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March 10, 2004.


The opinion of the court was delivered by: DAVID COAR, District Judge


This case comes before the Court on pro se Plaintiff Glen Delaney's post-trial motion for a new trial. The motion is styled as a Rule 58 Motion, but it is more properly characterized as a Rule 59 Motion.*fn1 For the reasons set forth below, Plaintiff's Motion is denied.


  In July 1998, Plaintiff Glen Delaney ("Plaintiff or "Delaney") filed a pro se complaint under Section 1983, 42 U.S.C. § 1983, alleging that the conditions of his incarceration at Stateville Correctional Center violated his rights under the Eighth Amendment. Specifically, Plaintiff's Complaint alleged that he was denied all opportunities for out-of-cell exercise during a period of segregation confinement between April and October of 1996. In February 2000, the Court, on its own motion, appointed Edward Keidan to serve as Plaintiff's attorney in this case. Page 2

  Later in 2000, the Defendants moved for summary judgment on Plaintiff's complaint, Among the grounds they asserted for summary judgment was the defense of qualified immunity. This Court denied the summary judgment motion in all respects on November 2, 2000. The Defendants took an interlocutory appeal on the qualified immunity issue. On appeal, the Seventh Circuit affirmed the denial of summary judgment on the issue of qualified immunity. See Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001). In so doing, the Seventh Circuit noted that "it may very well be that the defendant guards have no liability here because they did not establish the lockdown. If they had no discretion, then . . . only Warden DeTella is a proper defendant." Id. at 687.

  The Plaintiff proceeded to a jury trial on his Complaint in January 2003. At the close of trial, the Court granted Defendant's Motion for a Directed Verdict against all the Defendants except the Warden, The evidence conclusively demonstrated that the Defendant prison guards lacked the discretion to alter the institutional lockdown that led to Plaintiff's deprival of out-of-cell exercise. The jury returned a verdict in favor of the remaining Defendant, Warden DeTella.

  Plaintiff, acting pro se, filed a post-trial motion for a new trial. The Court will treat the motion as a Rule 59 motion for a new trial.


  Federal Rule of Civil Procedure 59 permits a party to file a Motion for New Trial within ten days of the judgment. Fed.R.Civ.Pro. 59(a),(b). The party seeking relief under Rule 59(a) must show either that the jury's verdict was "contrary to the manifest weight of the evidence," Cefalu v. Village of Elk Grove, 211 F.3d 416, 424 (7th Cir. 2000), or that the court committed a manifest error of law that rendered the trial unfair to the moving party, see Mid-America Page 3 Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1367 (7th Cir. 1996).

  Plaintiff recites a litany of objections in support of his motion for a new trial. Plaintiff asserts that: (1) he was provided with inadequate legal representation; (2) prejudicial errors occurred during jury selection; (3) the Court made erroneous evidentiary rulings during trial; (4) the Court erred in overruling Plaintiff's objection relating to the presence of officers in the Courtroom; (5) the Court erred in its jury instructions; and (6) the Court erred when it granted a directed verdict to all Defendants except the Warden. The Court will address Plaintiff's objections here.

 1. Inadequate Legal Representation

  Plaintiff's motion registers multiple complaints about the conduct and ability of Plaintiff's appointed attorney. "Civil litigants do not have a right, either constitutional or statutory, to counsel." Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995) (citing Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)). Under 28 U.S.C. § 1915(e), this Court is endowed with discretion to appoint counsel in cases where it would serve the interests of justice to do so.

  Alleged failures of appointed counsel would only be grounds for a new trial if the failures were so abject as to render the trial fundamentally unfair to the moving party. Counsel's alleged failures in this case did not rise to that Himalayan height. Plaintiff may seek relief for the failures of his counsel through a separate lawsuit for malpractice or for breach of fiduciary duty, but counsel's alleged failures are not good grounds for anew trial. See Geder v. Godinez, 221 F.3d 1338 (Table), 2000 WL 874804, at *2 (7th Cir. June 27, 2000) ("[the] sole avenue for his malpractice claim against his appointed counsel `is a suit for malpractice or for breach of Page 4 fiduciary duty,' Bell v. Eastman Kodak Co., No. 98-4142, 2000 WL 680353, at *3 (7 th Cir. May 25, 2000)."

  The portion of Plaintiff's Motion addressing the alleged failings of his appointed counselis peppered with language that could sound of judicial fraud or misconduct. For example, he asserts that his counsel provided inadequate assistance "under the direct guidance, assistance and aid of the Judge." (PI. Mot. at 2). After appointing an attorney to represent the Plaintiff in this civil case, the Court took no part in Plaintiff's representation. The Court was (and remains) unaware of any undertakings that the Plaintiff's attorney may have performed on Plaintiff's behalf other than the events transpiring in open court. To the extent that Plaintiff's motion ...

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