Hill v. Griffin et al

Filing 125

DECISION AND ORDER denying 113 Motion in Limine for An Adverse Inference Instruction. Signed by Hon. Elizabeth A. Wolford on 10/17/2018. (CDH)

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UNITED STATES DISTRICT COURT

OCT 1 7 2018

WESTERN DISTRICT OF NEW YORK

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MICHAEL HILL,
DECISION AND ORDER

Plaintiff,
V.

6:I0-CV-06419EAW

PATRICK GRIFFIN, eta/..
Defendants.

BACKGROUND

On October 5, 2018, Plaintiff filed a motion in limine seeking an adverse inference

instruction. (Dkt. 113). Plaintiff contends that Defendants destroyed statistical evidence
relevant to his claim that he was denied equal protection of the laws.

Specifically, in May 2017, Plaintiffs counsel requested the following documents
from Defendants' counsel: (1) "[a]ll Orders that inmates be placed behind a 'plexiglass

shield,' in temporary solitary confinement, or be placed on a restricted diet issued for
White/Caucasian inmates residing in the Southport Facility's 'A-Bloek' from January I,
2010-December 31, 2010;" and (2) "[a]ll 'mail watch' orders issued for White/Caucasian

inmates residing in the Southport Facility's 'A-Block' from January 1, 2010-Deeember
31, 2011." (Dkt. 113 at 3-4). By letter dated June 23, 2017, Defendants' counsel stated
that any such documents had been destroyed pursuant to the Department of Corrections
and Community Supervision's ("DOCCS") policy of destroying documents five years after
their creation. {Id. at 4).
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At the Court's request, Defendants' counsel filed an affidavit on October 11, 2018

(Dkt. 117), further elaborating on DOCCS' document retention practices.

Counsel

explained that plexiglass shield and restricted diet orders would have been retained in the
Deputy Superintendent of Security's office facility file and that mail watch orders would
have been retained in the Superintendent's office facility file. {Id. at

4-5). Counsel

further confirmed that these records, which are retained in the form of paper documents

only, would have been maintained for a period of five years and then destroyed. {Id. at
113).
DISCUSSION
I.

Legal Standard

"[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 ofmind; 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). "In general, the adverse inference instruction is an extreme sanction and
should not be imposed lightly." Treppel v. Biovail Corp., 249 F.R.D. Ill, 120(S.D.N.Y.
2008).
II.

Duty to Preserve

Here, the Court finds that Plaintiff has not established his entitlement to an adverse
inference instruction. As an initial matter, the Court finds Plaintiff has not shown that
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Defendants had a duty to preserve the documents he ultimately sought in May 2017. "[T]he
obligation to preserve evidence arises when the party has notice that the evidence is
relevant to litigation or when a party should have known that the evidence may be relevant
to future litigation." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423,436(2d Cir. 2001).

"[A] litigant is under no duty to keep or retain every document in its possession ...[but]
is under a duty to preserve what it knows, or reasonably should know, is relevant in the
action, is reasonably calculated to lead to the discovery of admissible evidence, is
reasonably likely to be requested during discovery and/or is the subject of a pending
discovery request." Zubulake v. UBS Warburg LLC,220 F.R.D.212,217(S.D.N.Y.2003).
In order to assess Defendants' preservation obligation in this case, it is necessary to

briefly summarize the procedural history. This matter is a consolidation of two matters

filed by Plaintiffin 2010 and 2011: Civil Case No. lO-cv-6419(the "2010 Case")and Civil
Case No. 1 l-cv-6101 (the "2011 Case"). Plaintiffs equal protection claim is set forth in

the Amended Complaint in the 2011 Case (the "Amended Complaint")(Dkt. 19 in Civil
Matter No. 1 l-cv-6101), which was consolidated into the instant matter (the 2010 Case)
on November 13, 2015. (See Dkt. 52).

In the Amended Complaint,Plaintiff alleges in connection with his equal protection
claim that then-defendant Belena Krusen (against whom Plaintiff has dismissed his claims

(see Dkt. 116)) charged him "an inflated price for postage," Defendant Angela Bartlett

required him to turn over a religious legal study guide, and various Defendants allegedly
misdirected and tampered with his mail. (Dkt. 19 in Civil Matter No. 1 l-cv-6101 at

28,

30, 36-41). Plaintiff also more generally alleges that he "suffered denial of showers &
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recreation, exercise by being placed on TB hold due to racial discrimination and religious
harassment"{id. at ^62)but the Amended Complaint makes no mention ofPlaintiff having

been put behind a plexiglass shield, placed in temporary solitary confinement, or given a
restricted diet. Moreover, despite discussing in detail the various misdeeds he alleges

Defendants took with respect to his mail {see id. at

36-41), Plaintiff fails to allege that

he was placed on a mail watch. Therefore, the Court finds that the allegations of the

Amended Complaint did not put Defendants on notice that the specific documents Plaintiff

sought in May 2017 needed to be preserved.'
The Court further finds it would be unreasonable to expect DOCCS to have

concluded from the mere assertion of an equal protection claim by Plaintiff that it was

required to suspend its normal document retention policy as to all documents related to
prisoners housed in the vicinity of Plaintiff during the relevant time period. A finding to
the contrary would require DOCCS, which is continuously the subject of broadly pled
lawsuits and grievances, to retain an unmanageable amount of documents. See Zubulake,
220 F.R.D. at 217 (noting that the imposition of an overly broad preservation duty would
"cripple [entities].. . that are almost always involved in litigation").

'

Plaintiffs Second Amended Complaint in the 2010 Case (the "Second Amended

Complaint") does state that he was placed on a restricted diet and behind a glass shield.
(Dkt. 25 at

29, 58-59). However, the Second Amended Complaint does not assert an

equal protection claim. Instead, the Second Amended Complaint alleges that the restricted
diet and glass shield were instituted as retaliation for Plaintiffs prior litigation. {Id. at
29). Accordingly, the Second Amended Complaint also did not place Defendants on
notice that restricted diet, plexiglass shield, or mail watch orders related to inmates other
than Plaintiff were relevant to his claims and needed to be preserved.
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The Court is not persuaded by Plaintiffs argument that a duty to preserve the
allegedly destroyed documents was imposed by Magistrate Judge Feldman's February 13,
2015 Case Management Order. (Dkt. 42 in Civil Matter No. lO-cv-6419). That Order

required Defendants to provide to Plaintiff"any documents prepared by any employee of
the State of New York ... in connection with the events from which the plaintiffs claims

arose." (Jd. at 3).^ Given the operative pleading at the time Judge Feldman entered this
Order {i.e., the Second Amended Complaint in the 2010 Case), the Court does not read the
Order as relating to documents prepared with respect to inmates other than Plaintiff, nor

does the Court find that such a reading is reasonable. This Order was entered in the 2010

Case prior to consolidation and at a time when no equal protection claim had been asserted
in that matter. For the reasons previously discussed, the broad reading ofthis Order urged
by Plaintiff would be unduly burdensome to DOCCS.

At oral argument on the instant motion. Plaintiffs counsel brought to the Court's
attention a document request served by Plaintiff on Defendants in the 2010 Case on
December 22, 2014, while Plaintiff was proceeding pro se. (Dkt. 36). Therein, Plaintiff

requested "all deprivation orders, restrictions orders, restrictive diet orders, shield orders

and the daily review and recommendations made upon each of them." {Id. at ^ 7). The
Court does not find that this request encompasses the documents at issue with respect to
the instant motion. This document request predates the consolidation ofthe 2010 Case and

^

At the oral argument on this motion. Plaintiffs counsel made reference to a case

management order located at Docket 25 in the 2011 Case. However,that case management
order, which was entered on October 9, 2012, does not contain the language that Plaintiff
relies on in connection with the instant motion.
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the 2011 Case and was issued at a time when no equal protection claim was pending in the
2010 Case. The Court therefore finds that a reasonable reading ofthis request is for orders
related to Plaintiff, not those related to some other group of allegedly similarly situated
individuals, undefined in the request itself.

Defendants' counsel confirmed at oral

argument that Plaintiff was indeed provided copies of all restrictive diet, shield, and mail
watch orders related to him.
III.

Relevancy of Destroyed Documents

The Court also finds that Plaintiff has not satisfied his burden of demonstrating that

the destroyed documents would have been relevant to his claims. "[A] party seeking

sanctions for spoliation must demonstrate that the evidence destroyed was 'relevant' to its
claims or defenses. . . . [W]here more severe sanctions are at issue, this means that the

moving party must show that the lost information would have been favorable to it." Scalera
V. Electrograph Sys., Inc., 262 F.R.D. 162, 178 (E.D.N.Y. 2009). "Although the burden

placed on the moving party to show that the lost evidence would have been favorable to it
ought not be too onerous, when the culpable party was negligent, there must be extrinsic
evidence to demonstrate that the destroyed evidence was relevant and would have been

unfavorable to the destroying party." Adorno v. PortAuth. ofN.Y. & N.J., 258 F.R.D. 217,
229(S.D.N.Y. 2009)(citations omitted). Where it appears, on the record before the Court,
that the destroyed evidence "may have supported Plaintiffs claims," but "it is equally

likely that the [destroyed evidence] would not have supported Plaintiffs claims," an
adverse inference instruction is not appropriate. Stern v. Shammas,No. 12-CV-5210,2015
WL 4530473, at * 14(E.D.N.Y. July 27, 2015).
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Here, the Court notes that it is not even clear that any of the documents sought by
Plaintiff ever existed. Plaintiff has pointed to no evidence supporting such a conclusion,

such as testimony that Caucasian prisoners were in fact placed behind a plexiglass shield,
in temporary solitary confinement, or on a restricted diet, or were subjected to a mail watch.
Under these circumstances, an adverse inference instruction is not warranted. See Adorno,

258 F.R.D. at 229(denying request for adverse inference instruction where it was not clear
the unproduced documents actually existed at any point).
Moreover, it is not clear on the record before the Court that the destroyed

documents—assuming they did exist at some point—^would have supported Plaintiffs

claims. To the contrary, it seems equally likely to the Court that the absence of such

records supports Plaintiffs claims, inasmuch as such absence is consistent with the
conclusion that, unlike Plaintiff, Caucasian inmates were not placed behind a plexiglass

shield, in temporary solitary confinement, or on a restricted diet, and were not subjected to
a mail watch.

In support of his request for an adverse inference instruction. Plaintiff notes that he
will testify at trial about racist and anti-Semitic behavior by certain employees of the
Southport Correctional Facility. If Plaintiffs allegations are true, this behavior is
abhorrent. However, the Court finds Plaintiffs argument purely speculative that because

some Southport employees were racist and anti-Semitic, it is reasonable to assume that
documents which may or may not have existed would have shown disparate treatment with

respect to the specific claims made by Plaintiff. Plaintiff has proffered no evidence that
the allegedly racist and anti-Semitic individuals in question had the authority to unilaterally
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impose discipline ofthe kind he complains. Under these circumstances, Plaintiff has failed
to satisfy his burden of demonstrating relevance.

For the foregoing reasons, the Court denies Plaintiffs request for an adverse
inference instruction. However, the Court notes that its decision does not preclude

Plaintiff, should he choose to elicit testimony regarding the allegedly missing documents,

from arguing to the jury that they should draw an adverse inference. See Klezmer ex rel.

Desyatnik v. Buynak, 221 F.R.D. 43, 52(E.D.N.Y. 2005)(although an adverse inference
instruction from the court was not warranted on the facts of the case, the plaintiff could

nonetheless "argue to the jury that it should draw an adverse inference from the fact ofthe
missing records").
CONCLUSION

For the reasons set forth above. Plaintiffs motion in limine for an adverse inference
instruction (Dkt. 113)is denied.
SO ORDERED.

states District Judge
Dated: October 17, 2018
Rochester, New York

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