NOT RECOMMENDED FOR PUBLICATION

No. 09-2018

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GREGORY HARDY, )

)

Plaintiff-Appellant, )

)

v. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

ROBERT VIETA, Resident Unit Officer, ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

Defendant-Appellee, )

)

and )

)

)

HENRY GRAYSON, Warden, )

Defendant

ORDER

BEFORE: MERRITT, GIBBONS, and COOK, Circuit Judges.

Gregory Hardy, a Michigan prisoner proceeding pro Se, appeals the district court’s order

denying his motion for a new trial. This case has been referred to a panel of the court pursuant to

Rule 34(j)(1), Rule ofthe Sixth Circuit. Upon examination, this panel unanimously agrees that oral

argument is not needed. Fed. R. App. P. 34(a).

Hardy filed a 42 U.S.C. § 1983 complaint against Officer Robert Vieta and Warden Henry

Grayson, of the Parnall Correctional Facility in Jackson, Michigan. Hardy alleged that Vieta

assaulted, harassed, and retaliated against him in violation ofhis First and Eighth Amendment rights.
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Hardy v. Vieta

Hardy sought monetary relief. The district court dismissed Grayson as a defendant and subsequently

granted Vieta’s motion for summary judgment. This court reversed the grant ofsummary judgment

and remanded to the district court, concluding that a genuine issue of material fact existed

concerning Hardy’s Eighth Amendment claim. Hardy v. Vieta, No. 05-1024 (6th Cir. Apr. 4, 2006)

(unpublished). Following a trial, at which Hardy was represented by appointed counsel, a jury

returned a verdict in favor of Vieta. Hardy filed a motion seeking a new trial on five grounds: (1)

defense counsel violated a pre-trial evidentiary ruling by the trial court when he cross-examined

Hardy concerning his prior criminal behavior; (2) the trial court improperly excluded the written

statements of a witness; (3) a juror communicated with her mother about the case during trial; (4)

the defense introduced a prejudicial medical record that did not pertain to Hardy; and (5) the verdict

was against the great weight of the evidence. The district court denied the motion.

On appeal, Hardy argues that the district court abused its discretion in denying his motion

for a new trial.

We “review[] a district court’s denial of a party’s motion for a new trial under an abuse of

discretion standard.” Nolan v. Memphis City Sch., 589 F.3d 257, 264 (6th Cir. 2009). “Reversal is

only warranted ifthe [c] ourt has a ‘definite and firm conviction that the trial court committed a clear

error ofjudgment.” Id. (quoting Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th

Cir. 2000)). A district court may grant a new trial “in an action in which there has been a trial by

jury, for any ofthe reasons for which new trials have heretofore been granted in actions at law in the

courts ofthe United States.” Fed. R. Civ. P. 59(a). “Generally courts have interpreted this language

to mean that a new trial is warranted when a jury has reached a ‘seriously erroneous result’ as

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Hardy v. Vieta

evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being

excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings

being influenced by prejudice or bias.” Holmes v. City ofMassillon, Ohio, 78 F.3d 1041, 1045-46

(6th Cir. 1996).

Hardy first argues that he is entitled to a new trial because defense counsel questioned him

about his prior drug problem in violation ofthe trial court’s order to refrain from such questioning.

The record does not show that the trial court specifically instructed defense counsel to refrain from

questioning Hardy about his prior drug use. In any case, Hardy’s counsel immediately objected to

the allegedly improper question, the trial court sustained the objection, and defense counsel did not

press the issue. Further, the trial court instructed the jury that the lawyers’ questions and objections

were not to be considered as evidence. Thus, Hardy has not shown that he suffered significant

prejudice from defense counsel’s question and, as a result, the district court did not abuse its

discretion in denying Hardy a new trial based on this claim.

Hardy next argues that the trial court erred when it refused to admit James Mathieu’s written

deposition testimony under the former testimony exception to the hearsay rule. The former

testimony exception allows the admission of “[t]estimony given . . . in a deposition taken in

compliance with law in the course ofthe same or another proceeding, ifthe party against whom the

testimony is now offered . . . had an opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination.” Fed. R. Evid. 804(b)(1). A party must obtain leave of court

to conduct a deposition “ifthe deponent is confined in prison.” Fed. R. Civ. P. 30(a)(2)(b). Hardy

has not shown that he obtained leave of court to submit the written deposition questions to Mathieu,

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Hardy v. Vieta

who was confined in prison at the time of the deposition. Thus, Mathieu’s written testimony was

not admissible under the former testimony exception because his deposition was not taken “in

compliance with law.” The district court did not abuse its discretion in denying Hardy a new trial

on this claim.

Hardy next argues that his trial was unfair because a juror’s mother was present in the

courtroom during highly prejudicial off-the-record discussions and it is likely that she discussed the

case with her daughter. Hardy has not presented any evidence showing that the juror discussed the

case with her mother during trial. Because his speculation that such discussions took place is

insufficient to warrant a new trial, the district court did not abuse its discretion in denying Hardy a

new trial on this claim.

Hardy also argues that his trial was unfair because one ofthe medical recordsthat the defense

placed into evidence actually pertained to a prisoner named James Hardy. The trial record

demonstrates that the error was discovered during trial and that Hardy testified that the medical

record in question actually pertained to another inmate. Thus, the district court did not abuse its

discretion in concluding that Hardy did not suffer significant prejudice due to the admission ofthe

medical record.

Finally, in his motion for a new trial, Hardy argued that the verdict was against the great

weight of the evidence. Although Hardy failed to raise this argument in his appellate brief, we

conclude that Hardy has not shown that the district court abused its discretion in denying him relief

on this claim because the jury verdict in his case was not unreasonable. See Nolan, 589 F.3d at 264.

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Hardy now also argues that his appointed attorneys performed ineffectively in the district

court. In civil cases under § 1983, the claim of ineffective assistance of counsel — which is

available in criminal cases and may be raised by habeas corpus — is normally not available because

the Sixth Amendment does not provide a right to counsel in such civil cases. See Glover v. Johnson,

75 F.3d 264, 268 (6th Cir. 1996);Adams v. Vidor, 12 F. App’x 317, 319 (6th Cir. 2001).

Accordingly, we affirm the district court’s order denying Hardy’s motion for a new trial.

Rule 34(j)(2)(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

I /

Ijeonard Green, 9{’erk

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