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Kounelis v. Sherrer

January 3, 2008

MICHAEL KOUNELIS, PLAINTIFF,
v.
LYDELL SHERRER; CARLOS ATUNCAR; NATHANIEL BUSH; EDDIE CANNON; CANUTE FORTE; FRANKIE JAMES; CARLOS PEREZ; DORIS SAGEBIEL; VINCENT SANDERS; AND WILLIAM SCHWENK, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

FOR PUBLICATION

OPINION

This case arises out of a November 14, 2003 altercation between Plaintiff, Michael Kounelis, and guards at the Northern State Prison ("NSP"), in Newark, New Jersey, where Kounelis was an inmate. Kounelis alleges that guards assaulted him in retaliation for complaints he had made against one of them and that they, and other Defendants, took further action against him that violated his First, Fifth, Eighth, and Fourteenth Amendment rights. He brings his action under 42 U.S.C. § 1983 and also asserts certain state law claims. Defendants are Lydell Sherrer, NSP's Administrator; Vincent Sanders, NSP's Director of Custody Operations; Senior Corrections Officers ("SCO") Carlos Atuncar, Nathaniel Bush, William Schwenk; Sergeants Frankie James and Canute Forde; Disciplinary Sergeant Carlos Perez; Captain Doris Sagebiel; and Lieutenant Eddie Cannon. Defendants contend that Kounelis assaulted a guard and resisted arrest and that none of his federal or state law rights were violated.

Coloring this controversy is the loss of video surveillance footage, purportedly portraying the assault, that was recorded onto a DVR hard drive but not transferred to a more permanent medium. The circumstances of the November 14, 2003 altercation are hotly contested, rendering the video highly relevant. Its loss has been the source of much of the litigation in this case-including the current motions. Now before the Court are the parties' cross-appeals of Magistrate Judge Shwartz's order of October 2, 2007, granting in part and denying in part Kounelis's application for spoliation sanctions against Defendants; Kounelis's motion for summary judgment against Sergeants Forde and Perez for violation of his due process rights; and Defendants' second motion to dismiss, or in the alternative, motion for summary judgment.

For the reasons set forth below, the Magistrate Judge's order will be reversed in part and affirmed in part; Kounelis's motion for summary judgment will be denied; and Defendants' motion to dismiss, or in the alternative, for summary judgment will be denied in part and granted in part.

I. BACKGROUND

A. The November 14, 2003 Altercation

Most of the background facts are set forth in a Stipulation of the parties contained in the Final Pretrial Order. On the morning of November 14, 2003, Kounelis was in the prison doctor's office when he was informed that he had a visitor. On receiving this information, Kounelis proceeded from the doctor's office in the North Compound of the prison to the South Compound to get a pass to meet with his visitor. In order to reach the South Compound from the North Compound, inmates are required to pass through a frisk machine located in the center of the Education Department ("E/D area"). As in other areas of the NSP, surveillance video cameras are mounted on the walls of the E/D area and two cameras in the upper northwest and upper southeast corners of the E/D area are directed towards the frisk machine in the center.

As Kounelis passed through the frisk machine, an altercation between Kounelis and members of NSP staff ensued. According to Kounelis, he was assaulted by SCO Atuncar. Kounelis submits that the assault was in retaliation for complaints that Kounelis had filed against SCO Atuncar on September 4 and September 11, 2003.

The Defendants' account differs dramatically. Defendants contend that as Kounelis was passing through the E/D area, he began shouting obscenities at SCO Schwenk and that as Kounelis passed through the frisk machine, he intentionally bumped SCO Schwenk in the chest with his right shoulder. SCOs Schwenk and Bush then restrained Kounelis, forcing him to the ground while other officers, including Sergeant James and Lieutenant Cannon, responded to the emergency situation.

Following the altercation, Kounelis was placed in prehearing detention. Kounelis was then taken to NSP's medical facility where he was examined by the medical staff, and one of the nurses recorded his injuries. A medical report dated November 14, 2003 states that Kounelis suffered a right index finger laceration and a left check bone injury. A doctor's examination on November 19, 2003 further reports that Kounelis was suffering from a lower back sprain and had abrasions on both knees and on his left cheek.

Kounelis was issued a disciplinary infraction for assaulting any person for his alleged assault of SCO Schwenk. Sergeant Forde, acting as the Disciplinary Sergeant on November 15, 2003, was responsible for investigating the disciplinary charges lodged against inmates and gathering evidence related to the charges. He served Kounelis with a copy of the disciplinary charge and then concluded his investigation shortly thereafter.

The disciplinary charge contained the statement of SCO Schwenk that Kounelis bumped into SCO Schwenk's chest as Kounelis was passing through the frisk machine in the E/D area and the statement of SCO Bush that he had witnessed the event. On receiving the disciplinary charge, Kounelis maintains that he informed Sergeant Forde that the statements contained in the charge were incorrect because it was not SCO Schwenk, but rather SCO Atuncar, who had assaulted him. Kounelis further maintains that at this time he asked Sergeant Forde for a copy of the surveillance footage in order to prove his version of the events.

According to Captain Antonio Campos, Defendants' Rule 30(b)(6) witness, the surveillance system at the NSP records surveillance footage onto a digital video recorder ("DVR"). The footage is only stored on the DVR hard drive for approximately seven to ten days before it is over-written on the hard drive by new footage. In order for surveillance footage to be preserved, it must be downloaded and recorded onto a video tape. NSP policy permits inmates to request a copy of surveillance footage for use at a disciplinary hearing and recordings are routinely made on request for later use at various types of administrative proceedings.

Sergeant Forde, however, has no recollection of being asked for the surveillance footage. In addition, Sergeant Forde's report contains no notation that such a request was made. Defendants submit that this is because the request was never made. Because the report contained no notation, Sergeant Perez, who took over the investigation of Kounelis's disciplinary infraction on November 17, 2003, claims that he did not know that a request for surveillance footage had been made.

Kounelis also claims to have requested a copy of the surveillance footage from Hearing Officer Gary Styer. Kounelis met with Hearing Officer Styer on several occasions prior to the disciplinary hearing. In addition to making verbal requests for the surveillance footage, Kounelis submitted written confrontation questions to be used at the disciplinary hearing which referred to the surveillance footage. Yet no copy of the surveillance footage was ever provided to Kounelis.

A prison disciplinary hearing was held on December 5, 2003. Kounelis pleaded "not guilty" to the disciplinary charge of assaulting any person. After hearing the evidence, including SCO Bush's corroborative account of the altercation, Hearing Officer Styer modified the charge against Kounelis from assault to unauthorized contact. Kounelis was then found guilty of unauthorized contact and sanctioned with fifteen days detention.

Kounelis appealed the adverse decision within the NSP, filed a claim for tort damages with New Jersey Bureau of Risk Management, and filed additional administrative complaints against SCO Atuncar. In the administrative complaints, Kounelis stated that SCO Atuncar had warned him not to file a civil action regarding the November 14, 2003 incident or else he would be taught another lesson. Kounelis also requested that his cell be relocated to an area of the NSP farther away from SCO Atuncar.

B. The § 1983 Action

When none of these administrative actions yielded a favorable result, Kounelis filed a pro se complaint on September 27, 2004. The six counts of the Complaint seek relief, pursuant to 42 U.S.C. § 1983, for violations of Kounelis's First, Fifth, Eighth, and Fourteenth Amendment rights and compensation for intentional infliction of emotional distress and negligence.*fn1

In his Complaint, Kounelis alleges that he was assaulted by SCOs Atuncar, Schwenk, and Bush because he filed administrative complaints against SCO Atuncar. The Complaint explains that on September 4, 2003, Kounelis filed an Administrative Remedy Form stating that SCO Atuncar denied him access to the NSP law library because he was allegedly wearing improper footwear. On September 11, 2003, Kounelis claims that he was again denied entry to the law library by SCO Atuncar, who warned him not to file any more complaints. Kounelis reported this interaction in another Administrative Remedy Form, which described how SCO Atuncar had threatened to set Kounelis up and retaliate against him through his subordinates if Kounelis continued to file complaints against him.

Kounelis further alleges that SCO Atuncar carried out his threats by attacking him as he passed through the E/D area on November 14, 2003, and that, to cover up the assault, SCOs Atuncar, Schwenk, and Bush caused a false disciplinary infraction for assault to be issued against him. Finally, the Complaint alleges that Kounelis made repeated requests to several members of NSP staff for a copy of the surveillance footage from the E/D area, but that a copy of the video was never produced.

In response to Kounelis's Complaint, Defendants filed a motion for summary judgment, or in the alternative, to dismiss for failure to state a claim. In an opinion issued on September 5, 2005, the Court denied Defendants' motion to dismiss and granted in part and denied in part Defendants' motion for summary judgment. Kounelis v. Sherrer, 2005 U.S. Dist. LEXIS 20070 (D.N.J. Sept. 5, 2005).

The Court found that the Complaint stated a claim for excessive force under the Eighth Amendment and therefore denied Defendants' motion to dismiss. The Court also denied Defendants' motion for summary judgment on the ground that Kounelis had failed to exhaust his administrative remedies. Finally, the Court denied Defendants' motion for summary judgment on the grounds that Sergeant James, Sergeant Perez, SCO Schwenk, and SCO Bush were entitled to a qualified immunity defense because the Complaint sufficiently alleged that Defendants had violated a clearly established constitutional right. Summary judgment was granted, however, in favor of Administrator Sherrer and Director of Custody Operations Sanders, because the Complaint contains no allegations of their personal involvement in the denial of Kounelis's constitutional rights and vicarious liability cannot be used to impose liability under § 1983.

While the Defendants' motion to dismiss was pending, Kounelis moved to amend his Complaint. On October 20, 2005, then Magistrate Judge Wigenton granted the motion in part. Kounelis v. Sherrer, 396 F. Supp. 2d 525 (D.N.J. 2005). By the Magistrate Judge's order, Kounelis was permitted to add Captain Doris Sagebiel and Lieutenant Eddie Cannon as Defendants and supplement his Complaint with allegations that Captain Sagebiel and Lieutenant Cannon retaliated against him for proceeding with his civil action.

Specifically, Kounelis included allegations that on October 22, 2004, not long after the original Complaint was filed, Captain Sagebiel and Lieutenant Cannon ordered a search of his cell. Following the search, Kounelis was required to submit to a urine drug test and issued a disciplinary infraction. The charge, however, was dismissed because the urine test was deemed improperly authorized. Indeed, the hearing officer stated that in the future, the charging officers needed to do a better job explaining why a drug test was needed before subjecting the inmate to the urine test. Despite the finding of not guilty, Kounelis spent eleven days in administrative segregation.

Kounelis also included allegations that on March 17, 2005, two weeks after Defendants were served with summonses, Captain Sagebiel and Lieutenant Cannon ordered another search of his cell. Again, following the search, Kounelis was required to submit to a urine drug test and was placed in administrative segregation while disciplinary charges were pending against him. The charges, however, were again dismissed and Kounelis was returned to his cell after spending twelve days in administrative segregation.

Finally, Kounelis included allegations that on May 20, 2005, just over a month after Kounelis moved for a Default Judgment to be entered against Defendants, Captain Sagebiel and Lieutenant Cannon ordered a third search of his cell. Following the May 20 search, Kounelis was again required to submit a urine sample for a drug test and was charged with the use of a prohibited substance.*fn2

Following the addition of Kounelis's new allegations, discovery commenced. Kounelis maintains that he pursued discovery from Defendants and various third-parties, but that Defendants frustrated his efforts and caused significant delay. Most notably, Defendants initially refused to make any of their witnesses available for deposition. Indeed, Defendants did not appear at appropriately noticed depositions until Magistrate Judge Hedges entered an order on February 13, 2007 requiring that Defendants appear for depositions and that Defendants produce a Rule 30(b)(6) witness to testify regarding the surveillance system at the prison.

Despite the Magistrate Judge's order, further delay ensued. Defendants finally produced Jose Raboy, an Investigator in the Special Investigations Division, as their Rule 30(b)(6) witness for deposition on June 4, 2007. Raboy, however, had done virtually nothing to prepare for the deposition and knew little about the NSP's video surveillance system. Because Raboy was unable to testify about the subject matter identified in the Rule 30(b)(6) deposition notice, Kounelis requested that Defendants produce another witness with the requisite knowledge. Defendants refused. Thus Kounelis had no other alternative but to return to court and apply for an order compelling Defendants to designate a new Rule 30(b)(6) witness who was properly prepared to answer questions about the NSP's video surveillance system.*fn3

C. The Magistrate Judge's Opinion and Order

At the conclusion of discovery, Kounelis filed an informal application for sanctions based on Defendants' failure to preserve the video surveillance footage taken by cameras in the E/D area on November 14, 2003. An evidentiary hearing was held before Magistrate Judge Shwartz on September 24, 2007. The evidentiary hearing lasted more than four hours, during which the Magistrate Judge admitted eleven exhibits into evidence and heard testimony from six witnesses: Kounelis, Captain Antonio Campos, Defendants' Rule 30(b)(6) witness; Discipline Hearing Officer Gary Styer; Administrator Sherrer; Sergeant Perez; and Sergeant Forde.

On October 2, 2007, after carefully considering the hearing testimony and evidence, the Magistrate Judge entered an oral opinion into the record and issued an order that granted in part and denied in part Kounelis's request for sanctions. In reaching the ultimate conclusion that Defendants were responsible for the spoliation of evidence, the Magistrate Judge first found, based on the testimony of Captain Campos, that the cameras in the E/D area would have captured any events occurring near or around the frisk machine on November 14, 2003. (Op. Tr. at 4.) In addition, the Magistrate Judge found that in order for surveillance footage to be preserved, it must be recorded on to a VHS tape before the footage is overwritten on the DVR hard drive and that such a recording would only occur following a request from the custody officers, the prison administration, or by the special investigation division. Id. Finally, the Magistrate Judge found that no request to record the surveillance footage from November 14, 2003 had been made. (Op. Tr. at 5.)

Despite the finding that Captain Campos had received no request to record the surveillance footage from November 14, 2003 and Sergeant Forde's testimony that he could not recall whether Kounelis had requested a copy of the surveillance footage, the Magistrate Judge found that requests for a copy of the surveillance footage had been made in the days following the November 14, 2003 altercation. (Op. Tr. at 5.) In reaching this finding, the Magistrate Judge looked to Kounelis's undisputed testimony that he verbally requested a copy of the surveillance footage from Sergeant Forde when Sergeant Forde served him with the disciplinary charge.

In addition, the Magistrate Judge found that a request had been made to Hearing Officer Styer on November 20, 2003, six days after the incident, both verbally and by way of written questions submitted for the purpose of confrontation at the disciplinary hearing. The Magistrate Judge also relied on Hearing Officer Styer's notes from his meeting with Kounelis on November 25, 2003, which stated that Kounelis wanted to see a video of the incident (Op. Tr. at 8-9) and an affidavit signed by Kounelis on November 30, 2003 which attested that Kounelis had asked Sergeant Forde for a copy of the footage during his investigation of the incident (Op. Tr. at 5).

Based primarily on the finding that Kounelis had requested a copy of the surveillance footage, the Magistrate Judge concluded that Defendants were under a duty to preserve the footage as relevant evidence. (Op. Tr. at 19.) Having determined that Defendants had a duty to preserve the surveillance footage, the Magistrate Judge reviewed the evidence and found that no copy of the surveillance tape was in existence or probably ever had been in existence. The Magistrate Judge surmised that the surveillance footage was likely overwritten because no effort had been made to transfer it from the DVR hard drive to a VHS tape for preservation. (Op. Tr. at 13.) In addition, the Magistrate Judge noted that no testimony was offered by Defendants to explain why, despite the documented interest in a copy of the surveillance footage, no action had been taken to preserve the footage. (Op. Tr. at 13.)

Thus, having concluded that Defendants had an obligation to preserve the surveillance footage and that the evidence was lost, the Magistrate Judge then considered what, if any, sanctions should be imposed on Defendants for the loss of the evidence. (Op. Tr. at 21.) The Magistrate Judge explained that the imposition of sanctions is left to the discretion of the court after considering the degree of fault of the party that destroyed the evidence, the degree of prejudice suffered by the opposing party, and whether the sanction balances fairness to the opposing party and deterrence to the offending party. (Op. Tr. at 22.)

In considering the first of the three factors, the Magistrate Judge found that Defendants were to blame for the loss of the surveillance footage. (Op. Tr. at 23.) Next, the Magistrate Judge concluded that Kounelis was prejudiced by the loss of objective evidence, but not irreparably, because Kounelis was still able to testify as to his version of the events. (Op. Tr. at 25.) Finally, the Magistrate Judge determined that preventing Defendants from offering their version of the events of November 14, 2003 at trial, as Kounelis had requested, would be too severe a sanction because it would be tantamount to denying Defendants the ability to defend against Kounelis's claims. (Op. Tr. at 26.) Therefore the Magistrate Judge denied Kounelis's request that Defendants be precluded from introducing evidence.

Having determined that exclusion of Defendants' evidence was too extreme, the Magistrate Judge then considered whether the lesser sanction of an adverse inference was appropriate. (Op. Tr. at 27.) Applying the elements of the adverse inference to the evidence in the record, the Magistrate Judge concluded that an adverse inference was not appropriate under the circumstances because it would over-compensate Kounelis for the harm caused by the spoliation. (Op. Tr. at 30.) The Magistrate Judge reasoned that an adverse inference was tantamount to a directed verdict because it took too much from the fact-finder. (Op. Tr. at 31.) Therefore the Magistrate Judge denied Kounelis's request for an adverse inference charge.

Next, the Magistrate Judge considered whether monetary sanctions would be appropriate. (Op. Tr. at 33.) The Magistrate Judge found that a great deal of time was spent both by Kounelis in his pro se status and by his counsel chasing after the surveillance footage throughout discovery and culminating in the evidentiary hearing. (Op. Tr. at 34.) Indeed, the Magistrate Judge noted that a memorandum dated September 2, 2004, which was sent to Kounelis by the Acting Chief Investigator of the Special Investigations Division in response to Kounelis's communication to then Attorney General Peter G. Harvey regarding Kounelis's allegations of harassment, abuse, and the subsequent cover up, appeared, albeit somewhat ambiguously, to indicate that investigators of Kounelis's allegations may have reviewed a tape of the surveillance footage. (Op. Tr. at 12.) Upon receipt of this memorandum, the Magistrate Judge described how Kounelis then expended unnecessary time by submitting further requests for a copy of the surveillance footage, only to be informed by letter dated September 8, 2004 that no tape of the footage from November 14, 2003 existed. (Op. Tr. at 13.)

In addition, the Magistrate Judge noted that time could have been saved if Defendants had not suggested in their reply brief, submitted in support of their first motion to dismiss, that surveillance footage had been reviewed by NSP officers. (Op. Tr. at 35.) The Magistrate Judge described a section of Defendants' reply brief as contending that surveillance videos contained confidential information and to disclose such footage would somehow compromise the security of the prison. Id. The Magistrate Judge stated that these assertions regarding confidentiality seemed to presuppose that a tape was in existence and that it had been reviewed by officers within NSP. (Op. Tr. at 35.) But, the Magistrate Judge continued, the evidence clearly revealed that no tape is, or ever was, in existence. (Op. Tr. at 36.)

On the basis of these findings, the Magistrate Judge concluded that monetary sanctions were appropriate to compensate Kounelis and his counsel for the resources expended and to assist in deterring future conduct. (Op. Tr. at 34.) The Magistrate Judge refused, however, to grant Kounelis's application for attorneys' fees. In refusing this request, the Magistrate Judge noted that Kounelis was represented by pro bono counsel and that nothing had been brought to her attention that supported the award of attorneys' fees as a spoliation sanction where the injured party was represented by pro bono counsel. Id.

After reaching these conclusions, the Magistrate Judge issued an order implementing her findings. Specifically, it was ordered that Defendants pay all of Kounelis's costs associated with discovery concerning the videotape and the evidentiary hearing and that Defendants pay $3,000 to the District of New Jersey's pro bono fund. The Magistrate Judge denied, however, Kounelis's application for attorneys' fees and Kounelis's request for an adverse inference as a result of the finding of spoliation. The Magistrate Judge also denied Kounelis's request to preclude Defendants from introducing evidence concerning Kounelis's actions in the E/D area. Finally, it was ordered, that nothing precluded Kounelis from introducing ...


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