14-1589
Livingston v. Escrow
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of March, two thousand sixteen.
PRESENT:
AMALYA L. KEARSE,
ROSEMARY S. POOLER,
ROBERT D. SACK,
Circuit Judges.
______________________________________________________
DETROY LIVINGSTON,
Plaintiff-Appellant,
v. 14-1589-cv
JAMES ESCROW, G. HARVEY, KEITH DUBRAY, WILLIAM BILLS, RENEE GATES, N.R.
WHITTEN, in their individual capacities,
Defendants-Appellees,
JOHN DOE, GLENN GOORD, KAROL B. MANGUM, LEONARD JOBLOVE, CHARLES J.
HYNES,
Defendants.1
________________________________________________________
1 The Clerk of the Court is directed to amend the caption as above.
Appearing for Appellant: Detroy Livingston, pro se, Auburn, New York.
Appearing for Appellees: Zainab A. Chaudhry, Assistant Solicitor General,
(Barbara D. Underwood, Solicitor General,
Andrew B. Ayers, Assistant Solicitor General, on
the brief) for Eric T. Schneiderman, Attorney
General of the State of New York, Albany, New
York.
Appeal from a judgment of the United States District Court for the Western District of New
York (Geraci, J.; Feldman, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Detroy Livingston, proceeding pro se, filed a 42 U.S.C. § 1983 complaint
against numerous defendants alleging that his right to due process was violated during prison
disciplinary proceedings and that he was denied access to the courts because his legal mail, a letter
from the New York Court of Appeals, was delayed. Livingston now appeals principally from the
district court’s grant of the defense motion to dismiss his due process claim as collaterally
estopped, and from the October 25, 2013 judgments following a jury verdict dismissing all claims.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
Livingston challenges the dismissal of his due process claim as barred by collateral
estoppel under Federal Rule of Civil Procedure 50(a). We review the grant of a Rule 50(a) motion
de novo, applying the same standard as the district court. Velez v. City of New York, 730 F.3d 128,
134 (2d Cir. 2013). “Rule 50(a) permits a district court to enter judgment as a matter of law against
a party on an issue where there is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2003) (internal quotation
marks omitted).
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Livingston argues that defendants James Escrow, G. Harvey and Keith Dubray waived the
defense of collateral estoppel by failing to raise it in their answer to the amended complaint. While
they did not do so, that is not fatal to defendants’ ability to raise the issue at a later time, as the
failure to include collateral estoppel in the answer is not an “absolute bar” to considering it, given
“the strong public policy in economizing the use of judicial resources by avoiding relitigation.”
Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (quotation marks omitted). Livingston had notice
that the defendants planned to assert a collateral estoppel defense because they had raised the
defense in their answers to his original complaint; and Livingston was given an opportunity to be
heard in opposition to that defense before the district court ruled on it.
Turning to the merits, “[u]nder New York law, collateral estoppel will preclude a federal
court from deciding an issue if (1) the issue in question was actually and necessarily decided in a
prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair
opportunity to litigate the issue in the first proceeding.” McKithen v. Brown, 481 F.3d 89, 105 (2d
Cir. 2007) (internal quotation marks omitted). Livingston contests only the second element.
When a prisoner seeks to avoid the application of collateral estoppel as to an issue of law
based on an Article 78 proceeding affirming prison discipline, he must “at least show that the
alleged deficiencies in his disciplinary proceedings produced some significant effect on their
review by the Appellate Division in the Article 78 Proceeding.” Giakoumelos v. Coughlin, 88 F.3d
56, 60 (2d Cir. 1996). Livingston brought an Article 78 petition in the Third Department, which
denied his claims. See Livingston v. Fischer, 52 A.D.3d 1152, 1153 (3d Dept. 2008). Livingston
failed to meet his burden on this appeal. He argues that defendant Harvey provided inadequate
employee assistance by failing to give Livingston a document showing that his positive drug test
could be caused by a medication he was taking. However, he did not show that Harvey’s alleged
inadequate assistance “cast[s] doubt on the state court determination of this issue because the
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Appellate Division had all of the pertinent, and undisputed, facts,” see id. The Third Department
had before it the record of the disciplinary hearing, at which a witness testified that this medication
would not cause a false positive and Livingston stated that he had thrown away a document
showing otherwise. The court could thus assess whether Harvey’s alleged failure to provide the
document deprived him of a full and fair opportunity to litigate the issue.
Livingston also contends that there is new evidence demonstrating that this medication
could cause a false positive and that this new evidence defeats the application of collateral
estoppel. Although the discovery of new evidence may in an appropriate case warrant a conclusion
that a full and fair opportunity to present his case. Livingston does not assert that he received the
evidence in question after the Article 78 proceeding, and the record reflects that he had the same
evidence before the disciplinary hearing. The evidence was therefore not new. See Ryan v. New
York Tel. Co., 62 N.Y.2d 494, 504 (1984) (evidence was not new for purposes of collateral
estoppel when it was available at the time of the prior proceeding).
Livingston also argues that he was prejudiced by the jury seeing him being handcuffed, but
the jury inadvertently seeing him handcuffed on one occasion does not require a new trial. See
United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir. 1977) (“Numerous cases support the
proposition that an inadvertent view by jurors of defendants in handcuffs, without more, is not so
inherently prejudicial as to require a mistrial.”). Further, the court instructed the jury not to
consider the fact that Livingston was in custody.
We review the district court’s denial of Livingston’s motion for a new trial for abuse of
discretion. Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). “A motion for a new
trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a
seriously erroneous result or that the verdict is a miscarriage of justice.” Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and alterations
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omitted). We have examined his arguments, and find Livingston failed to demonstrate that the
jury’s verdict was either seriously erroneous or a miscarriage of justice.
Livingston has advanced other arguments over which we lack jurisdiction because, in his
notice of appeal, he did not designate those orders as being appealed. Fed. R. App. P. 3(c)(1)(B)
(requiring that the notice of appeal “designate the judgment, order, or part thereof being
appealed”). We have considered Livingston’s remaining arguments that are properly before us and
find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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