United States District Court, W.D. New York
JESSIE J. BARNES, 09-B-2707, Plaintiff,
JOHN ALVES, et al.,  Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, District Judge.
Plaintiff Jessie J. Barnes ("Plaintiff") is an inmate currently housed at the Upstate Correctional Facility in Malone, New York. Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendant employees of Southport Correctional Facility (collectively "Defendants") violated Plaintiff's civil rights through the unlawful use of excess force in 2001 and 2002, while Plaintiff was housed at the Southport facility. (Dkt. 248). The case has been pending since November 26, 2001. (Dkt. 1). The case is scheduled for a bench trial to start on July 28, 2014. (Dkt. 386).
Before the Court are various motions filed by Plaintiff in anticipation of the upcoming bench trial. (Dkt. 327, 389, 395, 402, 404, 405, 406, 408, 412, and 419). The motions are opposed by Defendants in declarations dated January 6, 2014, March 25, 2014, April 9, 2014, and April 29, 2014. (Dkt. 374, 391, 400, and 414). The various motions are addressed in turn below.
I. Motion in Limine and Motion for Sanctions Regarding B-Block Surveillance Tapes (Dkt. 327 & Dkt. 395)
A. Motion in Limine (Dkt. 327)
On April 30, 2010, Plaintiff submitted a letter to the Honorable Jonathan W. Feldman, United States Magistrate Judge, which this Court construes as a motion in limine. (Dkt. 327). Plaintiff stated that "the Defendants and their counsel Mr. Levine have not admitted or denied the facts asserted with regard to destruction of B-Block videotape evidence in connection with the Sept. 4, 2002 and Oct. 22, 2002 use of force incidents." ( Id. ). Plaintiff requests that the Court sanction the Defendants or preclude Defendants from offering evidence or testimony with regard to "above incidences." ( Id. ).
In a Decision and Order dated January 6, 2014, the Honorable Charles J. Siragusa, United States District Judge, directed Defendants to respond to Plaintiff's motion in limine by January 24, 2014. (Dkt. 372). Defendants' counsel, Assistant Attorney General Gary Levine, responded to the motion through his January 16, 2014 declaration. (Dkt. 374). In this declaration, Defendants deny destroying any videos, and Mr. Levine indicates that he is in possession of the videos relating to the incidents. ( Id. at 1). According to Mr. Levine, Plaintiff was provided with copies of the videos and also viewed the videos at his deposition. ( Id. at 2). Mr. Levine states that "it is anticipated that the testimony at trial will support that the video is a true and accurate representation of the incident." ( Id. at 3).
As a result of the foregoing, and based upon the underlying factual dispute concerning the alleged destruction of videos, the Court reserves decision on the motion until the time of trial.
B. Motion for Sanctions (Dkt. 395)
By motion dated March 28, 2014, Plaintiff seeks sanctions against Defendants for the "spoliation of evidence." (Dkt. 395 at 1). Specifically, Plaintiff claims that Defendants engaged in the "deliberate and wilful destruction of B-Block surveillance videotape recordings... related to the September 4, 2002 and October 22, 2002 incidents...." ( Id. ). Plaintiff claims that he is a "prejudiced party" as a result of the alleged destruction of the original B-Block videotape footage. ( Id. at 10). Plaintiff notes that he contested the validity of the tape during his deposition testimony, and that he submitted letters to various individuals, including Defendants, to the same effect. ( Id. at 18-19). Plaintiff seeks that the Court "draw an adverse inference for spoliation of evidence because the plaintiff is prejudiced party' as result of defendant use of altered April 18, 2002 stage videotape to dupe court into reliance of as evidence...." ( Id. at 20).
In response, Mr. Levine submitted an April 9, 2014 declaration indicating that Judge Siragusa addressed Plaintiff's concerns regarding the surveillance videotape, and stated in a January 3, 2014 letter that he would render a decision on the "preclusion of evidence and sanctions." (Dkt. 400 at 2, 76). Defendants ask the Court to reserve decision on the preclusion of the videotape as well as on sanctions for the bench trial. (Dkt. 400 at 2). Defendants argue that the evidence at trial will show that the April 18, 2002 videotape was not altered, and that there were no surveillance videos of the September 4, 2002 and October 22, 2002 incidents. ( Id. ). Defendants further argue that Plaintiff will be unable to meet his burden of proof to demonstrate spoliation, as he will not be able to show that Defendants (not DOCCS) had an obligation to preserve the evidence and that Defendants destroyed the evidence with a "culpable state of mind." ( Id. at 2-3) (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
Based on the foregoing, the Court reserves decision on the preclusion of the videotape and on sanctions until the time of trial.
II. Motion for Miscellaneous Relief (Dkt. 389)
On March 19, 2014, Plaintiff submitted a letter request to the undersigned which the Court construes as a motion for miscellaneous relief. (Dkt. 389). In this motion, Plaintiff requests the discovery of two television programs, Nightline News and The View, in which Plaintiff claims Defendants Bennett appeared. ( Id. at 1). Plaintiff argues that the Attorney General's office has retained a copy of each of these programs. ( Id. ).
On March 25, 2014, Mr. Levine submitted a declaration to the Court rejecting Plaintiff's claims. (Dkt. 391). Mr. Levine noted that Judge Feldman previously addressed Plaintiff's requests for the television clips, and rejected the request. ( Id. at 1). A letter from Plaintiff to Judge Feldman requesting the clip from The View television show is attached to Mr. Levine's declaration. ( Id. at 5).
Indeed, the Court has addressed Plaintiff's requests for copies of the television show clips on multiple occasions. Most recently, the undersigned instructed Plaintiff at a March 10, 2014 videoconference to contact ABC News to determine if the tapes are available, or to have a friend or family member search the internet for the video clips. (Dkt. 384). Despite these instructions, Plaintiff continues to demand that copies be produced by the Defendants or by defense counsel, who maintain that they do not possess copies of the tapes. (Dkt. 391 at 1). As a result, Plaintiff's request for the production of the videos is denied.
In his motion for miscellaneous relief, Plaintiff also contends that Mr. Levine never provided Plaintiff with requested hearing tapes or color photos and instead returned the check that Plaintiff sent to pay for the copies. (Dkt. 389). Plaintiff claims the returned check was ultimately confiscated for restitution. ( Id. ).
In response, Mr. Levine notes that he consulted Judge Feldman concerning the check, and decided to return the check to Plaintiff. (Dkt. 391 at 1, 6). Further, Mr. Levine contends that he has provided Plaintiff with "thousands of pages of documents provided to plaintiff over the past decade" and attaches two color photographs of boxes of documents. ( Id. at 1, 3-4). The Court notes that these images are insufficient to demonstrate that Defendants have indeed submitted discovery materials to Plaintiff, as the pictures do not show the contents of the boxes.
In any event, it does not appear that Plaintiff is seeking any affirmative relief from this portion of his motion, but rather is complaining to the Court about his dissatisfaction with the way that discovery was conducted in his case. Accordingly, Plaintiff's motion for miscellaneous relief is denied.
III. Letter Request for a Jury Trial (Dkt. 402)
On March 27, 2014, Plaintiff submitted a letter to the Court requesting a jury trial. (Dkt. 402). In this letter, Plaintiff claims that Judge Siragusa "resigned" from the case because "he could no longer disadvantage [Plaintiff] in favor of attorney general." ( Id. ). Plaintiff argues that the undersigned cannot preside over the case because she has "continued same prejudice mularky, refusen to appoint counsel for a 13 years under same repetitive garbage." ( Id. ). Plaintiff submits that he is entitled to a jury trial because Judge Siragusa "resigned" and because "Judge Wolford is new." ( Id. ).
"It is well established that the right to a jury trial is a fundamental right and that purported waivers are to be scrutinized with the utmost care.'" S.E.C. v. Masri, 551 F.Supp.2d 320, 321 (S.D.N.Y. 2008) (quoting Heyman v. Kline, 456 F.2d 123, 129 (2d Cir. 1972)). Fed.R.Civ.P. 38 acknowledges the Seventh Amendment and statutory right to a jury trial. This demand must be timely made. Fed.R.Civ.P. 38. Failure to make a demand constitutes a waiver of a jury trial. Id. Pursuant to Fed.R.Civ.P. 39(a)(1), the parties may also stipulate to a bench trial. Even where a party fails to make a proper jury demand, the court may use its discretion to overcome the waiver and order a jury trial. Fed.R. Civ. P. 39(b).
A waiver of a jury trial does not have to be formal and may be inferred by the conduct of the parties or counsel. See Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018 (2d Cir.1989). For example, acquiescing to a bench trial without objection constitutes the waiver of the right to a jury and will not be reversed. See Kahn v. General Motors Corp., 865 F.Supp. 210, 212 (S.D.N.Y. 1994); see also Power v. Tyco Int'l, Inc., No. 02 Civ. 6444(GEL), 2006 WL 1628588, at *2 (S.D.N.Y. June 13, 2006) (denying plaintiff's demand for a jury trial following plaintiff's waiver of a jury trial due to plaintiff's mere inadvertence in failing to initially timely request a jury trial). Moreover, a pro se plaintiff's failure to timely inform the defendants of a jury trial demand constitutes an irreversible waiver of a jury trial. See Favors v. Coughlin, 877 F.2d 219, 220-21 (2d Cir.1989). " [P]ro se litigants are not treated differently with regard to waiver of a jury trial." Kahn, 865 F.Supp. at 213.
Here, Plaintiff properly demanded a jury trial in his complaint, and then later requested orally in a video conference that his jury trial be adjourned and rescheduled as a bench trial. (Dkt. 356). On August 22, 2012, the Defendants agreed to a bench trial in writing in a letter to the Court. In a July 4, 2013 letter to the Court, Plaintiff states that he needs a jury trial because "I am convinced now that you are not only' bias against me but prejudice and I feel I will be doomed to volunteer my own demise." Judge Siragusa responded in a July 12, 2013 letter, informing Plaintiff that the Court would schedule a jury trial because Plaintiff is entitled to a jury trial and did not waive a jury trial in writing. Shortly thereafter, Plaintiff stated in his July 22, 2013 letter to the Court that he would waive a jury trial and submit to a bench trial. (Dkt. 357). He attached the formal written waiver of a jury trial. ( Id. ).
The history of the case shows that Plaintiff willingly and knowingly signed a formal waiver ...