McCray v. The City of Albany New York, et al
Filing
156
DECISION AND ORDER adopting in its entirety the 141 REPORT AND RECOMMENDATIONS by Magistrate Judge Scott re 95 MOTION for Summary Judgment filed by CO. Ayers, CO. Rosia. Signed by Hon. Michael A. Telesca on 1/23/19. A copy of this Decision and Order was sent to the plaintiff via first-class U.S. Mail on 1/23/2019.(AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TERENCE SANDY McCRAY,
Plaintiff,
DECISION and ORDER
No. 1:13-cv-00949-MAT-HBS
-vsTHE CITY OF ALBANY NEW YORK,
C.O. AYERS, C.O. ROSIA,
Defendants.
INTRODUCTION
Pro se plaintiff Terence Sandy McCray (“Plaintiff”), a prisoner in
the custody of New York State Department of Corrections and Community
Supervision (“DOCCS”), instituted this action pursuant to 42 U.S.C. §
1983. The case comes before the Court upon the Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Hugh B. Scott on August
1, 2017 (Docket 141), recommending that Motion for Summary Judgment
(Docket No. 95) filed by DOCCS Corrections Officers (“CO”) Russell Ayers
(“Ayers”) and Adam Roshia (“Roshia”)1 (collectively, “Defendants”) be
denied. For the reasons discussed below, the Court adopts the R&R in its
entirety.
BACKGROUND
At this point in the proceeding, there remains one Eighth Amendment
claim: that on March 1, 2012, CO Roshia subjected Plaintiff to a pat-
1
Apparently, this is the correct spelling of this defendant’s name, contrary
to how it appears in the caption.
-1-
frisk
that
constituted
a
sexual
assault
without
any
legitimate
penological purpose. Plaintiff testified at his deposition that Roshia
ordered him to position himself for the pat-frisk while “whispering over
[Plaintiff’s] shoulder, [‘]you f---ing ni--er, you don’t f---ing like
this, ni--er?[’] And he said it several times. I’m not responded, not one
word. Then he—he didn’t even pat frisk me . . . . He put his hands
underneath my testicles and he squeezed them and he says, ‘you like that,
you f---ing ni--er?’ And I didn’t say anything.” Docket No. 95-3 at 31-32
(Pl.’s Tr. 53:16-54:12). According to Plaintiff, Roshia continued to
grope him in this way until he reacted to the pain. On March 5, 2012,
Nurse Practitioner Salotti examined Plaintiff regarding the alleged
sexual assault by Roshia and “reported that the exam did reveal a linear
area on the posterior scrotum of ecchymosis, purplish in color and
consistent with a new area of trauma about a day or two old in her
medical opinion.” Docket No. 136-1 at 7 of 9.
Defendants
submitted,
in
support
of
their
Motion
for
Summary
Judgment, a surveillance videotape purporting to depict the incident
involving Plaintiff and Roshia
on March 1, 2012. They argue that it
conclusively demonstrates that Plaintiff’s rights were not violated.
Plaintiff counters that he is not the inmate depicted in the video, that
the inmate depicted in the video weighs 125 pounds more than he does,
that he would never wear a red shirt inside a correctional facility (as
the depicted inmate is wearing) because red is a gang color, and that
while the inmate misbehavior report indicates that the incident occurred
at 7:25 p.m., the time-stamp at the bottom the videotape reads “a.m.”
At the request of United States District Judge Richard J. Arcara,
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Magistrate Judge Scott was asked to hear and report on the issue of
whether Defendants can properly authenticate the facility surveillance
videotape they offered in support of their motion. See Docket No. 134 at
5-6. Magistrate Judge Scott then directed additional briefing on the
authentication issue. Defendants submitted the declaration of Deputy
Superintendent
Charles
Coventry
(“Coventry”)
for
purposes
of
authenticating the videotape. Coventry was a captain at Five Points
Correctional Facility in 2012, and was responsible for investigating the
alleged incident involving Roshia and Plaintiff. Coventry avers in his
declaration that the incident could not have occurred at 7 a.m., as
Plaintiff contends. Coventry states that 7 a.m. is the beginning of the
second shift when the facility count occurs, and all inmates are confined
to their cells during the count. Therefore, Coventry concludes, the
events depicted in the video (i.e., an inmate on his way to the Activity
Building) could not have occurred at 7 a.m., since at that time no
programs are conducted, and no inmates are allowed out of their cells.
Coventry “believe[s] that the timing of the video occurred during what
[they] refer to as ‘Mod 4[,]’” which “is run around 6:45 p.m. to 9:40
p.m.” Docket No. 136 ¶¶
12-13. According to Coventry, who viewed the
video twice, Plaintiff is definitely the inmate depicted in it. In
response, Plaintiff reiterated that he is not the inmate depicted in the
video.
Magistrate Judge Scott viewed the video and determined that the
image was too distant and grainy to discern the face of the inmate in
order to make a comparison. Magistrate Judge Scott concluded that there
are “too many discrepancies between the time-stamp, the clothes and build
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of the inmate as compared with plaintiff, and plaintiff’s version of the
incident (in his grievance, his deposition testimony, and in these
motions) and what is shown on this tape to squelch questions of the
authenticity of the video.” Docket No. 141 at 18. Magistrate Judge Scott
noted that although Coventry and Defendants’ counsel have admitted that
the time-stamp is incorrect, this discrepancy has never been explained.
In short, Magistrate Judge Scott found that there are genuine issues of
material fact remaining as to the authenticity of the videotape, thereby
precluding Defendants’ reliance on the videotape to obtain judgment as
a matter of law.
Defendants submitted objections (Docket No. 145), and Plaintiff
submitted various responses to Defendants’ objections (Docket Nos. 142,
146, & 152). Defendants submitted a reply to Docket No. 146 (Docket No.
149) as well as a letter from counsel (Docket No. 150).
STANDARD OF REVIEW
Recommendations made by a magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B) “need not be automatically accepted by the district court.”
Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Should either party
object to a magistrate judge’s report and recommendation, “[a] judge of
the court shall make a de novo determination of those portions of the
report
or
specified
proposed
findings
or
recommendations
to
which
objection is made.” 28 U.S.C. § 636(b)(1). To preserve a claim for review
by
the
district
court,
the
party
must
make
sufficiently
specific
objections to the R & R. Mario v. P & C Food Mkts., Inc., 313 F.3d 758,
766 (2d Cir. 2002) (citing Fed. R. Civ. P. 72(b)). When a party makes
sufficiently specific objections, the district judge must undertake a “de
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novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made[,]” 28 U.S.C.
§ 636(b)(1)(C), and “may . . . receive further evidence[.]” Id.; see also
Grassia, 892 F.2d at 19 (discussing § 636(b)(1)(B)).
DISCUSSION
Defendants
object
to
the
R&R’s
conclusion
that
they
did
not
adequately authenticate the videotape. In particular, Defendants fault
the R&R for pointing out that they did not provide statements from the
operator of the video recorder, or from inmates or officers that were
present during the pat-frisk. See Docket No. 142 at (citing R&R at 8–9).
Defendants
assert
that
this
type
of
testimony
is
not
required
to
authenticate a video, and that circumstantial evidence, such as the
declaration
submitted
by
Coventry,
is
sufficient.
Id.
(citations
omitted).
Federal
Rule
of
Evidence
901
states
that
“[t]o
satisfy
the
requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed. R. Evid. 901(a). Thus, to
authenticate the video, “Defendant[s] must demonstrate not only that
Plaintiff is the individual depicted in the video but also that the video
is authentic and that the events are accurately depicted.” Boykin v. W.
Express, Inc., No. 12CV7428NSRJCM, 2016 WL 8710481, at *5 (S.D.N.Y. Feb.
5, 2016) (finding that the defendant had not properly authenticated video
of the plaintiff; even though the plaintiff “has admitted that she is the
individual in the videos, this alone does not confirm the genuineness or
authenticity of what, according to [d]efendant, ‘was truly and accurately
-5-
before the camera’”) (citing Mikus v. United States, 433 F.2d 719, 725
(2d Cir. 1970)). While the Second Circuit “does not have a rigid formula
for evaluating the authenticity of video tapes, the requisite indicia of
authenticity can be created by presenting witnesses who recall the events
depicted, testimony as to the chain of custody, testimony of the person
recording the events, or any other evidence tending to show the accuracy
of the depictions.” Boykin, 2016 WL 8710481, at *5 (citing United States
v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977) (noting that “since recorded
evidence is likely to have a strong impression upon a jury and is
susceptible to alteration, [it] ha[s] adopted a general standard, namely,
that
the
government
‘produce
clear
and
convincing
evidence
of
authenticity and accuracy’ as a foundation for the admission of such
recording”) (quotation omitted); Gill v. Arab Bank, PLC, 893 F. Supp.2d
542, 568-69 (E.D.N.Y. 2012) (holding that a video was authenticated where
two witnesses to a particular event testified that the video was a fair
and accurate depiction of the relevant event)).
Here, Coventry insists that Plaintiff is the inmate depicted in the
video; Plaintiff insists that is a false statement. None of the other
participants in the video have provided statements attesting to the
accuracy of the video, and Coventry was not present during the event.
Furthermore, Coventry provided no information regarding how the video was
created or how the videorecording system was maintained, stating only
that the “video was pulled off of the Five Points Loronics system and is
the video which was provided to the Office of the Attorney General during
the course of this litigation.” Docket No. 136 ¶ 7; contrast with
Fuentes, 563 F.2d at 532 (authenticity and accuracy of surveillance tapes
-6-
established by prosecution’s “competent and uncontroverted proof that the
recording
devices
were
capable
of
recording
the
appellants’
conversations, that the agents carefully placed the devices on the
informant or in his vehicle, that the agents were able to observe most,
if
not
all,
of
the
incriminating
conversations
and
identify
each
participant, and that the agents immediately removed and sealed the tapes
after each meeting”). And, as Magistrate Judge Scott noted, why there is
a discrepancy regarding the time-stamp on the video has never been
explained. Moreover, even if Plaintiff admitted it was he depicted in the
video, that would not necessarily be sufficient. See Boykin, 2016 WL
8710481, at *5 (finding that the defendant had not properly authenticated
video of the plaintiff; even though the plaintiff “has admitted that she
is the individual in the videos, this alone does not confirm the
genuineness or authenticity of what, according to [d]efendant, ‘was truly
and accurately before the camera’”). The Court agrees with Magistrate
Judge Scott Defendants here clearly have not fulfilled this standard.
Moreover, even assuming for the sake of argument that Defendants’
submissions are sufficient to allow admission of the video into evidence,
it is a far leap to the conclusion that the video obviates all genuine
issues of material fact regarding Plaintiff’s claim against Roshia.
See
United States v. Pinke, 614 F. App’x 651, 653 (4th Cir. 2015) (summary
order) (noting that “[t]he district court is merely obligated to assess
whether the proponent [of evidence] has offered a proper foundation from
which ‘the jury could reasonably find that the evidence is authentic[,]’”
while “‘[t]he factual determination of whether evidence is that which the
proponent claims is ultimately reserved for the jury’”) (quoting United
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States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009); emphasis supplied).
Thus, even if the video depicted the incident, it remains a question of
fact as to whether the pat-frisk was just a pat-frisk as Defendants
claim, or a forcible sexual touching by Roshia accompanied by racial
slurs, as Plaintiff claims.2
CONCLUSION
For the reasons discussed above, after reviewing the parties’
submissions, the Court finds no error in Magistrate Judge Scott’s R&R.
Accordingly, the Court adopts the R&R (Docket No. 141) in its entirety.
SO ORDERED.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
January 23, 2019
Rochester, New York.
2
The Court notes that Plaintiff’s deposition testimony
incident—that he did not respond to Roshia’s comments or move
incident—is consistent with Magistrate Judge Scott’s observation
visible distress or reaction of any kind is seen from the inmate
frisk.” R&R at 19.
-8-
about the
during the
that “[n]o
during the
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