                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                      Nos. 09-12956 and 09-13928         ELEVENTH CIRCUIT
                                                             MAY 25, 2010
                        Non-Argument Calendar
                                                              JOHN LEY
                      ________________________
                                                               CLERK

               D. C. Docket No. 01-00011-CV-1-SPM-WCS

JOSE ELIAS SEPULVEDA,


                                                           Plaintiff-Appellant,

                                  versus

RALPH W. BURNSIDE,
SHERIFF STEPHEN M. OELRICH,
ALAN R. MORROW,
FLOYD GIPSON,
DETENTION OFFICER ALLEN, et al.,


                                                       Defendants-Appellees.


                      ________________________

               Appeals from the United States District Court
                   for the Northern District of Florida
                     _________________________

                             (May 25, 2010)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

       Jose Elias Sepulveda, proceeding pro se, appeals the district court’s order

denying his motion to alter or amend the judgment or for a new trial on the issue of

compensatory damages following a jury verdict in his favor in a 42 U.S.C. § 1983

civil rights action.

       In 2001, Sepulveda filed an amended complaint against six defendants,

including Floyd Gipson and James Elliot, correctional officers at the Alachua

County Correctional Center (“ACCC”). Sepulveda’s complaint raised claims

under 42 U.S.C. §§ 1983, 1985, 1986, and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), as well as

claims arising under Florida law. The district court granted summary judgment to

defendants with respect to all of Sepulveda’s claims, with the exception of his

retaliation claim against Defendant Elliot. After a trial, a jury returned a verdict in

favor of Elliot on the retaliation claim.

       Sepulveda then appealed the district court’s order granting summary

judgment on his other claims. We affirmed the grant of summary judgment in

regard to most of Sepulveda’s claims, but reversed with respect to Sepulveda’s

Eighth Amendment and First Amendment retaliation claims against Defendant

Gipson. See Sepulveda v. Burnside, 11th Cir. 2006, __ F.3d __ (No. 04-10241,



                                            2
Mar. 13, 2006). Sepulveda’s claims against Gipson were based upon an incident

where Sepulveda was attacked by another inmate, Donald Small, after Gipson let

Sepulveda and Small out of their cells in the special management pod at the same

time, without any restraints, in violation of the ACCC’s policies. On remand,

Sepulveda’s claims against Gipson were tried before a jury, which found Gipson

liable for violating Sepulveda’s constitutional rights. The jury awarded Sepulveda

only $1 in compensatory damages, but $99,999 in punitive damages. Sepulveda

filed a Federal Rule of Civil Procedure 59(e) motion to alter or amend the

judgment to increase the award of compensatory damages, and an alternative

Federal Rule of Civil Procedure 59(a) motion for a new trial on only the issue of

compensatory damages. He also filed a Federal Rule of Civil Procedure 60(b)

motion requesting relief from a final judgment due to fraud. The district court

denied Sepulveda’s post-verdict motions, and Sepulveda now appeals that order.

      On appeal, Sepulveda asserts that defense counsel and Dr. M. Cintron, a

physician at the facility where Sepulveda is incarcerated, committed fraud in

defense counsel’s motion to strike Dr. Cintron from Sepulveda’s witness list.

Specifically, Sepulveda contends that Dr. Cintron was not truthful when he stated

that Sepulveda’s medical chart did not include any information attributing

Sepulveda’s hearing loss to the attack committed by Small. Sepulveda also argues



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that Dr. Javier Mauiz, a psychologist, committed misrepresentation and other

misconduct in order to have his subpoena quashed. Sepulveda asserts that his

inability to present testimony from Dr. Cintron and Dr. Mauiz precluded him from

presenting evidence regarding his injuries to the jury. Therefore, he asserts that the

district court should have either increased the compensatory damages award, or

granted a new trial with respect to compensatory damages.

      We review a district court’s denial of Rule 59(a), Rule 59(e), and Rule

60(b)(3) motions for an abuse of discretion. Bianchi v. Roadway Express, Inc.,

441 F.3d 1278, 1282 (11th Cir. 2006) (per curiam); Case v. Eslinger, 555 F.3d

1317, 1325 (11th Cir. 2009) (citation omitted); Cox Nuclear Pharmacy, Inc. v. CTI,

Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).

      To prevail on a Rule 60(b)(3) motion requesting relief from a final judgment

due to fraud, “the movant must prove by clear and convincing evidence that an

adverse party has obtained the verdict through fraud, misrepresentation, or other

misconduct.” Cox, 478 F.3d at 1314 (quotation and alteration ommitted). The

moving party must also demonstrate that the adverse party’s conduct prevented

him “from fully and fairly presenting his case.” Id. (citation omitted). To prevail

on a Rule 59(e) motion, a party must identify “newly-discovered evidence or

manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.



                                           4
2007) (per curiam) (quotation omitted). A Rule 59(e) motion may not be used to

relitigate matters that have already been decided. Id. (citation omitted).

      The Supreme Court has held that the Seventh Amendment prohibits a federal

court from granting additur and increasing a jury’s award of damages. Dimick v.

Schiedt, 293 U.S. 474, 486–87, 55 S. Ct. 296, 301 (1935). The district court could

not have increased the jury’s award without ordering a new trial because such a

procedure would have violated the Seventh Amendment. See Dimick, 293 U.S. at

486–87, 55 S. Ct. at 301. Therefore, the district court properly denied Sepulveda’s

request to alter or amend the judgment under Rule 59(e), or for relief from the

judgment under Rule 60(b)(3).

      Rule 59(a) provides that a federal court may order a new trial “for any

reason for which a new trial has heretofore been granted in an action at law in

federal court.” Fed. R. Civ. P. 59(a)(1)(A). We have recognized that an

insufficient award of damages is a valid basis for ordering a new trial. See

Mekdeci v. Merrell Nat’l Labs., Div. of Richardson-Merrell, Inc., 711 F.2d 1510,

1513 (11th Cir. 1983) (“Traditionally, an inadequate award of damages may

constitute a sufficient reason to set aside a jury verdict.”). As a general matter,

where a jury has found both liability and damages, a district court may limit a new

trial to the issue of damages. See, e.g., Overseas Private Inv. Corp. v. Metro. Dade



                                           5
County, 47 F.3d 1111, 1116 (11th Cir. 1995) (affirming jury’s findings concerning

liability, but remanding for a retrial on the issue of damages).

      Under the facts of this particular case, Sepulveda failed to make a sufficient

showing of fraud or other improper conduct to support his request for a new trial.

Sepulveda asserts that Defendant Gipson committed fraud or misrepresentation in

conjunction with Dr. Cintron in order to avoid testifying at trial. The evidence

presented by Sepulveda to support this is Dr. Cintron’s affidavit that states

Sepulveda’s chart did not include any information explaining the cause of

Sepulveda’s hearing loss. Sepulveda points to the November 1, 2000 diagnosis of

Dr. Ranzenberger to demonstrate that there actually was information explaining the

cause of Sepulveda’s hearing loss. However, Dr. Ranzenberger indicated that

Sepulveda himself reported that his hearing loss began after the incident where he

was attacked by Small. Dr. Ranzenberger stated that a more complete audiometric

study would be necessary to understand Sepulveda’s condition. Sepulveda has not

shown that Dr. Cintron’s failure to mention this document was a deliberate

stratagem to avoid testifying at trial, rather than the result of mere inadvertence.

      Sepulveda also contends that Dr. Mauiz, a Department of Justice employee,

committed misrepresentation and other misconduct in order to have his subpoena

quashed. In order to obtain testimony or production of documents from a



                                           6
Department of Justice employee, a party must follow the regulations set forth in 28

C.F.R. § 16.21 et seq. If the party is seeking oral testimony, he must provide the

responsible United States Attorney with “an affidavit, or . . . a statement . . . setting

forth a summary of the testimony sought and its relevance to the proceeding.” 28

C.F.R. § 16.22(c). The United States Attorney must then follow certain procedures

in determining how to respond to the party’s request. See 28 C.F.R. § 16.24.

      Sepulveda has failed to demonstrate that the Assisted United States Attorney

(“AUSA”) made misrepresentations in his motion to quash Dr. Mauiz’s subpoena.

The motion to quash explained that Sepulveda failed to comply with the

procedures for subpoenaing a Department of Justice employee, as set out in 28

C.F.R. § 16.21, et seq. To support his argument that he did comply with the

applicable regulations, Sepulveda provided an affidavit and a list of questions that

he mailed to Dr. Mauiz in September 2006. Nevertheless, Sepulveda did not show

that he furnished these documents to the responsible United States Attorney, as

required by 28 C.F.R. § 16.22(c). Moreover, Sepulveda mailed these documents to

Dr. Mauiz in 2006, but did not subpoena Dr. Mauiz until 2009. Given the

significant lapse of time between the mailing of the affidavit and the serving of the

subpoena, it is unclear whether these documents would have satisfied § 16.22(c)

even if they had been mailed to the AUSA. In any event, Sepulveda has not



                                            7
established that the AUSA intended to mislead the court when he stated that

Sepulveda had not complied with the regulations. Because Sepulveda failed to

make a sufficient showing of fraud or other improper conduct, the district court did

not abuse its discretion by denying his motion for a new trial.

      The district court could not have increased the jury’s award without ordering

a new trial because such a procedure would have violated the Seventh Amendment.

Therefore, the district court properly denied Sepulveda’s request to alter or amend

the judgment. In addition, Sepulveda failed to make a sufficient showing of fraud

or other improper conduct to support his request for a new trial. Accordingly, we

affirm the district court’s denial of Sepulveda’s post-judgment motion.

      AFFIRMED.




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