Nosewicz v. Janosko

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 28, 2021
• Docket: 20-1287
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 28, 2021 _________________________________ Christopher M. Wolpert Clerk of Court EDWARD JOHN NOSEWICZ,

Plaintiff - Appellant,

v. No. 20-1287 (D.C. No. 1:16-CV-00447-PAB-KLM) JEFFREY JANOSKO, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, MORITZ, and CARSON, Circuit Judges. _________________________________

The Adams County Sheriff’s Office (“ACSO”) arrested and jailed Edward

Nosewicz. Early the next morning, Mr. Nosewicz started screaming in his cell. Deputy

Jeffrey Janosko unsuccessfully tried to calm Mr. Nosewicz, then attempted to escort him

to a “cool down” cell. Mr. Nosewicz resisted, and Deputy Janosko took him to the

ground.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Mr. Nosewicz sued Deputy Janosko in federal district court. The case was tried on

his 42 U.S.C. § 1983 claim for excessive force in violation of the Fourteenth

Amendment.1 The jury decided for Deputy Janosko.

Mr. Nosewicz moved for a new trial. First, he argued the evidence was

insufficient to support the jury’s verdict. Second, he relied on inconsistent testimony

from Deputy Janosko and his shift supervisor, Sergeant Robert Hannah, to argue that one

of them gave false or perjurious testimony. The court denied the motion.

Mr. Nosewicz appeals, raising the same arguments. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I. TRIAL EVIDENCE

Deputy Janosko testified that he first spoke to Mr. Nosewicz during the evening on

December 5, 2014. Mr. Nosewicz was “irate and upset.” App. at 1857. At around 4 a.m.

the next morning, Mr. Nosewicz started screaming about needing medical care. Deputy

Janosko and Sergeant Kenny Sherman, his use-of-force expert, both testified that Mr.

Nosewicz’s screaming risked waking other inmates and causing a dangerous disruption.

Deputy Janosko said he approached Mr. Nosewicz’s cell and asked the control

tower to open the door remotely. He talked with Mr. Nosewicz to determine what was

wrong and to calm him down. In response, Mr. Nosewicz swore at him. When Deputy

1 Mr. Nosewicz originally brought claims for excessive force and deliberate indifference to his medical needs. In a previous appeal, we affirmed summary judgment on the deliberate indifference claim but permitted Mr. Nosewicz to try the excessive force claim to a jury. Nosewicz v. Janosko, 754 F. App’x 725, 735 (10th Cir. 2018) (unpublished).

2 Janosko said he did not appreciate this disrespectful language, Mr. Nosewicz swore at

him again.

Deputy Janosko said he ordered Mr. Nosewicz to exit his cell to be transferred to a

“cool down” cell. Mr. Nosewicz refused. When Deputy Janosko walked into the cell,

Mr. Nosewicz yelled he could not enter. Deputy Janosko grasped Mr. Nosewicz’s right

arm and positioned himself behind Mr. Nosewicz in an “escort position.” See id. at 1867,

1869, 1890-91, 1893. Mr. Nosewicz pulled his right arm away and continued yelling.

Deputy Janosko ordered him to stop resisting.

Deputy Janosko testified that Mr. Nosewicz kept trying to pull away and then spun

rightward toward Deputy Janosko so they were facing each other. From that position,

Mr. Nosewicz could have hit Deputy Janosko with his unrestrained left arm. Deputy

Janosko used an arm-bar maneuver to take Mr. Nosewicz to the ground. Other officers

arrived and helped Deputy Janosko restrain Mr. Nosewicz.2

Sergeant Sherman testified about reasonable use of force under ACSO policies.

He characterized Mr. Nosewicz’s pulling his right arm away as “defensive resistance”

because “he [was] not striking or hurting the officer.” Id. at 1921. He testified that when

Mr. Nosewicz spun toward Deputy Janosko, his “defensive resistance” escalated into

“active aggression.” Id. at 1922-23. Sergeant Sherman opined that under ACSO

policies, Deputy Janosko could have responded to Mr. Nosewicz’s “active aggression”

2 A camera in the module captured video of the incident from outside Mr. Nosewicz’s cell. The parties did not provide this footage on appeal.

3 with considerable force and that his choice of an arm-bar takedown was “at the very low

end” of the types of force he could have applied. Id. at 1923-24.

Sergeant Sherman stated that an ACSO manual recommended that a knee strike

precede an arm-bar takedown. He explained that by not striking Mr. Nosewicz before

taking him down, Deputy Janosko avoided “escalating any further” the amount of force

he applied. Id. at 1933. In conclusion, Sergeant Sherman opined that Deputy Janosko’s

use of force was “appropriate and reasonable,” and not “excessive or inappropriate.” Id.

at 1940-41.

Mr. Nosewicz gave a different account. He testified that during his arrest, officers

slammed his torso and head into the ground, causing pain. He said the arresting officers

also scratched his face and caused his wrists to bleed. Mr. Nosewicz testified that in the

afternoon before the incident, Deputy Janosko verbally antagonized him. Before his

early-morning encounter with Deputy Janosko, he had awakened with chest pain and

believed he had broken a rib or was having a heart attack. He said that during the

encounter, Deputy Janosko placed him in a chokehold, slammed his head into the

cinderblock wall, and beat him. At some point during this incident, he lost

consciousness.

Mr. Nosewicz also presented testimony from physicians Dr. Julianna Batizy-

Morley and Dr. Stephanie Chiu. They said he suffered a rib fracture, a possible heart

attack, head swelling, a laceration on his elbow, bruising, and self-reported pain in his

wrist, elbow, and chest around the time of this encounter. Both Mr. Nosewicz and Dr.

4 Mark Engelstad, Mr. Nosewicz’s family medicine doctor, testified that Mr. Nosewicz had

developed heart conditions well before his arrest and detention in December 2014.3

II. DISCUSSION

Fed. R. Civ. P. 59(a)(1)(A) provides: “The court may, on motion, grant a new trial

on all or some of the issues—and to any party— . . . after a jury trial, for any reason for

which a new trial has heretofore been granted in an action at law in federal court.”

“A motion for a new trial is generally not regarded with favor, and is granted only

with great caution.” United States v. Perea, 458 F.2d 535, 536 (10th Cir. 1972). “Courts

do not grant new trials unless it is reasonably clear that prejudicial error has crept into the

record or that substantial justice has not been done, and the burden of showing harmful

error rests on the party seeking the new trial.” 11 Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 2803 (3d ed. Apr. 2021 update) [hereinafter

Wright & Miller] (footnote omitted).

We review the denial of a new trial motion for an abuse of discretion. Burke v.

Regalado, 935 F.3d 960, 1026 (10th Cir. 2019). “A district court abuses its discretion if

it made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (quotations omitted). “A district court’s decision crosses the abuse-

3 In addition to the testimony described above, Deputy Janosko presented testimony from Mr. Nosewicz’s wife and the jail nurse who handled Mr. Nosewicz’s intake. Mr. Nosewicz presented testimony from Sergeant Gregory Blevens about Mr. Nosewicz’s arrest, initial processing, and transport to the jail. Mr. Nosewicz testified that before the incident with Deputy Janosko, jail staff, including Deputy Janosko, denied him medical care. This testimony does not affect our analysis.

5 of-discretion line if it rests on an erroneous legal conclusion or lacks a rational basis in

the record.” Harmon v. City of Norman, Okla., 981 F.3d 1141, 1146 (10th Cir. 2020)

(quotations omitted).

A. Insufficient Evidence

Legal Background

a. New trial motions based on insufficient evidence

“In deciding a new trial motion based on insufficiency of the evidence, a district

court must analyze whether the verdict is clearly, decidedly or overwhelmingly against

the weight of the evidence.” Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1216

(10th Cir. 2013) (quotations omitted). We “view[] all the evidence in the light most

favorable to the prevailing party.” Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th

Cir. 2006).

b. Excessive force claims by pretrial detainees

The Fourteenth Amendment governs excessive force claims by pretrial detainees.

See Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., 978 F.3d 1165, 1171 (10th Cir.

2020). “A defendant violates the Fourteenth Amendment by purposely or knowingly

using force against a pretrial detainee that is ‘objectively unreasonable.’” Id. (quoting

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). “Objective unreasonableness . . .

turns on the ‘facts and circumstances of each particular case.’” Id. (quoting Kingsley,

576 U.S. at 397). A jury must “make this determination from the perspective of a

reasonable officer on the scene, including what the officer knew at the time, not with the

20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. The Supreme Court in Kingsley

6 identified six non-exclusive factors to determine whether an officer’s use of force was

objectively reasonable. We list these factors as we apply them below.4

Application of the Kingsley Factors

Under the Kingsley factors, a reasonable jury had sufficient evidence to find

Deputy Janosko’s conduct was objectively reasonable under the Fourth Amendment.

Kingsley Factor A Reasonable Jury Could Have Found

1. “[T]he relationship between the need Deputy Janosko used reasonable force for the use of force and the amount of given Mr. Nosewicz’s conduct. force used,” Kingsley, 576 U.S. at 397.

2. “[T]he extent of the plaintiff's injury.” Mr. Nosewicz’s injuries preceded his Id. encounter with Deputy Janosko.

3. “[A]ny effort made by the officer to Deputy Janosko exercised restraint by temper or to limit the amount of attempting to calm Mr. Nosewicz before force.” Id. entering his cell and choosing not to strike Mr. Nosewicz before the arm-bar takedown.

4. “[T]he severity of the security problem Mr. Nosewicz’s screaming risked causing at issue.” Id. a dangerous disruption in the module and that his spinning toward Deputy Janosko presented a safety risk.

5. “[T]he threat reasonably perceived by Someone in Deputy Janosko’s position the officer.” Id. would have viewed Mr. Nosewicz as posing a threat of physical assault.

6. “[W]hether the plaintiff was actively Mr. Nosewicz actively resisted when he resisting.” Id. spun toward Deputy Janosko.

4 There is no dispute that the district court properly instructed the jury as to the Kingsley factors.

7 The jury had ample evidence to find that every Kingsley factor favored Deputy

Janosko and that his use of force was thus objectively reasonable. The district court thus

did not abuse its discretion when it denied Mr. Nosewicz’s motion for a new trial based

on insufficient evidence.5

B. False or Perjured Testimony

We reject Mr. Nosewicz’s argument that a new trial is warranted because Deputy

Janosko or Sergeant Hannah testified falsely or perjuriously.

Procedural History

Mr. Nosewicz’s theory of false or perjured testimony is based on an inconsistency

between Deputy Janosko’s testimony about what happened before he took Mr. Nosewicz

to the ground, and Sergeant Hannah’s testimony about what Deputy Janosko orally

reported to him after the incident. This inconsistency became apparent during pretrial

discovery.

a. Depositions and incident report

Mr. Nosewicz deposed Deputy Janosko and Sergeant Hannah. Sergeant Hannah

testified that Deputy Janosko orally reported to him that Mr. Nosewicz had “balled his

5 Mr. Nosewicz’s other arguments for insufficient evidence are unavailing. First, he argues the district court mischaracterized the record by stating that Deputy Janosko used an arm-bar takedown because Mr. Nosewicz tried to pull his arm away and turned toward Deputy Janosko. Aplt. Br. at 43-48. But the record supports this view. Second, he argues the court should not have credited Deputy Janosko’s testimony that he was worried Mr. Nosewicz would hit him. Id. at 48-53. But this testimony is irrelevant to our analysis because the excessive-force inquiry under Kingsley does not concern Deputy Janosko’s subjective fears. See Kingsley, 576 U.S. at 395 (“[T]he relevant standard is objective not subjective.”).

8 fists up” and taken “a step toward him.” App. at 1568. By contrast, when Mr. Nosewicz

asked Deputy Janosko to “[d]escribe [the incident] in detail,” Deputy Janosko did not

mention that Mr. Nosewicz had balled up his fists and taken a step toward him. Id. at

1574-75.

Also, Deputy Janosko produced an “Incident/Investigation Report” to Mr.

Nosewicz. In the report, Deputy Janosko did not say Mr. Nosewicz had balled up his

fists and taken a forward step.

b. Montgomery expert report and motion in limine

One of Mr. Nosewicz’s experts, Dan Montgomery, identified the inconsistency

between Sergeant Hannah’s and Deputy Janosko’s testimony in his report. Mr.

Montgomery said “[t]his disconnect [was] disturbing.” App. at 930. He also opined that

Sergeant Hannah should have investigated Deputy Janosko’s use of force on Mr.

Nosewicz. Deputy Janosko moved in limine to exclude Mr. Montgomery’s opinions, Mr.

Nosewicz opposed the motion, and the district court granted exclusion. Id. at 912-14,

1073-75, 1134.6

c. Trial testimony

Mr. Nosewicz called Deputy Janosko and Sergeant Hannah as trial witnesses to

elicit their inconsistent testimony. Aplt. Br. at 7-9. Both repeated their deposition

testimony. Sergeant Hannah said Deputy Janosko orally reported that Mr. Nosewicz had

6 Although the district court held that some of Mr. Montgomery’s other opinions were admissible, he ultimately did not testify at trial, and his expert report was not published to the jury.

9 balled up his fists and taken a forward step. Deputy Janosko testified he did not make

such a report. And Deputy Janosko also said Mr. Nosewicz did not, in fact, ball up his

fists and take a forward step.

Analysis

We address Mr. Nosewicz’s false testimony and perjurious testimony arguments

in turn.

a. False testimony

Additional legal standards

The legal test for whether false testimony warrants setting aside a jury verdict and

holding a new trial depends on when a party discovers falsity.

1) Before trial

A party who discovers false testimony before trial has several options. For

example, the party can move in limine to exclude the false testimony, present evidence of

falsity to the jury to impeach the witness, or—if the party discovers falsity on the eve of

trial—move for a continuance or for additional discovery. But Mr. Nosewicz offers no

authority that this circumstance justifies a new trial in his case.7

7 Mr. Nosewicz could have argued that although he knew about the inconsistent testimony before the trial, the testimony caused a miscarriage of justice that justifies a new trial. McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir. 1990) (A district judge “has the obligation or duty to ensure that justice is done, and, when justice so requires, he has the authority to set aside the jury’s verdict.”). But he has not made such a showing.

10 2) During trial

A party who discovers false testimony during trial can seek a new trial by

“show[ing] surprise, prejudice, and an attempt [during trial] to cure the prejudice such as

a motion for a continuance.” Hynes v. Energy W., Inc., 211 F.3d 1193, 1203 (10th Cir.

2000) (quotations and alteration omitted).

3) After trial

A party who discovers falsity after trial may invoke our five-part standard for a

new trial. When addressing such a motion, “the trial court must first be satisfied that the

challenged testimony was actually false.” United States v. Bradshaw, 787 F.2d 1385,

1391 (10th Cir. 1986). The party also must meet the following five requirements:

(1) the evidence [showing falsity] was discovered after trial; (2) the failure to learn of the evidence was not caused by [the movant’s] own lack of diligence; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce [a different result].

United States v. Miller, 987 F.2d 1462, 1466 (10th Cir. 1993).

This case falls into the first category—when a party discovers false testimony

before trial. The discovery record conclusively shows Mr. Nosewicz knew well before

trial about the inconsistency between Deputy Janosko’s and Sergeant Hannah’s

testimony. As the district court observed, Mr. Nosewicz’s argument that he was

surprised by the inconsistency “strains credulity.” App. at 1609. We see no abuse of

11 discretion by the district court and thus affirm the denial of the new trial motion based on

false testimony.

b. Perjurious testimony

Mr. Nosewicz also argues that Deputy Janosko or Sergeant Hannah committed

perjury, warranting a new trial.8 But he has identified no evidence that either committed

perjury, i.e., “knowingly ma[de] a false material statement that has the tendency to

mislead.” United States v. Hernandez, 94 F.3d 606, 611 (10th Cir. 1996) (emphasis

added). We have emphasized that “witnesses frequently disagree in their interpretation

and recollection of events, and . . . tension between witnesses’ testimony does not prove

subornation of perjury” or perjury. United States v. Henderson, 179 F. App’x 535, 540

(10th Cir. 2006) (unpublished);9 see also Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.

1991) (“Contradictions and changes in a witness’s testimony alone do not constitute

perjury and do not create an inference, let alone prove, that the prosecution knowingly

presented perjured testimony.”). The single inconsistency between Deputy Janosko’s and

8 We address this argument separately because two infrequently cited Tenth Circuit opinions, Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949), and Motive Parts Warehouse v. Faucet Enterprises, 774 F.2d 380, 391 (10th Cir. 1985), arguably recognize a distinct legal standard for new trial motions based on perjurious, as opposed to merely false, testimony. We take no position on whether there is such a distinct legal standard. 9 Although not precedential, we find the reasoning of this unpublished opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

12 Sergeant Hannah’s testimony does not establish that either made a knowing false

statement.10

* * * *

For these reasons, we affirm the district court’s denial of Mr. Nosewicz’s new trial

motion based on false or perjurious testimony.

III. CONCLUSION

We affirm the district court’s denial of Mr. Nosewicz’s motion for a new trial.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

10 We also reject Mr. Nosewicz’s argument that the court should have held an evidentiary hearing about Deputy Janosko and Sergeant Hannah’s testimony. Mr. Nosewicz cites only the Fourth Circuit’s decision in Phillips v. Crown Central Petroleum Corp., 556 F.2d 702 (4th Cir. 1977), to argue a hearing was needed “to determine the extent to which the verdict was based on false or perjurious testimony.” Aplt. Br. at 41. In Phillips, one of the plaintiffs—a key witness—admitted after trial to having “committed perjury . . . with respect to issues central to the litigation.” 556 F.3d at 703. The district court did not look into the extent of the perjury and decided to “continue to credit” the plaintiff’s trial testimony. Id. The Fourth Circuit held this was error because, given the plaintiff’s admission, a hearing was needed to determine the extent of the perjury. Id. at 705. By contrast, Mr. Nosewicz has not given any basis to infer that Deputy Janosko or Sergeant Hannah committed perjury. Mr. Nosewicz therefore has not shown the district court abused its discretion by declining to hold an evidentiary hearing.