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Ivan Velius v. Township of Hamilton

December 7, 2010

IVAN VELIUS,
PLAINTIFF,
v.
TOWNSHIP OF HAMILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joseph E. Irenas, S.U.S.D.J.

ABRAMSON & DENENBERG, P.C.

By: Thomas Bruno, II, Esq. 1315 Walnut Street, 12th Floor Philadelphia, Pennsylvania 19107

HONORABLE JOSEPH E. IRENAS

IRENAS, Senior District Judge:

OPINION

At the trial of this § 1983 excessive force case, the jury found that two of the three Defendants, police officer Francis Smyth, and police officer Kevin Zippilli, violated Plaintiff Ivan Velius's Fourth Amendment right not to be subjected to excessive force.*fn1 However, the jury also found that Defendants' acts did not cause injury to Velius; and one dollar in nominal damages was awarded to Velius. Defendants now move to alter the judgment pursuant to Fed. R. Civ. P. 59(e), asserting that, "without an injury, there can be no Fourth Amendment violation," (Moving Brief, p. 1), and alternatively, Defendants Smyth and Zippilli are entitled to qualified immunity. For the reasons set forth herein, the Motion will be denied.

I.

For the purposes of the instant Motion, it is not necessary to set forth all of the evidence produced at trial. Plaintiff's excessive force claim was primarily based on his own testimony that, during Plaintiff's arrest, either Officer Zippilli or Officer Smyth secured handcuffs too tightly on Plaintiff's wrists / forearm area, causing Plaintiff severe pain.*fn2 Plaintiff also testified that neither Defendant responded to Plaintiff's complaints that the handcuffs were causing him pain.*fn3

While Plaintiff did introduce some medical evidence that could support a finding that the handcuffs caused nerve damage, the jury apparently concluded that Plaintiff had not proven that injury by a preponderance of the evidence. The jury specifically indicated on its verdict sheet that Defendants caused no injury to Plaintiff.*fn4 However, the jury did find that both Defendants Smyth and Zippilli used excessive force when arresting Plaintiff and also failed to intervene to stop the use of excessive force.

II.

Federal Rule of Civil Procedure 59(e) "permits a court to alter or amend a judgment, but it may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 582 n.5 (2008). "A proper Rule 59(e) motion therefore must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (quoting North River Ins. Co v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

III.

A.

Before turning to the merits, the Court briefly addresses whether the instant Rule 59(e) Motion is procedurally proper. Plaintiff argues that it is not because Defendants could have raised their arguments prior to the entry of judgment. On the other hand, Defendants argue that disputed issues of fact precluded any earlier determination of these issues of law. Specifically, Defendants point to evidence in the record (and presented at trial) that Plaintiff did sustain an injury as a result of the Defendants' actions or failure to act. According to Defendants, they could not have raised the instant arguments via a summary judgment motion, for example, because their arguments are based on the jury's factual determination that Plaintiff sustained no injury.*fn5 ...


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