Matthews et al v. Cuomo et al
Filing
363
DECISION AND ORDER that Plaintiffs' cross-motion for spoliation sanctions (Dkt. No. 318 , Attach. 4) is DENIED without prejudice, as specified herein in Part III.A.2. of this Decision and Order. The remaining portions of Defendants' motio n for summary judgment (compare Dkt. No. 308 with Dkt. No. 329 ) are DENIED. A pretrial conference shall be scheduled in this action, at which counsel shall appear with settlement authority. Signed by U.S. District Judge Glenn T Suddaby on 4/10/2024. (sal )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
LUKE MATTHEWS; CARLOS GOMEZ;
GENTL BONDS; ROBERT SMITH; and
KASIEM CHAVES,
Plaintiffs,
v.
9:17-CV-0503 (GTS/ML)
L. SWEENEY, Clinton Corr. Sergeant;
MICHAEL GUYNUP, Clinton Corr. Lieutenant;
CORR. EMERGENCY RESPONSE TEAM (“CERT”)
OFFICER 44-3; CERT OFFICER 44-4;
CERT OFFICER 44-5; CERT OFFICER 44-23; and
CERT OFFICER 44-29;
Defendants.
_____________________________________________
APPEARANCES:
OF COUNSEL:
BEDLOCK, LEVINE & HOFFMAN
Counsel for Plaintiffs
99 Park Avenue, 26th Floor
New York, NY 10016
DAVID B. RANKIN, ESQ.
JONATHAN C. MOORE, ESQ.
MARC A. CANNAN, ESQ.
HON. LETITIA A. JAMES
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
DAVID C. WHITE, ESQ.
THOMAS A. CULLEN, ESQ.
MARK G. MITCHELL, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this prisoners civil rights action filed by the five
above-captioned individuals (“Plaintiffs”) against the seven above-captioned employees of the
New York State Department of Corrections and Community Supervision (“Defendants”), are the
following: Plaintiffs’ cross-motion for spoliation sanctions (Dkt. No. 318, Attach. 4); and those
portions of Defendants’ motion for summary judgment (Dkt. No. 308) on which decision was
reserved in the Decision and Order dated March 28, 2023 of Senior U.S. District Judge Thomas
J. McAvoy, from whom this case has been reassigned (Dkt. Nos. 329, 356). For the reasons set
forth below, Plaintiffs’ cross-motion for spoliation sanctions is denied without prejudice, and the
remaining portions of Defendants’ motion for summary judgment are denied.
I.
RELEVANT BACKGROUND
A.
Parties’ Pre-Spoliation Hearing Briefing
Generally, in their pre-hearing brief, Defendants essentially assert three arguments: (1)
Defendants Guynup and Sweeney played no role in creating or maintaining any of the spoliated
materials sought by Plaintiffs, and CERT Officer 44-5 and CERT Officer 44-23 played no role in
maintaining control of any of the relevant CERT documentation sought by Plaintiffs (nor where
they even present during the constitutional violations alleged by Plaintiffs); (2) although the
material in question was within the possession and control of CERT Lieutenant Michael Harms
and CERT Officer 44-3, their explanation will show that any withholding or destruction of that
material was not intentional or even negligent, but was caused by the unprecedented
circumstances surrounding the underlying escape of two inmates from Dannemora Correctional
Facility in June 2015; and (3) under the circumstances, the testimony and evidence provided by
Defendants will show that, to the extent a sanction is warranted, it is not the most-severe sanction
sought by Plaintiffs (striking Defendants’ Answer) but a lesser one that is molded to serving the
prophylactic, punitive, and remedial rationales underlying the spoliation doctrine. (Dkt. No.
337, Attach. 1.)
2
Generally, in their pre-hearing brief, Plaintiffs assert three arguments: (1) because
Defendants fail to point to any reasonable steps they took to preserve the binder and electronic
case file containing inmate interview information, and strip search forms (and indeed they fail to
explain why the relevant evidence is not available), and because the lost evidence is highly
relevant to Plaintiffs’ claims, the circumstances support a reasonable inference that Defendants
acted intentionally; (2) at the spoliation hearing, Plaintiffs will examine both CERT Defendant
44-3 and Lieutenant Harm regarding their explanation of their spoliation the CERT recorder
notes and CERT inmate cell removal assignment sheets, and in so doing Plaintiffs will show that,
at the very least, the spoliation that occurred supports a reasonable inference of intentional
conduct; and (3) as a result, the Court should either (a) strike Defendants’ Answer (or issue
another curative spoliation sanction) or (b) deny Defendants’ motion for summary judgment.
(Dkt. No. 338.)
Generally, in their supplemental pre-hearing brief, Defendants assert two arguments: (1)
Plaintiffs’ cross-motion for spoliation sanctions should be denied in its entirety because it seeks
the drastic remedy of an Order striking Defendants’ Answer, which is not warranted because
Defendants, most of whom were not responsible for the loss or destruction of the evidence in
question, did not act intentionally; and (2) Plaintiffs cannot demonstrate the elements of a
culpable state of mind and prejudice sufficient to support an award of even lesser sanctions for
five reasons: (a) the inmate interview sheets demanded by Plaintiffs have now been disclosed,
eliminating any prejudice to Plaintiffs resulting from the loss of those documents; (b) any
prejudicial effect caused by the loss of the Certificate of Search forms has been mitigated by
Defendants’ production of the names of the officers who transported Plaintiffs to Upstate
3
Correctional Facility on June 15-16, 2015 (obtained from the Commanders logbook and a list of
the incarcerated individuals who were transported on those dates); (c) the loss of the CERT
recorder notes and the CERT inmate cell removal assignment sheets was inadvertent, caused by
an unprecedented emergency of the utmost severity for DOCCS in 2015, which gave rise to a
complicated, multi-agency manhunt in the rain; (d) Defendants’ failure to preserve electronically
stored information was excusable in light of the diligence with which they searched for that
information, the ordinary custom and practice of OSI in 2015, and the location and disclosure of
the Commanders logbook and inmate interview records; and (e) Defendants were not culpable
for the reasons stated in their original pre-hearing brief. (Dkt. No. 346, Attach. 1.)
Generally, in their supplemental pre-hearing brief, Plaintiffs assert two arguments: (1)
Defendants’ belated production of Jeffrey Joswick’s scanned copies of the inmate interview
information establishes that they willfully withheld that information in bad faith, because
Defendants’ counsel did not bother to interview Mr. Joswick (the person who had been in charge
of implementing and managing the inmate interrogation operation and ask him if he had
information to identify which correction officers interviewed which inmates) during nearly
seven-and-a-half years of litigation; and (2) Defendants’ belated production of the inmate
interview information does not cure the prejudice suffered by Plaintiff Carlos Gomez, because
(a) it caused him to spend several years of an inordinate amount of time and money to take
depositions, make discovery demands, and make discovery motions to try and obtain that
information, and (b) had Defendants timely produced this information, Plaintiff Gomez would
have been able to timely identify the persons responsible for his injuries, make them a party to
this lawsuit, depose them while their memories of the incident were still intact, and timely locate
4
other witnesses to support his claims, which he cannot now given that the three-year statute of
limitations expired more than five years ago. (Dkt. No. 348.)
B.
Spoliation Hearing and Post-Hearing Briefing
A 140-minute spoliation hearing was held on February 28, 2024. (Text Minute Entry
dated Feb. 28, 2024.) At the hearing, four witnesses testified: (1) Correctional Emergency
Response Team (“CERT”) Lieutenant Michael Harms; (2) CERT Defendant 44-3; (3) former
Clinton Correctional Facility Crisis Intervention Unit (“CIU”) Team Leader Jeffrey Joswick; and
(4) New York State Department of Corrections and Community Supervision (“DOCCS”) Office
of Special Investigations (“OSI”) Deputy Chief Investigator Mark Doherty.
In addition, nine exhibits were received into evidence: (1) Exhibit D-1 containing the
Affidavit of DOCCS Associate Counsel, Marat Skholnik, dated November 6, 2023; (2) Exhibit
D-2 containing an undated statement by DOCCS Assistant Deputy Chief Investigator Mark
Doherty; (3) Exhibit D-3 containing a List of Inmate Interviews listing inmates interviewed at
the Clinton County Correctional Facility as part of the Matt and Sweat investigation, with the
investigator and/or unit who performed the interviewed (Bates Stamped 5817 – 5888); (4)
Exhibit D-4 containing Inmate Interviews of inmates interviewed at the Clinton County
Correctional Facility as part of the Matt and Sweat investigation, served on Plaintiffs’ counsel on
November 2, 2023 (Bates Stamped 5895 – 6199); (5) Exhibit D-5 containing the Commander’s
logbook from June 15-16, 2015, listing the officers who transported incarcerated individuals to
Upstate Correctional Facility (Bates Stamped 2017 – 2021); (6) Exhibit D-6 containing a list of
the incarcerated individuals who were transported to Upstate Correctional Facility on June
15-16, 2015 (Bates Stamped 1905 – 1907); (7) Exhibit P-1 containing excerpts from the
5
Guidelines for CERT Operations (i.e., the cover-page and Index at Bates Stamped 2015 – 2016,
the “Frisk and Search Procedures” at Bates Stamped 1845 – 1849, and the “Draft Procedures” at
Bates Stamped 1861 – 1864); (8) Exhibit P-2 containing a July 13, 2015, CERT Memorandum
regarding a Clinton Escape Deployment Report (Bates Stamped 2030 – 2032); and (9) Exhibit
P-3 containing a blank calendar page printout for June 2015.
Generally, in their post-hearing brief, Plaintiffs repeat arguments made in their
pre-hearing briefs. (Compare Dkt. No. 361 with Dkt. No. 318, Attach. 4 and Dkt. No. 338 and
Dkt. No. 348.) Refined arguments worthy of mention are (1) Plaintiffs’ argument that the
hearing witnesses’ testimony does not explain the spoliation of inmate cell removal assignment
sheets and recorder notes from the draft that occurred on the evening of June 16, 2015 (which
was after the CERT team’s last foray through the swamps earlier that day), and (2) Plaintiffs’
argument that the purportedly “mitigating” documents produced by Defendants do not provide
Plaintiffs with the information they seek (i.e., which CERT officers participated in processing
Plaintiffs, including the strip-searching of them, before they were placed on the bus). (Dkt. No.
361, at 4-7.)
Generally, in their post-hearing response brief, Defendants repeat arguments made in
their pre-hearing briefs. (Compare Dkt. No. 362 with Dkt. No. 323 and Dkt. No. 337, Attach. 1
and Dkt. No. 346, Attach. 1.)
II.
GOVERNING LEGAL STANDARD
The governing legal standard was previously stated by Judge McAvoy in his Decision
and Order of March 28, 2023 (see Dkt. No. 329, at 14-15, 24-30), which the Court will repeat
here for the convenience of the reader.
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); Bryant v. General
Casualty Company of Wisconsin, 337 F.R.D. 1, 5 (N.D.N.Y Aug. 31, 2020). Even in the absence
of a discovery order, a district court may impose sanctions for spoliation through its inherent
power to control litigation. West, 167 F.3d at 779. If a party has an obligation to preserve
evidence but does not, the degree of the party's culpability and the amount of prejudice caused by
its actions will determine the severity of sanctions to be imposed. Bryant, 337 F.R.D. at 6; Aktas
v. JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 12 (N.D.N.Y. 2012).
Traditional sanctions include “dismissal of the culpable party’s suit, granting summary
judgment in favor of the prejudiced party, precluding the culpable party from giving testimony
regarding the destroyed evidence, or giving an adverse inference instruction to the jury against
the culpable party.” West, 167 F.3d at 779. "Dismissal of a lawsuit, or its analogue, striking an
answer, is appropriate if ‘there is a showing of willfulness, bad faith, or fault on the part of the
sanctioned party.'" Occhino v. Citigroup Inc., 03-CV-5259, 2005 WL 2076588, at *11 (E.D.N.Y.
Aug. 26, 2005) (quoting West, 167 F.3d at 779). “This high bar is set because dismissal is
considered a ‘drastic remedy that should be imposed only in extreme circumstances.’” Richard v.
Dignean, 332 F.R.D. 450, 465 (W.D.N.Y. 2019) (quoting John B. Hull, Inc. v. Waterbury
Petroleum Prod., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988)). Other possibilities include further
discovery, cost-shifting, or monetary sanctions. Pension Comm. of Univ. of Montreal Pension
Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 464 (S.D.N.Y. 2010); Liberman v. FedEx Ground
7
Package System, Inc., 09-CV-2423, 2011 U.S. Dist. LEXIS 4401, at *15-16 (E.D.N.Y. Jan. 18,
2011).
A party seeking sanctions based on spoliation bears the burden of establishing the
following three elements: (1) the party having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) the records were destroyed “with a culpable state of
mind”; and (3) 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); accord, LeClair v.
Raymond, 19-CV-0028, 2021 WL 105768, at *2 (N.D.N.Y. Jan. 12, 2021).
With regard to the second element, a party may establish a culpable state of mind by
showing that the evidence was destroyed knowingly, even if without intent to breach a duty to
preserve it, or negligently. Residential Funding Corp., 306 F.3d at 107; Reilly v. Natwest
Markets Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999); Mule v. 3-D Bldg. & Constr. Mgmt. Corp.,
18-CV-1997, 2021 WL 2788432, at *9 (E.D.N.Y. July 2, 2021). “In determining culpability, a
case-by-case approach is preferable because failure to preserve can occur ‘along a continuum of
fault—ranging from innocence though the degrees of negligence to intentionality.’” Wandering
Dago Inc. v. New York State Office of Gen. Servs., 13-CV-1053, 2015 U.S. Dist. LEXIS 69375,
at *32 (N.D.N.Y. May 29, 2015) (quoting Reilly, 181 F.3d at 267). By the term “negligence” in
this context, courts in the Second Circuit mean ordinary or simple negligence. See Residential
Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 113 (2d Cir. 2002) (“[D]iscovery
sanctions, including an adverse inference instruction, may be imposed upon a party that has
breached a discovery obligation not only through bad faith or gross negligence, but also through
8
ordinary negligence . . . .”). 1 “As to tangible evidence, in the Second Circuit, the culpable state
of mind factor is satisfied by a showing that the evidence was destroyed knowingly or grossly
negligently, even if without intent to breach a duty to preserve it, or negligently.” Best
Payphones, Inc. v. City of New York, 01-CV-3934, 2016 U.S. Dist. LEXIS 25655, at *17
(E.D.N.Y. Feb. 26, 2016) (internal citations and quotation marks omitted); see Reilly, 181 F.3d at
268 (finding an adverse inference instruction warranted where plaintiff was able to show through
the identification of missing documents that defendants "sanitized" the files in question,
amounting to at least gross negligence); Residential Funding, 306 F.3d at 108 (“The sanction of
an adverse inference may be appropriate in some cases involving the negligent destruction of
evidence because each party should bear the risk of its own negligence.”).
As to electronically stored information, the failure to preserve such information is
governed by amended Fed. R. Civ. P. 37 and is now treated differently than tangible evidence.
Fed. R. Civ. Pro. 37(e); see also Best Payphones, 2016 U.S. Dist. LEXIS 25655, at *12 (“[A]s
the law currently exists in the Second Circuit, there are separate legal analyses governing the
spoliation of tangible evidence versus electronic evidence.”).
"Whereas the previous version of Rule 37 permitted severe sanctions for
negligent spoliation, pursuant to amended Rule 37(e), the movant must
now show that the non-moving party 'acted with the intent to deprive [the
See, e.g., Wilson v. Hauck, 141 F. Supp.3d 226, 230 (W.D.N.Y. 2015) (“A culpable state
of mind may be satisfied by a showing that the destruction was undertaken in bad faith, or was
the result of either gross negligence or simple negligence.”); Rabenstein v. Sealift, Inc., 18
F.Supp.3d 343, 362 (E.D.N.Y. 2014) (“A culpable state of mind must, at a minimum, constitute
simple negligence.” (internal quotation marks omitted)); Dataflow, Inc. v. Peerless Ins. Co.,
11-CV-1127, 2013 WL 6992130, at *6 (N.D.N.Y. June 6, 2013) (finding that a culpable state of
mind “must, at a minimum, constitute simple negligence”) (interior quotation marks and citation
omitted), report and recommendation adopted in pertinent part, 11-CV-1127, 2014 WL 148685
(N.D.N.Y. Jan. 13, 2014); Schwarz v. FedEx Kinko's Office, 08-CV-6486, 2009 U.S. Dist.
LEXIS 100200, at *17-18 (S.D.N.Y. Oct. 27, 2009) (observing that courts in the Second Circuit
have determined that “a ‘culpable state of mind’ ranges from willful destruction in bad faith to
simple negligence”) (citing Residential Funding, 306 F.3d at 108).
9
1
movant] of the information's use in the litigation' before the sanctions
listed in subsection (2) of Rule 37(e) -- i.e., adverse inference, dismissal,
or default judgment -- are available." Fashion Exch. LLC v. Hybrid
Promotions, LLC, No. 14-CV-1254, 2019 U.S. Dist. LEXIS 218286, 2019
WL 6838672, at *3 (S.D.N.Y. Dec. 16, 2019) (quoting Fed. R. Civ. P.
37(e)(2)); see also Lokai Holdings, 2018 U.S. Dist. LEXIS 46578, 2018
WL 1512055, at *8; Leidig v. Buzzfeed, Inc., No. 16-CV-0542, 2017 U.S.
Dist. LEXIS 208756, 2017 WL 6512353, at *7 (S.D.N.Y. Dec. 19, 2017).
Absent a showing of "intent to deprive," the moving party's relief is
limited to sanctions under subsection (1) of Rule 37(e) -- i.e., monetary
sanctions, forbidding the party that failed to preserve information from
putting on certain evidence, permitting the parties to present evidence and
argument to the jury regarding the loss of information, or giving the jury
instructions to assist in its evaluation of such evidence or argument. See
Lokai Holdings, 2018 U.S. Dist. LEXIS 46578, 2018 WL 1512055, at *8
(citing Fed. R. Civ. P. 37(e)(1) Advisory Committee Note, 2015
Amendment). A Rule 37(e)(1) sanction may only be imposed upon a
finding of "prejudice" from the loss of the information, and the sanction
imposed may be "no greater than necessary to cure the prejudice." Id.
"In addition to any other sanctions expressly contemplated by Rule 37(e),
as amended, a court has the discretion to award attorneys' fees and costs to
the moving party, to the extent reasonable to address any prejudice caused
by the spoliation." Id. (citing CAT3, LLC v. Black Lineage, Inc., 164 F.
Supp. 3d 488, 499 (S.D.N.Y. 2016)). Ultimately, "[t]he decision of what
type of sanction is appropriate in a given case is left to the sound
discretion of the district court." Tchatat v. O'Hara, 249 F. Supp. 3d 701,
2017 WL 1379097, at *4 (S.D.N.Y. 2017) (collecting cases).
Mule, 2021 U.S. Dist. LEXIS 124711, at *19-20.
“When a party has a ‘known duty to preserve,’ that party's ‘conscious dereliction
of a known duty to preserve electronic data is both necessary and sufficient to find that
the party ‘acted with the intent to deprive another party of the information's use' under
Rule 37(e)(2).’” Doe v. Wesleyan Univ., 19-CV-01519, 2022 WL 2656787, at *15 (D.
Conn. July 8, 2022) (quoting Ungar v. City of N.Y., 329 F.R.D. 8, 13 (E.D.N.Y. 2018)).
“Thus, whether the spoliator affirmatively destroys the data, or passively allows it to be
lost, that party may be sanctioned for the spoliation of evidence.” Id. (citing Moody v.
10
CSX Transp., Inc., 271 F. Supp. 3d 410, 428-29 (W.D.N.Y. 2017) ("While knowing they
had a duty to preserve the event recorder data, defendants allowed the original data on the
event recorder to be overwritten.... On this record, the Court finds that defendants acted
with the intent to deprive [plaintiff] of the use of the event recorder data"); Ottoson v.
SMBC Leasing &Fin., Inc., 268 F. Supp. 3d 570, 582-83 (S.D.N.Y. 2017) (finding
conscious failure "to take any reasonable steps to preserve" relevant communications can
satisfy the intent required of Fed. R. Civ. P. 37(e)(2)) (collecting cases)).
III.
ANALYSIS
A.
Plaintiffs’ Cross-Motion for Spoliation Sanctions
1.
State of Mind
The Court has carefully considered each of the witnesses’ credibility through the totality
of circumstances, including factors such as (1) their demeanor, body language, mannerisms, tone
of voice, facial expressions, and eye contact, and (2) the internal consistency and corroborated
nature of their statements. Cf. Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623,
634 (2d Cir. 1996) (“[W]e must accord great deference to the trial court's findings regarding
credibility because the trial judge is in the best position to evaluate a witness's demeanor and
tone of voice as well as other mannerisms that bear heavily on one's belief in what the witness
says.”).
After carefully considering all of the evidence, the Court can find no intentional conduct
or even reckless conduct by any employees of DOCCS. Instead, the Court can find, by the
narrowest of margins, the existence of only slight negligence (as opposed to ordinary or simple
negligence). See Litchfield and others v. White and Leonard, 7 N.Y. 438, 442 (N.Y. 1852)
11
(“Negligence is also divided into three corresponding degrees: Gross negligence is the want of
slight diligence; ordinary negligence is the want of ordinary diligence; and slight negligence is
the want of high or great diligence (Story on Bailments, § 17).”). 2
This hair splitting between slight and ordinary (or simple) negligence requires some
explanation. At the hearing, the witnesses persuasively testified that, during the time in
question, there was no location (e.g., the gymnasium used for a sleeping quarters in Clinton C.F.,
or an outbuilding used as a command post at Dannemora C.F.) where CERT Lieutenant Harms
and CERT Defendant 44-3 could have kept their notes (CERT Lieutenant Harms possessing a
four-by-seven-inch stenographer’s notebook and CERT Defendant 44-3 possessing “recorder
notes”) that was both secure and convenient (i.e., where they had the necessary access to their
notes every day). 3 As a result, the Court finds that it was certainly reasonable that CERT
Lieutenant Harms and CERT Defendant 44-3 kept their notes on their persons while they joined
in the search for two escaped inmates. However, the Court finds each man somewhat careless
in failing – during the chaos of an unprecedented manhunt – to take the extraordinary precaution
of storing their valuable notes in some kind of plastic bag (e.g., wrapping them in an available
garbage bag 4 or a common polyethylene grocery bag, or zipping them shut in a common
sandwich bag), before placing them in the pockets of their non-waterproof clothing (CERT
Lieutenant Harms placing his inmate cell removal sheets in his left hip pocket, and CERT
See, e.g., Pettinelli Motors, Inc. v. Morreale, 242 N.Y.S.2d 78, 80 (N.Y. Cnty. Ct.,
Oneida Cnty. 1963) (distinguishing between gross negligence, ordinary negligence, and slight
negligence in context of bailments).
2
3
(Dkt. No. 360, at 8-10, 14-24, 34-35, 37, 39-44, 49 [Hrg. Tr.].)
(Dkt. No. 360, at 23-24 [attaching hearing testimony of CERT Lieutenant Harms, stating,
“When I exited the woods with the team, when that was, I threw out everything in my pockets,
including [the water-spoiled, illegible] notebook into a garbage bag they had there . . .”].)
4
12
Defendant 44-3 placing his recorder notes in a front pocket of his nylon ballistic vest) and then
venturing out in the Adirondack mountains in conditions that presumably forecasted rain 5 and
that ended up forcing them to wade through swamps. 6
Furthermore, the Court can find no negligence with regard to the manner in which
DOCCS employees maintained inmate-interview sheets (including how they collated the sheets
at the end of the day), given the number of agencies involved in the manhunt and the time
constraints imposed by it. (See, e.g., Dkt. No. 360, at 56-58, 67 [Hrg. Tr.]; Hrg. Exhibit D-2, at
2.) However, the Court finds (again by only the narrowest of margins) CIU Team Leader
Jeffrey Joswick slightly negligent in failing, during or after his deposition, to think (based on
opposing counsel’s questions) 7 to inform opposing counsel that he might possess, in a subfolder
of his emails labeled “Escape,” an electronic copy of a binder of inmate-interview sheets. (Dkt.
No. 360, at 59-60, 69-72 [Hrg. Tr.].) Similarly, the Court finds (again by only the narrowest of
margins) OSI Deputy Chief Investigator Mark Doherty slightly negligent in failing, despite his
(See, e.g., Dkt. No. 360, at 11-12, 18-19, 22 [attaching hearing testimony of CERT
Lieutenant Harms, stating, “It appeared to me that it seemed to rain all the time. . . [T]he
magnitude of the rain . . . was definitely unique. . . . [I]n the woodland search, it was raining
from what I remember, overcast gloomy day . . . . As I stated earlier, it was raining, it was
gloomy, it was overcast,” agreeing that “it was like a monsoon,” and agreeing that “the
conditions [that] search teams were working in [were] extremely difficult and damp and wet”];
Dkt. No. 360, at 37 [attaching hearing testimony of CERT Defendant 44-3, stating, “The weather
conditions were horrendous. It rained almost the entire time we were there”].)
5
In response to any argument that it was not the rain but the swamp that destroyed the
notes in question, the Court rejects the premise that constant rain over multiple days (in
monsoon-like conditions) did not in any way contribute to the breadth and/or depths of the
swamps. In any event, protecting the notes from rain would have also at least partially protected
them from the swamp.
6
The Court notes that the relevant line of inquiry by opposing counsel during Joswick’s
deposition was conspicuously absent of any follow-up questions regarding the format of the
binder in question (e.g., only hard copy or also electronic). (Dkt. No. 360, at 69-72 [Hrg. Tr.].)
7
13
repeated attempts to diligently locate records requested by the Attorney General’s Office, to
think to question Joswick and discover the aforementioned electronic copy (based on his
deposition testimony). (Id. at 81-85.)
Finally, the Court is unpersuaded by Plaintiffs’ argument that the hearing witnesses’
testimony does not explain the spoliation of inmate cell removal assignment sheets and recorder
notes from the inmate draft procedure that occurred on the evening of June 16, 2015, because
that procedure occurred purportedly after the CERT team’s last foray through the swamps. See,
supra, Part I.B. of this Decision and Order. This is because the Court finds that, at the hearing,
CERT Defendant 44-3 testified credibly that he does not recall but he may have conducted his
last foray through the swamps on the morning of June 17, 2015, despite the fact that a CERT
memo reports the demobilization as having occurred that day. (Dkt. No. 360, at 44-45
[attaching hearing testimony of CERT Def. 44-3, answering “Not necessarily” to the question,
“If June 17th, 2015 was the day you demobilized, you would not push through the swamps that
day, correct?” and then testifying, “I mean we could have had a mission first thing in the
morning and then demobilized from there, I don't recall.”].) 8 The Court renders this finding
The Court concedes that the relevant entry from the Eastern CERT Deployment Report of
July 13, 2015, does not state that the Eastern CERT Team conducted a search on the morning of
June 17, 2015. (Hrg. Ex. P-2, at 3.) However, the remaining portions of that Report (at least
the unredacted ones) also do not state that the Eastern CERT Team conducted a search on the
mornings of June 9, 2015, through June 16, 2015. (See generally Hrg. Ex. P-2.) Moreover, it
appears from the Report that a DOCCS bus ride between Eastern C.F. and Clinton C.F. takes
approximately four hours and fifty-five minutes. (Hrg. Ex. P-2, at 2 [indicating a departure
from Eastern C.F. at 2:05 a.m. and an arrival at Clinton C.F. at 7:00 a.m. on June 9, 2015].) It
also appears from the Report that the Eastern CERT Team returned to Eastern C.F. at 5:20 p.m.
on June 17, 2015, suggesting that it had departed from Clinton C.F. at approximately 12:25 p.m.
that day. (Hrg. Ex. P-2, at 3.) However, the Report contains no indication of what the Eastern
CERT Team was doing between the hours of either 6:00 a.m. or 8:00 a.m. when such searches
began (see Dkt. No. 360, at 16) and 12:25 p.m. when the Team apparently departed from Clinton
C.F. (See generally Hrg. Ex. P-2.) It is hard to believe that these highly trained, highly
motivated professionals (see, e.g., Hrg. Tr, at 4-5, 14-15, 29-30, 46-47) were simply “sleeping
14
8
despite the fact that CERT Lieutenant Harms testified that, based on his recollection, the CERT
team’s last search would have occurred on June 16, 2015, because he was never asked
specifically whether he was “pushing through the swamps on the 17th” (as CERT Def. 44-3 was
asked). (Compare id. with Dkt. No. 360, at 15-16 [attaching hearing testimony of CERT Lt.
Harms, in which he testified that, based on his “recollection,” his search with the Eastern CERT
team “would have been before because they went home on the 17th” then answering “Correct” to
the question, “So it . . . would have been between June 9th and June 16th?”].)
2.
Appropriate Sanction
The Court begins its analysis of this issue by observing that, based on the current
briefing, a close question exists regarding whether its above-stated finding of slight negligence is
enough to warrant any sanction at all, because the governing standard requires, at the very least,
ordinary or simple negligence. See, supra, Part II of this Decision and Order (including the
cases set forth in note 1 of this Decision and Order). 9
The Court also observes that, based on the current briefing, a close question exists
regarding whether Plaintiffs have been materially prejudiced by the above-referenced
in” and lazily packing their personal belongings in an open gymnasium (id. at 8, 34, 41) for four
to six hours while an unprecedented, uncompleted manhunt raged outside.
9
The Court notes that a dispute has long existed regarding whether only two forms of
negligence in fact exist: gross negligence or ordinary negligence (which is sometimes thought to
include slight negligence). See, e.g., Shelden D. Elliott, Degrees of Negligence, 6 S. Cal. L.
Rev. 91, 99-100 (Jan. 1933) (“Although a few of the earlier scholars were of the opinion that this
classification [of obligations and corresponding fault] grouped itself conveniently under three
heads—lata culpa (gross neglect), levis culpa (ordinary neglect) and levissima culpa (slight
neglect)—by far the majority of authorities reject the threefold classification. In reality the
Justinian texts, it has been demonstrated, recognized but two degrees[:] . . . [1] culpa lata . . .
[and] [2] culpa levis . . . variously referred to as . . . culpa levissima . . . .”). However, the Court
need not resolve this dispute in this Decision and Order, because the Court expressly finds that
the conduct in question did not rise to the level of ordinary or simple negligence.
15
negligence. This is because, generally, the Court accepts Plaintiffs’ arguments of prejudice
resulting from the destroyed notes of Lt. Harms and CERT Defendant 44-3. See, supra, Part
I.A. of this Decision and Order. However, the Court also largely accepts Defendants’
arguments of mitigation resulting from such things as (1) their production of the names of the
officers who transported Plaintiffs to Upstate Correctional Facility on June 15-16, 2015, and (2)
their belated production of Jeffrey Joswick's electronic copy of a binder of interview sheets. Id.
With regard to this latter piece of information, the Court notes that, as stated earlier, Plaintiff’s
counsel shares at least some of the responsibility for Joswick’s failure to inform Plaintiffs’
counsel that he might possess, in a subfolder of his emails, an electronic copy of a binder of
interview sheets. See, supra, none 7 of this Decision and Order. The Court notes also that
Plaintiff Gomez has simply not persuaded the Court that, had Defendants timely produced the
inmate interview sheets, he would have been reasonably able to timely identify persons allegedly
responsible for his injuries (other than Defendant Sweeney). (See generally Dkt. Nos. 338, 348;
Hrg. Tr. and Exs.)
Finally, the Court also observes that, based on the current briefing, a close question exists
regarding whether Defendants were sufficiently involved in the spoliation. This is because the
Court observes that only one of the named Defendants in this action was directly involved in the
above-referenced negligence: CERT Defendant 44-3. The other CERT Defendants appear to
have been indirectly involved in the above-referenced negligence, in the sense that (1) they were
supervised by CERT Lieutenant Harms, (2) some or all of them appear to have accompanied
Harms during a search when his notes were destroyed, and/or (3) some of all of them appear to
have accompanied CERT Defendant 44-3 (who was the Assistant CERT Team Leader) during a
16
search when his notes were destroyed. (See, e.g., Dkt. No. 360, at 14-15, 17, 39-30, 40, 49
[Hrg. Tr.]; Dkt. No. 309, Attach. 2, at 15-17, 29 [attaching pages “14” through “16,” and page
“27” of Tr. of Depo. of CERT Defendant 44-4]; Dkt. No. 309, Attach. 3, at ¶ 7 [Decl. of CERT
Defendant 44-5]; Dkt. No. 309, at 14-17 [attaching pages “13” through “16” of Tr. of Depo. of
CERT Defendant 44-23]; Dkt. No. 309, Attach. 4, at 15, 33 [attaching pages “14” and 32” of Tr.
of Depo. of CERT Defendant 44-29].) 10 Moreover, the generally close relationship that exists
between DOCCS and its employees (as referenced in the cases cited above in note 10 of this
The Court acknowledges the case law in this Circuit opining on the generally close
relationship between DOCCS and its employees in the context of spoliated evidence. See, e.g.,
Richard v. Dignean, 11-CV-6013, 2021 WL 5782106, at *3 (W.D.N.Y. Dec. 7, 2021) (“Courts
in this District have held that the relationship between DOCCS and its employees is ‘sufficiently
closely coordinated’ to find that DOCCS employees have control over evidence held by
DOCCS.”) (collecting cases); Stanbro v. Westchester Cnty. Health Care Corp., 19-CV-10857,
2021 WL 3863396, at *6 (S.D.N.Y. Aug. 27, 2021) (“[Federal district courts have found that . . .
state correctional departments and municipalities ultimately bear responsibility for preserving
evidence and litigating cases filed by prisoners, and as such, a state correctional department's
failure to preserve evidence may be imputed to individual officer defendants in order to avoid
unfair prejudice to inmate litigants. . . . Several courts in this circuit have similarly opined on the
unique relationship between DOCCS and its correctional officers in the context of spoliated
evidence.”) (interior quotation marks and citations omitted); Slater v. Lacapruccia, 13-CV-1079,
2019 WL 1723515, at *4 (W.D.N.Y. April 18, 2019) (“As this Court previously indicated,
however, it concurs in the pronouncements by other members of this court that in suits against
individual corrections officers employed by DOCCS where DOCCS is not a defendant, a
sufficiently close relationship nonetheless exists to impute DOCCS' control over evidence to the
individual officers.”) (collecting cases); Wilson v. Hauck, 141 F. Supp. 3d 226, 229 (W.D.N.Y.
2015) (“[T]he relationship between DOCCS and its employees is sufficiently closely coordinated
to find that DOCCS employees have control over evidence held by DOCCS.”); Guillory v.
Skelly, 12-CV-0847, 2014 WL 4542468, at *8 (W.D.N.Y. Sept. 11, 2014) (“[A]lthough DOCCS
is not a party to this action, the relationship between DOCCS and Defendants, all DOCCS
employees is sufficiently closely coordinated to find Defendants have practical access and
control over the requested documents.”); Vigliotti v. Selsky, 08-CV-0875 M, 2013 WL 3354423,
at *4 (W.D.N.Y. July 3, 2013) (“[D]efendants apparently had sufficient nexus to DOCCS to
arrange for the inspection of Wende.”); cf. Vega v. Broome Cnty., 21-CV-0788, 2023 WL
6318919, at *8 (N.D.N.Y. Sept. 28, 2023) (Sannes, C.J.) (“Even where a party lacks actual
physical possession or custody of requested documents[,] such party may nevertheless be found
to have control of the documents if the party is legally entitled to the documents or has the
practical ability to acquire the documents from a third-party.”) (internal quotation marks and
ellipses omitted).
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10
Decision and Order) appears too attenuated here between two DOCCS line officers on the one
hand (i.e., Defendants Sweeney and Guynup) and an OSI Deputy Chief Investigator (Doherty)
and a CIU Team Leader (Joswick) on the other hand (especially during the unprecedent
circumstances that existed at the time).
In any event, the Court finds that no need exists to decide these thorny issues in this
Decision and Order. This is because, even if the Court were to answer each of these three
questions in Plaintiffs’ favor, the most-severe sanction that the Court would award would be a
permissible adverse inference that the destroyed evidence would have been of the nature alleged
by Plaintiffs (i.e., each document would have contained one or more statements that are both
consistent with Plaintiffs’ allegations and plausible or ordinary in the document in question). 11
However, Plaintiff does not need the benefit of such a permissible inference in order to defeat the
remainder of Defendants’ motion for summary judgment, because, for the reasons stated below
in Part III.B. of this Decision and Order, the Court finds that, based on the admissible record
evidence, genuine disputes of material fact exists preluding the Court from granting the
remainder of Defendants’ motion for summary judgment.
As a result, the Court denies Plaintiff’s motion for sanctions but does so only without
prejudice. Plaintiffs may renew their motion during the pre-trial phase of this action (when the
For example, at most, an inference would permitted that a document would have shown
that a specific CERT Defendant was among those who interviewed a specific Plaintiff and/or
transported a specific Plaintiff from his cell at Clinton C.F. to a bus destined for Upstate C.F.
However, the Court hastens to add that the permissible inference would not include an
accompanying inference that the CERT Defendants prevented the production of the evidence out
of the well-founded fear that the contents would harm them. In other words, the sanction would
not go so far as to permit an inference that a specific CERT Defendant actually used the force
alleged against a specific Plaintiff (or was reasonably able to intervene in that alleged use of
force): such issues would have to be proved through evidence other than the absence of the
spoliated documents.
11
18
Court expects to resolve these issues through, in addition to pre-trial stipulations, decisions on
motions in limine and proposed jury instructions). During that phase, to the extent that Plaintiffs
again request an adverse-inference instruction by motion, Plaintiffs must identify (1) each
particular spoliated document at issue, (2) the particular wording of each adverse-inference
requested, and (3) why, with regard to each particular document, the Court should answer each
of the three above-stated questions in Plaintiffs’ favor (including why each piece of resulting
evidence would not be cumulative of evidence already contained in the record).
B.
Remaining Portions of Defendants’ Motion for Summary Judgment
As indicated above in Part III.A.2. of this Decision and Order, with regard to the
remaining portions of the CERT Defendants’ motion for summary judgment, the Court finds
that, even without the permissibility of an adverse inference, a genuine dispute of material fact
exists regarding whether the CERT Defendants were present during the constitutional violations
alleged. 12 Similarly, with regard to the remaining portions of Defendants Sweeney and
Guynup’s motion for summary judgment, the Court finds that a genuine dispute of material fact
exists regarding whether Defendant Sweeney was the sergeant who escorted the CERT team that
(See, e.g., Dkt. No. 360, at 37-38, 48-49 [Hrg. Tr., containing testimony of CERT
Defendant 44-3 that he was present during the escorting of inmates], accord, Dkt. No. 309,
Attach. 1, at 19-20, 22-23 [attaching pages “18” and “19” of Tr. of Depo. of CERT Defendant
44-3]; Dkt. No. 309, Attach. 2, at 18-20, 22-37, 43-46 [attaching pages “17” through “19,” pages
“21” through “36,” and pages “42” through “45” of Tr. of Depo. of CERT Defendant 44-4,
testifying that he participated in and/or supervised the “draft” operation involving inmates]; Dkt.
No. 309, Attach. 3, at ¶¶ 7-9 [Decl. of CERT Defendant 44-5, testifying that he supervised some
of the inmate transports during the time in question]; Dkt. No. 309, at 15-18, 21-26, 32 [attaching
pages “14” through “17,” pages “20” through “25,” and page “31” of Tr. of Depo. of CERT
Defendant 44-23, testifying that on one occasion he was involved in the transporting of prisoners
on a bus from Clinton C.F. to Upstate C.F.]; Dkt. No. 309, Attach. 4, at 15-19, 33 [attaching
pages “1” through “18” and page “32” of Tr. of Depo. of CERT Defendant 44-29, testifying that
he was involved in an inmate transport at Clinton C.F.].)
12
19
removed Plaintiff Gomez from his cell on June 16, 2015, 13 and a genuine dispute of material fact
exists regarding whether Defendant Guynup was the sergeant who escorted the CERT team that
removed Plaintiff Smith from his cell on June 16, 2015. 14
As a result, the remaining portions of Defendants’ motion for summary judgment (which
hinges on their purported lack of personal involvement in the constitutional violations alleged)
are denied.
ACCORDINGLY, it is
ORDERED that Plaintiffs’ cross-motion for spoliation sanctions (Dkt. No. 318, Attach.
4) is DENIED without prejudice, as specified above in Part III.A.2. of this Decision and Order;
and it is further
ORDERED that the remaining portions of Defendants’ motion for summary judgment
(compare Dkt. No. 308 with Dkt. No. 329) are DENIED; and it is further
ORDERED that a pretrial conference shall be scheduled in this action, at which counsel
shall appear with settlement authority.
(Compare Dkt. No. 318, Attach. 11, at 27 [attaching page “64” of Gomez Depo. Tr.,
identifying Sweeney] with Dkt. No. 298, at ¶¶ 128-39 [Plfs.’ Third Am. Compl., alleging events
of 06/16/15 regarding Gomez]; cf. Dkt. No. 308, Attach. 9, at 17 [attaching page “16” of
Sweeney Depo. Tr., stating that he did not recall seeing any inmates being interviewed when he
returned from vacation].)
13
(Compare Dkt. No. 308, Attach. 10, at 23-24, 27, 31, 35-37, 39-40 [attaching pages “22,”
“23,” “26,” “30,” “34,” “35,” “36, “38,” and “39” of Guyup Depo. Tr., stating that sometimes he
was in the hallways and the waiting area when CERT officers were escorting inmates being
transferred to Upstate C.F.] and Dkt. No. 332, Attach. 13, at 2-3 [containing 4:00 p.m. entry of
Cell Block A Logbook, indicating Def. Guynup’s transfer of Plf. Smith] and Hrg. Ex. D-5, at 5
[attaching page Bates Stamped 2021, dated 06/16/15, containing name of Def. Guynup] with
Dkt. No. 298, at ¶¶ 92-116 [Plfs.’ Third Am. Compl., alleging events of 06/16/15 regarding Plf.
Smith].)
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Dated: April 10, 2024
Syracuse, New York
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