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December 28, 2000


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).


A. Facts

1. The Incident

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 injury.

2. Videotape Evidence

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).

Ruffin presented testimony from a forensic video image analyst, Dr. Thomas Edwards. Edwards testified that the videotape of the incident was a copy that had been "highly edited" and was "missing sequences of images." (Tr. pp. 75, 82-83, 116). Indeed, Edwards testified that ...

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