11-448
 Twitty v. Ashcroft

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
 of January, two thousand twelve.

 Present:
          RALPH K. WINTER,
          ROBERT A. KATZMANN,
          GERARD E. LYNCH,
                      Circuit Judges.
 ________________________________________________

 ANDRE J. TWITTY,

            Plaintiff-Appellant,

                      v.                                         No. 11-448

 SCOTT SALIUS,

            Defendant-Appellee,

 ERIC H. HOLDER, JR.,* H. LAPPIN, G.L. HERSCHBERGER, RAU, JOHN ROWLAND,
 RICHARD BLUMENTHAL, WAYNE CHOINSKI, CAROL ARRIRO, THERESA C. LANTZ,
 LYNN MILLING, TERRANCE ROSE, ESTHER TORRES, JEFFREY McGILL, BRIAN
 BRADWAY, JOHN DOES, FEDERAL BUREAU OF PRISONS,

          Defendants.
 ________________________________________________


        *
          Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
 Holder, Jr., is automatically substituted for former Attorney General John Ashcroft as the
 respondent in this case. The Clerk of the Court is directed to amend the caption to read as shown
 above.
For Plaintiff-Appellant:            JEFFREY J. WHITE (Craig A. Raabe, Katherine S. Kayatta, on
                                    the brief), Robinson & Cole LLP, Hartford, CT.

For Defendants-Appellees:           MATTHEW B. BEIZER, Assistant Attorney General, for George
                                    Jespen, Attorney General for the State of Connecticut.



         Appeal from the United States District Court for the District of Connecticut (Martinez,
M.J.).

         ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

         Plaintiff-appellant Andre J. Twitty brings this civil rights action pursuant to 42 U.S.C. §

1983. He alleges that on January 14, 2004, defendant-appellee Scott Salius used excessive force

in violation of the Eighth Amendment during plaintiff’s intake into Northern Correctional

Institution in Somers, Connecticut (“Northern”). The intake was recorded by Northern staff on a

VHS videotape, several copies of which were made during the course of the litigation. About a

month before the trial was to begin, the original videotape was erased. After plaintiff conducted

discovery regarding the erasure of the tape, he filed a motion for an adverse inference. The

district court denied the motion on May 5, 2010, and the trial began on the same day. On May 7,

2010, the jury returned a verdict in favor of the defendant. Plaintiff thereafter filed a motion for

a new trial, which the district court denied on January 6, 2010. On appeal, plaintiff argues: (1)

that the district court erred when it failed to give an adverse inference instruction or impose any

other sanction after the original intake videotape was erased; and (2) that the district court erred

in permitting the jury to return a verdict that was against the weight of the evidence. We assume

the parties’ familiarity with the underlying facts and procedural history of this case.


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       We first consider plaintiff’s argument that the district court erred when it failed to give an

adverse inference instruction in response to the erasure of the original intake videotape, which

plaintiff characterizes as the “spoliation of the original intake video.” Pl.’s Br. at 6. “Spoliation

is 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.” West v. Goodyear

Tire & Rubber Co., 

, 779 (2d Cir. 1999). A party seeking an adverse inference

instruction based on the destruction of evidence must establish “(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 or defense such that a reasonable trier of fact could find that it

would support that claim or defense.” Residential Funding Corp. v. DeGeorge Financial Corp.,

, 107 (2d Cir. 2002) (internal quotation marks omitted). “We review a district

court’s decision on a motion for discovery sanctions for abuse of discretion.” 

court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the

law or on a clearly erroneous assessment of the evidence.” 

omitted).

       In this case, the district court denied plaintiff’s motion for an adverse inference because,

inter alia, “the tape was damaged as a result of negligence [--] an error caused by improper use

of the equipment at the prison resulted in the damage to the original tape; and . . . there are

satisfactory copies available [because] . . . the actual differences between the copies are limited

to nuances [in t]racking, color, and audio quality.” Twitty v. Ashcroft, No. 3:04CV410(DFM),

, at *6 (D. Conn. Jan. 6, 2011) (internal quotation marks omitted). The district

court did not abuse its discretion in reaching these conclusions. There was ample evidence in the


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record to support the district court’s determination that the tape was erased as a result of ordinary

negligence on the part of Officer Sokolowski, a correctional officer at Northern. Sokolowski

testified that on March 31, 2010, in anticipation of the original tape being taken from the

Northern facility, he attempted to make a copy of the original tape. Sokolowsi further testified

that he had never before used Northern’s equipment to make a copy of a VHS tape, and that he

erased the tape when he incorrectly pushed both the “copy” and the “record” buttons at the same

time. J.A. 247.

       The district court did not clearly err in characterizing this mistake as negligent rather than

grossly negligent or an act of bad faith. Although “[t]he sanction of an adverse inference may be

appropriate in some cases involving the negligent destruction of evidence,” Residential Funding

. (emphasis added), a sanction is by no means mandatory, and the district

court did not abuse its discretion in concluding that such a remedy was inappropriate in this case.

As the district court found, quality copies of the tape existed, one of which was played during the

trial. Plaintiff’s counsel viewed the original tape before it was destroyed, and was unable to

articulate, either before the district court or on appeal, any material difference between the

original videotape and the DVD that was available for trial. As the district court found, any

difference between the two tapes was limited to nuances in tracking, color, and audio quality.

Accordingly, the erasure of the tape, while regrettable, did not materially prejudice the plaintiff’s

case. Under these circumstances, the district court did not abuse its discretion in concluding that

an adverse inference instruction was inappropriate.

       Plaintiff’s second claim, that the district court erred in permitting the jury to return a

verdict that was against the weight of the evidence, is without merit. It is well established in this


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Circuit that a district court’s denial of a motion for a new trial on the ground that the verdict is

against the weight of the evidence is not reviewable on appeal. See, e.g., Stonewall Insurance

Co. v. Asbestos Claims Management Corp., 

, 1199 (2d Cir. 1995) (“The loser is

also entitled to argue to the trial judge that the verdict is against the weight of the evidence and

to obtain a new trial if the judge can be persuaded, but the denial of that challenge is one of those

few rulings that is simply unavailable for appellate review.”). Moreover, having reviewed the

record in an excess of caution, we are confident that if the issue were available to review, we

would affirm the district court’s denial of the new trial motion, as the district court was well

within its discretion in concluding that the jury’s verdict was not against the weight of the

evidence.

       We have considered defendant’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.



                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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