572 F. App'x 17

Gaetano D’ATTORE, Plaintiff-Appellant, v. Department of Corrections Capt. SALMON, Shield # 10315, Defendant-Appellee, *18City of New York, Dora B. Schriro, Commissioner NYC, Department of Corrections, Defendants.

No. 13-3441-PR.

United States Court of Appeals, Second Circuit.

July 8, 2014.

Jonathan J. Walsh (Kevin A. Meehan, on the brief), Curtis, Mallet-Prevost, Colt & Mosle LLP, New York, NY, for Plaintiff-Appellant.

Ellen Ravitch (Pamela Seider Dolgow, Pernell Telfort, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.

PRESENT: JOSÉ A. CABRANES, SUSAN L. CARNEY, and CHRISTOPHER F. DRONEY, Circuit Judges.

SUMMARY ORDER

Plaintiff Gaetano D’Attore, an inmate at Rikers Island, brought excessive force claims under 42 U.S.C. § 1983 against the City of New York, the Commissioner of the Department of Corrections (“DOC”), and Corrections Officer Francis Salmon. He alleged that Salmon punched him and pushed him, causing him to fall and resulting in exacerbations of previous injuries, as well as new injuries. His claims against all defendants except for Salmon were dismissed on summary judgment and are not appealed here.

D’Attore proceeded to a jury trial against Salmon before the District Court. He called two DOC doctors and he himself testified. The District Court excluded expert testimony from either doctor, because they had not filed expert reports. After D’Attore rested, Salmon moved for judgment as a matter of law (“JMOL”) under Federal Rule of Civil Procedure 50(a)(1). After brief argument, the District Court granted JMOL in Salmon’s favor on two independent grounds: (1) D’Attore failed to offer expert testimony as to causation for his injuries; and (2) D’Attore’s testimony was so inconsistent as to be incredible as a matter of law.

Even if the District Court erred in requiring an expert report for D’Attore’s treating physicians,1 we conclude that any error was harmless because D’Attore has not demonstrated that the ruling affected his substantial rights. See Boyce v. Soundview Tech. Grp., Inc., 464 F.3d 376, 385 (2d Cir.2006). In any event, the Dis*19trict Court granted JMOL in Salmon’s favor on the independent basis that D’At-tore’s testimony was incredible as a matter of law. Cf Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir.2005).

We have reviewed the record and considered all of D’Attore’s arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court entered August 13, 2013.

D’Attore v. Salmon
572 F. App'x 17

Case Details

Name
D’Attore v. Salmon
Decision Date
Jul 8, 2014
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572 F. App'x 17

Jurisdiction
United States

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