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holding that CANY is a private entity, and that its reports are therefore not public records
Summary of this case from Bowens v. Corr. Ass'n of N.Y.Opinion
9:12-cv-01487 (MAD/RFT)
09-17-2015
DOUGLAS AMES, Plaintiff, v. CORRECTION OFFICER JAMES STEVENS; CORRECTION OFFICER DAVID SMITH; CORRECTION OFFICER THOMAS SCHUNK; LIEUTENANT CHRISTOPHER MCDERMOTT; in their individual capacities, Defendants.
APPEARANCES: ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52 Street New York, New York 10019 Attorneys for Plaintiff OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL Litigation Bureau The Capitol Albany, New York 12224 Attorneys for Defendants OF COUNSEL: J. PETER COLL, Jr., ESQ. ALVIN LEE, ESQ. AYANNA LEWIS-GRUSS, ESQ. JAMES MCGOWAN, AAG RYAN MANLEY, AAG
APPEARANCES:
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52 Street
New York, New York 10019
Attorneys for Plaintiff
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Litigation Bureau
The Capitol
Albany, New York 12224
Attorneys for Defendants
OF COUNSEL:
J. PETER COLL, Jr., ESQ.
ALVIN LEE, ESQ.
AYANNA LEWIS-GRUSS, ESQ.
JAMES MCGOWAN, AAG
RYAN MANLEY, AAG
Mae A. D'Agostino, U.S. District Judge :
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Douglas Ames, a New York State prison inmate, commenced this action pursuant to 42 U.S.C. § 1983 claiming that his constitutional rights were violated while he was incarcerated at Coxsackie Correctional Facility. See Dkt. Nos. 1, 26. Plaintiff claims that Defendant Corrections Officers Thomas Schunk and James Stevens and Defendant Lieutenant Christopher McDermott retaliated against him for exercising his First Amendment rights, and Plaintiff also claims that Defendant Correction Officer Smith violated his Eighth Amendment through the use of excessive force. See Dkt. No. 1.
Currently before the Court are the parties' motions in limine.
II. BACKGROUND
Plaintiff was an inmate at Coxsackie Correctional Facility ("Coxsackie") from November 2007 through June 2010. See Dkt. No. 48-4 at 47. During that time, he worked at the Coxsackie law library as an administrative clerk from March 31, 2008 through June 8, 2008, a paralegal assistant from June 9, 2008 through March 22, 2009, a clerk typist from July 27, 2009 through December 27, 2009, and a paralegal assistant from February 1, 2010 through June 13, 2010. See Dkt. No. 48-4 at 49-50. Plaintiff left his law library positions twice for disciplinary reasons. See id. Plaintiff claims that Defendant Correction Officers unlawfully retaliated against him for exercising his constitutional rights to file grievances, provide legal assistance to inmates, and write complaints reporting abuse of other inmates and, therefore, violated his First Amendment rights. See Dkt. No. 26 at ¶¶ 85-89. Plaintiff claims that Defendant Correction Officers retaliated by filing false misbehavior reports. See Dkt. No. 26 at ¶¶ 38, 45, 47, 49-51, 53-56, 58, 60-61, 66-67, 74.
To avoid confusion, anytime the Court references a specific page number for an entry on the docket, it will cite to the page number assigned by the Court's electronic filing system.
As for the First Amendment retaliation claims against Defendants Schunk and McDermott, Plaintiff alleges that, on December 15, 2009, inmate Dashawn Andrews was being beaten in an adjacent cell. See Dkt. No. 26 at ¶ 59. When Defendant Schunk walked past, Plaintiff told him that he intended to write a complaint to the inspector general about the abuse. See id. Plaintiff contends that in retaliation for stating his intention to complain to the inspector general about inmate abuse, Defendant Schunk filed a misbehavior report against him. See id. at ¶ 60. On December 17, 2009, Defendant McDermott presided over Plaintiff's Tier II hearing. See id. Plaintiff was sentenced to thirty days of keeplock. See id. Plaintiff asked Defendant McDermott why he was being punished based upon false reports, and Defendant McDermott allegedly replied, "That's what happens when you talk to I.G. about my officers." See id. at ¶ 61.
Plaintiff claims that Defendant Stevens was the main actor in retaliating against him. See Dkt. No. 26 at ¶ 3. Plaintiff claims that Defendant Stevens retaliated against him for filing grievances on his own behalf and the legal assistance he provided to other inmates. See id. However, Plaintiff claims that he assisted another inmate with filing a grievance against Defendant Stevens in the Summer of 2009, which was an instigating factor for Defendant Stevens to file six misconduct reports against Plaintiff between July 27, 2009 and December 8, 2009. See Dkt. No. 26 at ¶¶ 3, 33, 36, 43, 58. Plaintiff also claims that Defendant Stevens interfered with the legal assistance that he was providing to another inmate in the law library on August 20, 2009. See Dkt. No. 26 at ¶ 51. The legal assistance Plaintiff provided triggered Defendant Stevens to retaliate against him, according to the amended complaint. See Dkt. No. 26 at ¶¶ 51, 54-58.
Plaintiff also contends that Defendant Smith used excessive force against him in violation of the Eighth Amendment. See Dkt. No. 26 at ¶¶ 90-94. According to Plaintiff's testimony, Defendant Smith came to retrieve and escort Plaintiff to the deputy superintendent on May 17, 2010. See Dkt. Nos. 26; 48-3 at 101. Plaintiff and another inmate were being escorted together to a common area to be frisked for weapons. See Dkt. No. 48-3 at 103. In this common area, Defendant Smith put his hand in front of Plaintiff's face and said, "Next time you hurry up. You too slow." See id. at 104. In a loud voice, Plaintiff told Defendant Smith, "Get your hand out of my face," and Defendant Smith replied, "You lucky that's all I'm doing." See id. at 105. As described by Plaintiff, either simultaneous with or shortly after his statement to Defendant Smith, Plaintiff raised both hands, turned, and took two steps away from him. See id. at 104, 106. Defendant Smith then landed one, closed-fisted punch to the side of Plaintiff's head and took Plaintiff face down to the ground in a bear hug. See id. at 104, 107, 110. While holding Plaintiff down flat with his knee on the small of the back, Defendant Smith handcuffed Plaintiff. See id. After Plaintiff was handcuffed, Defendant Smith said, "Take that to federal court." See id. Plaintiff did not sustain any further physical assault or battery. See id. at 110-11.
Defendants filed a dispositive motion on May 1, 2014. See Dkt. No. 48. The Court determined that Plaintiff raised material questions of fact to be resolved by a jury on his claims for First Amendment retaliation and violation of his Eighth Amendment. See Dkt. No. 58. Both parties have filed motions in limine, which are now pending before the Court. See Dkt. Nos. 78, 87, 88.
III. DISCUSSION
A. Standard
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5220, 1998 WL 665138, *3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41-42.
C. Analysis
1. Adverse Inference Charge
Plaintiff claims that he is entitled to an adverse inference regarding the video recording from May 17, 2010 because, according to Plaintiff, Defendants failed "to preserve critical video evidence." See Dkt. No. 88 at 1. "[A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed 'with a culpable state of mind'; and (3) that the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001).
Plaintiff's submission in support of his motion for an adverse inference does not support his request. At Plaintiff's Tier 3 Hearing, he requested a video tape from the camera in the hallway, and when the tape was played the screen was black with some lines. See Dkt. Nos. 88-3 at 125; 88-4 at 6. The video tape played for less than five minutes at the hearing when it was turned off. See Dkt. No. at 6-7. Correction Captain Christopher Miller was the deputy supervisor of security at Coxsackie Correctional Facility beginning in September 2010. See Dkt. No. 88-2 at 14-16, 34. He testified that the VHS equipment that was in use in May 2010 was of poor quality. See id. at 33. The VHS tapes would wear out and equipment would break and, for this reason, Correction Captain Miller recommended and participated in the replacement and update of the video equipment. See id. Plaintiff does not claim to have ever seen any video evidence and cannot represent to this Court that any video was ever created by the hallway camera on May 17, 2009. This Court finds that there is no indication that Defendants destroyed video evidence, intentionally or negligently. There is no evidence that a clear video tape from the hallway camera, outside of the A1 room, was ever created or existed. Therefore, there is no support for the inference that Defendants possessed and then destroyed any actual evidence. Likewise, no reasonable inference can be drawn about the Defendant's state of mind in the destruction of any evidence.
Correction Captain Christopher Miller also testified that there was no video equipment in the A1 area. See Dkt. No. 88-2 at 23. At the Tier 3 hearing, Plaintiff expressed doubt as to whether the video camera lense was wide enough to capture any images inside the A1 room. See Dkt. No. 88-4 at 6. At his deposition, Plaintiff testified that, on May 17, 2010, he was inside the television room, A1, and that there were no video cameras inside that room, see Dkt. No. 88-3 at 122-123, which is twenty by thirty feet in dimensions. See Dkt. No. 52-25 at 19. Plaintiff testified that there was a hallway camera outside of the room, but he did not know if the hallway camera worked. See Dkt. No. 88-3 at 122. Plaintiff also admitted that the hallway camera is pointed in the direction of the hallway and that he does not know what the camera would have shown. See Dkt. No. 88-3 at 123-24. Plaintiff speculates that the video would have shown him and Defendant Smith through the window, but testified that he has never seen video from that camera. See id. at 124. Accordingly, Plaintiff has also failed to establish that any proposed video evidence would have been relevant to this action.
2. Past Criminal Convictions
Plaintiff moves to preclude any reference to, or the introduction of, evidence of Plaintiff's past criminal convictions, and Plaintiff also seeks to preclude Defendants from referring to Plaintiff as a "persistent violent felony offender." See Dkt. No. 87 at 1-8. As agreed at the September 9, 2015 pretrial conference, Defendants will not refer to Plaintiff as a "persistent violent felony offender." With regard to Plaintiff's convictions, Plaintiff only seeks to preclude those convictions that are unrelated to his current incarceration. See id. at 2-6. Separately, Defendants moved to permit cross-examination of Plaintiff with the statutory names of the offenses, the dates of conviction, and the overall sentence imposed. See Dkt. No. 78 at 4-6.
Rule 609 of the Federal Rules of Evidence states that evidence of a criminal conviction of any witness, except for a criminal defendant, "must be admitted, subject to Rule 403" where the crime is punishable by imprisonment for more than one year. Rule 609(b) limits admissibility of those convictions, or the release from confinement for the conviction - whichever is later, to the past ten years unless "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect."
The Court grants Defendants' motion to permit the impeachment of Plaintiff on cross-examination with the statutory name of each felony offense, the date of conviction, and the sentence imposed within the last ten years. The Second Circuit has held that Rule 609(a)(1) contemplated admitting in to evidence these "essential facts" of a witness's convictions. See United States v. Estrada, 430 F.3d 606, 615 (2d Cir. 2005). In his motion, Plaintiff does not seek to preclude the felony convictions for which he is currently being incarcerated. To the extent that Defendants are seeking to also impeach Plaintiff with convictions greater than ten years old, the Court reserves on that portion of the Defendant's motion until such time that an accurate criminal history with specific underlying facts of each crime are presented to the Court.
3. Plaintiff's Criminal and Disciplinary History
Defendants argue that they are entitled to "illicit testimony regarding Plaintiff's criminal history and disciplinary history while incarcerated" because, in a First Amendment retaliation claim, Plaintiff must show that Defendants' adverse acts rise to the level of retaliation, i.e, those acts where a similarly situated individual of ordinary firmness would be deterred from exercising his or her constitutional rights. See Dkt. No. 78 at 3-4. Defendants correctly state that the standard requires an objective inquiry, see Davis v. Goord, 320 F.3d 346, 354 (2d Cir. 2003), but then Defendants argue that they are entitled to inquire into Plaintiff's specific criminal and disciplinary history in order to establish a similarly situated inmate. See Dkt. No. 78 at 3-5. Defendants assert that a similarly situated inmate would be someone with Plaintiff's criminal history and disciplinary history. Defendants claim that an inmate, such as Plaintiff, is a person who is undeterred by restrictions on his liberties imposed by repeated confinements. This argument fails for at least the following reasons.
First, the standard applied to determine if an adverse action rises to the level of retaliation is an "objective inquiry" and it is "'not static across contexts,' but rather must be 'tailored to the different circumstances in which retaliation claims arise.'" Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999) (distinguishing between the tolerance expected of an inmate as compared to a public employee). The courts have identified the general population of inmates as individuals who are similarly situated for purposes of First Amendment retaliation cases. See Davis, 320 F.3d at 353; Dawes, 239 F.3d at 493; Gill v. Pidlypchak, 389 F.3d 379, 382 (2d Cir. 2004) (discussing the different sorts of retaliation cases that are susceptible to different requirements). There is no indication in the case law that the Second Circuit intended for the objective standard, i.e., individuals similarly situated, should be broken down to similarly situated inmates based upon criminal history. Accordingly, the Court does not agree with Defendants that the standard requires an inquiry into whether a similarly situated inmate of ordinary firmness would be deterred from the exercise of his or her constitutional rights. Permitting Defendants to inquire into Plaintiff's criminal history and disciplinary history, upon these grounds, would be tantamount to analyzing the objective inquiry, set forth by the Second Circuit, as a subjective one.
Moreover, the Court does not agree with Defendants' proffered inference - that if a person is a repeat criminal who is presumably undeterred by incarceration, then that person would be less deterred from exercising his constitutional rights when faced with adverse acts. Plaintiff's criminal or disciplinary history does not have any significant probative value on whether Defendants' actions would deter him from pursuing grievances, and, as is the case here, Plaintiff's specific criminal or disciplinary history is certainly not probative of what actions would deter a reasonable inmate from pursuing his constitutional rights.
For both these reasons - independently and collectively, the Court will not permit Defendants to illicit testimony about Plaintiff's criminal history and disciplinary history upon these grounds. That is not to say, however, that Defendants are precluded from making inquiry into these matters depending on the proof put forth by Plaintiff.
4. Collateral Estoppel
Defendants next argue that Plaintiff's retaliation claim related to a misbehavior report dated November 30, 2009 is barred by the doctrine of collateral estoppel. See Dkt. No. 748 at 15-17. The Rooker-Feldman doctrine holds that the only federal court that has subject matter jurisdiction to review state court judgments is the United States Supreme Court. See Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir. 1999) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The doctrine "also bars federal courts from considering claims that are 'inextricably intertwined' with a prior state court determination." Johnson, 189 F.3d at 185.
It should be noted that the only submissions by Defendants is the Article 78 Decision and Order. See Dkt. No. 78-4.
At a minimum, the courts have determined that inextricably intertwined means that "a federal plaintiff had an opportunity to litigate a claim in a state proceeding." Vargas v City of New York, 377 F.3d 200, 205 (2d Cir. 2004). "The doctrine is generally applied coextensively with principles of res judicata (claim preclusion) and collateral estoppel (issue preclusion)." Id. It should be noted that even where an unsuccessful Article 78 proceeding is the basis for a section 1983 action, "only issue preclusion triggers the Rooker-Feldman bar" because by its nature, "an Article 78 proceeding does not have the power to award the full measure of relief available in subsequent section 1983 litigation." Vargas, 377 F.3d at 205. Therefore, in order to determine whether Plaintiff's First Amendment retaliation claim is barred by the Rooker-Feldman doctrine, the Court must apply New York's collateral estoppel rules. See id.
Under New York law, which must be strictly applied, "the doctrine of issue preclusion only applies 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." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) ("Issue preclusion will apply only if it is quite clear that these requirments have been satisfied, lest a party be precluded from obtaining at least one full hearing on his or her claim" (internal quotation omitted)). Here, Plaintiff's Article 78 proceeding challenged a December 8, 2009 disciplinary determination. See Dkt. No. 78-4. The only claim made to the state court was that the disorderly cell rule was unconstitutionally vague, and the state court concluded that the disciplinary rule was not unconstitutionally vague. See id. at 3. In his reply papers, Plaintiff attempted to further challenge the determination that he refused to follow a direct order, but the state court declined to address that issue because it was not raised in the petition. See id. at 4.
It is clear from the Article 78 decision and order that Plaintiff's First Amendment retaliation claims and the Eight Amendment claim were not issues that the state court actually or necessarily decided. Accordingly, the Court finds that the Rooker-Feldman doctrine does not bar Plaintiff's action.
5. The Correctional Association of New York's May 2010 Report
Defendants seek to preclude the admission of The Correctional Association of New York's May 2010 report (the "CA report") because it is hearsay that does not qualify as a business record or a public record. See Dkt. No. 78 at 8-14. In opposition, Plaintiff seeks to have the CA report admitted for the truth of the statement contained therein. See Dkt. No. 93 at 9-13. Plaintiff does not argue that the report is not hearsay but asserts that the report is admissible under the public records exception to hearsay. See FED. R. OF EVID. 803(8) ("Rule 803(8)); Dkt. No. 93 at 9-13. For the reasons discussed below, the Court finds that the CA report should not be admitted into evidence at trial.
Rule 803(8) states that a record or statement of a public office are not excluded by the rule against hearsay if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual finding from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
The Correctional Association of New York ("Correctional Association") is a private, non-profit corporation that is registered with the New York State Department of State, Division of Corporations. See NYS Department of State, Division of Corporations, Entity Information, http://www.dos.ny.gov/corps/bus_entity_search.html (last visited September 15, 2015). The Correctional Association "is an independent non-profit organization that advocates for a more humane and effective criminal justice system." See Correctional Association of New York, http://www.correctionalassociation.org/about-us/mission- history (last visited Sep't 15, 2015). Its access to the New York State correctional facilities was granted by the New York State Legislature in 1846, see 1846 N.Y. Laws ch. 163, § 6, but any state-mandated inspections or reporting that the Correctional Association had were superceded, in 1929, by the establishment of the State Commission on Corrections (the "State Commission"), which was created to inspect and report on the prison facilities. See 1929 N.Y. Laws Ch. 243.
In 1975, the Commission was transferred out from under the Department of Correctional Services and became an executive department under the governor. See N.Y. Correction Law § 41; Memorandum of State Exec. Dep't, 1973 McKinney's Session Laws of N.Y., at 2214-15; Bonacquist, Practice Commentaries, McKinney's Consol. Laws of N.Y., Correction Law Article 3 (2015). In the Executive Memorandum, the Correctional Association is reference, as the functional predecessor of the Commission and a private association. See Memorandum of State Exec. Dep't, 1973 McKinney's Session Laws of N.Y., at 2214. The Correctional Association is also discussed in 1973 as having only "vestigial power of visitation and inspection," which would be repealed by the new statutory functions, powers, and duties of the State Commission. See id.
Accordingly, the Court finds that the Correctional Association is not a "public office" under Rule 803(8), and its reports should not be analyzed as such. Further, the legislative history of Article 3 of the N.Y. Correction Law, the history of the State Commission development, and the current statutory authority granted to the State Commission indicate that the Correctional Association retains "vestigal power" to visit and inspect correction facilities, but the Correctional Association is under no legislative duty to visit, inspect, report, or make recommendations. Therefore, there is no indication that the CA acted or created the 2010 report pursuant to a "legally authorized investigation".
Plaintiff cites and quotes a 1973 version of Article 3 of the Correction Law, see Dkt. No. 93 at 10, that the State Commission was tasked with the responsibility to collect and disseminate statistical information and undertake research into the effectiveness of the correctional facilities' administration and programs. See 1973 McKinney's Session Laws of N.Y., Ch. 398, § 48(10), at 1463. In 1973, it was permitted for the State Commission to "cooperate with any public or private agency" to accomplish that responsibility. See id. Presumably, Plaintiff interprets that section to be referencing the Correctional Association as the private agency. Even assuming Plaintiff is correct, this subsection was repealed in 1975, and that duty to collect statistical information and perform research was turned over to the Division of Criminal Justice Services. See Bonacquist, Practice Commentaries, McKinney's Consol. Laws of N.Y., Correction Law Article 3 (2015).
The Court finds that the CA report is inadmissible hearsay that does not fall under the exception of Rule 803(8) for public records.
6. Grievance Complaints
Defendants seek to preclude Plaintiff from introducing into evidence the grievance complaints that he filed while residing in the Coxsackie Correctional Facility. See Dkt. No. 78 at 14-15. Defendants claim that the report is hearsay and lack any probative value. See id. In opposition, Plaintiff argues that the grievance reports are not being offered for the truth of the matters asserted therein, but, instead, are being offered: (1) to establish that Plaintiff filed these statements while incarcerated, (2) to provide context for the events giving rise to this action, and (3) to demonstrate Plaintiff's state of mine. The Court reserves judgment until the time of trial because based upon the parties' submissions, a ruling would be premature. United States v. Chan, 184 F. Supp. 2d 337, 340 (S.D.N.Y. 2002) (stating that courts may "reserve judgment until trial, so that the motion is placed in the appropriate factual context").
IV. CONCLUSION
After carefully reviewing the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion in limine is GRANTED in part and DENIED in part as set forth herein; and the Court further
ORDERS that Plaintiff's motions in limine are GRANTED in part and DENIED in part as set forth herein; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 17, 2015
Albany, New York
/s/ _________
Mae A. D'Agostino
U.S. District Judge