The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
This matter is before the Court on a Motion for New Trial or Alternative Transferred to an Minimum Security Institution and to Amend (sic) ("Motion for New Trial") (Doc. 139) and Motion to Alter or Amend the Judgment (Doc. 141) filed by Plaintiff Markus Hunter. Defendants Kirk Dutton and Doug Mason filed a Response to Plaintiff's Motion for New Trial (Doc. 142), but did not file a Response to the Motion to Alter or Amend the Judgment. For the reasons stated below, Plaintiff's Motions (Docs. 139, 141) are DENIED.
Markus Hunter ("Plaintiff"), an inmate incarcerated at Tamms Correctional Center ("Tamms"), brought this suit pursuant to 42 U.S.C. § 1983 alleging that correctional officers Kirk Dutton and Doug Mason ("Defendants") retaliated against him in violation of his First Amendment rights (Doc. 1). On April 19, 2011, following a two-day bench trial, the Court found in favor of Defendants and entered judgment accordingly (Doc. 130). Plaintiff filed two separate and timely*fn1 motions for a new trial citing errors of the Court and newly discovered evidence (Docs. 139, 141). Defendants filed a response only to the Plaintiff's Motion for New Trial (Doc. 142).
For purposes of clarity, the Court will address the arguments asserted in both motions together. Essentially, Plaintiff requests a new trial because: 1) the Court erred by permitting defense counsel to make "prejudicial statements" in its closing argument; (2) there is "newly discovered evidence" in the form of the Plaintiff's past medical files from Tamms and an internet blog pertaining to asthma; (3) the Court erred by failing to properly "authenticate" the "shakedown slip" under the Federal Rules of Evidence; and (4) the Court erred when it dismissed the Plaintiff's court-appointed counsel at the conclusion of trial. Additionally, Plaintiff requests to be transferred to a minimum security facility and seeks monetary relief.
Under Federal Rule of Civil Procedure 59, a court may grant a new trial following a non-jury trial "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court." FED. R. CIV. P. 59(a)(1)(B).*fn2 Rule 59(e) is a procedural vehicle that provides district courts the "opportunity to correct errors that may have crept into the proceeding, before the case leaves the district court for good." Sosebee v. Astrue, 494 F.3d 583, 589 (7th Cir. 2007). Courts should grant a Rule 59(e) motion only if "the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996); see also Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (noting that neither the "timing" nor the "label" of a prisoner's pro se motion is "dispositive with respect to the appropriate characterization of the motion.").
Prejudicial Statements Made by Defense Counsel During Closing Argument Plaintiff argues that defense counsel made "prejudicial, inflammatory, and erroneous statements in closing argument designed to arouse the prejudices and passions of the Judge, thereby prejudicing the Plaintiff's right to a fair trial." (Doc. 139). Statements made by attorneys in court are not evidence. See United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008). During closing arguments, in particular, attorneys are permitted "more leeway . . . to suggest inferences based on the evidence, highlight weaknesses in the opponent's case, and emphasize strengths in their own case." Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). A new trial is appropriate when an attorney's statements during closing argument may "influenc[e] the jury in such a way that substantial prejudice resulted to the opposing party." Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 644 (7th Cir. 1995) (internal citations omitted). However, the fear of in-court statements causing "unfair prejudice" to sway judges presiding over a non-jury trial is substantially less than in a jury trial. See, e.g., Carter v. Hewitt, 617 F.2d 961, 972 n.13 (3d Cir. 1980); United States v. Nguyen, No. 06-0075, 2008 WL 540230, at *6 (E.D. Cal. Feb. 25, 2008) (noting that "in bench trials, the judge is not so easily swayed" by potentially prejudicial statements by attorneys). Further, any prejudice from comments made during closing arguments "rarely rise[s] to the level of reversible error." Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1311 (7th Cir. 1985); see also Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388 (7th Cir. 2011) (noting that any potential harm an attorney's remarks can be "cured" by a judge's jury instructions).
Plaintiff failed to fully develop this argument in both motions, and his court-appointed attorneys did not make a timely objection during trial. Plaintiff did not allege, and the Court will not, on its own, attempt to discern which statements Plaintiff alleges were improper. It seems clear that the Plaintiff's real dispute, if any, lies with his attorney, not this Court. See Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001) (denying a motion for retrial on the failure of an attorney's "effective assistance" and noting that the "proper remedy for inadequate representation in a civil case lies not in dragging the opposing party through another trial, but rather in a malpractice action against the offending attorney"); see also Sheldon v. Munford, Inc., 950 F.2d 403, 410-11 (7th Cir. 1991) (noting that the Seventh Circuit defers to the "decision of the Magistrate Judge not to intervene in the absence of objection, nor to grant a new trial because he heard the statements and was in a far better position than [an appellate court] to judge the effect of improper comments . . .") (emphasis added). Plaintiff did not cite to any legal authority or make reference to the trial record to support this allegation, and it is not the Court's duty to develop an argument on the Plaintiff's behalf. See Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000). Accordingly, Plaintiff shall not be granted a new trial or amended judgment on the basis of alleged prejudicial statements made by defense counsel during closing argument. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (holding that the Seventh Circuit has "made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues); see also Costello v. Grundon, No. 08--3961, 2011 WL 2536089, at *22 (7th Cir. June 28, 2011).
Newly Discovered Evidence
Plaintiff argues that newly discovered evidence entitles him to a new trial for two reasons. First, Plaintiff contends that his past medical records from Tamms clearly show that he was proscribed and possessed more than one asthma inhaler while incarcerated (Doc. 139).
Second, Plaintiff argues that an Internet blog entry by an asthmatic named "Breathin' Stephen" shows that it is possible for a person to suffer an asthma attack and still have "normal or near normal" oxygen saturation levels in their blood (Doc. 141). Both arguments fail as a matter of law.
Pursuant to Federal Rule of Civil Procedure 59(e), if a party produces "newly discovered evidence" after trial, the court has the discretion to grant a new trial or "alter or amend" the judgment. See Obriecht, 517 F.3d at 494. However, it is inappropriate to grant a Rule 59(e) motion where the "newly discovered evidence" could have been produced prior to judgment. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008); see also Payette v. Dickman, No. 09-3291, 2010 WL 3075271, at *2 (7th Cir. July 28, 2010) (denying a ...