The opinion of the court was delivered by: Chin, District Judge.
In this prisoner's civil rights case, the jury returned a
verdict on September 28, 2000 finding that plaintiff Milton
Ruffin had not proven that defendant Van Fuller, a New York State
corrections officer, had subjected him to excessive force in
violation of his constitutional rights by kicking him in the
mouth. For the reasons that follow, I am ordering a new trial
sua sponte pursuant to Fed.R.Civ.P. 59(d).
During October 1998, Ruffin was incarcerated in the special
housing unit, or SHU, at the Sullivan Correctional Facility. (Tr.
pp. 19-20).*fn1 On October 19, 1998, at approximately 7:42 p.m.,
Fuller, Sergeant Ramirez, and Corrections Officer Jordan came to
Ruffin's cell to lead him to take his daily shower. Ruffin was
dressed in boxer shorts, a t-shirt, and slippers. (Tr. p. 25).
Consistent with SHU procedure, Fuller handcuffed Ruffin and, with
the assistance of Jordan, applied a "waist chain" to Ruffin's
waist before leading him to the shower. (Tr. pp. 25, 210-12).
Ruffin testified that as he was backing out of his cell, Fuller
called him "a bitch," and, when he turned to respond to the
comment, a struggle ensued. (Tr. p. 25). Specifically, Ruffin
testified that his lower back "hit the wall"; afterward, Ruffin
got down on his knees and voluntarily laid on the floor as
instructed by the officers. (Tr. pp. 26, 54-55, 65). While he lay
on the floor in restraints, Ruffin testified, Jordan and Ramirez
held him down, and Fuller kicked him in the face approximately
three or four times. (Tr. pp. 26-27, 51-52).
Two of the kicks landed directly in Ruffin's mouth breaking his
teeth and filling his mouth with blood. (Tr. pp. 27-28). Although
Ruffin could not see which officer was holding his legs and which
officer was holding the upper part of his body, he was certain
that Fuller was the officer who kicked him. (Tr. p. 27). Another
inmate, Michael Howell, also testified that he saw Fuller kick
Ruffin in the mouth. (Tr. pp. 128-31, 140-41).*fn2
Ruffin was treated at the prison infirmary with peroxide;
approximately two or three days later he saw a dentist, who
removed his shattered teeth. (Tr. pp. 36-40, 311). Despite his
requests for "plates," at the time of the trial — almost two
years after the incident — Ruffin's teeth still had not been
repaired. (Tr. pp. 41, 61).
Fuller, Jordan, and Ramirez also testified regarding the
incident. All three testified that the altercation began when
Ruffin — purportedly unprovoked — turned towards the officers as
he was going to the shower and kicked in the direction of
Ramirez. (Tr. pp. 181, 198-99, 212-16, 280). Ramirez testified
that Ruffin's kick landed on his left thigh. (Tr. p. 181, see
Tr. p. 280). The officers then "took Ruffin down" to the ground
at which point Ruffin "became out of control . . . kicking his
feet, swinging his elbows, trying to get away." (Tr. p. 181;
see Tr. p. 184, 217, 281). The officers all denied that Ruffin
was kicked by Fuller, or anyone else. (Tr. p. 188-91, 204, 260,
283-84). Neither Ramirez nor Fuller disputed that Ruffin's teeth
were injured in the incident; they could not recall, however, how
the injury happened. (Tr. pp. 201, 261, 273). Ramirez speculated
that Ruffin lost his teeth at some point when he hit the floor.
(Tr. p. 201). Although Fuller professed not to know how Ruffin
injured his teeth, when confronted with his deposition testimony,
he admitted that in his opinion Ruffin somehow injured his teeth
on his bed. (Tr. pp. 261-63). Jordan was not asked about Ruffin's
Sullivan surveillance video cameras recorded the incident.
Although the video tapes show certain parts of the incident,*fn3
in some respects they are inconclusive as they do not show the
entire incident. As discussed below, however, they do contradict
certain aspects of the testimony of the corrections officers.
Corrections Officer James Schmidt, the custodian of the
"disciplinary" surveillance videotapes at Sullivan, testified
that in accordance with Sullivan practice when an incident
occurs, he "secured" the tape that contained footage of the
altercation and "decoded" it so that it could be viewed in a
"regular" videocassette recorder. (Tr. pp. 292-94). As part of
this procedure, Schmidt edited the tape using his "judgment"
about what portions of the tape the correctional facility would
need in the event of a disciplinary hearing regarding the
incident. (Tr. pp. 292, 296, 298-300). In accordance with
Sullivan policy in 1998, the original tape of the incident,
containing the unedited footage, was reused after thirty days.
(Tr. p. 301). Thus, whatever Schmidt unilaterally chose not to
include on the "decoded" tape was forever lost. (Tr. pp. 300-01).