Twitty v. Ashcroft , 455 F. App'x 97 ( 2012 )

11-448
Twitty v. Ashcroft
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
of January, two thousand twelve.
Present:
RALPH K. WINTER,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
________________________________________________
ANDRE J. TWITTY,
Plaintiff-Appellant,
v. No. 11-448
SCOTT SALIUS,
Defendant-Appellee,
ERIC H. HOLDER, JR.,* H. LAPPIN, G.L. HERSCHBERGER, RAU, JOHN ROWLAND,
RICHARD BLUMENTHAL, WAYNE CHOINSKI, CAROL ARRIRO, THERESA C. LANTZ,
LYNN MILLING, TERRANCE ROSE, ESTHER TORRES, JEFFREY McGILL, BRIAN
BRADWAY, JOHN DOES, FEDERAL BUREAU OF PRISONS,
Defendants.
________________________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
Holder, Jr., is automatically substituted for former Attorney General John Ashcroft as the
respondent in this case. The Clerk of the Court is directed to amend the caption to read as shown
above.
For Plaintiff-Appellant: JEFFREY J. WHITE (Craig A. Raabe, Katherine S. Kayatta, on
the brief), Robinson & Cole LLP, Hartford, CT.
For Defendants-Appellees: MATTHEW B. BEIZER, Assistant Attorney General, for George
Jespen, Attorney General for the State of Connecticut.
Appeal from the United States District Court for the District of Connecticut (Martinez,
M.J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-appellant Andre J. Twitty brings this civil rights action pursuant to 42 U.S.C. §
1983. He alleges that on January 14, 2004, defendant-appellee Scott Salius used excessive force
in violation of the Eighth Amendment during plaintiff’s intake into Northern Correctional
Institution in Somers, Connecticut (“Northern”). The intake was recorded by Northern staff on a
VHS videotape, several copies of which were made during the course of the litigation. About a
month before the trial was to begin, the original videotape was erased. After plaintiff conducted
discovery regarding the erasure of the tape, he filed a motion for an adverse inference. The
district court denied the motion on May 5, 2010, and the trial began on the same day. On May 7,
2010, the jury returned a verdict in favor of the defendant. Plaintiff thereafter filed a motion for
a new trial, which the district court denied on January 6, 2010. On appeal, plaintiff argues: (1)
that the district court erred when it failed to give an adverse inference instruction or impose any
other sanction after the original intake videotape was erased; and (2) that the district court erred
in permitting the jury to return a verdict that was against the weight of the evidence. We assume
the parties’ familiarity with the underlying facts and procedural history of this case.
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We first consider plaintiff’s argument that the district court erred when it failed to give an
adverse inference instruction in response to the erasure of the original intake videotape, which
plaintiff characterizes as the “spoliation of the original intake video.” Pl.’s Br. at 6. “Spoliation
is the destruction or significant alteration of evidence, or the failure to preserve property for
another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear
Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). 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 Financial Corp.,
306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted). “We review a district
court’s decision on a motion for discovery sanctions for abuse of discretion.” Id. A district
court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.” Id. (internal citation omitted).
In this case, the district court denied plaintiff’s motion for an adverse inference because,
inter alia, “the tape was damaged as a result of negligence [--] an error caused by improper use
of the equipment at the prison resulted in the damage to the original tape; and . . . there are
satisfactory copies available [because] . . . the actual differences between the copies are limited
to nuances [in t]racking, color, and audio quality.” Twitty v. Ashcroft, No. 3:04CV410(DFM),
2011 WL 59303, at *6 (D. Conn. Jan. 6, 2011) (internal quotation marks omitted). The district
court did not abuse its discretion in reaching these conclusions. There was ample evidence in the
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record to support the district court’s determination that the tape was erased as a result of ordinary
negligence on the part of Officer Sokolowski, a correctional officer at Northern. Sokolowski
testified that on March 31, 2010, in anticipation of the original tape being taken from the
Northern facility, he attempted to make a copy of the original tape. Sokolowsi further testified
that he had never before used Northern’s equipment to make a copy of a VHS tape, and that he
erased the tape when he incorrectly pushed both the “copy” and the “record” buttons at the same
time. J.A. 247.
The district court did not clearly err in characterizing this mistake as negligent rather than
grossly negligent or an act of bad faith. Although “[t]he sanction of an adverse inference may be
appropriate in some cases involving the negligent destruction of evidence,” Residential Funding
Corp., 306 F.3d at 108. (emphasis added), a sanction is by no means mandatory, and the district
court did not abuse its discretion in concluding that such a remedy was inappropriate in this case.
As the district court found, quality copies of the tape existed, one of which was played during the
trial. Plaintiff’s counsel viewed the original tape before it was destroyed, and was unable to
articulate, either before the district court or on appeal, any material difference between the
original videotape and the DVD that was available for trial. As the district court found, any
difference between the two tapes was limited to nuances in tracking, color, and audio quality.
Accordingly, the erasure of the tape, while regrettable, did not materially prejudice the plaintiff’s
case. Under these circumstances, the district court did not abuse its discretion in concluding that
an adverse inference instruction was inappropriate.
Plaintiff’s second claim, that the district court erred in permitting the jury to return a
verdict that was against the weight of the evidence, is without merit. It is well established in this
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Circuit that a district court’s denial of a motion for a new trial on the ground that the verdict is
against the weight of the evidence is not reviewable on appeal. See, e.g., Stonewall Insurance
Co. v. Asbestos Claims Management Corp., 73 F.3d 1178, 1199 (2d Cir. 1995) (“The loser is
also entitled to argue to the trial judge that the verdict is against the weight of the evidence and
to obtain a new trial if the judge can be persuaded, but the denial of that challenge is one of those
few rulings that is simply unavailable for appellate review.”). Moreover, having reviewed the
record in an excess of caution, we are confident that if the issue were available to review, we
would affirm the district court’s denial of the new trial motion, as the district court was well
within its discretion in concluding that the jury’s verdict was not against the weight of the
evidence.
We have considered defendant’s remaining arguments and find them to be without merit.
For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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