2 2

- 519

- pr (L) Magalios v. C.O. Mathew Peralta 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 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 “SUMMARY ORDER”). 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 1 

### at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 

### York , on the 1 9 t h 

### day of J u l y , tw o thousand twenty

- three. 3 4 

### PRESENT: 5 6 

### DENNY CHIN, 7 

### SUSAN L. CARNEY, 8 

### EUNICE C. LEE, 9 10 

### Circuit Judges

. 11



### ------------------------------------------------------------------ 12 

### N ICHOLAS 

### M AGALIOS 

### , 13 14 

### Plaintiff

- Appell ee

- Cross

- Appellant
, 15 16



### v. No s

. 22

- 519

- pr ( L ) 17 

### 2 2

- 5 4 1

- p r ( X A P ) 18 

### C.O. M ATHEW 

### P ERALTA 

### , C.O. T IMOTHY 

### B AILEY 

### , C.O. 19 

### E DWARD 

### B LOUNT 

### , 20 21 

### Defendants

- Appell ants

- Cross

- Appellees

. 22 23



### ------------------------------------------------------------------ 242 

### For Plaintiff

- Appelle e

- Cross

- Appellant : E DWAR D 

### S IVIN 

### ( Clyde Rastetter
, 1 

### on the brief )
, Sivin, Miller & 2 

### Roche
, LLP , 3 

### New York, NY

. 4 5 

### For Defendant s

- Appell ants

- Cross

- Appellees : H ENRY 

### M. G REENBERG 

### , 6 

### Greenberg Traurig, LLP
, 7 

### Albany, NY

. 8 9 Appeal from a judgment of the United States District Court for the Southern District of 10
New York ( Seibel
, J. ). 11

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 12

DECREED that the judgment of the district court is AFFIRMED

. 13

Corrections Officers (“COs”) Mathew Peralta, Timothy Bailey, and Edward Blount 14
(“Defendants”) appeal from a final judgment of the district court entered following a jury tr ial at 15
which they were found liable for use of excessive force and failure to intervene in violation of 16
plaintiff Nicholas Magalios’ s Eighth Amendment rights. The suit, brought pursuant to 42 U.S.C. 17
§ 1983, alleged that Magalios, while incarcerated by the New York State Department of 18
Corrections and Community Supervision ( “ DOCCS ” ) at Fishkill Correctional Facility
, was 19
physically attacked by Defendants Peralta and Bailey while Defendant Blount stood by and 20

watched. 21
Magalios test ified at trial that during a prison visit with his then

- wife Lisa Tibaldi, a non

22

defendant CO
, along with Defendant Peralta
, verbally harassed Magalios. Due to the tension with 23

the COs, Magalios decided to end the visit with his wife earlier than usual. Once the visit ended, 24
Magalios proceeded to the frisk area where Defendant Peralta and Bailey violently assault ed him 25

while Defendant Blount watched. Following trial, t he jury awarded Magalios $950,000 in punitive 26
damages, an award the district court foun d excessive and remitted to $500,000. 27

283 O n appeal, Defendants argue that the district court committed a variety of errors at trial. 1
Magalios cross

- appeals, arguing that the district court abused its discretion in remitting the jury’s 2
punitive damages awar d. We assume the parties’ familiarity with the underlying facts, procedural 3
history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm. 4

A. Pre

- trial Evidentiary Rulings 5
Defendants challenge t wo of the district court ’s pre

- trial evidentiary rulings: (1) the 6
exclusion of Magalios’s prior felony conviction for promoting prison contraband ; and (2) the 7

exclusion of the nature of witness and former inmate Alexander Hall’s conviction for 8
manslaughter

. We review the evidentiary rulings for an abuse of discretion
, United States v. Ho
, 9
984 F.3d 191, 207 (2d Cir. 2020) , and find none

. 10

W hile Federal Rule of Evidence 609 creates a presumption that felony convictions 11
committed within the past ten years are admissible as imp eachment evidence in civil cases, the 12
admissibility of such convictions is still subject to a Rule 403 analysis. See Fed. R. Evid. 13
609(a)(1)(A). Here, i t was reasonable for the court to conclude that admission of Magalios’s 14

conviction for promoting priso n contraband would risk confusing the jury because of the possible 15
suggestion that it was known to Defendants and thus motivated the assault. Furthermore, because 16
the court admitted Magalios’s other felony convictions, the value of the prison contraband 17

c onviction for impeachment purposes was diminished. See United States v. Washington , 746 F.2d 18

104, 10 7 (2d Cir. 1984) (Newman, J ., concurring) (“Once credibility is impeached by a prior felony 19
conviction, the incremental probative force of a second convict ion is minimal.”). Likewise, it was 20

reasonable for the court to conclude that the prejudicial impact of informing the jury that Hall had 21

been convicted for causing someone’s death was likely high and the impeachment value of the 224 nature of the conviction l ow. 1 See United States v. Estrada , 430 F.3d 606, 617 (2d Cir. 2005) 1
(“District courts, in applying Rule 609(a)(1), are thus required to examine which of a witness’s 2
crimes have elements relevant to veracity and honesty and which do not.”). Defendants’ a rguments 3
to the contrary are unpersuasive because they amount to nothing more than disagreements with the 4
court’s exercise of discretion. This is not enough. See Ho , 984 F.3d at 207 (“To find such an abuse 5
we must be persuaded that the trial judge ruled i n an arbitrary and irrational fashion.” (internal 6
quotation marks omitted)). 7

B. Challenges Regarding Witness Testimony at Trial 8
Defendants bring various challenges to events regarding witness testimony . We address 9
each challenge in turn and find none merit orious

. 10

1. Fifth Amendment Warning to Lisa Tibaldi 11

First, D efendants challenge the district court’s decision to inform defense witness Lisa 12
Tibaldi of her Fifth Amendment rights. 2 The district court is sued the warning after learning that 13

Tibaldi, Magalios’ s ex

- wife
, was planning to recant her deposition testimony that Magalios had 14
called her following their prison visit and told her he had been assault ed by Defendants

. A t trial, 15

however, the defense ex pected her to testify that her deposition testimony had been false and that 16
Magalios was fabricating his allegations

. T he district court observed that “ it sound [ ed ] like ” 17
Tibaldi was “going to admit to perjury
, ” and determined that it was inclined to “alert her ” of that 18
risk “outside the presence of the jury

. ” Joint App’x at 565. W hile the court explained that it did 19
not “want to discourage [Tibaldi] from testifying . . . if she’s going to incriminate herself, s he 20

1 Though the exact nature of the conviction was not admissible, the district court noted that defense counsel could ask whether Hall “was serving a five

- to fifteen

- year sentence for a felony,” which would “show [the] serious [ness] ” of the conviction. Join t App’x at 138.
2 Though Magalios had initially planned to call Tibaldi as a witness, her increasing hostility toward Magalios led counsel to strike her from the witness list.5 needs to know that she’s going to incriminate herself and that she has a right to consult with counsel 1

before she does that .” Id. The court then issued the following warning to Tibaldi : 2
you need to be aware that falsely testifying under oath is a crime for which you 3 could, in theory, be prosecuted, and that, under the Fifth Amendment, you have a 4 right to refuse to testify if your testimony would tend to incriminate you. And

. . . 5 [i] t is a good idea to consult with a lawyer before you testify to something that 6 would incriminate you. 7 8 I’m not suggesting that any prosecutor would have any interest in your case or that 9 any prosecutor would prosecute you for lying under oath, but you need to be 10 informed that it is a possibility

. . . . And I encourage you to consult with counsel 11 before you testify on that subject. 12 13 Id. at 571

– 72. When it came time for Tibaldi to take the stand , defense counsel informed the court 14

that Tibaldi was no longer wil ling to testify because “[s]he is scared for her safety .” Id. at 606. 15

Defendants now argue , for the first time
, that the district court erred by advising Tibaldi of 16
her Fifth Amendment right because she had already waived this right via her deposition testimony. 17
Alternatively, they claim that, even if she did not waive the right, the w arning improperly 18
discouraged Tibaldi from testifying. Neither argument is convincing, and we find no plain error 19

in the district court’s advis ing Tibaldi of her Fifth Amendment right. See Pescatore v. Pan Am. 20
World Airways, Inc. , 97 F.3d 1, 18 (2d Cir. 1996) ( noting that “[w] e ordinarily do not consider 21
claims of error that were not properly raised at trial unless the error is plain ” and warnin g that “ the 22
plain error exception should only be invoked with extreme caution in the civil context ” (internal 23
quotation marks omitted) ). 24
Tibaldi did not waive her Fifth Amendment right by testifying at her deposition because 25

her risk of self

- incrimination did not arise from the subject of her deposition testimony but rather 26
from the proposed new trial testimony that her deposition testimony had been a lie

. Cf. Mitchell 27

v. United States , 526 U.S. 314, 321 (1999) (explaining that a witness may not “testify voluntarily 28
about a subject and then invoke the privilege against self

- incrimination when questioned about 296 details”)

. Simply put, Tibaldi could not have waived her Fifth Amendment privilege as to the 1
expected testimony at trial that she perjured herself a t her deposition because she had never 2

testified to that effect before. See In re Corrugated Container Antitrust Litig. , 644 F.2d 70, 75 n.7 3
(2d Cir. 1981) (collecting cases for the proposition that a “witness is entitled to claim the Fifth 4
Amendment priv ilege if it might reveal perjury in a prior proceeding” (emphasis added)). 5

As to the district court’s warning itself, Defendants have failed to demonstrate any error, 6
let alone plain error. The district court acted well within its discretion in issuing a well

- balanced 7
warning , which made clear that the while the court believed it was unlikely that Tibaldi would be 8
prosecuted
, her proposed testimony raised the risk of self

- incrimination

. See United States v. 9

Valdez , 16 F

. 3d 1324, 1331 (2d Cir. 1994) (“ [A] district court certainly has the discretion to ensure 10
that a witness in danger of unwittingly incriminating h [er] self is aware of h [er] constitutional 11
privilege
, but that exercise of this discretion must be carefully tailored to ensure that warnings do 12

not become threats. ” ). What is more, the record itself confirms that the district court’s warning 13
did not chill Tibaldi’s choice to testify: P er defense counsel’s own explanation at trial, Tibaldi 14
aborted her testimony out of concern for her safety
, not out of a fear of self

- incrimination . As 15

such, even assuming arguendo an error in the district court’s warning , any such error was not 16
prejudicial because it does not appear to have precipitated Tibaldi’s choice to abort her testimony. 17

2. Testimony of Nich olas Giannini 18

Second, Defendants challenge the district court’s decision to permit Nic h olas Giannini , a 19
witness for Magalios, to testify to a threat he received from Tibaldi and her boyfriend Justin 20
Zamani. After being informed by Magalios’ s counsel that Giannini had been threatened , t he 21
district court stated that it believed that it was “fair game” for Magalios’ s counsel to ask Giannini 22
about the threat during his testimony
, Joint App’x at 56 7 , given its relevance as to Tibaldi’s bias 237 as a witness. 3 Accordingly, Giannini testified on direct examination that he was nervous, because 1

Tibaldi and Zamani had approached him in the courthouse hallways and threatened his life. 2
Defense counsel did not object to Giannini’s testimony

— n eit her during the court’s discussion with 3
counsel prior to Giannini taking the stand nor during Giannini’s testimony itself. 4

Because the district court admitted Giannini’s testimony regarding the threat in expectation 5

of Tibaldi testifying
, the court, after learning that Tibaldi would not in fact testify
, informed 6

counsel that it was inclined to strike Giannini’s testimony regarding the threat

. Magalios’ s counsel 7
suggested that Giannini’s testimony as to the threat remained admissible to explain his apparen t 8

nervousness. In response, the court suggested that it could tell the jury that the threat testimony 9

was to be considered only to explain Giannini’s demeanor and asked the parties if this “seem[ed] 10

fair

. ” Id. at 607. Magalios’ s counsel agreed it did
, a nd defense counsel thanked the court. 11
In line with the plan discussed with counsel, t he district court later issued a curative 12

instruction to the jury explaining that it had admitted Giannini’s testimony in “expectation that the 13

ex

- wife [Tibaldi] was going to testify.” Id. at 609. Because Tibaldi ultimately did not testify , the 14

district court instructed the jury “to use [Giannini’s] testimony [about the threat] only for a very 15
limited purpose, which is for whatever effect it might have had on th e witness’ state of mind.” Id. 16

at 610. The district court additionally explained to the jury that “the individual who’s alleged to 17
have made the threat is not associated with any of the parties. He’s not associated with the 18

defendants. He’s not associa ted with the plaintiff. So any misconduct by such a person should 19
not affect your views of any of the parties either way

. . . . ” Id. 20
Despite not objecting below, Defendants now argue that the district court plainly erred by 21
admitting Giannini ’s testim ony regarding the threat because evidence of threats is inadmissible if 22

3 The district court ruled that Giannini could testify to the threat after lea rning that Tibaldi might perjure herself, but before issuing its Fifth Amendment warning and before learning that Tibaldi had decided not to testify at trial.8 the threat was not made in connection with a party to the litigation. Defendants do not point to 1
any apposite authority for their proposed bright

- line rule. To the contrary, while re cognizing that 2
“the potential prejudice from death threats may be great,” we have stated that such evidence is to 3
be judged “just as other potentially prejudicial evidence

. . . by the normal processes of Fed. R. 4
Evid. 403 balancing.” United States v. Qam ar , 671 F.2d 732, 736 (2d Cir. 1982) (internal 5
quotation marks omitted) . And we have previously approved of the use of death

- threat evidence, 6
as it was used here, to aid the jury in assessing a witness’s demeanor or state of mind. Id. 7
Accordingly
, the district court did not plainly err when it admitt ed the threat testimony. 8
Though evidence of third

- party threats poses a heightened risk of prejudice, the court’s limiting 9
instruction to the jury clear ly explained both that the testimony of the threat was only relevant to 10
assessing Giannini’s demeanor and that the threat was in no way connected to D efendants. See 11

United States v. Colombo , 909 F.2d 711, 715 (2d Cir. 1990) (noting that “ordinarily we presume 12
that a jury adheres to the curat ive instructions of the trial court”). Under these circumstances, we 13
cannot conclude that admitting the threat testimony was so highly prejudicial as to go to the “very 14
integrity of the trial. ” Pescatore , 97 F.3d at 18 (internal quotation marks omitted). 15

3. Testimony of R e uben Febus 16
Defendants urge us to find that the district court abused its discretion in excluding Office 17
of Special Investigation Investigator R e uben Febus’s testimony regarding DOCCS’s internal 18
investiga tion to the extent that the testimony spoke to Febus’s opinion regarding the likelihood 19
that the assault happened. Lay witnesses may testify in the form of an opinion only when that 20
testimony is “helpful to clearly understanding the witness’ s testimony or to determining a fact in 21
issue.” Fed. R. Evid. 701(b). “ This helpfulness requirement is designed to provide assurance 22
against the admission of opinions which would merely tell the jury what result to reach.” Cameron 239 v. City of New York , 598 F.3d 50, 6 2 (2d Cir. 2010) (internal quotation marks omitted and alteration 1
adopted). It was therefore reasonable for the district court to find that Febus’s testimony regarding 2
the credibility of Magalios’s allegations would amount to telling the factfinders what r esult to 3
reach and risk prejudicing the jury. See United States v. Awadallah , 436 F.3d 125, 13 3 (2d Cir. 4
2006) (holding that it was within trial court’s discretion to exclude evidence where the “danger of 5
prejudice [was] heightened

. . . because the propo sed testimony [went] to an ultimate issue in the 6
case” (internal quotation marks omitted)). 7

C. Denial of Motion for Mistrial Following Note from Juror 3 8

Defendants also appeal the district court’s denial of their motion for mistrial following a 9

note from Jur or 3

— received after Giannini’s threat testimony but before the district court issued 10
the curative instruction regarding that testimony

— indicating that the juror had security concerns. 11

The court denied the motion but indicated that it would voir dire Juror 3 individually at the request 12
of either party following its issuance of the curative instruction to the jury

. Ultimately, the district 13

court voir dired Juror 3 regarding his note . Asked if he could still be impartial, Juror 3 responded 14
that his concerns were only about safety and that he could “ still be absolutely fair . . . I’m not 15
concerned about my fairness quotient ” and that he was “devoted to the evidence and the facts.” 16
Joint App’x at 66 0

– 6 1. Satisfied that Juror 3 had not been b iased by Giannini’s testimony, the 17

court kept Juror 3 on the panel

. 18
Defendants claim that the district court abused its discretion in declining to dismiss Juror 19
3 following receipt of the note. We disagree. See United States v. Rubin , 37 F.3d 49, 54 (2 d Cir. 20
1994) (“The process of empaneling a jury is firmly entrusted to the sound discretion of the trial 21
judge and will not be disturbed absent an abuse of this discretion.”) . The district court engaged in 22

a substantial voir dire of Juror 3 in which Juror 3 made clear that he was still committed to the 2310 evidence and believed he could be impartial. The court’s choice to credit Juror 3’s self

- reporting 1
as to his bias is entitled to “special respect,” United States v. Grasso , 600 F.2d 342, 343 (2d Cir. 2
1979) ( citation omitted), and its choice to keep him empaneled did not exceed the bounds of the 3
“broad flexibility” trial courts are accorded in addressing the “delicate and complex task” of 4
managing jurors, United States v. Farhane , 634 F.3d 127, 168 (2d Cir. 2 011) (internal quotation 5
marks omitted). 6

D. Remittitur 7 8 For his part, Magalios argues on cross

- appeal that the district court abused its discretion by 9

remitti ng the $950,000 punitive damages award

. 4 We disagree. Payne v. Jones , 711 F.3d 85, 100 10
(2d Cir. 2013) (explaining that where, as here, a challenge to punitive damages is not made on 11
constitutional grounds but rather for “mere excessiveness,” we review the district court’s remittitur 12
ruling for abuse of discretion). The district court’s remittit ur analysis was properly guided by the 13

three factors announced in BMW of North America, Inc. v. Gore , 517 U.S. 559 (1996), or the “ Gore 14
factors.” Those factors are (1) the “degree of reprehensibility” of the defendants’ conduct; (2) the 15
“disparity between the harm

. . . and the punitive damages award”; and (3) “ the difference between 16

the remedy and the civil penalties authorized or imposed in comparable cases.” DiSorbo v. Hoy
, 17
343 F.3d 172, 186 (2d Cir. 2003) (citing Gore , 517 U.S. at 574

– 75). Applying t he Gore factors to 18
the case, the district court determined that the high degree of reprehensibility militated in favor of 19
substantial punitive damages but that the total compensatory

- to

- punitive

- damage ratio, which 20

amounted to 7:1 for Defendants Peralta an d Bailey and 5:1 for Defendant Blount, indicated that 21
the award was excessive, as did the maximum fine from the comparable criminal provision and 22
civil penalties from comparable civil cases. 23

4 The $950,000 total award reflected $350,000 as against Defendants Peralta and Bailey and $250 ,000 against Defendant Blount. The jury also awarded $50,000 in compensatory damages.11 Contrary to Magalios’ s assertion, the district court did not un duly discount the first factor 1
(reprehensibility) at expense of the second (disparity between harm and award)

. It was not 2
contradictory for the district court to determine that though substantial punitive damages were 3
warranted by the first factor, the se cond factor indicated that those awarded by the jury were 4
excessive. In so determining, it was reasonable for the district court to consider the comparable 5

criminal penalty of $250,000 and factually similar civil cases that had resulted in lesser damages 6

awards. See Jennings v. Yurkiw , 18 F.4th 383, 393 (2d Cir. 2021); Payne , 711 F.3d at 104. Further, 7
the court engaged in a well

- considered analysis of the ratio of compensatory to punitive damages 8
and did not operate in a bright

- line fashion, as we have warned against. See Payne , 711 F.3d at 9
102 (noting that the Supreme Cour t has “repeatedly stressed the impossibility of making any 10
bright

- line test” as to damages ratios)

. Moreover, its conclusion that the large disparity between 11
the harm and punitive damages award indicated that the jury’s award was excessive was 12

reasonable

. See id. (noting that ratios may “necessarily be very high” in cases where 13
reprehensibility of the defendant ’ s conduct is great but, unlike this one, the “compensable injury 14

[ is ] small”); Thomas v. iStar Fin. , Inc. , 652 F.3d 141 , 149 (2d Cir. 2011) (notin g that “an award of 15
more than four times the amount of compensatory damages might be close to the line of 16

constitutional im propriety” (internal quotation marks omitted)). 17

* * * 18
We have considered the remainder of the parties’ arguments and find them without merit. 19

For the above reasons, we AFFIRM the judgment of the district court. 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22