United States District Court, D. Oregon, Pendleton Division
ORDER ON MOTION FOR NEW TRIAL
ACOSTA, U.S. MAGISTRATE JUDGE
Skyler James Floro brought this suit against Defendants
Amanda Litzsinger and James Duchek, alleging violations of
his First and Eighth Amendment rights while he was in custody
at Eastern Oregon Correctional Institution
("EOCI"). Plaintiffs claims were tried to a jury.
On April 30, 2019, the jury rendered a verdict in favor of
Plaintiff and against Defendant Amanda Litzsinger,
awarding $150, 000 in non-economic damages and $200, 000 in
punitive damages, for a total sum of $350, 000. Presently
before the court is Defendant Litzsinger's Motion for New
Trial or Remittitur pursuant to Federal Rule of Civil
Procedure 59. (ECF No. 124.) In the motion, Litzsinger moves
for a new trial or a reduction of jury's damage award to
$210, 000 total. For the following reasons, Litzsinger's
motion is denied.
is an inmate within the custody of the Oregon Department of
Corrections, and in January 2017, he was housed at EOCI.
Litzsinger is a Corrections Officer at EOCI. At trial,
Plaintiff asserted that he was fearful of his fellow former
gang members, and on January 9, 2017, he sought protective
custody by refusing to "cell in"; that is, he
refused to voluntarily enter his assigned cell. Plaintiff
then was taken to the Disciplinary Segregation Unit
("DSU"). Litzsinger escorted Plaintiff to his
punitive cell within the DSU. While being escorted by
Litzsinger, several other DSU inmates asked Plaintiff why he
was being placed in DSU, to which Litzsinger yelled out that
he had "PC'd up." (Decl. Carl Post Resp, Mot.
New Trial, Ex. 1 at 80:2-13, attaching Trial Tr. Apr. 29,
2019 ("Tr. Vol. I"), ECF No. 128-1.) Among inmates,
someone who has "PC'd up," "dropped
out," or sought protective custody, is someone who
cooperates with the police or is a snitch. (Tr. Vol. I
80:18-21.) Additionally, Plaintiffs cellmate told him that
Litzsinger had informed the cellmate that Plaintiff had
PC'd up and was coming back to DSU. (Tr. Vol. I
80:14-17.) Approximately seven days later, Plaintiff was
released from DSU. (Tr. Vol. I 81:10-11, 118:24-119:1.) After
Plaintiff left DSU, he was assaulted because he requested
protective custody and was labeled a snitch as a result of
Litzsinger's statements. (Tr. Vol. I 81:9-16, 101:10-24;
confirmed that if an inmate requests protective custody, such
information should be treated as confidential for the safety
of inmates and corrections officers, and she denied ever
calling an inmate a "PC case" or
"dropout" in front of other inmates. (Tr. Vol. I
125:17-24.) Litzsinger testified that it was her practice not
to talk to inmates while escorting inmates to cells in DSU.
(Tr. Vol. I 132:23-133:6.) At trial, several other inmates
testified that they had heard Litzsinger refer to inmates as
PC cases or dropouts. Mr. Sackett testified that Litzsinger
had called other inmates PC cases or dropouts on at least two
other occasions. (Tr, Vol. I 147:11-149:6.) Mr. McNeil
confirmed that Litzsinger had disclosed other inmates' PC
status to other inmates. (Tr. Vol. I 162:20-23.) Mr. Benz
testified that he learned that Plaintiff was a PC case from
another inmate, and that Plaintiffs status was common
knowledge in the unit where he was housed. (Tr. Vol. I
141:8-23.) McNeil also testified that while he was in DSU, he
heard other inmates talking about Plaintiff being a dropout.
(Tr. Vol. I 164:12-17.)
13, 2017, Plaintiff was slashed by another inmate with a
razor and punched while sleeping in his dormitory cell. (Tr.
Vol. 1119:8-10.) Plaintiff described that the inmate hit him,
dragged him off the bed, slashed his eyebrow with a razor
blade, then punched him again. (Tr, Vol. I 86:19-22.)
Plaintiff testified that he went unconscious and awoke to
find the offending inmate sitting on his bed. (Tr. Vol. I
86:22-25.) Plaintiff feared for his life, and believes he was
attacked because he was labeled a snitch. (Tr. Vol. I
testified that he has suffered emotionally as a result of
Litzsinger's statements and being labeled a snitch, and
he attempted suicide because he was so depressed. (Tr, Vol. I
90:9-23, 117:3-14.) Plaintiff stated that he continues to
fear for his safety. Mr. Benz testified that Plaintiff was
anxious and afraid; Mr. Sackett testified that he took
Plaintiff under his wing because he is "a little
guy," weighing only 120 pounds. (Tr. Vol. I,
trial commenced April 29, 2019. On April 30, 2019, the jury
found that Litzsinger violated his Eighth Amendment rights
and that he suffered noneconomic damages in the amount of
$150, 000, and that Plaintiff was entitled to punitive
damages in the amount of $200, 000.
trial may be granted 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). The authority to grant a new trial under Rule 59
"is confided almost entirely to the exercise of
discretion on the part of the trial court." Allied
Chem. Corp, v. Daiflon, Inc., 449 U.S. 33, 36 (1980).
Historically, the court has granted motions for new trial
because, for example, the verdict was against the weight of
the evidence, the damages are excessive, and the trial was
unfair to the moving party. Molski v. MJ. Cable,
Inc., 481 F, 3d 724, 729 (9th Cir. 2007);
VanValkenburg v. Oregon Dept of Corr., No.
3:14-cv-00916-MO, 2017 WL 532950, at *3 (D. Or. Feb. 8,
2017). The Ninth Circuit has held that a new trial may be
granted "'only if the verdict is contrary to the
clear weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage of
justice."' Molski, 481 F.3d at 729 (quoting
Passantino v. Johnson & Johnson Consumer Prods.,
212 F.3d 493, 510 n.15 (9th Cir.2000)), When considering a
Rule 59 motion, the court has "the duty to weigh the
evidence as [the court] saw it, and to set aside the verdict
of the jury, even though supported by substantial evidence,
where, in [the court's] conscientious opinion, the
verdict is contrary to the clear weight of the
evidence." Murphy v. City of Long Beach, 914
F.2d 183, 187 (9th Cir. 1990) (internal quotation omitted);
VanValkenburg, 2017 WL 532950, at *3. Under federal
law, a court may conditionally grant a defendant's motion
for a new trial unless the plaintiff agrees to a reduced
damages award, also known as a remittitur.
VanValkenburg, 2017 WL 532950, at *5; Hetzel v.
Prince William Cty.. Va., 523 U.S. 208, 211
(1998); see also Morgan v. Woessner, 997 F.2d 1244,
1258 (9th Cir. 1993) (explaining that a court cannot order
reduced damages without providing plaintiff with the option
for a new trial on the issue of damages).
general, a "motion for remittitur of a jury verdict is
subject to the same standard as a motion for new trial under
FRCP 59." Morris v. Walgreen Oshkosh, Inc., No.
3:14-cv-01718-ST, 2016 WL 1704320, at *3 (D. Or. Apr. 18,
2016); see also Browning-Ferris Indus, of Vt..
Inc. v. Kelco Disposal Inc., 492 U.S. 257, 278
(1989) (explaining that Rule 59 applies to motions for a new
trial and remittitur). In the Ninth Circuit, when the
jury's verdict is challenged as excessive, the court
affords '"substantial deference to a jury's
finding of the appropriate amount of damages/"
Harper v. City of Los Angeles, 533 F.3d 1010, 1028
(9th Cir. 2008) (quoting Del Monte Dunes at Monterey Ltd,
v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir.
1996)). The court will uphold the jury's verdict unless
"the amount is grossly excessive or monstrous, clearly
not supported by the evidence, or based only on speculation
or guesswork." Del Monte, 95 F.3d at 1435.
argues that remittitur is appropriate because the jury's
verdict was excessive. Litzsinger suggests that $86, 000 in
noneconomic damages and $124, 000 in punitive damages is
appropriate. Litzsinger argues that Plaintiff did not present
any evidence at trial to support a noneconomic damages award
in the amount of $150, 000. Litzsinger highlights that
Plaintiff sought just $64, 000 in noneconomic damages in his
First Amended Complaint filed just days before trial, (First
Am. Compl, ECF No. 106.)
response, Plaintiff contends that the jury was properly
instructed on damages and what factors to consider in
determining the amount of noneconomic and punitive damages.
Plaintiff argues that the jury award is supported by the