NOT RECOMMENDED FOR PUBLICATION No. 09-2018 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT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 ofthe 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, andretaliatedagainsthiminviolationofhis FirstandEighthAmendmentrights.No. 09-2018 Hardy v. Vieta Hardy soughtmonetaryrelief. The districtcourtdismissed Grayson as adefendantand subsequently granted Vieta’s motion for summaryjudgment. This courtreversedthe grantofsummaryjudgment and remanded to the district court, concluding that a genuine issue of material fact existed concerning Hardy’s EighthAmendmentclaim. Hardyv. Vieta, No. 05-1024 (6th Cir. Apr. 4, 2006) (unpublished). Following a trial, at which Hardy was represented by appointed counsel, ajury returned a verdict in favor ofVieta. 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 ofa witness; (3) ajuror communicated with her mother about the case during trial; (4) the defense introduced aprejudicial medical recordthat did notpertainto Hardy; and (5) the verdict
was against the great weight ofthe 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 ofa 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]ourthas a ‘definite and firm convictionthatthe trial court committed a clear
errorofjudgment.” Id. (quoting Barnes v. Owens-CorningFiberglas 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 forwhichnewtrials have heretofore been granted in actions atlawinthe courts ofthe United States.” Fed. R. Civ. P. 59(a). “Generally courts have interpretedthis language to mean that a new trial is warranted when ajury has reached a ‘seriously erroneous result’ as -2-No. 09-2018 Hardy v. Vieta evidenced by: (1) the verdict being against the weight ofthe 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 of Massillon, 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 orderto 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 sustainedthe objection, and defense counsel did not press the issue. Further, the trial court instructed thejurythatthe 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 newtrial based on this claim. Hardy next argues thatthe trial courterredwhen itrefusedto admitJames 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 inthe course ofthe same or anotherproceeding, ifthe party against whomthe testimony is now offered

. . . had an opportunity and similar motive to develop the testimony by direct, cross, orredirect examination.” Fed. R. Evid. 804(b)(1). A party must obtain leave ofcourt to conduct a deposition “ifthe deponent is confined in prison.” Fed. R. Civ. P. 30(a)(2)(b). Hardy has not shownthathe obtained leave ofcourtto submitthe written deposition questions to Mathieu, -3-No. 09-2018 Hardy v. Vieta who was confined in prison at the time ofthe 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 ajuror’s mother was present in the courtroom during highlyprejudicial off-the-record discussions and itis likelythat she discussedthe
case with her daughter. Hardy has notpresented any evidence showing that thejuror 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 thathis trial was unfairbecause one ofthe medicalrecordsthatthe 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 ofthe evidence. Although Hardy failed to raise this argument in his appellate brief, we conclude that Hardy has not shown thatthe district court abused its discretion in denying himrelief
onthis claim because thejury verdict inhis case was notunreasonable. See Nolan, 589 F.3d at 264.

-4-No. 09-2018 Hardy v. Vieta 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 raisedby habeas corpus

—is normally not available because the SixthAmendment does notprovide arightto counsel in such civil cases. See Gloverv. 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 ofthe Sixth Circuit.

ENTERED BY ORDER OF THE COURT 

## I 

# / Ijeonard Green, 9{’erk

-5-