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Alston v. Bellerose

United States District Court, D. Connecticut

July 28, 2016

IRA ALSTON, Plaintiff,
v.
LIEUTENANT BELLEROSE, LIEUTENANT RAMOS, LIEUTENANT SAYLOR, PAUL GERMOND, MICHAEL PAFUMI, C.O. JOSEFIAK, C.O. HARTLEY, C.O. PAGAN, C.O. ALCIDES SANTIAGO, C.O. PRIOR, C.O. KIDD, C.O. CIEBOTER, C.O. GLENN WILLIAMS, C.O. DANIEL STEWART, C.O. JAMES DELPESCHIO, C.O. MICHAEL WHITE, LIEUTENANT DARREN CHEVALIER, Defendants.

          ORDER

          CHARLES S. HAIGHT, JR. Senior United States District Judge

         THIRD OMNIBUS RULING ON PENDING MOTIONS

         The background of this pro se civil rights action has been detailed extensively in prior orders of the Court, familiarity with which are assumed. See Docs. 15, 82, 123. The Court now resolves the eleven motions pending before it.

         I

         A. Plaintiff's Motion to Serve Additional Interrogatories [Doc. 124, 134]

         Plaintiff moves pursuant to Rule 33(a)(1), to serve additional interrogatories on Defendant Pafumi (additional 34 interrogatories) and Defendant Bellerose (10 additional interrogatories). Rule 33(a)(1) states that "[u]nless stipulated or ordered by the Court, a party may serve on any other party no more than 25 written interrogatories." Plaintiff argues that he is a pro se prisoner plaintiff who is necessarily limited in the discovery devices available to him (i.e. depositions), and therefore the ends of justice are served by expanding those devices that are available to him, such as interrogatories. Defendant has filed no opposition to the motion. Pursuant to this District's Local Rules, "[f]ailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion." D. Conn. Civ. R. 7(a)(1). In light of Plaintiff's argument as to the limitations on discovery imposed by his incarceration, the Court finds in this instance that Defendants' failure to oppose the motion is sufficient cause for the motion to be granted. Plaintiff will be entitled to serve on Defendants Pafumi and Bellerose the additional interrogatories.[1]

         B. Plaintiff's Motion for Spoliation Sanctions [Docs. 125, 132]

         Plaintiff moves for an adverse inference instruction in light of Defendants' purported spoliation of two sources of video evidence: (i) "handheld camera video footage of Plaintiff's initial placement on [in-cell restraint status on April 23, 2010], " and (ii) "Nicevision video surveillance footage of the outside exercise yard where the alleged assault by Defendant Santiago took place." Doc. 125, at 2, 4.

         The Second Circuit applies a three-part test for the imposition of spoliation sanctions, which requires the movant to 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) (citing Byrnie v. Town of Cromwell, 243 F.3d 93, 107-12 (2d Cir. 2001)).

         Plaintiff's motion as to the handheld video coverage is mooted in light of Defendants' statement that "The Department of Correction recently located the hand-held video involving the plaintiff's placement on in-cell restraints status from April 23, 2010 (video #10-0763), " and it "is in the process of helping the facility to make arrangements for the plaintiff to view this video." Doc. 132 ¶ 1. In light of the fact that the handheld video was not destroyed-and that the jury will presumably be able to view it-spoliation sanctions are not appropriate.

         It is a quite different story as to the alleged existence of the "Nicevision" video purporting to document the interaction of Plaintiff and Defendant Santiago in the prison's exercise yard on April 23, 2010. Plaintiff alleges that Defendants purposefully hid the fact that such footage existed by omitting its failure to preserve the video when objecting to the discovery demands requesting it. In fact, Plaintiff claims that Defendants purposefully hid a report from Deputy Warden Faucher in which Faucher noted that Defendant Bellerose was instructed "by the Shift Commander to ensure Nicevision video [of the incident] was secured." Doc. 125-2. Plaintiff claims that he only learned of such report by receiving it not through litigation discovery, but pursuant to a Freedom of Information Act request.

         Through these claims, Plaintiff has satisfied each of the three required elements for spoliation sanctions. At the outset, the Court notes that Defendants do not oppose Plaintiff's argument that they in fact failed to preserve the Nicevision video footage. Rather, they argue only that it is premature to impose any specific sanction because "it's not clear who the charge regarding this inference would be directed against." Doc. 132 ¶ 2. Accordingly, the Court finds that the Nicevision video footage was not preserved.

         Next, the Court finds that the Residential Funding factors are met in this instance.[2] First, Defendants cannot credibly state they had no obligation to preserve the video footage. An "obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation, " including "when a party should have known that the evidence may be relevant to future litigation." Kornisch v. U.S., 150 F.3d 112, 126 (2d Cir. 1998). Clearly, videotape of a physical altercation may be relevant to future litigation, especially inside the prison context.[3] Further, the report from Faucher indicates his awareness that such video should have been preserved. Second, Defendants had the culpable state of mind required for spoliation sanctions. In this Circuit, negligence suffices to establish culpability for spoliation sanctions, Residential Funding, 306 F.3d at 108, and "[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum negligent." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003); see also Mpala v. City of New Haven, 2014 WL 883892, at * 6 (D. Conn. Mar. 6, 2014) ("Because the Library was arguably obligated to preserve the September 18 video and it did not do so (if a video even existed), it possessed the requisite ordinarily negligent state of mind for the Plaintiff to proceed on his spoliation argument"). Defendants' failure to produce the Faucher report, and to notify Plaintiff that the video had not been preserved, further establishes their culpability. Third, video of the incident in the yard is unquestionably relevant to this case as that physical altercation is a centerpiece of Plaintiff's complaint.

         The Court therefore holds that spoliation sanctions are warranted for the Defendants' failure to preserve the Nicevision video footage. However, the Court agrees with the Defendants that it is premature at this stage to declare the specific sanction to be imposed for Defendants' spoliation of the Nicevision video footage. Such will be the proper subject of a pre-trial motion. The Court therefore grants in part Plaintiff's motion for spoliation sanctions.

         C. Plaintiff's Motion to Consolidate [Docs. 128, 132]

         Plaintiff moves to consolidate this action with another suit he has brought in this district: Alston v. Pafumi, et al., No. 3:09-cv-01978 (VAB). First, Judge Bolden has already denied a similar "Motion to Transfer" filed by Plaintiff in the Pafumi case and made the judicial determination that these two cases are not adequately related for purposes of such a motion. Pafumi, Doc. 256. Second, for cases to be consolidated pursuant to Fed.R.Civ.P. 42(a), there must exist a "common question of law or fact." Plaintiff only identifies that the cases share certain parties, and that the nature of the facts are "similar." Doc. 128, at 4. However, Plaintiff acknowledges that the cases ...


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