14-1765 Kearney v. N.Y. DOCCS 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 10 th day of April, two thousand fifteen. PRESENT: ROSEMARY S. POOLER, ROBERT D. SACK, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________ Richard Kearney, Plaintiff-Appellant ,

v. 14-1765 Commissioner Brian Fischer, Joseph F. Haluska, Medical Director of Southport Correctio nal Facility, Superintendent Napoli, Southport Correctional Facility, M. Bridge, Deputy Superintendent for Administrati ve Services at Southport Correctional Facility, New York State Department of Correctional Services, Defendants-Appellees .

_____________________________________

FOR PLAINTIFF-APPELLANT: Richard Kearney, pro se, Stormville, N.Y. FOR DEFENDANTS-APPELLEES: Andrew B. Ayers, Laura Etlinger, Assistant Solicitors General (Barbara Underwood, SolicitorGeneral, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y.
Appeal from a judgment of the United States Di strict Court for the We stern District of New York (Geraci, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Appellant Richard Kearney, pro se , appeals from the district court’s judgment, pursuant to a jury verdict, dismissing hi s deliberate indifference claim brought under 42 U.S.C. § 1983 and awarding nominal damages on his claim under the Americans with Disabilities Act (“ADA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. I. Evidentiary Rulings “We review a district court’s evidentiary rulings for abuse of discretion, and will reverse only for manifest error.” Cameron v. City of New York , 598 F.3d 50, 61 (2d Cir. 2010) (internal quotation marks omitted). The evidentiary rulings challenged by Kearney do not constitute an abuse of discretion. The court did not err in excluding Kearney’ s deposition testimony. Kearney was available to testify and did so, and no other circumstance ju stified his use of his own deposition testimony.
See Fed. R. Civ. P. 32(a); In re Sims , 534 F.3d 117, 140

− 41 (2d Cir. 2008). We similarly reject Kearney’s argument that the district court erred in admitting Dr. Haluska’s testimony, despite his l ack of specialization in orthopedics. We note that although the jury was instructed on the appropriate treatm ent of expert testimony, Dr. Haluska was not explicitly admitted as an expert witness. Nevert heless, the bulk of his testimony was admissible as3 lay testimony because it related to his personal experience reviewing Kearney’s medical records.
See Fed. R. Evid. 701; see also Bank of China, New York Branch v. NBM LLC , 359 F.3d 171, 181 (2d Cir. 2004). Any error in admitting th e balance of the te stimony was harmless. See Bank of China , 359 F.3d at 183 (applying ha rmless error standard to im proper admission of expert testimony). We also find no abuse of disc retion in the district court’s remaining evidentiary rulings. Kearney presented no evidence that the relevant video or audio recordings he sought to admit actually existed. In ad dition, the district court di d not abuse its di scretion in procee ding without the testimony of Dr. Schwab, as the subpoena power is generally unavailable to compel the attendance of unretained experts. Fed. R. Civ. P. 45(d)(3)(B)(ii). II. Verdict Form We review decisions as to the format and language of the verdic t form for abuse of discretion. Lore v. City of Syracuse , 670 F.3d 127, 159

− 60 (2d Cir. 2012). The district court does not abuse its discreti on where “the verdict form, when read in conjunction with the instructions to the jury, clearly presents the material factual issues raised by the pleadings and evidence.” Id. at 160. An objection to the verdict form not raised at trial is waived unl ess the error is fundamental, or “so serious and flagrant that it goes to the very integrity of the trial.” Id. (internal quotation marks omitted). Kearney waived his objections to the verdict form by failing to raise them at trial. In any event, the court did not abuse its discretion by not describing Kearney’s precise theory of his claims. The jury charge, which must be r ead in conjunction with the verdict sheet, see id. , included descriptions of his claims.4 III. Sufficiency of the Evidence “[A] party is not entitled to challenge on appeal the sufficien cy of the evidence to support the jury’s verdict on a given issue unless it has timely moved in the di strict court for judgment as a matter of law on that issue.” Kirsch v. Fleet St., Ltd. , 148 F.3d 149, 164 (2d Cir. 1998). However, we will reach the waived issue if to ignor e it would result in manifest injustice. Id. We rarely disturb the credibility determinatio ns made by the jury during trial. Dunlap-McCuller v. Riese Org ., 980 F.2d 153, 158 (2d Cir. 1992). Kearney did not move for judgment as a matte r of law, and no mani fest injustice would result from declining to reach his sufficiency arguments on appeal. To prevail on his deliberate indifference claim, he had to prove by a preponderan ce of the evidence that he had a serious injury and that Dr. Haluska knew of and disregarded an excessive risk to hi s health or safety. See Smith v. Carpenter , 316 F.3d 178, 184 (2d Cir. 2003). Based on the ev idence presented at trial, the jury reasonably could have found that Dr. Haluska did not recklessl y disregard Kearney’s medical needs. We also conclude that the evidence at trial sufficiently supports the damages awarded to Kearney for the ADA violation. Based on the evidence presented at trial, the jury could have reasonably concluded that Kearne y had not suffered actual injury and only nominal damages were appropriate. See Amato v. City of Saratoga Springs , 170 F.3d 311, 317 (2d Cir. 1999). IV. Judgment as a Matter of Law “We review de novo a district court’s decision to gran t a Rule 50 motion for judgment as a matter of law.” Cash v. Cnty. of Erie , 654 F.3d 324, 332 (2d Cir. 2011). A court may grant a Rule 50 motion only if “a party has been fully heard on an issue during a jury tr ial and the court finds that a reasonable jury would not have a legally sufficient evidentia ry basis to find for the party on5 that issue.” Fed. R. Civ. P. 50(a)(1 ). To the extent Kearney challeng es the district court’s grant of judgment as a matter of law on his deliberate indiffe rence claim in favor of Fischer, Napoli, and Bridge, we find no error. Kearney did not present ev idence at trial to show these defendants “knew of and disregarded [his] serious medical needs.” Chance v. Armstrong , 143 F.3d 698, 703 (2d Cir. 1998). V. Appointment of Substitute Counsel A district court’s de cision denying a motion to appoint counsel is re viewed for abuse of discretion. Leftridge v. Conn. State Trooper Officer No. 1283 , 640 F.3d 62, 68 (2d Cir. 2011). Factors to consider in determini ng whether to appoint counsel in a civil case include: (1) the nature of the factual issues involved; (2) the importance of credibility determinations; (3) the plaintiff’s apparent ability to present the case; and (4) the complexity of the legal issues involved. Hodge v. Police Officers , 802 F.2d 58, 61 (2d Cir. 1986). Here, the Hodge factors do not strongly favor the appoi ntment of counsel. Nonetheless, it is troubling that Kearney’s difficulti es communicating with counsel a ppear to have been, at least partially, a result of his incarcerati on. However, Kearney never disput ed that he chose not to take counsel’s call, and he gives no explanation for hi s failure to contact counsel and explain why he was unable to receive the call. Given thes e considerations and the fact that the Hodge factors do not overwhelmingly support appointment of counsel, the district court did not abuse its discretion in relieving counsel and refusing to appoint new representation.6 We have considered Kearney’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk