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June 15, 1984

LEONARD C. SPANO, Individually and as Administrator of the Estate of MARK ANTHONY SPANO, Deceased, Plaintiff, v EDWARD H. McAVOY, Individually and as Deputy Sheriff of the Onondaga County Sheriff's Department, ONONDAGA COUNTY, ONONDAGA COUNTY SHERIFF'S DEPARTMENT, and "JOHN DOE", said named being ficticious and intended to be the member of the Onondaga County Sheriff's Department who destroyed the Mobile Radio District's tape recording of April 16, 1978, Defendants.

The opinion of the court was delivered by: MCCURN



 This is a civil rights action arising from the death of plaintiff's son following a high-speed chase by defendant Edward McAvoy, an Onondaga County Deputy Sheriff.

 Leonard C. Spano, individually and as Administrator of the Estate of Mark A. Spano, commenced this action in December of 1983, by filing a pro se complaint against twenty defendants, asserting five causes of action. Subsequently, plaintiff retained counsel and filed the instant Amended Complaint naming only four defendants: Onondaga County, Onondaga County Sheriff's Department, Deputy McAvoy, and "John Doe", an unidentified member of the Onondaga County Sheriff's Department. The Amended Complaint delineates two causes of action each of which is asserted pursuant to 42 U.S.C. §§ 1983, 1985(2), 1985(3), and 1986, to redress the alleged deprivation of plaintiff's rights under the 4th, 6th, 8th and 14th amendments.

 Plaintiff, in Count I of the Amended Complaint, alleges that Deputy McAvoy chased plaintiff's son in a manner that caused his son "to lose control of his vehicle, leave the road, strike a tree, and lose his life." Amd. Complaint P24. In Count II of the Amended Complaint, plaintiff alleges that an unidentified member of the Onondaga County Sheriff's Department deliberately destroyed tape recordings of radio communications between Deputy McAvoy and the County Sheriff's Department "Mobile Radio District Control Center", in order to deprive plaintiff of evidence in a state wrongful death action stemming from the incident alleged in Count I. Amd. Complaint P37. It is this deliberate destruction of evidence that plaintiff alleges deprived him of some right, privilege, or immunity secured by the constitution or the laws of the United States. Amd. Complaint P41.

 The defendants moved to dismiss the action on the ground that plaintiff had failed to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). On March 27, 1984, in a ruling from the bench, this court dismissed the amended Complaint except insofar as plaintiff's allegations in Count II purported to state a claim under § 1983 for the alleged deprivation of plaintiff's due process rights. The court reserved judgment on that issue, and directed the parties to submit additional briefs; the parties' briefs have been received.

 As explained herein, defendants' motion to dismiss the § 1983 claim is now granted.


 Assuming the truth of the allegations in the Amended Complaint, as the court must on a motion to dismiss, Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), the facts are as follows. On the evening of April 16, 1978, the decedent Mark A. Spano was proceeding on Route 690 when he was clocked by radar by defendant McAvoy as travelling at 97 miles per hour. After calling for assistance, Deputy McAvoy gave chase in the course of which he shined his searchlight into Spano's vehicle. Spano's vehicle went off the road and collided with a tree; Spano died soon thereafter from injuries sustained in the collision. Plaintiff Leonard C. Spano, father of the deceased, alleges that the immediate cause of the accident was McAvoy's shining the searchlight into the decedent's car, in addition to other actions that caused the decedent to lose control of the vehicle. Plaintiff contends that radio communications to and from McAvoy on April 16, 1978, were monitored and recorded by the Mobile Radio District's Control Center, and that these recordings "could provide independent evidence of the total circumstances surrounding the car pursuit. . . ." Amd. Complaint P31.

 Subsequent to the incident, Leonard Spano commenced a wrongful death action in New York State Supreme Court, Onondaga County, against Deputy McAvoy, Onondaga County, and various other defendants. Plaintiff alleges that throughout the course of that action his attorney sought, through discovery, to uncover the status and/or whereabouts of the tapes, Amd. Complaint P32, and that he secured a court order in that regard. In response to the court order, defendant Onondaga County produced the affidavit of Captain David Stevenson of the Onondaga County Sheriff's Department in which Captain Stevenson states that to the best of his belief the tapes in question were erased within 35 days of the indicent pursuant to a department policy adopted as a result of its need to recycle a limited number of tapes. Amd. Complaint Exh. G. Stevenson also states that no notice to preserve the tape prior to its erasure had been given to him. Id. (Also produced was the affidavit of Dennis G. O'Hara, attorney for the County of Onondaga, which states, in pertinent part, that unless a request is made to preserve a tape it will be erased and reused. Amd. Complaint Exh. H).

 Plaintiff's claim with respect to these tapes is, essentially, that at some point within 35 days of the initial incident an unidentified person in the sheriff's Department deliberately destroyed potentially valuable evidence in order to absolve the County Sheriff's Department of liability thus violating plaintiff's civil rights. Amd. Complaint PP36, 37, 41.

 At the outset it should be noted that plaintiff is apparently not challenging the department's "tape erasure" policy, but rather only the action of an unknown person in the County Sheriff's Department. See Amd. Complaint P37. The issue before the court, therefore, is whether, for the purposes of a § 1983 action, plaintiff has either a property or liberty interest in allegedly material tape recording evidence, sought during the course of a still-active state civil lawsuit, owned and in the possession of the Onondaga County sheriff's Department, the erasure of which has allegedly denied plaintiff due process of law.


 Dismissal pursuant to Rule 12(b)(6) is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 . To state a claim under § 1983, plaintiff must adequately allege (1) that conduct was committed by a person acting under color of state law which (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Burtnieks v. City of New York, 716 F.2d 982, 986 (2d Cir. 1983). In this instance, there is a sufficient allegation of conduct under color of state law. The difficulty is in ascertaining whether the allegations state a deprivation of any right, i.e., any property or liberty interest, protected by the 14th amendment. In determining whether the particular interest asserted falls within the 14th ...

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