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Barnes v. Alves

United States District Court, W.D. New York

November 10, 2014

JESSIE J. BARNES, 09-B-2707, Plaintiff,
JOHN ALVES, et al.,[1] Defendants

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[Copyrighted Material Omitted]

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Jessie J. Barnes, Plaintiff, Pro se, Malone, NY.

For Donald McIntosh, B. Potter, Angelo Mastrantonio, Gregory Hungerford, James Marshall, Randy Banks, Courtney Bennett, T. Berg, Carey Bubcaz, Thomas Dinninny, Franklin . Raub, Paul Weed, D. Davis, Peter Mastrantonio, Jr., T. Murley, M. Vandegrift, H. Wetzel, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Jessie J. Barnes (" Plaintiff" ), proceeding pro se, commenced this action on November 26, 2001, alleging various causes of action against numerous defendants arising from alleged assaults, the conduct of Tier III disciplinary hearings, failure to provide adequate medical care, and conditions of confinement. (Dkt. 1). At the time of the alleged incidents, Plaintiff was an inmate in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ) and was housed at the Southport Correctional Facility. ( Id. at ¶ 5). During the relevant time period, Peter Mastrantonio, Jr. (" Mastrantonio, Jr." ), Angelo Mastrantonio (" A. Mastrantonio" ), Gregory Hungerford, James Marshall, Ronald Potter, Randy Banks, Paul Weed, Courtney Bennett, Thomas Berg, Daniel Davis, Mark Vandegrift, Carey Bubacz, Donald McIntosh, Thomas Dininny, Timothy Murley, Franklin Raub, and Harold Wetzel (collectively " Defendants" ) were employees of DOCCS, assigned to the Southport Correctional Facility. (Dkt. 1 at ¶ 6). Plaintiff seeks monetary damages pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments. ( Id.).

On April 22, 2002, Plaintiff filed a motion to amend his complaint, stating new causes of action in addition to his prior claims. (Dkt. 10). The Court granted the motion to amend, with some limitations. (Dkt. 15).

On October 21, 2002, Plaintiff filed a motion for leave to file a supplemental complaint, including new causes of action. (Dkt. 18). The Court granted the motion in a March 14, 2003 order that also dismissed some of Plaintiff's causes of action. (Dkt. 27).

On December 17, 2003, Plaintiff filed a complaint with this Court that was filed under Case No. 03-CV-6637 CJS, alleging assault by Defendant Peter Mastrantonio, Jr. on October 22, 2002. (Dkt. 1 at ¶ 16).

On August 3, 2006, this Court assigned Plaintiff counsel for the purpose of " mak[ing] an assessment of the relative strengths and merits of the claims, and recommend[ing] strategies for strengthening Mr. Barnes's action by eliminating the claims that are unlikely to be fruitful." (Dkt. 209). Through his appointed counsel, Plaintiff issued a second amended complaint on December 10, 2007. (Dkt. 248). This new complaint consolidated case number 03-CV-6637 into the present case, under case number 01-CV-6559, and narrowed Plaintiff's claims before the Court. ( Id. at ¶ 18).

Plaintiff's claims have been narrowed to four instances of alleged excessive use of force against 17 named Defendants and a retaliation claim against a single Defendant.

Plaintiff formally waived his right to a jury trial and the case was tried before the Court over the course of five days, commencing July 28, 2014. Plaintiff appeared pro se after numerous applications for appointment of counsel were denied due to documented threats by Plaintiff toward prior appointed counsel.

At trial, Plaintiff testified, as did 16 of the 17 named Defendant officers and five additional witnesses. The Court received numerous exhibits, including photographs, reports relating to the incidents, and pertinent portions of Plaintiff's medical records. Additionally, the Court viewed videotape evidence relating to the April 18, 2002,

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September 4, 2002, and October 22, 2002 incidents.[2]

After considering all of the evidence, the Court finds that Plaintiff has failed to carry his burden, by a preponderance of the evidence, that Defendants separately or together violated his constitutional rights by using excessive force. It is evident that some force was used on Plaintiff, but the Court finds that Plaintiff has failed to meet his burden to show by a preponderance of the evidence that the officers acted maliciously or sadistically for the purpose of causing Plaintiff harm or injury in exercising the use of force. Similarly, Plaintiff has failed to meet his burden to establish that Defendant Mastrantonio, Jr. engaged in retaliatory conduct in violation of Plaintiff's constitutional rights. This Decision and Order constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).


Plaintiff's April 30, 2010 motion in limine seeks the preclusion of evidence or testimony by Defendants concerning the September 4, 2002, October 22, 2002, and April 18, 2002 incidents. (Dkt. 327). Plaintiff claimed that the videotape evidence for the September 4, 2002 and October 22, 2002 incidents was improperly destroyed. Plaintiff also contended that the April 18, 2002 videotape was altered. ( Id.).

In his March 28, 2014 motion for sanctions, Plaintiff reasserted that the September 4, 2002 and October 22, 2002 tapes were improperly destroyed, and that the April 18, 2002 tape was altered. (Dkt. 395). In connection with these allegations, Plaintiff requested that the Court " draw an adverse inference" against Defendants due to the alleged spoliation of evidence.

" The Second Circuit defines spoliation as 'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" Taylor v. City of New York, 293 F.R.D. 601, 609 (S.D.N.Y. 2013) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). " A party seeking sanctions for spoliation of evidence must establish the following three elements: '(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 of mind; and (3) that the destroyed evidence was relevant to the party's claim . . . such that a reasonable trier of fact could find that it would support that claim.'" Id. (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).

A. September 4, 2002 Video

Plaintiff has failed to demonstrate that a videotape of the September 4, 2002 incident ever existed. Defendants testified, and Plaintiff acknowledged, that there are no recordings of the gallery in B-Block, where the incident took place. To the extent that Plaintiff requested tapes of the area outside of the gallery, to capture images of officers entering and leaving the gallery, Plaintiff has not sufficiently demonstrated that these tapes would be relevant to his case, or that Defendants had control over the destruction of the tapes. On September 17, 2002, Plaintiff filed a grievance requesting that video from the September 4, 2002 incident be preserved.

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(Ex. 15). However, Plaintiff has not presented any evidence that the video existed and was destroyed with a culpable state of mind. Plaintiff's motion as to the September 4, 2002 videotape is denied.

B. October 22, 2002 Video

As with the September 4, 2002 incident, the October 22, 2002 altercation took place in B-Block, where no recordings were made. On November 1, 2002, Plaintiff wrote a FOIL request to preserve the video from the October 22, 2002 incident. (Ex. 30). On December 4, 2002, Mr. Anthony Annucci, Deputy Commissioner and Counsel for DOCCS, informed Plaintiff by letter that no video existed for October 22, 2002, and that therefore there was nothing to produce. (Ex. 31). Defendants did produce the video taken in conjunction with the use of force report for this incident. (Ex. 6b). In sum, Plaintiff has not established that Defendants destroyed any tape from October 22, 2002, with a culpable state of mind. Plaintiff's motion as to the October 22, 2002 video is denied.

C. April 18, 2002 Video

Plaintiff claimed that the April 18, 2002 video (Ex. 6a) is a staged reproduction manufactured to conceal the fact that Defendant Potter repeatedly slammed the tray slot door on Plaintiff's forearm. Defendants maintained that the video is a true and accurate depiction of the events as they occurred on April 18, 2002.

The video in question is admittedly of poor quality. The video clearly depicts three correction officers standing with a cart in front of a cell on D-Block. At trial, Plaintiff had Defendants Dininny, Bubacz, and Potter stand for identification. Plaintiff argued that it was clear that these Defendants were not portrayed in the videotape. Specifically, Plaintiff suggested that Defendant Dininny was too thin to be one of the individuals in the videotape. In response, each of these Defendants testified that they were depicted in the video, and that the videotape was a true and accurate representation of what occurred on that day in D-Block.

Based on the Court's own viewing of the tape, and on the testimony provided by Plaintiff and Defendants, the Court admits the April 18, 2002 videotape (Ex. 6b) into evidence as an accurate portrayal of the incident. Plaintiff's motion with respect to this video is denied.

However, included on another videotape in evidence (Ex. 6) is a color portion of the video related to an April 18, 2002 cell extraction that Defendants allege led up to the April 18, 2002 incident. In this segment of the tape, Defendant Potter participated in the extraction of Plaintiff from his cell after Plaintiff refused to come out for a cell search. At trial, Plaintiff objected to the admission of this segment of the tape, arguing that it was irrelevant to his underlying claims and that the cell extraction was separate and apart from his later relevant interaction with Defendant Potter. The Court reserved decision on Plaintiff's objection.

Plaintiff argued that the reason for his reaching out of the hatch and into the cart is that he needed supplies as a result of being extracted from his cell earlier in the day. Accordingly, it is relevant that the cell extraction occurred. However, the details of the cell extraction itself are not particularly relevant. As a result, the Court sustains Plaintiff's objection and will exclude from consideration the video reflected on Exhibit 6 of the cell extraction that took place earlier in the day, prior to the April 18, 2002 incident.


At trial, the Court heard testimony from Plaintiff, sixteen Defendants, and five additional witnesses.

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Resolution of the legal issues in this matter cannot be achieved without first determining the credibility of the parties. Once that determination is made, resolution of the legal claims follows rather easily. It is the credibility finding that is the more challenging inquiry. Having heard and considered the testimony of Plaintiff and Defendants, and having evaluated their demeanor, the Court cannot say that one party's version of the events is credible and the other party's is not. Otherwise, the resolution of this case would be far more straightforward. Instead, the Court is confronted with testimony offered by each party which, in material respects, is unconvincing.

In evaluating Plaintiff's credibility, the Court finds that Plaintiff's testimony is less than fully credible. Aside from Plaintiff's history as a convicted felon,[3] Plaintiff appeared to have intentionally misrepresented facts at trial.

For example, although Plaintiff testified that he never had trouble with correction officers at Southport prior to the April 30, 2001 incident, his inmate disciplinary history that Plaintiff himself admitted into evidence (Ex. 7), states otherwise. For example, on September 24, 2000, Plaintiff had a " lewd conduct" charge, on September 29, 2000, Plaintiff was found guilty of interference and harassment, on December 20, 2000, Plaintiff was found guilty of threats to staff, and on March 31, 2001, Plaintiff was found guilty of demonstration, interference, and harassment. (Ex. 7).

In addition, Plaintiff testified that he had not injured his right ankle before the September 4, 2002 incident. However, the medical records show that Plaintiff had a preexisting bone formation from a prior ankle injury. At trial, Plaintiff was forced to contradict his prior sworn testimony, and he admitted that he had previously broken his right ankle in 1996. These intentional misrepresentations damage Plaintiff's credibility.

The Court also finds that Plaintiff's witnesses were less than fully credible. Mr. Jayson Thompson, an inmate housed in the same cell-block as Plaintiff at the time of the April 30, 2001 incident, was a less than credible witness. Plaintiff attempted to portray Mr. Thompson as a " model inmate," and elicited testimony from Mr. Thompson that he had not spent any time in SHU from 2001 - 2012. However, on cross examination, Mr. Thompson was confronted with his disciplinary report and acknowledged that he had been placed in SHU several times during those years, thus contradicting his earlier testimony that he had not spent any time in SHU from 2001 - 2012.

Mr. Francisco Ramos, also housed in the same cell-block as Plaintiff on April 30, 2001, openly admitted that he recalled little, if any, of the alleged incident. He testified that he had spoken with another inmate-witness

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about the fact that he was testifying for Plaintiff during the transport to the courthouse for trial.

That other inmate-witness was Mr. Jonathan Wynn, a/k/a Piru Umoja, who allegedly witnessed the September 4, 2002 and October 22, 2002 incidents. Plaintiff himself acknowledged during Mr. Wynn's testimony that Mr. Wynn was confused and combining two separate incidents into one. In addition, Mr. Wynn testified that he did not speak to any other inmate-witness about the fact that he was testifying for Plaintiff on that date, directly contradicting the testimony of Mr. Ramos about the communication.

Plaintiff also called Dr. John Alves to testify as to Plaintiff's physical injuries following the alleged incidents. As a former Defendant in the instant matter, Dr. Alves was a hostile witness. Notably, Dr. Alves adamantly testified that Plaintiff was not sent to an outside hospital for an x-ray on September 5, 2002, because his notes did not state that he was sent to a hospital. However, medical records from Arnot Ogden Medical Center showed that Plaintiff did have an x-ray performed at the outpatient facility on September 5, 2002. This indicates that Dr. Alves did not have an independent recollection of the events and was wholly relying on his medical records to deliver his testimony. In sum, Plaintiff's witnesses as a whole were less than credible.

However, Defendants presented similar credibility challenges. Few, if any, of Defendants were able to independently recollect the events, instead appearing to recite the information contained in their statements and reports drafted after the events.

For example, Defendant Dininny seemed to have little independent recollection of the events of April 18, 2002, and throughout his testimony referred to what he had seen happen on the videotape of the incident recently viewed in open court. Defendant Bubacz also had little independent recollection of the events of April 18, 2002, and many times in his testimony referred to what he saw happen in the videotape, or what he " would have" done. Defendant Berg appeared to have little independent recollection of the incident on September 4, 2002. For instance, on cross examination, Defendant Berg explained that he knew Plaintiff had turned to strike Defendant Mastrantonio, Jr. because he read it in his memorandum from that day.

In addition, the behavior of some of the individual Defendants in the courtroom contributes to the Court's skepticism concerning their credibility. Defendant Bennett's behavior was particularly troubling. During his testimony, Defendant Bennett made faces at Plaintiff and answered Plaintiff's questions in a mocking tone. Defendant Bennett similarly displayed impertinence when responding to the Court's questions. At a minimum, this behavior lacked the decorum appropriate for a proceeding in Federal Court. By contrast, notwithstanding the warnings contained in Defendants' pretrial materials concerning Plaintiff's anticipated behavior in the courtroom (Dkt. 418 at 10-11), Plaintiff maintained a professional and respectful demeanor throughout the trial, even when faced with what appeared to be intentional efforts by some of Defendants to provoke a response from Plaintiff.

However, in evaluating the credibility of the parties, the Court is mindful that the ultimate burden of proof rests with Plaintiff. It was thus incumbent upon Plaintiff to establish his cause of action by a preponderance of the evidence. This Plaintiff failed to do.


A. Legal Standard

" In a civil case, the plaintiff bears the burden of proving the elements of his claim by a preponderance of the evidence." Brown v. Lindsay, Nos. 08-CV-351, 08-CV-2182, 2010 WL 1049571, at *12 (E.D.N.Y. Mar. 19, 2010). " To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true." Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d

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Cir. 1997)). " Under the preponderance of the evidence standard, if the evidence is evenly balanced, the party with the burden of proof loses." Richardson v. Merritt, No. 12-CV-5753 (ARR), 2014 WL 2566904, at *5 (E.D.N.Y. June 4, 2014) (citing Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 731 (2d Cir. 2001)). In other words, if the credible evidence on a given issue is evenly divided between the parties -- that it is equally probable that one side is right as it is that the other side is right -- then the plaintiff has failed to meet his burden.

As discussed further below, the evidence with respect to many of Plaintiff's claims is evenly balanced. In other words, the Court cannot determine that one party's version of the events is more likely true than the other party's version of the events.

However, because Plaintiff bears the burden of demonstrating by a preponderance of the evidence that Defendants used excessive force or retaliated against him in violation of his constitutional rights, the Court must find for Defendants in this matter.


Plaintiff claims that Defendants, by using excessive and unnecessary force against him, violated his Eighth Amendment constitutional rights.

" A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components -- one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). In order to prove a violation under the Eighth Amendment, Plaintiff must prove each of the following two elements by a preponderance of the evidence: (1) Defendants used force against Plaintiff maliciously and sadistically, for the very purpose of causing Plaintiff harm; and (2) Plaintiff suffered some harm as a result of Defendants' use of force.

The first element is considered as a subjective analysis of Defendants' state of mind at the time of the incidents. This requires a showing that Defendants had " 'the necessary level of culpability, shown by actions characterized by wantonness' in light of the particular circumstances surrounding the challenged conduct." Wright, 554 F.3d at 268 (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). Whether a use of force against a prison inmate is unnecessary or wanton depends on " whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).

Some factors to consider in determining whether the prison officials unnecessarily and wantonly inflicted pain on Plaintiff include: (1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Romano v. Howarth, 998 ...

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