Marcinkowski v. City of Buffalo et al

Filing 75

DECISION AND ORDER DENYING Plaintiff's 58 Motion for Contempt in its entirety. Signed by William M. Skretny, United States District Judge on 6/12/2019. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GARY C. MARCINKOWSKI,
Plaintiff,
DECISION AND ORDER
14-CV-809S

v.

CITY OF BUFFALO, DANIEL KURDZIEL,
and JOSHUA CRAIG,
Defendants.

In this action, Plaintiff Gary C. Marcinkowski asserts a number of claims arising
from an encounter he had at Mercy Hospital of Buffalo with Defendants Daniel Kurdziel
and Joshua Craig, two Buffalo police officers.

Presently before this Court is

Marcinkowski’s motion to hold Mercy Hospital in civil contempt for its alleged failure to
comply with a state court order and two federal subpoenas requiring the production of
certain surveillance video recordings from the time Marcinkowski was at Mercy Hospital.
In addition to a contempt order, Marcinkowski seeks attorneys’ fees and costs and an
order compelling Mercy Hospital to produce the video recordings or state why such
production is not possible. For the reasons that follow, Marcinkowski’s motion is denied.
Marcinkowski checked himself into Mercy Hospital at approximately 10:00 p.m. on
September 28, 2013. (Declaration of William A. Lorenz, Jr., Docket No. 58-2, ¶ 4.1) His
encounter with Defendants Kurdziel and Craig occurred the next day at approximately

The responsive declaration of Adam M. Lynch is largely consistent with Lorenz’s declaration and will
therefore not be separately cited. (See Declaration of Adam M. Lynch, Docket No. 62-1.)
1

1

5:30 a.m., after hospital personnel reported that he was threatening staff and having
suicidal thoughts. (Id. ¶¶ 7, 8.)
Approximately one month later, on October 22, 2013, Marcinkowski served Mercy
Hospital with a demand for preservation of all physical evidence gathered during its
investigation of the September 29 incident, including video recordings from any
surveillance cameras. (Id. ¶ 9.) Six months later, on April 28, 2014, Marcinkowski
requested that Mercy Hospital provide him a copy of the video recordings he had
demanded it preserve. (Id. ¶ 10.) Mercy Hospital did not respond. (Id. ¶ 11.)
Having received no response, Marcinkowski filed a petition in New York Supreme
Court on August 14, 2014, for an order compelling pre-action disclosure by Mercy
Hospital of the video recordings. (Id. ¶ 12.) Marcinkowski did not, however, serve this
petition on Mercy Hospital, which subsequently failed to appear.2 (Id. ¶ 17.) The state
court granted Marcinkowski’s petition on February 2, 2015. (Id. ¶ 16.)
After the state court granted the petition, newly-retained counsel for Mercy Hospital
and counsel for Marcinkowski exchanged correspondence seeking to clarify the state
court’s order.

(Id. ¶¶ 17-21.)

This culminated in Marcinkowski again demanding

production of the video recordings in a letter dated April 14, 2015. (Id. ¶ 22.) Having
received no response, Marcinkowski served a federal subpoena on Mercy Hospital 30
days later, on May 14, 2015, again requesting the video recordings. (Id. ¶ 23.) Four days
later, Mercy Hospital, through counsel, produced a compact disc that it represented was

2

In the meantime, Marcinkowski commenced the instant action in federal court on September 26, 2014.
(Docket No. 1.)

2

a “full and complete copy of the video footage from September 28-29, 2013 relative to
Gary Marcinkowski.” (Id. ¶ 24 and Exhibit L.)
The compact disc, however, proved unresponsive to Marcinkowski’s demand
because it did not contain any footage of him. (Id. ¶ 25.) Marcinkowski thereafter tried
to demand the correct footage, but mistakenly sent correspondence to Mercy Hospital’s
counsel at her old law firm. (Id. ¶¶ 25-27.) When counsel finally made contact in October
and December 2015, they exchanged the incorrect compact disc for a new compact disc
containing footage of Marcinkowski. (Id. ¶¶ 29-31.) But according to Marcinkowski, the
second compact disc is also unresponsive because it is less than 10 minutes long and
does not depict the entire incident at issue. (Id. ¶ 32.)
On March 1, 2016, Marcinkowski again demanded a full and complete copy of the
video recordings from Mercy Hospital and later served a second federal subpoena. (Id.
¶¶ 35, 38.) Mercy Hospital insisted that it had previously produced everything responsive
to the demand and produced another copy of the second compact disc. (Id. ¶¶ 37, 39,
40.) Marcinkowski nonetheless continues to assert that more video footage must be
available, particularly because the video footage produced begins with Marcinkowski
already in an examination room and does not show him entering it. (Id. ¶¶ 42, 43;
Declaration of Steven M. Cohen (“Cohen Decl.”), Docket No. 63, ¶ 6.)
Having reviewed the parties’ submissions, this Court finds that Marcinkowski’s
motion must be denied for several reasons.
First, Marcinkowski has come forward with no authority demonstrating that this
Court has jurisdiction to enforce the state court order or to find Mercy Hospital in contempt
3

of such an order. Mercy Hospital is not a defendant in this action and this case was not
removed from state court. This is an independent federal action. Consequently, even if
warranted on the merits, no authority has been presented that this Court would have
jurisdiction to enforce the state court order.
Second, as it relates to the federal subpoenas, the record before this Court
demonstrates that Mercy Hospital complied with the subpoena requests. After learning
that it first produced a non-responsive compact disc (in attempted compliance with the
state court order), which there is no allegation or evidence that it did in bad faith, Mercy
Hospital twice provided to Marcinkowski the video footage he requested.
Michael R. O’Connell, the Ancillary Operations Supervisor at Mercy Hospital, is
responsible for the hospital’s security operations and video surveillance system. (See
Declaration of Michael R. O’Connell (“O’Connell Decl.”), Docket No. 62-2, ¶ 1.) He attests
that he performed a comprehensive review of the hospital’s surveillance system and
located footage of Marcinkowski in Emergency Department Room 13 on September 29,
2013, from 5:19 a.m. to 5:25 a.m. (Id. ¶ 6.) He further attests that this is the only video
footage of Marcinkowski from the relevant period. (Id. ¶ 7.)
Mercy Hospital cannot produce what it does not possess. Marcinkowski has
submitted no evidence that Mercy Hospital is withholding responsive video footage in
violation of the subpoenas. He simply assumes that more video footage must be available
because the video footage begins with him in Room 13 (not entering the room). (See
Declaration of Steven M. Cohen, Docket No. 63, ¶ 6.) This is insufficient to overcome the
sworn declaration of O’Connell, who has reviewed the relevant video footage and
4

produced that which is responsive to the subpoena. (O’Connell Decl., ¶¶ 6-7.) Without
more, Marcinkowski’s bare disbelief of O’Connell’s representation is not cause for
contempt.
Accordingly, for the reasons stated above, this Court finds that Marcinkowski’s
motion should be denied. The parties will bear their own attorneys’ fees and costs.

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Contempt (Docket No. 58) is
DENIED in its entirety.
SO ORDERED.

Dated: June 12, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

5