    14-1589
    Livingston v. Escrow


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                           AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 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 (WITH THE NOTATION ASUMMARY 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 17th day of March, two thousand sixteen.

    PRESENT:
                AMALYA L. KEARSE,
                ROSEMARY S. POOLER,
                ROBERT D. SACK,
                            Circuit Judges.
    ______________________________________________________

    DETROY LIVINGSTON,

                            Plaintiff-Appellant,

                      v.                                                  14-1589-cv



    JAMES ESCROW, G. HARVEY, KEITH DUBRAY, WILLIAM BILLS, RENEE GATES, N.R.
    WHITTEN, in their individual capacities,

                            Defendants-Appellees,

    JOHN DOE, GLENN GOORD, KAROL B. MANGUM, LEONARD JOBLOVE, CHARLES J.
    HYNES,

                            Defendants.1

    ________________________________________________________


    1 The Clerk of the Court is directed to amend the caption as above.
Appearing for Appellant:                         Detroy Livingston, pro se, Auburn, New York.

Appearing for Appellees:                         Zainab A. Chaudhry, Assistant Solicitor General,
                                                 (Barbara D. Underwood, Solicitor General,
                                                 Andrew B. Ayers, Assistant Solicitor General, on
                                                 the brief) for Eric T. Schneiderman, Attorney
                                                 General of the State of New York, Albany, New
                                                 York.

       Appeal from a judgment of the United States District Court for the Western District of New

York (Geraci, J.; Feldman, M.J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Detroy Livingston, proceeding pro se, filed a 42 U.S.C. § 1983 complaint

against numerous defendants alleging that his right to due process was violated during prison

disciplinary proceedings and that he was denied access to the courts because his legal mail, a letter

from the New York Court of Appeals, was delayed. Livingston now appeals principally from the

district court’s grant of the defense motion to dismiss his due process claim as collaterally

estopped, and from the October 25, 2013 judgments following a jury verdict dismissing all claims.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       Livingston challenges the dismissal of his due process claim as barred by collateral

estoppel under Federal Rule of Civil Procedure 50(a). We review the grant of a Rule 50(a) motion

de novo, applying the same standard as the district court. Velez v. City of New York, 730 F.3d 128,

134 (2d Cir. 2013). “Rule 50(a) permits a district court to enter judgment as a matter of law against

a party on an issue where there is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2003) (internal quotation

marks omitted).

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        Livingston argues that defendants James Escrow, G. Harvey and Keith Dubray waived the

defense of collateral estoppel by failing to raise it in their answer to the amended complaint. While

they did not do so, that is not fatal to defendants’ ability to raise the issue at a later time, as the

failure to include collateral estoppel in the answer is not an “absolute bar” to considering it, given

“the strong public policy in economizing the use of judicial resources by avoiding relitigation.”

Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (quotation marks omitted). Livingston had notice

that the defendants planned to assert a collateral estoppel defense because they had raised the

defense in their answers to his original complaint; and Livingston was given an opportunity to be

heard in opposition to that defense before the district court ruled on it.

        Turning to the merits, “[u]nder New York law, collateral estoppel will preclude a federal

court from deciding an issue if (1) the issue in question was actually and necessarily decided in a

prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair

opportunity to litigate the issue in the first proceeding.” McKithen v. Brown, 481 F.3d 89, 105 (2d

Cir. 2007) (internal quotation marks omitted). Livingston contests only the second element.

        When a prisoner seeks to avoid the application of collateral estoppel as to an issue of law

based on an Article 78 proceeding affirming prison discipline, he must “at least show that the

alleged deficiencies in his disciplinary proceedings produced some significant effect on their

review by the Appellate Division in the Article 78 Proceeding.” Giakoumelos v. Coughlin, 88 F.3d

56, 60 (2d Cir. 1996). Livingston brought an Article 78 petition in the Third Department, which

denied his claims. See Livingston v. Fischer, 52 A.D.3d 1152, 1153 (3d Dept. 2008). Livingston

failed to meet his burden on this appeal. He argues that defendant Harvey provided inadequate

employee assistance by failing to give Livingston a document showing that his positive drug test

could be caused by a medication he was taking. However, he did not show that Harvey’s alleged

inadequate assistance “cast[s] doubt on the state court determination of this issue because the

                                                    3
Appellate Division had all of the pertinent, and undisputed, facts,” see id. The Third Department

had before it the record of the disciplinary hearing, at which a witness testified that this medication

would not cause a false positive and Livingston stated that he had thrown away a document

showing otherwise. The court could thus assess whether Harvey’s alleged failure to provide the

document deprived him of a full and fair opportunity to litigate the issue.

        Livingston also contends that there is new evidence demonstrating that this medication

could cause a false positive and that this new evidence defeats the application of collateral

estoppel. Although the discovery of new evidence may in an appropriate case warrant a conclusion

that a party was not afforded a full and fair opportunity to present his case, Livingston does not

assert that he received the evidence in question after the Article 78 proceeding, and the record

reflects that he had the same evidence before the disciplinary hearing. The evidence was therefore

not new. See Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504 (1984) (evidence was not new for

purposes of collateral estoppel when it was available at the time of the prior proceeding).

        Livingston also argues that he was prejudiced by the jury seeing him being handcuffed, but

the jury inadvertently seeing him handcuffed on one occasion does not require a new trial. See

United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir. 1977) (“Numerous cases support the

proposition that an inadvertent view by jurors of defendants in handcuffs, without more, is not so

inherently prejudicial as to require a mistrial.”). Further, the court instructed the jury not to

consider the fact that Livingston was in custody.

        We review the district court’s denial of Livingston’s motion for a new trial for abuse of

discretion. Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). “A motion for a new

trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a

seriously erroneous result or that the verdict is a miscarriage of justice.” Lightfoot v. Union

Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and alterations

                                                   4
omitted). We have examined his arguments, and find Livingston failed to demonstrate that the

jury’s verdict was either seriously erroneous or a miscarriage of justice.

        Livingston has advanced other arguments over which we lack jurisdiction because, in his

notice of appeal, he did not designate those orders as being appealed. Fed. R. App. P. 3(c)(1)(B)

(requiring that the notice of appeal “designate the judgment, order, or part thereof being

appealed”). We have considered Livingston’s remaining arguments that are properly before us and

find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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