Court Grants BLF Client a New Trial in Bivens Action After Government  Produces Highly Relevant Evidence Nine Months Post-Trial 

The United States District Court for the Eastern District of Pennsylvania has granted a new trial to BLF’s client Peter Bistrian, after highly relevant evidence which would likely have changed the outcome was produced by the United States nine months after the jury verdict. Bistrian v. Levi, 2021 WL 409969 (E.D. Pa. Feb. 5, 2021). 

Bistrian’s claims in this case were based on events that occurred in the spring of 2006, while he was a pretrial detainee in the Segregated Housing Unit (“SHU”) of the Federal Detention Center in Philadelphia.  Bistrian testified that, while he was serving as an orderly in the SHU, an inmate asked him to pass a note to another inmate.  According to Bistrian, when this happened a second time, he notified a correctional officer.  Bistrian was then asked to bring the notes he received to the SIS office, so they could review the notes before he passed them along.   

Bistrian testified that on one occasion, the SIS office gave him back a photocopy of a note, instead of the original note, to pass to the inmate.  When the inmate received the copied note, he realized that Bistrian was cooperating with the SIS office, and threatened him.  Bistrian was then removed from his orderly position, and returned to his cell.

About eight weeks later, on June 30, 2006, Bistrian was violently assaulted by several inmates in the rec pen, including the inmate who had accused Bistrian of passing a photocopied note.  According to Bistrian, this was the first time since his cover was blown that he was placed in a rec pen with the inmate who had threatened him.  Bistrian filed a Bivens claim against a number of prison officers, including SIS Lieutenant James Gibbs, based on their failure to protect him from the attack.

Bistrian’s Bivens claims were tried to a jury in July of 2019.  With respect to defendant Gibbs, the jury found that Bistrian was facing a substantial risk of serious harm at the time he was attacked, and that Gibbs had actual knowledge of this risk.  However, the jury did not find that Gibbs had been deliberately indifferent to the risk, so their verdict was for Gibbs and against Bistrian on this claim. 

Immediately after the jury trial concluded, the Court conducted a separate trial of Bistrian’s FTCA claims, which were based on a second assault on Bistrian in October 2006.  Before closing arguments in the second trial, it came to light that the Government had not disclosed certain relevant evidence to Bistrian.  Subsequent discovery resulted in the United States producing additional material, including some newly-discovered evidence that was highly relevant to the Bivens claim. 

The Court found that the newly-discovered evidence was material, was not merely cumulative, and would have likely changed the outcome of the trial.  The Court found further that the newly-discovered evidence could not have been discovered prior to the trial, because Bistrian had specifically requested this evidence in 2015, and was told that no responsive evidence existed. 

On February 5, 2021, the United States District Court issued a Memorandum Opinion granting Bistrian’s motion for a new trial against defendant James Gibbs.  The Court also allowed Bistrian to conduct limited discovery related to the newly-discovered evidence. 

BLF attorneys Richard L. Bazelon, A. Richard Feldman, Lisa A. Barton, and Michael F.R. Harris represented plaintiff Peter Bistrian in his Bivens action.


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