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Milner v. Lewis

United States District Court, D. Connecticut

April 14, 2017

Kyron Milner, Plaintiff,
Karl Lewis, et al., Defendants.


          Hon. Vanessa L. Bryant United States District Judge.

         This Plaintiff, Kyron Milner (“Plaintiff” or “Milner”), brings this action claiming that his rights to procedural due process were denied when certain Department of Corrections employees (“Defendants”)[1] failed to give him prior notice of a disciplinary hearing after which he was designated to administrative segregation. The Court scheduled the case for trial, the parties selected a jury and the case was unable to proceed on the first day evidence was scheduled to be introduced due to the parties' failure to complete discovery and prepare for trial in accordance with the Court's scheduling and other orders and accommodations. For the reasons that follow, the Court declares a mistrial in the interest of judicial integrity and fundamental fairness to the Plaintiff; appoints counsel to represent the Plaintiff; and reopens discovery for limited purposes as more fully stated below.

         I. Background

         Plaintiff had an altercation with corrections officers on October 4, 2013, as a result of which he was both administratively and criminally charged with assaulting a corrections officer. [Dkt. 40 at 4.] On November 6, 2013, an administrative hearing was held to determine whether Plaintiff should be placed in administrative segregation. Id. at 18-20. On November 15, 2013, as a result of the November 6 hearing, Plaintiff was transferred to another Department of Corrections (“DOC”) facility and placed in administrative segregation for approximately 297 days. Id. at 12, 18-20. Plaintiff asserts Defendants failed to provide Plaintiff with 48 hours' notice before the hearing, as required by Department of Corrections (“DOC”) policy. Defendants assert they did provide adequate notice. [Dkt. 50 at 9.]

         Department of Corrections officials also reported the incident to the State Police. As a result, the Plaintiff was criminally charged with, prosecuted for, pleaded guilty to and was sentenced to a term of incarceration for assault on a corrections officer. [Dkt. 54-20.]

         The parties agree that according to the Administrative Directives of the Department of Corrections, the date when Plaintiff was formally notified of the November 6, 2013 hearing should be reflected on a Notification of Hearing form (“Notice”). DOC Admin. Dir. 9.4 § 12.B. However, there are three non-identical versions of the Notice: one photocopy was kept within the Department of Corrections' exclusive custody; one duplicate original was kept in Plaintiff's “inmate master file, ” maintained by DOC, but accessible to Plaintiff upon request, and another duplicate original was kept by Plaintiff, but accessed by DOC officials on at least one occasion when Plaintiff was transferred to Administrative Segregation. [Dkt. 54-1 at 8; 4/11/2017 oral argument on evidentiary issues.] The three versions of the Notice bear inconsistencies, and both parties rely on versions of the Notice to support their positions. When Defendants moved for summary judgment, they submitted the photocopied Notice within DOC's exclusive control, which indicates Plaintiff received and signed the Notice on November 1, 2013, five days before the hearing. [Dkt. 19-12.] Plaintiff submitted with his opposition to summary judgment the two other versions of the Notice, which indicate Plaintiff did not receive or sign the Notice until November 13, 2013 - seven days after the hearing. [Dkt. 33-2 at 13, 15.]

         Due to the discrepancies between the Notification of Hearing forms, the Court found disputed issues of material fact and denied summary judgment as to whether Plaintiff received sufficient notice before the hearing to determine his administrative segregation. [Dkt. 40 at 21.] As a predicate to that procedural due process claim, the Court found a genuine issue of material fact as to whether Plaintiff held a constitutional liberty interest in avoiding administrative segregation due to the length of time he remained there and the nature and severity of conditions he experienced during that confinement as compared to the conditions in general population. Id. at 16.

         On April 8, 2016, the Court entered a scheduling order imposing a discovery deadline of July 1, 2016, a joint trial memorandum deadline of March 1, 2017, and a jury selection date of April 4, 2017. Plaintiff requested a 60-day extension of the discovery deadline on April 15, 2016, but failed to show good cause why in the exercise of due diligence he was not able to comply with the Scheduling Order. [Dkt. 25; Dkt. 26.] Jury selection took place on Monday, April 3, 2017. The first day of evidence was scheduled for the following Tuesday, April 11, 2017 at 8:30 a.m. to address preliminary matters, and the jury was scheduled to enter the courtroom at 9:30 a.m.

         Following jury selection the Court conducted a hearing during which it explained to the Plaintiff what he needed to do to present his case logistically and the importance of identifying, marking and organizing his evidence and presenting his case. The Court also gave the Plaintiff exhibit stickers, highlighters, and Post-its to aid in organizing his evidence. Counsel for the Defendants, all of whom are Department of Corrections officials and corrections officers, was present in the courtroom when the Court explained to the Plaintiff the need to prepare and provided him with supplies with which to do so. The Court also directed the courtroom deputy to give the Plaintiff a tutorial on courtroom technology.

         Defense counsel advised the Court that the Plaintiff had not identified to her the exhibits he intended to introduce. In response, the Plaintiff stated that he intended to introduce at trial the exhibits he filed in opposition to the Defendants' motion for summary judgment and that to assure clarity he would have his counselor forward these exhibits to Defendants' counsel. The Court prepared exhibit binders consisting of the exhibits filed by the Plaintiff in opposition to summary judgment. Later the Clerk of the Court received from Plaintiff's Department of Corrections counselor documents which were not included as exhibits in opposition to the motion for summary judgment with no indication of their intended purpose. As they were in the possession of the Clerk of the Court these documents were uploaded to the docket. [Dkt. 53.]

         On Saturday, April 8, 2017, after 10:00 p.m., with the presentation of evidence to begin on Tuesday, April 11, 2017, Defendants filed a Motion to Dismiss pursuant to 28 U.S.C. § 1915A. [Dkt. 54.] In their Motion, Defendants argued that the Notice which was kept in Plaintiff's inmate master file was altered to artificially reflect that Plaintiff signed the Notice on November 13, 2013, after the date of the hearing, rather than November 1, 2013. Id. at 5. The motion to dismiss relied upon and had attached thereto a report of a forensic examination of one of the three hearing notices. As discussed below, the forensic analysis did not comport with the Court's Scheduling Order, the rules of procedure or the rules of evidence.

         On the first day of trial, the Department of Corrections did not produce the Plaintiff until approximately 10:00 a.m, one and a half hours after oral argument on preliminary matters was scheduled to begin. Upon his arrival the Plaintiff changed into the shirt, tie and jacket supplied by the Court. When the proceedings convened, the Plaintiff informed the Court that he was unprepared to proceed because the Department of Corrections officials confiscated the exhibit stickers, Post-its and highlighters given to him by the Court to aid in trial preparation, and he was unable therefore to organize and mark his exhibits. The Court attempted to proceed with trial by providing the Plaintiff a tabbed binder of the exhibits he submitted in opposition to summary judgment with a corresponding table of contents.

         Although the Plaintiff confirmed that the binder did in fact contain the exhibits he intended to offer, shortly after the jury was brought into the courtroom and the Court issued a preliminary charge, the Plaintiff began to offer exhibits which were not in the binder. Among those was an exhibit that Defendants sought to impeach using an expert report commissioned on April 5, 2017, authored on April 6, 2017, and first disclosed at approximately 10:30 p.m. on Saturday April 8, 2017, when it was electronically filed in support of Defendants' Motion to Dismiss. Although the discrepancy was apparent in the summary judgment briefing and was the basis for the Court's denial of summary judgment, Defendants did not seek the forensic analysis until approximately eight months after dispositive motions were filed, and less than a week before the presentation of evidence was scheduled to commence. As the parties attempted to identify the documents the Plaintiff intended to offer at trial, discrepancies between copies of other documents emerged.

         Defendants' newly disclosed expert report describes the forensic examination conducted on April 5, 2017 by the State of Connecticut's Department of Emergency Services and Public Protection Division of Scientific Services. [Dkt. 54-7.] The report states that Forensic Science Examiner-Analyst Greg Kettering and Forensic Science Examiner Technical Reviewer Lisa Ragaza examined the ink used to write the date on the original Notice. Id. at 2-3. The examiners state they found three discrepancies between the number 3 in the date 11/13/13 and the other digits: dissimilar ink chemical properties, dissimilar pen pressure, and an absence of ink line striae present on the other digits. Id. at 2. Defendants argue the report concludes that “someone used the same writing instrument to author everything in the day column with the exception of the ‘3'” which was “authored with a different writing instrument.” [Dkt. 54-1 at 7.] Defendants ...

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