Alston v. Lantz

Filing 165

RULING (see attached) GRANTING Plaintiff's 124 Motion to Serve Additional Interrogatories; GRANTING in part and DENYING in part Plaintiff's 125 Motion for Spoliation Sanctions; DENYING Plaintiff's 128 Motion to Consolidate; DENYI NG WITHOUT PREJUDICE Plaintiff's 137 Motion to Amend the Complaint; DENYING AS MOOT Plaintiff's 138 Rule 36(a)(3) Motion; DENYING Plaintiff's 153 Motion for Discovery Sanctions; and GRANTING, nunc pro tunc to the extent ne cessary, the following motions for extensions of time: 133 , 145 , 135 , 150 , 158 ; and DENYING AS MOOT certain Defendant's 161 motion for extension of time. The Court also sets the following revised SCHEDULING ORDER. All discovery sha ll be completed by September 26, 2016. Motions for Summary Judgment, if any, must be filed on or before October 3, 2016. Trial memoranda are due on November 3, 2016 or 45 days from the Court's ruling on any summary judgment motion, whichever is later. The case will be Trial Ready by December 5, 2016 or 30 days after the filing of the Trial Memoranda, whichever is later. Signed by Judge Charles S. Haight, Jr. on July 28, 2016. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
IRA ALSTON,
Plaintiff,
3:12-cv-00147 (CSH)
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,

JULY 28, 2016

Defendants.

HAIGHT, Senior 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

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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
1

The Court acknowledges that the presently operative discovery deadline passed in this case
on April 1, 2016. In light of the Rulings contained herein, and as detailed infra, the Court is ordering
a limited re-opening of discovery of sixty additional days following this Ruling for the parties to
comply with the orders made herein.
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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

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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

2

The Court notes that Defendants raised no counter-arguments as to any of the Residential
Funding factors. Again, it only argued that it is premature to identify a sanction.
3

This is especially so as to the Plaintiff here, an individual that the Attorney General's office
has elsewhere identified as a familiar litigant: "[t]his office, and a number of the defendants in this
matter, are currently defending multiple cases brought by this pro se plaintiff in this court and in the
Connecticut Superior Courts." Alston v. Chapdelaine, No. 3:15-cv-00434 (CSH), Doc. 79, at 2.
4

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 involve discrete
incidents separated by five months in time. Doc. 128, at 3. In such circumstances, Rule 42(a) is
inapplicable. Plaintiff's motion is denied.

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D.

Plaintiff's Motion to Amend the Complaint [Docs. 137, 139, 142]
On February 11, 2016, the Court granted Plaintiff's motion to join the following individuals

as Defendants, previously identified as John Does ## 1-5: Glenn Williams, Daniel Stewart, James
DelPeschio, Michael White, and Darren Chevalier. On April 14, 2016, Plaintiff then filed a motion
for leave to file a third amended complaint "adding to the Complaint all newly joined Defendants."
Doc. 137, at 1. Plaintiff argues that he should be given leave to amend in light of the following:
Since the filing of the second amended complaint the plaintiff has
determined that the name of the John Doe defendants are Alcides
Santiago, Joseph Pagan, Matthew Prior, James DelPeschio, Michael
White, Daniel Stewart, Glenn Williams and Darrel Chevalier. In the
attached Third Amended Complaint paragraphs ## 85-112 of the
allegations are amended to reflect the identity and actions of
aforementioned Defendants.
Doc. 137 ¶ 2.4
Defendants object principally on the basis that "the plaintiff has amended a significant
majority of the Second Amended Complaint and does so well beyond identifying the previously
named John Doe defendants. The proposed Third Amended Complaint adds facts, deletes facts, and
re-characterizes and reframes facts."

Doc. 139, at 1.

Plaintiff responds that Defendants

mischaracterize the non-John Doe related revisions to the complaint, claiming that they are mainly
stylistic in nature and would have no impact with respect to the responsive pleadings made by
Defendants in their Answer to the Second Amended Complaint. Doc. 142.
Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff in this case may offer his Third Amended
Complaint "only with the opposing party's written consent or the court's leave." However, "[t]he
4

The Court notes that Defendants Santiago, Pagan, and Prior were not one of the five "John
Doe defendants," and were already identified by name as parties in Plaintiff's Second Amended
Complaint. See Doc. 51.
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court should freely give leave when justice so requires." Defendants do not consent to the
amendment, and they claim that justice does not require it. They argue that they "are prejudiced by
any attempt to substantively amend the complaint beyond substituting the previously named 'John
Doe' ##1-5 defendants," because "the pleadings will re-open, defendants will have to reexamine and
respond to each new paragraph and re-characterization of allegations in the complaint, and both
summary judgment and trial will be delayed." Doc. 139, at 3-4. The Second Circuit has "referred
to the prejudice to the opposing party resulting from a proposed amendment as among the 'most
important' reasons to deny leave to amend." AEP Energy Servs. Gas Holding Co. v. Bank of Am.,
N.A., 626 F.3d 699, 725 (2d Cir. 2010). However, given the minor scope of the revisions in the
proposed amendment, the Court is not persuaded that Defendants' would face serious prejudice.
Nevertheless, the Court finds reason to deny the amendment as proposed. Although Rule
15(a)(2) states that leave to amend should be "freely give[n]," it also states such leave should only
be provided where "justice so requires." Here, Plaintiff has offered no explanation why its non-John
Doe related amendments are required, arguing only that they "clarify" certain elements of the
pleadings. Further harming his position is that his brief intimates that the only changes he sought
were to add in the newly joined Defendants; he made no representation that the proposed amendment
contained any other revisions. Given the relatively late nature of the amendment, the Court believes
Plaintiff's proposed non-John Doe amendments—which are offered simply to "clarify" certain
allegations—would complicate rather then further the ends of justice.
In light of the foregoing, Plaintiff's motion for leave to file his proposed amended complaint
is denied. However, if Plaintiff so chooses, he may file a Third Amended Complaint on the

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condition that the only substantive alteration from the Second Amended Complaint is the
replacement of the terms "John Doe" with the individuals Plaintiff has now identified.
E.

Plaintiff's Rule 36(a)(3) Motion [Docs. 138, 143]
Plaintiff moves pursuant to Fed. R. Civ. P. 36(a)(3) for an order that the Requests for

Admission ("RFAs") he served on Defendant Bellerose on September 23, 2015 be deemed admitted
in light of that Defendant's alleged failure to respond to those requests. Fed. R. Civ. P. 36(a)(3)
provides that "[a] matter is admitted unless, within 30 days after being served [with a request for
admission], the party to whom the request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or its attorney."
Plaintiff acknowledges that he served his RFAs on Defendant Bellerose after the then
operative September 1, 2015 discovery deadline had passed. However, pending at the time was
Plaintiff's September 9, 2015 request to extend that discovery deadline. On February 11, 2016, this
Court extend the discovery deadline to April 1, 2016. Defendants' counsel then attests via affidavit
that he served responses to the Bellerose RFAs by that deadline, specifically, on March 30, 2016.
Doc. 143-1 ¶ 3. However, it appears that Plaintiff never came into possession of that document.
Because Plaintiff admittedly never conferred with Defendants prior to filing his Rule 36(a)(3)
motion, Defendants learned for the first time that Plaintiff had not received the responses to the
Bellerose RFAs through the instant motion. Defendants' counsel attests by affidavit that he sent
another copy of those responses to Plaintiff on May 3, 2016. Doc. 143-1 ¶ 4. Plaintiff elected not
to file a reply brief, and thereby raises no objection to the Defendants' argument that they satisfied
their obligations by serving the responses to the Bellerose RFAs on March 30, 2016. Plaintiff's
motion is denied.
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F.

Plaintiff's Motion for Sanctions [Docs. 153, 155, 159, 160]
Plaintiff moves for sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A) in light of what he

argues is Defendants' failure to respond properly to the Court's discovery orders made within its
Second Omnibus Ruling, [Doc. 123]. Defendants respond that they have been diligently working
to resolve each discovery dispute identified in Plaintiff's motion and that any sanctions motion is
premature. In fact, Defendants argued that they were currently responding to Plaintiff's May 2016
discovery letters, which they received just two weeks prior to Plaintiff's filing of his motion for
sanctions.
Fed. R. Civ. P. 37(b)(2)(A) states that "[i]f a party . . . fails to obey an order to provide or
permit discovery . . . the court where the action is pending may issue further just orders," including
a number of permissible sanctions.
[S]everal factors may be useful in evaluating a district court's exercise
of discretion to impose sanctions pursuant to this rule, including (1)
the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the duration
of the period of noncompliance, and (4) whether the non-compliant
party had been warned of the consequences of noncompliance. . . .
Because the text of the rule requires only that the district court's order
by "just," however, and because the district court has wide discretion
in imposing sanctions under Rule 37 . . . these factors are not
exclusive . . .
Southern New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010)
(internal quotations and citations omitted).
With those factors in mind, the Court declines at present to issue an order of sanctions. This
is largely because Plaintiff's motion is premature, given Defendants' representations that the parties
are actively involved in discussions regarding the scope of Defendants' discovery obligations

9

pursuant to the Court's Second Omnibus Ruling. For example, Plaintiff takes issue with the fact that
by June 7, 2016, Defendants had yet to respond to Plaintiff's May 16, 2016 letter seeking Plaintiff's
"local master file." The Federal Rules strongly encourage the parties to resolve discovery issues
amongst themselves, and the Court takes Defendants at their word that they are working to respond
to these requests. Moreover, Plaintiff''s motion acknowledges that Defendants have made significant
productions of documents following the Second Omnibus Ruling. Plaintiff therefore makes no
showing that Defendants actions are willful. Rather, it appears that Defendants' actions have been
reasonable in light of the balancing act they must perform in representing a public penal institution
and the sensitivities that arise therewith.
That is not to say that Defendants will be immune from discovery sanctions in this case. It
is merely to say that such sanctions are not applied in a vacuum, and that when contextualized,
Defendants efforts to comply with the Second Omnibus Ruling do not yet amount to sanctionable
non-compliance. In other words, it is not at present apparent that Defendant has "fail[ed] to obey
an order to provide or permit discovery." Fed. R. Civ. P. 37(a)(2)(A). Plaintiff's motion for
sanctions is denied.
G.

Motions for Extensions of Time [Docs. 133, 145; 135; 150; 158; 161]
Currently pending are several motions to extend certain case deadlines. Defendants moved

for an additional thirty days to respond to certain discovery requests made prior to the Court's
extension of the discovery deadline on February 11, 2016. Doc. 133. Defendants then moved for
an additional fourteen days to comply with the Court's February 11, 2016 order, [Doc. 135], as well
as an additional thirty days in which to respond to discovery requests served on Defendants on
September 16 and 17, 2015, [Doc. 150]. Plaintiff, for his part, has filed a motion seeking to enlarge
10

the time by which he must respond to Defendants' first request for the production of documents.
Doc. 158. Each of the above motions are hereby granted, and, to the extent required, they are granted
nunc pro tunc. To the extent the discovery identified in the above-referenced motions has yet to be
completed, the Court hereby orders that such discovery may be completed within thirty (30) days of
entry of this order.
Finally, the individuals previously identified as "John Doe" have moved for an extension of
time by which they must respond to the complaint in this action. Doc. 161. Given the Court's ruling
that it is not currently permitting Plaintiff to amend his complaint, this motion is denied as moot.
If Plaintiff files another amended complaint as discussed above, the "John Doe" individuals must
then respond to that complaint in line with the deadlines imposed by the Federal Rules of Civil
Procedure.
II
Based on the foregoing, the Court makes the following Ruling and Order.

1.

Plaintiff's Motion to Serve Additional Interrogatories [Doc. 124] is GRANTED.

2.

Plaintiff's Motion for Spoliation Sanctions [Doc. 125] is GRANTED IN PART and
DENIED IN PART.

3.

Plaintiff's Motion to Consolidate [Doc. 128] is DENIED.

4.

Plaintiff's Motion to Amend the Complaint [Doc. 137] is DENIED WITHOUT
PREJUDICE.

5.

Plaintiff's Rule 36(a)(3) Motion [Doc. 138] is DENIED AS MOOT.

6.

Plaintiff's Motion for Discovery Sanctions [Doc. 153] is DENIED.

7.

The Parties' Motions for Extensions of Time [Docs. 133, 145; 135; 150; 158] are
GRANTED, and, to the extent appropriate, are granted nunc pro tunc, with the
11

exception of certain Defendants' Motion for Enlargement of Time Nunc Pro Tunc to
Respond to Plaintiff's Complaint, [Doc. 161], which is DENIED AS MOOT.
8.

In light of the foregoing, the Court enters the following SCHEDULING ORDER:
a.

All Discovery Completed — September 26, 2016

b.

Motions for Summary Judgment — On or before October 3, 2016

c.

Trial Memoranda Due — November 3, 2016 or 45 days from the Court's
ruling on any summary judgment motion, whichever is later.

d.

Trial Ready Date — December 5, 2016, or within 30 days after the filing of
the trial memoranda, whichever is later.

All the foregoing is SO ORDERED.
Dated:

New Haven, Connecticut
July 28, 2016

/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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