17‐693‐cv
Adam Ortiz v. City of New York, et al.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 20th day of December, two thousand seventeen.
PRESENT: GUIDO CALABRESI,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
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ADAM ORTIZ,
Plaintiff‐Appellant,
v. 17‐693‐cv
CITY OF NEW YORK, POLICE OFFICER NELSON
MEDINA, SHIELD #22851, KAI CHIN,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: DAVID A. ZELMAN, Law Office of David A.
Zelman, Brooklyn, New York.
FOR DEFENDANTS‐APPELLEES: JULIE STEINER, Assistant Corporation
Counsel (Richard Dearing and Devin Slack,
Assistant Corporation Counsels, on the brief),
for Zachary W. Carter, Corporation Counsel of
the City of New York, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Stein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Adam Ortiz appeals a judgment entered February 8,
2017, following a jury trial, in favor of defendants‐appellees City of New York (the
ʺCityʺ) and police officers Nelson Medina and Kai Chin. The jury rejected Ortizʹs claims
that he had been unlawfully stopped, falsely arrested, and subjected to excessive force
by the two police officers.
On April 26, 2014, Medina and Chin went to the closed Canal Street
subway station in response to a 911 radio call about an individual lying on the subway
platform. When they arrived, they saw Ortiz on the platform, approached him, and
checked for an outstanding warrant before they issued him a ticket for criminal
trespass. Ortiz commenced this action, asserting state law and 42 U.S.C. § 1983 claims
for false arrest, illegal investigatory detention, and excessive force, and claiming that he
sustained physical and mental injuries as a result of the incident. On appeal, Ortiz
argues that the district court (1) abused its discretion by admitting psychological
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records as evidence at trial, and (2) erred by putting the issues of arrest and probable
cause to the jury. We assume the partiesʹ familiarity with the underlying facts,
procedural history, and issues on appeal.
I. Psychological Records
We review evidentiary rulings for abuse of discretion, reversing only for
manifest error. United States v. Miller, 626 F.3d 682, 688 (2d Cir. 2010). Psychotherapist‐
patient communications are privileged under Federal Rule of Evidence 501. See Jaffee v.
Redmond, 518 U.S. 1, 15 (1996). This privilege, like other privileges, may be waived by
the holder. Id. at n.14.
The district court did not abuse its discretion by admitting the redacted
psychological records at trial. The parties agreed on redactions of the post‐incident
records to be used at trial, and only redacted, post‐incident records were received in
evidence. Additionally, Ortiz introduced the redacted records himself. While Ortizʹs
counsel made certain arguments at oral argument contesting this point, he did not raise
the arguments in either his opening or his reply brief, and thus we deem them forfeited.
The district court did not abuse its discretion in admitting the records.
II. Jury Issues
Ortiz argues that the district court erred in submitting the questions of
arrest and probable cause to the jury and that these errors warrant vacating the
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judgment and ordering a new trial. In essence, Ortiz argues that he was entitled to
judgment as a matter of law on these issues. The argument fails.
At the close of evidence, Ortiz and the City orally cross‐moved for
judgment as a matter of law pursuant to Rule 50(a) on the false arrest claim. The district
court denied both motions and submitted the issues to the jury. After the verdict,
however, Ortiz failed to renew his motion for judgment as a matter of law under Rule
50(b) and he likewise failed to file a motion for a new trial or to alter or amend the
judgment under Rule 59. ʺ[I]n the absence of a Rule 50(b) renewed motion or
extraordinary circumstances, an appellate court [i]s without power to direct the District
Court to enter judgment contrary to the one it had permitted to stand.ʺ Jacques v.
DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir. 2004) (second alteration in original) (citations
and internal quotation marks omitted). ʺWe may overlook such a default in order to
prevent a manifest injustice in cases [w]here a juryʹs verdict is wholly without legal
support.ʺ Id. (alteration in original) (citations and internal quotation marks omitted).
After reviewing the record and relevant case law, we find that no manifest
injustice would result from permitting the juryʹs verdict to stand. Moreover, we have
examined the record with particular care in view of the fact that, at each turn, Ortizʹs
attorney failed to preserve evidentiary objections and issues for appeal. Accordingly,
the district court did not err in posing either question to the jury.
. . .
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We have considered Ortizʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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