,

Uhler, Pilon, and Smith, who testified that DOCCS staff properly placed Plaintiff within the

facility, investigated Plaintiff’s allegations of harassment and abuse by his cellmates, and

determined that Plaintiff was not at risk of harm and believed Plaintiff was submitting false

complaints. See Dkt. No. 197 at ¶¶ 9–77; Dkt. No. 185 at 228–392; Dkt. No. 186 at 407–529.

Moreover, Defendants also testified as to their personal involvement (or lack thereof) in

investigations and decisions to place Plaintiff with cellmates. See id. Regarding the excessive use

of force and failure to intervene claims, the jury could have reasonably chosen to credit the

testimony of Defendants Fletcher, Helms, and Hollenbeck, as well as non-party witnesses Chris

King and Matthew Welch, who testified about their observations that Plaintiff was the aggressor

in a cell fight, and the force used by other Defendants to end the disturbance or to restrain

individuals. See Dkt. No. 197 at ¶¶ 25–29, 78–147; Dkt. No. 185 at 315–17; Dkt. No. 186 at 580–

611; Dkt. No. 187 at 653–61, 699–717, 731–45. The jury could also reasonably have considered

this testimony in assessing the credibility of the witnesses about the entire sequence of events on

July 16, 2016. See id.

“That [the jury] reached a result that Plaintiff feels was erroneous does not render the

verdict ‘wholly without legal support.’” Hutchinson, 2022 WL 1154347, at *3; see also id.

(“Plaintiff’s arguments fail because they do not call into question the legal support for the jury’s

verdict.”). Plaintiff has therefore not satisfied the elevated “manifest injustice” standard. For all

of these reasons, there was sufficient evidence to support the jury’s verdict as to each of Plaintiff’s

claims, and Plaintiff’s Rule 50(a) and (b) motion is therefore denied.

II. PLAINTIFF’S MOTION FOR A NEW TRIAL

Plaintiff argues that he should receive a new trial because of an erroneous jury instruction

and three evidentiary errors involving (1) the scope of his expert witness’s testimony, Dkt. No.

177 at 24, (2) Defendant Helms’ 2019 conviction for first-degree cruelty to animals, id. at 16, and

(3) defense counsel’s presentation of a letter regarding his disciplinary history during his closing

argument, id. at 26. Defendants respond that although the Court made an error when reading the

final instructions, as agreed by the parties, the Court adequately corrected that error, Dkt. No. 197-

9 at 15–16; the Court did not erroneously preclude Plaintiff’s expert from testifying, id. at 11–13;

the Court did not improperly preclude testimony regarding the name of Defendant Helms’ criminal

conviction, id. at 13–14; and Plaintiff’s argument regarding defense counsel’s summation is not

supported by the record, id. at 16–17.

A. Legal Standard3

Pursuant to Federal Rule of Civil Procedure 59, a court may, “on motion, grant a new trial

on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore

been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). The decision to

grant a new trial is left to the discretion of the trial judge, and a “motion for a new trial should be

granted when, in the opinion of the district court, ‘the jury has reached a seriously erroneous result

or . . . the verdict is a miscarriage of justice.’” Song v. Ives Lab’ys, Inc., 957 F.2d 1041, 1047 (2d

Cir. 1992) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988)). “The

general grounds for a new trial are that (1) the verdict is against the clear weight of the evidence;

(2) the trial court was not fair; (3) substantial errors occurred in the admission or rejection of

evidence o[r] the giving or refusal of instructions to the jury; or (4) damages are excessive.” Utica

Mut. Ins. Co. v. Century Indem. Co., 419 F. Supp. 3d 449, 466–67 (N.D.N.Y. 2019) (quoting Welch

v. United Parcel Serv., Inc., 871 F. Supp. 2d 164, 174 (E.D.N.Y. 2012)). Rule 59 is not “a vehicle

for relitigating old issues, presenting the case under new theories, securing a rehearing on the

merits, or otherwise taking a ‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136,

144 (2d Cir. 1998). Rather, “the granting of a new trial is [ ] extraordinary relief . . . [and] ‘is

properly granted only upon a showing of exceptional circumstances.’” Rosello v. Long Island Rail

Rd. Co., 50 F. Supp. 3d 242, 249 (E.D.N.Y. 2014) (quoting United States v. Int’l Bhd. of Teamsters,

247 F.3d 370, 391 (2nd Cir. 2001)).

3 The discussion of the legal standard for a Rule 59 motion is taken from Chief Judge Sannes’s

thorough discussion in Encarnacion v. Spinner, No. 9:15-cv-1411 (BKS/ML), 2023 WL 2785745,

at *1–*2 (N.D.N.Y. Apr. 5, 2023).

In evaluating a motion for a new trial pursuant to Rule 59, “a trial judge hearing a motion

for a new trial ‘is free to weigh the evidence . . . and need not view it in the light most favorable

to the verdict winner.’” Song, 957 F.2d at 1047 (quoting Bevevino v. Saydjari, 574 F.2d 676, 684

(2d Cir. 1978)). A “court [may] independently weigh the evidence presented at trial to determine

whether the jury’s verdict is ‘seriously erroneous’ or resulted in a ‘miscarriage of justice.’” Finn-

Verburg v. N.Y. State Dep’t of Lab., 165 F. Supp. 2d 223, 228 (N.D.N.Y. 2001) (quoting Sorlucco

v. New York City Police Dep’t, 971 F.2d 864, 875 (2d Cir.1992)). “In making this determination,

the trial court is afforded considerable discretion.” Id. “But the decision whether to credit a

witness’s testimony is within the discretion of the jury.” Toliver v. N.Y.C. Dep’t of Corr., 202 F.

Supp. 3d 328, 335–36 (S.D.N.Y. 2016); see also Raedle v. Credit Agricole Indosuez, 670 F.3d

411, 418 (2d Cir. 2012) (noting that “a judge ‘should rarely disturb a jury’s evaluation of a

witness’s credibility’” (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d

Cir. 1998))). A court’s prerogative to weigh the evidence presented at trial “is not a permission

slip to ‘ignore the jury’s role in resolving factual disputes and assessing witness credibility.’” Am.

Tech. Ceramics Corp. v. Presidio Components, Inc., 490 F. Supp. 3d 593, 616–17 (E.D.N.Y. 2020)

(quoting Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 558–59 (S.D.N.Y. 2010)).

A trial court has considerable discretion in determining whether evidence is admissible.

See Barrett v. Orange Cnty. Hum. Rts. Comm’n, 194 F.3d 341, 346 (2d Cir. 1999). Thus, a new

trial will be granted on the basis of improper evidentiary rulings only where improper rulings

“affect[ ] a substantial right of the moving party.” Mem’l Drive Consultants, Inc. v. ONY, Inc., 29

F. App’x 56, 61 (2d Cir. 2002) (summary order) (citing Malek v. Fed. Ins. Co., 994 F.2d 49, 55

(2d Cir. 1993)). Whether an evidentiary error implicates a substantial right depends on “the

likelihood that the error affected the outcome of the case.” Malek, 994 F.2d at 55 (quoting Jordan

v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983) (Scalia, J.)). “Where there has been an objection,

a new trial is warranted if the [c]ourt’s evidentiary ruling was ‘clearly prejudicial to the outcome

of the trial,’ taking into account ‘the record as a whole.’” Graham v. City of N.Y., 128 F. Supp. 3d

681, 705 (E.D.N.Y. 2015) (quoting Johnson v. Strive E. Harlem Emp. Grp., 990 F. Supp. 2d 435,

450 (S.D.N.Y. 2014)). “But where [the moving party] did not object, a new trial is warranted only

for plain error ‘so serious and flagrant that it goes to the very integrity of the trial.’” Johnson, 990

F. Supp. 2d at 450 (quoting Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005)).

B. Analysis

1. Jury Instructions

Plaintiff argues that the Court erred by failing to correct instructions which read “[e]ven if

Plaintiff proved his case, you must still find the defendants not guilty.” Dkt. No. 177 at 23

(alteration omitted). Defendants respond that no such instruction was read to the jury and that,

although the Court made an error when reading the final instructions, the Court corrected that error.

Dkt. No. 197-9 at 15–16.

“Erroneous or inadequate jury instructions may constitute grounds for a new trial, provided

the errors are ‘prejudicial in light of the charge as a whole.’” Grant v. City of Syracuse, 357 F.

Supp. 3d 180, 197 (N.D.N.Y. 2019) (quoting Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir.

2012)). “An erroneous jury instruction ‘misleads the jury as to the correct legal standard or does

not adequately inform the jury on the law.’” Id. at 197–98 (quoting Lore, 670 F.3d at 156 and

citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir. 1997)). “An error in a jury instruction

is not prejudicial ‘when [the court is] persuaded it did not influence the jury’s verdict.’” Id. at 198

(quoting Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 56 (2d Cir. 2012)). “‘An omission, or

an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.’” Id.

(quoting Lore, 670 F.3d at 156 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Finally,

“[a] new trial is not warranted if the instructions ‘“read as a whole, presented the issues to the jury

in a fair and evenhanded manner.’”” Id. (quoting Turley v. ISG Lackawanna, Inc., 774 F.3d 140,

152 (2d Cir. 2014) (quoting Lore, 670 F.3d at 156)).

At the outset, the Court did not, as Plaintiff argues, read the statement that “[e]ven if

Plaintiff proved his case, you must still find the defendants not guilty” to the jury. Dkt. No. 177

at 23 (alteration omitted); see Dkt. No. 188, 892:5–927:23. However, during the final instructions,

the Court mistakenly stated that “[i]f you conclude that plaintiff has established any claim by a

preponderance of the evidence, you must decide against plaintiff as to that claim.” Id. at 906:12–

14. Plaintiff’s counsel raised the error immediately after the Court read the final instructions. Id.

at 923–24. The parties and the Court agreed that the Court should read the “preponderance of the

evidence” instruction to the jury again to correct the error. Id. The Court then corrected the error

stating:

I also am going to read you, I also want to instruct you again on the

preponderance of evidence. You are not -- you are to consider all of

my instructions as a whole, but I may have misstated something and

so I’m going to read that portion to you again. As the plaintiff in

this action, Reggie Caswell must establish by a preponderance of the

credible evidence that his excessive force, failure to intervene, and

failure to protect claims and the elements that comprise those claims

are true. If you conclude that plaintiff has failed to establish any

claim by a preponderance of the evidence, you must decide against

plaintiff as to that claim.

Id. at 925:11–22.

Given that the Court verbally corrected the jury instructions, the instructions did not

mislead the jury as to the legal standard to be applied to Plaintiff’s claims such that the instructions

would warrant a new trial.

Plaintiff also raises for the first time in his reply brief that a statement of “in 2020” in the

jury instructions “was prejudicial in that it brought to mind to the all white jury of the race riots

that took place all over the country,” even though he concedes that there is no reflection of such a

statement in the trial transcript. Dkt. No. 204 at 19–22. There is no indication that a statement,

which was not presented to the jury, could have influenced the jury’s verdict. As a result, this is

not a sufficient basis for a new trial.

2. Plaintiff’s Expert Witness

Plaintiff argues that the “Court committed reversible error when it allowed Plaintiff’s

Expert to testify, but not to any of the issues germane to Plaintiff’s case thus depriving Plaintiff of

his rights to a fair trial.” Dkt. No. 177 at 24. He also asserts that his expert was not permitted to

testify regarding “any of the . . . issues relevant to Plaintiff,” including “[v]iolence against LGBQTI

persons in the prison environment,” “[c]orrectional cell assignment practices as they relate to

Gangs and LGBQTI status,” “[t]he nature of gang activity and gang codes within prisons,” “PREA

screening and Defendants training and actions as they relate to it,” “[c]orrectional standards for

facility superintendents,” and “[e]vidence relevant to investigating and assessing the type and

amount of force.” Id. Plaintiff concludes by stating that Defendants’ objections “rendered” the

expert’s testimony “irrelevant.” Id. In his reply brief, Plaintiff also states that his expert was not

able to testify as to his experience in the Department of Corrections or to his general opinions. See

Dkt. No. 204 at 23–24.

Defendants respond that Plaintiff’s claims are conclusory, but “[i]n any event, a review of

the expert’s testimony at trial reflects that the expert provided substantial testimony regarding the

areas listed by Plaintiff,” and that to the extent that Plaintiff argues that “Defendants’ repeated

objections deprived him of the opportunity to submit testimony, such argument lacks any legal

support.” Dkt. No. 197-7 at 13.

When a party seeks to introduce expert testimony, the Federal Rules of Evidence provide

that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if” the following four criteria are met:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine

a fact in issue; (b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and (d) the expert has reliably applied the principles and methods to

the facts of the case.

United States v. Mendlowitz, No. 21-2049,2023 WL 2317172, at *3–4 (2d Cir. 2023) (quoting Fed.

R. Evid. 702). “‘While the proponent of expert testimony has the burden of establishing by a

preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied, . . .

the district court is the ultimate gatekeeper.’” United States v. Jones, 965 F. 3d 149, 162 (2d Cir.

2020) (quoting United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)); see also Fed. R. Evid.

104(a); United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004)). “The Federal Rules of Evidence

assign to it ‘the task of ensuring that an expert’s testimony both rests on a reliable foundation and

is relevant to the task at hand.’” Williams, 506 F.3d at 160 (quoting Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993)).

As an initial matter, the Court denied Defendants’ motion to exclude the testimony of

Plaintiff’s expert witness, Dan Pacholke. Dkt. No. 184 at 6–8. Specifically, the Court rejected

Defendants’ objections to Mr. Pacholke’s testimony related to gangs concluding that he could offer

the following testimony: (1) confirmation of gang affiliation; (2) gang codes of conduct prohibiting

contact with homosexuals; and (3) how these issues interact with prisoner safety. Id. at 6. The

Court explained, that “[a]summing that there’s a factual predicate for the proposed testimony . . .

such as that plaintiff’s cellmates were gang members, then I find that the proposed testimony as

articulated in Docket 160 [a letter reflecting the positions of the parties after they met and conferred

regarding expert issues] is both useful and relevant to the jury, without invading the province of

the jury or the court.” Id. at 7:2–7. Regarding the testimony about (1) vulnerability assessments

and PREA screening; and (2) PREA training and LGBTI violence and harassment in

investigations, the Court found that “the proposed testimony is, based on the proffered evidence,

both useful and relevant to the jury, applying the necessary standard.” Id. at 7–8.

In addition, contrary to Plaintiff’s arguments, Mr. Pacholke testified about the following

topics that Plaintiff identified in his motion. Regarding gangs, Mr. Pacholke testified that gang

members often have codes of conduct about “not double celling with someone that’s gay” and

“rules around what they have to do if they’re in an environment with those type of people” such

as “[a]ssault them, get them out of the cell in one way or another.” Dkt. No. 186 at 557. In

addition, he testified that “correctional standards require officers to consider gang affiliation when

making double cell assignments . . . for safety.” Id. at 559. He further testified about how he has

discovered a gang’s code of conduct. Id. at 559–61. Finally, regarding gangs, he testified “[t]hat

[i]t would be irresponsible at the least” to ignore information about gangs “because they commit

so many violent acts within correctional facilities and correctional systems.” Id. at 561. Although

not mentioned by Plaintiff, Mr. Pacholke also testified that incarcerated people would be most

vulnerable in their cells in the facility where Plaintiff was housed because that is where violence

would occur. Id. at 541.

Regarding PREA screening, Mr. Pacholke testified regarding PREA standards for cell

assignments, the PREA form and process generally, and the PREA forms completed for Plaintiff

and two others. Id. at 541–47. He also testified that PREA requires training in correctional

facilities, and he testified about a PREA compliance audit. Id. at 543.

Regarding complaints, Mr. Pacholke testified about how to investigate safety complaints,

the incompleteness of the investigation here, and correctional standards. Id. at 547–50. Finally,

Mr. Pacholke testified regarding his experience in corrections, see, e.g., id. at 533–39, as well as

his relevant expert opinions. The jury was able to consider all of this testimony and accept all of

it if the jury chose to do so.

To the extent that Plaintiff’s able counsel chose not to ask certain questions, that is not a

basis for a new trial. In addition, to the extent that Plaintiff focuses on the Court’s evidentiary

rulings regarding specific questions during Mr. Pacholke’s testimony—sustained because of the

form of the specific questions and lack of foundation, id. at 551–55, 558–61,—he does not identify

how they were errors. In any event, considering the record as a whole, Plaintiff has not established

that there is any reason to believe that even if any of these evidentiary decisions were errors, that

they would have been “clearly prejudicial to the outcome of the trial, taking into account the record

as a whole.” Graham, 128 F. Supp. 3d at 705 (quotation and citation omitted). In fact, considering

the entirety of Mr. Pacholke’s testimony, the jury was able to consider the crux of the testimony

that Plaintiff’s able counsel sought to present.

3. Defendant Helm’s Criminal Conviction

Plaintiff argues that the Court erred in not allowing any testimony or evidence regarding

Defendant Helms’ 2019 conviction of first-degree cruelty to animals. See Dkt. No. 177 at 16

(which Plaintiff states was a 2020 conviction). Defendants respond that a court may preclude

testimony of prior criminal convictions based on relevance and unfair prejudice when any such

conviction relates to a crime that does not meaningfully reflect that individual’s truthfulness. See

Dkt. No. 197-9 at 11–12.

“Rule 609(a)(1) of the Federal Rules of Evidence provides that, in a civil case, ‘subject to

Rule 403,’ evidence of a prior conviction ‘must be admitted’ to impeach a witness where the

conviction was ‘for a crime that . . . was punishable . . . by imprisonment for more than one year.’”

Brandon v. Kinter, 13-cv-939 (BKS/ATB), 2021 WL 3032693, at *1 (N.D.N.Y. Jul. 19, 2021)

(quoting Fed. R. Evid. 609(a)(1)(A)). “In weighing the probative value of the evidence of the prior

conviction against its prejudicial effect, courts in this Circuit consider the following factors: (1)

‘the impeachment value of the prior crimes,’ (2) ‘the date of the conviction and the [party’s]

subsequent history,’ (3) ‘the degree of similarity between the past crimes and this crime,’ (4) ‘the

centrality of the [party’s] credibility in this case,’ and (5) ‘the importance of the [party’s]

testimony.’” United States v. Clanton, 758 F. Supp. 3d 93, 107 (E.D.N.Y. 2024) (quoting United

States v. Brown, 606 F. Supp. 3d 306, 311–12 (E.D.N.Y. 2009)).

“When a court finds that the evidence’s probative value outweighs its prejudicial effect,

the court may admit evidence of the prior conviction for purposes of impeachment. However, in

introducing the evidence of the prior conviction, the impeaching party . . . is generally limited to

establishing the bare [or essential] facts of the conviction: usually the name of the offense, the date

of the conviction, and the sentence.” Brown, 606 F. Supp. 2d at 312 (internal quotation omitted).

In the Second Circuit, it is within the discretion of the district court to further limit the evidence of

the prior conviction to exclude the nature or statutory name of the offense. Id. In addition, a

district court has broad discretion in imposing reasonable limits on cross-examination based on

unfair prejudice and relevance. United States v. Walker, 974 F.3d 193, 207 (2d Cir. 2020).

Here, Defendants challenged the admissibility of only the name of the offense. After

analyzing the first-degree cruelty to animals conviction under Rule 609(a)(1) and concluding that

the probative value of the name of the offense was substantially outweighed by the danger of unfair

prejudice and jury misuse of the evidence for propensity even with a limiting instruction, the Court

allowed impeachment regarding that conviction except for the name of the offense. See Dkt. No.

164 at 26:6–27:22. As a result, the Court allowed Defendant Helms to be impeached with the fact

that he had been convicted of a felony as well as the date of the conviction and his sentence, but

not the name of the offense. Id.

Although Plaintiff contends that all information regarding the felony conviction should

have been admitted for the purposes of truthfulness, see Dkt. No. 177 at 25, 26, Plaintiff has not

established that the Court abused its discretion by excluding the name of the offense under Rule

403. In fact, Plaintiff argues that the “probative value” of the conviction “is outweighed by any

prejudice.” Dkt. No. 177 at 16. That is not the standard, and Plaintiff does not articulate why the

probative value of the name of the offense was not outweighed by the danger of unfair prejudice

and the danger that the jury would use it as propensity evidence even with a limiting instruction.

But even if that decision were an error preserved by objection, Defendant Helms was impeached

with the fact that he had been convicted of a felony, the date of his conviction, and his sentence,

and excluding the name of the offense would not be “clearly prejudicial to the outcome of the trial,

taking into account the record as a whole.” Graham, 128 F. Supp. 3d at 705 (quotation omitted).

4. Use of Letter in Defendants’ Summation

Plaintiff argues that he is entitled to a new trial because Defendants, during summation,

“published a letter from Supt. Uhler reflecting that Plaintiff had been to the SHU at least 6 prior

times in violation of this Court’s order regarding Plaintiff’s disciplinary record.” Dkt. No. 177 at

26. Defendants respond that “[t]he only material that was presented to the jury during Defendants’

closing was portions of Plaintiff’s Exhibit 55, which was admitted into evidence during Plaintiff’s

case in chief and consisted of medical documentation related to Plaintiff’s injuries.” Dkt. No. 197-

9 at 17.

“In ruling on a motion for a new trial based on an improper summation, ‘the key inquiry is

whether counsel’s conduct created undue prejudice or passion which played upon the sympathy of

the jury.’” Flores v. Cnty. of Suffolk, No. 2:16-cv-2502, 2020 WL 1323075, at *6 (E.D.N.Y. Mar.

18, 2020) (quoting Okraynets v. Metro. Transp. Auth., 555 F. Supp. 2d 420, 428 (S.D.N.Y. 2008)

(additional quotation omitted)). “The trial court judge receives ‘[g]reat discretion’ when

determining whether such undue prejudice existed, because the judge ‘was present throughout the

whole trial and is best able to determine the effect of the conduct of counsel on the jury.’ Id.

(quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1289 (2d Cir. 1990)) (internal quotation

omitted). “The relevant inquiry in assessing whether a jury has been unduly prejudiced is whether

there is a ‘reasonable probability’ that the jury’s verdict was influenced by the improper conduct

of counsel.” Chang v. City of Albany, 150 F.R.D. 456, 459 (N.D.N.Y. 1993) (quoting Draper v.

Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978)).

Contrary to Plaintiff’s arguments, there is no record that the letter identified by Plaintiff

was published to the jury during Defendants’ summation. See Dkt. No. 187 at 837–67.4 Plaintiff’s

argument fails because there is no evidence that the Court committed any error.

For all of these reasons, Plaintiff’s motion for a new trial is denied.

III. PLAINTIFF’S MOTION FOR AN ALTERED OR AMENDED JUDGMENT

Plaintiff moves for an altered or amended judgment. See Dkt. No. 177 at 21–22. Rule

59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days

after the entry of the judgment.” Fed. R. Civ. P. 59(e). “A court may grant a Rule 59(e) motion

only when the movant identifies an intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest injustice.” Metzler Inv. Gmbh v.

Chipotle Mexican Grill, Inc., 970 F.3d 133, 142–43 (2d Cir. 2020) (citation altered) (quoting Kolel

4 The fact that Upstate Correctional Facility was primarily a special housing unit (SHU) was

mentioned several times during the trial, including by Plaintiff’s attorney. See, e.g., Dkt. No. 187,

794:1–8.

Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)).

A plaintiff bears a “heavy burden,” and Rule 59(e) is an “extraordinary remedy that is to be

employed sparingly.” Moon Rocket Inc. v. City of New York, No. 24-cv-4519, 2025 WL 2324074,

at *2 (S.D.N.Y. Aug. 12, 2025) (quoting Fireman’s Fund Ins. Co. v. Great Am. Ins. Co., 10 F.

Supp. 3d 460, 475 (S.D.N.Y. 2014)).

None of Plaintiff’s arguments satisfy Rule 59(e)’s demanding standard to alter or amend a

judgment. See Dkt. No. 177 at 21–22. First, Plaintiff does not identify any intervening change in

controlling law between entry of judgment in this case and his Rule 59(e) motion. Plaintiff also

does not cite any recent cases that would suggest such a change. Second, Plaintiff does not seek

to introduce any newly available evidence. Instead, Plaintiff merely states that he has

“demonstrated the seriously erroneous result and a miscarriage of justice on all claims asserted.”

Id. at 22. Finally, Plaintiff has not identified any clear error that needs to be corrected or

established that the judgment must be amended to prevent manifest injustice. Plaintiff was ably

represented during the trial, and his attorneys tried the case vigorously, but the jury rejected

Plaintiff’s version of events. Therefore, Plaintiff’s argument fails as he cannot meet the “heavy

burden” required under Rule 59(e).

IV. DEFENDANTS’ MOTION FOR A BILL OF COSTS

Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorney’s fees

should be allowed . . . to the prevailing party unless the court directs otherwise.” Sacco v. Daimler

Chrysler Corp., No. 05-cv-1435 (TJM), 2008 WL 2858652, at *1 (N.D.N.Y. July 22, 2008)

(alteration in original) (citation omitted). The costs that may be awarded to a prevailing party are

set forth in 28 U.S.C. § 1920. See Pachura v. Hegseth, No. 6:21-cv-316 (AMN/MJK), 2025 WL

2391689, at *1 (N.D.N.Y. Aug. 18, 2025). Section 1920 states, in relevant part:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily

obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any

materials where the copies are necessarily obtained for use in the

case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

In civil litigation, awarding costs to the prevailing party is the rule – not the exception. See

Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001), abrogated on other grounds by Bruce v.

Samuels, 577 U.S. 82 (2016). Therefore, “the losing party has the burden to show that costs should

not be imposed; for example, costs may be denied because of misconduct by the prevailing party,

the public importance of the case, the difficulty of the issues, or the losing party’s limited financial

resources.” Id. (citations omitted). “The decision to award costs to a prevailing party under Rule

54(d)(1) rests within the sound discretion of the district court.” McEachin v. Goord, No. 9:01-cv-

0259 (GDB), 2007 WL 1571981, at *1 (N.D.N.Y. May 25, 2007) (citation omitted).

Defendants seek $3,974.68 in costs relating to deposition transcripts, witness fees, and

exemplification and copying fees. See Dkt. Nos. 175, 195. Plaintiff opposes Defendants’ motion.

See Dkt. Nos. 181, 183, 193.

A. Transcript Fees

Defendants request $2,338.16 for the transcription of the depositions of Plaintiff, taken on

July 29, 2021, and Dan Pacholke, taken on December 17, 2023. See Dkt. No. 175 at 3, 6, 7. Both

Plaintiff and Mr. Pacholke testified at trial, and therefore the deposition transcripts were necessary

in order to cross-examine them (or to be prepared to do so). See Yunus v. Jones, No. 9:16-cv-1282

(GTS/ATB), 2020 WL 3026238, at *3 (N.D.N.Y. June 5, 2020); see also Text Minute Entries for

Day 1 of Jury Trial held on September 8, 2025, Day 2 of Jury Trial held on September 9, 2025,

and Day 3 of Jury Trial held on September 10, 2025. As a general matter, “the reasonable costs

of transcribing depositions are properly taxed in favor of the prevailing party.” Green v.

Venettozzi, No. 9:14-cv-1215 (BKS/CFH), 2019 WL 4508927, at *1 (N.D.N.Y. Sept. 19, 2019)

(citation omitted). Defendants’ request for costs in the amount of $2,338.16 is therefore

substantiated.

B. Witness Fees

Defendants seek $433.52 for witness fees for two non-party witnesses, Matthew Welch

and Chris King. See Dkt. No. 175 at 1–4, 8–13. Defendants seek the statutory witness attendance

fee of $40.00 for one day of testimony for Mr. Welch. See 28 U.S.C. § 1821(b); see also New

Skete Farms, Inc. v. Murray, No. 1:06-cv-486 (GLS/RFT), 2009 WL 10680320, at *3 (N.D.N.Y.

Apr. 3, 2009) (“A prevailing party may recover its witness costs at a rate of $40 for each day the

witness gave testimony at a trial or deposition.”).

Furthermore, Defendants seek $149.52 ($74.76 each) for Mr. Welch and Mr. King’s

mileage, calculating the mileage at the United States General Services Administration rate of $0.21

per mile.5 See 28 U.S.C. § 1821(c)(2).

Moreover, Defendants seek $244.00 ($122.00 each) for overnight lodging for Mr. Welch

and Mr. King, which complies with the requirements of 28 U.S.C. § 1821(d). See 28 U.S.C.

§ 1821(d)(1) (“A subsistence allowance shall be paid to a witness when an overnight stay is

5 Defendants calculated a round trip to the James M. Hanley Federal Building, 100 S. Clinton

Street, Syracuse, NY 13261, from Upstate Correctional Facility. See Previous Government-

Furnished Auto Rates, United States General Services Administration, effective January 1, 2025,

https://www.gsa.gov/travel/plan-a-trip/transportation-airfare-rates-pov-rates/privately-owned-

vehicle-pov-mileage-reimbursement/pov-mileage-rates-archived#goauto (last visited September

4, 2026).

required at the place of attendance because such place is so far removed from the residence of such

witness as to prohibit return thereto from day to day.”). It also complies with the GSA FY2025

Daily Lodge Rate for Syracuse, New York.6 See Powell v. Labare, No. 9:23-cv-848 (ECC/DJS),

2026 WL 820434, at *2 (N.D.N.Y. Mar. 25, 2026). The request for $433.52 for witness fees is

therefore substantiated. See United States District Court for the Northern District of New York

Guidelines for Bills of Costs (Guidelines) §§ II(F)(1)(a)–(c), (e).

C. Exemplification and Copying Fees

Defendants request $1,203.00 in fees for exemplification and copying related to

Defendants’ Rule 26 mandatory disclosures, supplemental disclosures, and responses to Plaintiff’s

discovery demands. See Dkt. No. 175 at 1, 3; see also Guidelines § II(H)(1)(g); Encarnacion,

2023 WL 2785745, at *7 (noting that “[c]ourts interpret [28 U.S.C. § 1920(4)] to include

photocopying charges for discovery” (alterations in original) (quoting Green, 2019 WL 4508927,

at *2)). Defendants “provided sufficient information regarding the purpose of the copies” and

these copies were “necessary [as they] relate to the ‘initial disclosure requirements.’” Id. (quoting

Green, 2019 WL 4508927, at *2). Thus, Defendants have “provided sufficient information

regarding the purpose of the copies” and they are necessary in this case. Id. (quoting Green, 2019

WL 4508927, at *2). Defendants’ request for $1,203.00 for exemplification and copying is

therefore substantiated.

D. Plaintiff’s Objections

Plaintiff opposes Defendants’ motion on several grounds: (1) the motion for bill of costs

was not properly served upon him; (2) the motion for bill of costs was untimely; (3) he is asserting

6 See GSA FY 2025 Daily Lodging Rates for Syracuse, New York,

https://www.gsa.gov/travel/plan-book/per-diem-rates (last visited September 4, 2026).

meritorious claims and any appeal will be made in good faith; and (4) Plaintiff’s financial situation

renders him unable to pay the bill of costs, and therefore it cannot be imposed upon him. See Dkt.

Nos. 181, 183, 193.

1. Service Was Proper

Plaintiff objects to Defendants’ motion for a bill of costs on the basis of improper service.

See Dkt. Nos. 181 at 1, 183 at ¶ 7(a), 193 at 2. Federal Rule of Civil Procedure 5 requires that,

unless provided for otherwise, written motions must be served on the opposing party, unless the

party is represented by an attorney, in which case service must be made on the attorney. See Fed.

R. Civ. P. 5(a)(1)(d), 5(b)(1). Furthermore, “sending [the motion] to a registered user by filing it

with the court’s electronic-filing system” is proper service unless the “sender learns that the filing

did not reach the person to be served.” Id. at 5(d)(2)(E).

Defense counsel declared under penalty of perjury that a copy of the bill of costs was served

upon Plaintiff’s former counsel by electronic service. See Dkt. No. 175 at 1. Defendants filed the

motion for bill of costs on September 29, 2025, see Dkt. No. 175, ten (10) days before Plaintiff’s

former counsel filed a motion to withdraw from representation, see Dkt. No. 176, and sixteen (16)

days before the motion to withdraw representation was granted, see Dkt. No. 178. Furthermore,

Plaintiff’s former counsel stated that Plaintiff intended to proceed pro se with respect to a response

to the motion for bill of costs, and that counsel had previously mailed Plaintiff a copy of the motion.

See Dkt. No. 176 at 1. Moreover, after Plaintiff’s initial statement that he was never served with

the motion, Defendants served an additional copy upon Plaintiff, see Dkt. No. 195-2, as did the

Clerk of Court, see Dkt. No. 182, indicating that these individuals further acknowledged

Defendant’s pro se status, Dkt. No. 183 at ¶ 7(c). Therefore, Plaintiff’s claim that the bill of costs

should be rejected due to inadequate service is without merit.

2. The Motion Was Timely

Plaintiff objects to Defendants’ motion for a bill of costs because it is “untimely in violation

of Fed. R. Civ. P. § 54(d)(1).” Dkt. No. 183 at ¶ 7(b). As set forth in the Local Rules for the

Northern District of New York, a verified bill of costs must be filed within thirty (30) days after

entry of judgment by the party entitled to recover costs. See L.R. § 54.1(a); see also Guidelines §

I(C)(1). Furthermore, the parties were ordered to file all post-trial motions no later than October

10, 2025. See Dkt. No. 169. The motion for bill of costs was filed on September 29, 2025, before

the required deadlines. See Dkt. No. 175. Furthermore, Defendants were not required to seek

leave of the Court to file the bill of costs, regardless of Plaintiff’s pro se status. See Dkt. No. 183

at ¶ 7(d). As such, Plaintiff’s objection is without merit.

3. Stay Pending Appeal

Plaintiff notes in his opposition to Defendants’ motion for a bill of costs that his “case has

merit and that any appeal taken would be in good faith” and that he “does in fact wish to appeal to

the Second Circuit . . . .” Dkt. No. 183 at ¶¶ 9, 9(a). This is construed as a request for a stay

pending appeal.

Under the Guidelines, “[u]less otherwise ordered by the District Court, or the Circuit Court

of Appeals pursuant to Fed.R.App.P. 8, the filing of an appeal shall not stay the taxation of costs .

. . .” § I(F)(2). “While [Federal Rule of Civil Procedure] 62 outlines the mechanism for how a

stay may be obtained while an appeal is pending, it does not limit the district court’s inherent

power to issue a stay in a manner that does not fall within the scope of the Rule.” Miller v. City of

Ithaca, N.Y., No. 3:10-cv-597 (GLS/DEP), 2017 WL 61947, at *4 (N.D.N.Y. Jan. 5, 2017)

(internal citation omitted).

“The party requesting a stay bears the burden of showing that the circumstances justify an

exercise of th[e court’s] discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). In deciding

whether to stay proceedings, courts consider four factors, the first two of which “are the most

critical”: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on

the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other parties interested in the proceeding; and (4) where the

public interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

Here, Plaintiff has not made any showing of a likelihood of success on the merits or

irreparable injury absent a stay. Having considered the applicable factors, Plaintiff has failed to

meet his burden of showing that the circumstances here warrant a stay, and his motion for a stay

of taxation of costs pending appeal is therefore denied.

4. Plaintiff’s Financial Circumstances

Defendants’ motion seeks $3,974.68 in costs relating to deposition transcripts, witness

fees, and exemplification and copying fees. See Dkt. Nos. 175, 195. Plaintiff asserts that

Defendants’ motion should be denied because he is indigent. Dkt. No. 183 at ¶ 8. Plaintiff states

that, over the past six months, his only source of income is $4.11 every two weeks. Id. Plaintiff

further supplied inmate financial statements, indicating that the largest monthly balance since

January 1, 2025 was $17.34, and the lowest balance was $0.00. See Dkt. No. 193 at 5–13.

“Generally, a district court may deny costs on account of a losing party’s indigency, but

indigency per se does not automatically preclude an award of costs, and the party asserting a lack

of funds must demonstrate his indigency.” Cutie v. Sheehan, No. 1:11-cv-66 (MAD), 2016 WL

3661395, at *3 (N.D.N.Y. July 5, 2016) (internal quotation marks and citations omitted and

emphasis in the original). In addition, “[a] court need not award costs if its finds that such an

award would be inequitable.” Bekiaris v. United States, No. 96 Civ. 302, 1998 WL 734362, at *1

(S.D.N.Y. Oct. 20, 1998). A court may consider factors such as the plaintiff’s financial hardship

and good faith in bringing the action. Id.

Although Plaintiff has demonstrated his indigency by filing financial documents, this is not

a compelling reason to deny costs in their entirety here. “Just as non-indigent litigants must

consider the relative merits of their lawsuit against the pain an unsuccessful suit might inflict on

their pocketbook, so must prisoners like [plaintiff] learn to exercise discretion and judgment in

their litigious activity and accept the consequences of their costly lawsuits.” Williams v. Colatosi,

No. 97 Civ. 417, 2001 WL 913922, at *2 (S.D.N.Y. Aug. 13, 2001) (internal quotation and citation

omitted).

After carefully considering the circumstances here, the motion is granted in part, in that the

substantiated costs are reduced by half. Therefore, Defendants’ request for costs for transcript fees

is granted in the amount of $1,169.08, see Guidelines §§ II(D)(1)(c), (f), Defendants’ request for

costs for witnesses fees is granted in the amount of $216.76, see Guidelines §§ II(F)(1)(a)–(c), (e),

and Defendants’ request for costs for exemplification and copying fees in the amount of $601.50

is granted, see Guidelines § II(H)(1)(g).7

V. CONCLUSION

For these reasons, it is hereby

ORDERED that Plaintiff’s motion for judgment as a matter of law under Federal Rule of

Civil Procedure 50(a) and (b), a new trial under Federal Rule of Civil Procedure 59(a), and for

altered or amended judgment under Federal Rule of Civil Procedure 59(e), Dkt. No. 177, is

DENIED; and it is further

7 The Court received Plaintiff’s letter regarding the inmate authorization form requested in the

April 15, 2026 Memorandum-Decision and Order. See Dkt. No. 207. Upon review, Plaintiff does

not need to provide a completed and signed inmate authorization form, as the $400 filing fee was

paid on February 5, 2019. See Dkt. No. 1 Text Entry (stating the receipt number for the $400 filing

fee is ANYNDC-4640928).

ORDERED that Defendants’ motion for a bill of costs, Dkt. No. 175, is GRANTED in

part and Defendants are awarded $1,987.34 in costs; and it is further

ORDERED that Plaintiff's request for a stay pending appeal, Dkt. No. 183 at 7, 8, is

DENIED; and it is further

ORDERED that the Clerk of Court shall serve a copy of this Memorandum-Decision and

Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: September 10, 2026

bien

Elizabeth C. Coombe

U.S. District Judge

25