Grief v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHRISTOPHER GRIEF,

Plaintiff,

-against- MEMEORANDUM & ORDER

15-CV-7240(JS)(AYS)

NASSAU COUNTY;

SHERIFF MICHAEL SPOSATO;

C.O. ALBERTO BAZANTE;

C.O. ANGELO MURO;

C.O. JARET CARBONE;

C.O. KEVIN SENIOR;

C.O. MICHAEL O’MALLEY;

SGT. “FNU” [First Name UNKNOWN]

WENSDORFER1, individually and in

their official capacities,

Defendants.

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APPEARANCES

For Plaintiff: Jeffrey A. Rothman, Esq.

305 Broadway, Suite 100

New York, New York 10007

For Defendants: Alexander E. Sendrowitz, Esq.

Quatela Chimeri PLLC

888 Veterans Memorial Highway, Suite 530

Hauppauge, New York 11788

SEYBERT, District Judge:

Plaintiff Christopher Grief (“Plaintiff” or “Grief”)

objects to two orders entered by Magistrate Judge Anne Y. Shields:

(1) the March 5, 2021 order denying Plaintiff’s request to amend

1 According to Plaintiff, this Defendant’s name is Richard

Wiesdorfer. (See Amend Support Memo, ECF No. 128, at 1 n.1.)

Herein, he shall be referred to as “Defendant Wiesdorfer” or

“Wiesdorfer”. The Clerk of Court is directed to amend the case

caption with this updated information.

his Compliant for a third time (hereafter, the “No-Amend Order”)

(see ECF No. 136)2; and (2) the April 30, 2021 order denying

Plaintiff’s motion seeking spoliation sanctions (hereafter, the

“No-Sanction Order”) (see ECF No. 154). (See No-Amend Obj., ECF

No. 1383; No-Sanction Obj., ECF No. 155). Defendants oppose

Plaintiff’s Objections to the Magistrate Judge’s Orders. (See No-

Amend Opp’n, ECF No. 147; No-Sanction Opp’n, ECF No. 159.) For

the following reasons, Plaintiff’s: respective Objections are

OVERRULED; the No-Amend Order and No-Sanctions Order are AFFIRMED;

and, Motions for Reconsideration (ECF Nos. 138, 155) are DENIED.

BACKGROUND

The Court assumes the parties’ familiarity with this

civil rights action in which Grief alleges that he was injured by

the Defendants, resulting in his sustaining a detached retina in

his left eye and losing normal vision in that eye. (See, e.g.,

No-Amend Order at 2-3; Second. Am. Compl., ¶¶ 17-24.) Plaintiff

seeks compensatory and punitive damages. (See Second Am. Compl.,

Prayer for Relief.) As Magistrate Judge Shields observed:

Plaintiff commenced the within action on

December 18, 2015 [and] has twice amended his

Complaint – first, on October 13, 2016, and

2 Herein, the Court will cite to a document’s internal page

number(s).

3 Despite noting Magistrate Judge Shields did not style her No-

Amend Order as a report and recommendation, Plaintiff nonetheless

styled his response as objections to the Magistrate Judge’s ruling.

(See ECF No. 139.)

again, on September 21, 2017. Discovery has

been long and protracted, with numerous

disputes requiring this Court’s intervention.

Following a number of extensions of the

parties’ discovery schedule, fact discovery

concluded on July 22, 2020 and expert

discovery concluded on February 26, 2021.

(No-Amend Order at 3 (citing First Am. Compl., ECF No. 27, and

Second Am. Comp., ECF No. 67).) Magistrate Judge Shields has been

the assigned magistrate for this case since its inception. (See

Case Docket, Dec. 21, 2015 Case Assignment.)

I. The Amend Motion

As to Plaintiff’s motion to amend his Complaint a third

time (hereafter, the “Amend Motion”) (see ECF No. 126; see also

Amend Support Memo, ECF No. 128) to add a cause of action for

violations of the Americans with Disabilities Act (“ADA”) and the

Rehabilitation Act (hereafter, the “Proposed New Claim”), which

the Defendants opposed, this Court explicitly referred the motion

to Magistrate Judge Shields “for a DECISION.” (See Feb. 5, 2021

Elec. ORDER REFERRING MOTION (citing JS Individual Rule III(H)(1),

which Rule specifically includes “[r]equests to amend the

pleadings” in a list of non-dispositive motions as referred to the

assigned magistrate judge).) In denying the Amend Motion,

Magistrate Judge Shields recognized that amendments are generally

favored and properly stated that the party opposing amendment bears

the burden of demonstrating the proposed amendment is not

warranted. Given the facts of this case, the Magistrate Judge

denied the Amend Motion “on the basis of undue delay and the

resulting prejudice to Defendants.” (No-Amend Order at 4.)

Observing that mere delay alone is an insufficient reason to deny

Grief’s Amend Motion, because Grief’s delay would “require further

discover to be conducted and would further delay this already

protracted litigation,” the Magistrate Judge found Defendants

would be unduly prejudiced if the motion were granted. (Id. at

5.) For example, permitting Plaintiff a third amendment would

require Defendants to re-depose Plaintiff, which would cause

Defendants to expend additional resources and further delay the

resolution of this case, as well as “necessitate the retention of

new experts on both side, again at the significant expense to

Defendants, and thereby further delay[] a resolution of this

action.” (Id.) Thus, finding “permitting Plaintiff to amend his

Complaint a third time, at this late juncture, would unfairly

prejudice Defendants,” Magistrate Judge Shields denied the Amend

Motion. (Id. at 6.)

II. The Sanctions Motion

As to Plaintiff’s motion for sanctions based upon the

Defendants’ alleged spoliation of colored, headshot photographs of

Grief purportedly taken after the alleged underlying kicking

incident (hereafter, the “Forward Colored Headshot”, “Profile

Colored Headshot” and, collectively, the “Colored Headshots”),

after oral arguments on the sanctions motion, Magistrate Judge

Shields denied the requested alternative sanctions of striking

Defendants’ Answer, directing the issuance of an adverse inference

jury instruction at trial, and awarding attorneys’ fees incurred

in making the Sanctions Motion.4 (See No-Sanctions Order at 1.)

Noting that determining the appropriate sanction for spoliation is

(1) vested within the trial judge’s discretion, (2) to be assessed

on a case-by-case basis, and (3) is to be the least harsh option

that provides an adequate remedy (see id. at 2), the Magistrate

Judge determined she neither had the power to strike the Answer

nor issue an adverse inference instruction to the jury (see id.).

Rather, she found “Plaintiff has made a sufficient showing to

explore at trial whether the Defendants had a policy with respect

to the taking of pictures of inmates that was violated in this

action,” but that “such a ruling is subject to the District Judge’s

discretion to make appropriate rulings at trial.” (Id. (stating

further that “[i]t will be up to the District Judge and jury to

determine the weight of this evidence with respect to Plaintiff’s

claims of injury”).) Magistrate Judge Shields found no basis to

recommend the striking of Defendants’ Answer and summarily denied

Plaintiff’s request for attorneys’ fees. (Id. at 2-3.)

4 The No-Sanction Order was re-issued in written form on April

30, 2021, after technical issues with the audio recording

preventing Magistrate Judge Shields’ April 22, 2021 oral ruling

from being transcribed. (See No-Sanctions Order at 1.)

Plaintiff timely objected to both the No-Amend Order and

the No-Sanctions Order pursuant to Rule 72 of the Federal Rules of

Civil Procedure.

DISCUSSION

I. RELEVANT LEGAL STANDARDS

A. Rule 72(a)

Pursuant to Federal Rule of Civil Procedure 72(a), a

party has the option of objecting to a magistrate judge’s order

concerning any non-dispositve pretrial matter. See FED. R. CIV. P.

72(a). The district judge “must consider timely objections and

modify or set aside any part of the order that is clearly erroneous

or is contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A)

(“A judge of the court may reconsider any [non-dispositive]

pretrial matter . . . where it has been shown that the magistrate

judge’s order is clearly erroneous or contrary to law.”). “An

order is ‘clearly erroneous’ only if a reviewing court, considering

the entirety of the evidence, is left with the definite and firm

conviction that a mistake has been committed; an order is ‘contrary

to law’ when it fails to apply or misapplies relevant statutes,

case law, or rules of procedure.” Centro De La Comunidad Hispana

De Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d 127, 139

(E.D.N.Y. 2013), aff’d, 868 F.3d 104 (2d Cir. 2017) (quotations

and citations omitted). “This standard is highly deferential,

imposes a heavy burden on the objecting party, and only permits

reversal where the magistrate judge abused his discretion.” Ahmed

v. T.J. Maxx Corp., 103 F. Supp. 3d 343, 350 (E.D.N.Y. 2015)

(quotations and citations omitted); see also In re Hulley Enters.

Ltd., 400 F. Supp. 3d 62, 70 (S.D.N.Y. 2019) (“Magistrate judges

are afforded broad discretion in resolving nondispositive disputes

and reversal is appropriate only if their discretion is abused. .

. . A party seeking to overturn a magistrate judge’s decision

thus carries a heavy burden.” (cleaned up)).

B. Amending Pleadings

Requests to amend pleadings are governed by Rule 15 of

the Federal Rules of Civil Procedure. As relevant here, where

prior amendments to the Complaint have occurred, “a party may amend

its pleadings only with . . . the court’s leave. The court should

freely give leave when justice so requires.” FED. R. CIV. P.

15(a)(2). Though liberally granted since amendments “tend to

facilitate a determination on the merits,” Zucker v. Porteck Global

Servs., Inc., No. 13-CV-2674, 2015 WL 6442414, at *4 (E.D.N.Y.

Oct. 23, 2015), Rule 15 motions to amend “may properly be denied

for: ‘undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of amendment, etc.’”

Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting

Foman v. Davis, 371 U.S. 178, 182 (1962)). However, delay without

more is not a basis to deny a motion to amend; rather, it must be

coupled with a showing of bad faith or undue prejudice. See id.

(first quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d

843, 856 (2d Cir. 1981); then citing Charles Allen Wright, Arthur

R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil

2d, § 1487, at 613 (1990 & 2007 Supp.) (citing prejudice to the

opposing party as “the most important factor” and “the most

frequent reason for denying leave to amend”)). Indeed,

“[p]rejudice to the nonmovant . . . is the ‘most important’

factor.” Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old

Westbury, N.Y., No. 08-CV-5081, 2021 WL 4472852, at *17 (E.D.N.Y.

Sept. 30, 2021) (quoting Block v. First Blood Assocs., 988 F.2d

344, 350 (2d Cir. 1993)). An “[a]mendment may be prejudicial when,

among other things, it would require the opponent to expend

significant additional resources to conduct discovery and prepare

for trial or significantly delay the resolution of the dispute.”

AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d

699, 725–26 (2d Cir. 2010) (internal quotation marks omitted).

C. Spoliation Sanctions

“The Second Circuit has defined 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.’” Raymond v. City of N.Y., No.

15-CV-6885, 2020 WL 1847556, at *5 (S.D.N.Y. Apr. 13, 2020)

(quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d

Cir. 1999)). If deemed a discovery order violation, sanctions for

spoliation may be imposed pursuant to Rule 37 of the Federal Rules

of Civil Procedure; otherwise, the court may impose spoliation

sanctions pursuant to its inherent authority to manage its own

affairs. See Taylor v. City of N.Y., 293 F.R.D. 601, 609 (S.D.N.Y.

2013) (citing Fed. R. Civ. P. 37(b), and Residential Funding Corp.

v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002)).

“[C]lear and convincing evidence of bad faith is a prerequisite to

an award of sanctions under the court’s inherent power.” Yukos

Cap. S.A.R.L. v. Feldman, 977 F.3d 216, 235 (2d Cir. 2020).

Moreover, “[i]n situations where sanctions are warranted, district

courts have broad discretion in ‘crafting an appropriate sanction

for spoliation.’” Alter v. Rocky Point Sch. Dist., No 13-CV-1100

(JS)(AKT), 2014 WL 4966119, at *5 (quoting West, 167 F.3d at 779);

see also Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d

Cir. 2001) (“The determination of an appropriate sanction for

spoliation, if any, is confined to the sound discretion of the

trial judge, and is assessed on a case-by-case basis.”). For

example, “a court may impose the sanction of an adverse inference,

which is ‘an inference that the evidence would have been

unfavorable to the party responsible for its destruction.’”

Raymond, 2020 WL 1847556, at *5 (quoting Zubulake v. UBS Warburg

LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). In any event, when

determining a spoliation motion, “a court should impose the least

harsh sanction that can provide an adequate remedy.” Hawley v.

Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014) (internal

quotations and citation omitted).

If a party seeks an adverse inference sanction for

spoliation, the following must be established:

(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 missing evidence is

“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.

Raymond, 2020 WL 1847556, at *5 (quoting Residential Funding, 306

F.3d at 107). “In this circuit, a ‘culpable state of mind’ for

purposes of a spoliation inference includes ordinary negligence.

When evidence is destroyed in bad faith (i.e., intentionally or

willfully), that fact alone is sufficient to demonstrate

relevance. By contrast, when the destruction is negligent,

relevance must be proven by the party seeking the sanctions.”

Zubulake, 220 F.R.D. at 216 (citing Residential Funding, 306 F.3d

at 108, 109). “Relevance is construed broadly, and the requested

[evidence] must be more than a mere ‘fishing expedition’.”

Raymond, 2020 WL 1847556, at *5 (quoting Alter, 2014 WL 4966119,

at *5).

II. THE INSTANT ACTION

As an initial matter, in considering Plaintiff’s

objections to the No-Amend Order and the No-Sanctions Order, in

addition to considering those Orders, Plaintiff’s Objections

thereto and Defendants’ respective oppositions, the Court has

undertaken a de novo review of the underlying motion papers related

to each Order. The Court has also considered the history of this

case, including Magistrate Judge Shields’ extensive involvement

with and in-depth knowledge of said case.

A. The No-Amend Order

In objecting to Magistrate Judge Shields’ No-Amend

Order, Plaintiff argues there was no undue delay in his notifying

Defendants of his desire to add the Proposed New Claim and

Defendants will not suffer any significant prejudice from the

amendment. The crux of Grief’s argument is that “[i]t was Sergeant

Wiesdorfer’s [deposition] testimony, in conjunction with

Plaintiff’s own testimony at his [subsequent] deposition, that

crystalized Plaintiff’s counsel’s determination that the [Proposed

New Claim] should be asserted as an additional and/or alternate

theory of liability.” (No-Amend Obj. at 6.) He contends

Defendants “knew full-well that Plaintiff’s mental health

disabilities are central to the facts and issues in this case prior

to his deposition, and elicited plenty of information in that

regard at his deposition (including through the use of his mental

health records) that should easily cause them to conclude that

Plaintiff is a qualified individual with mental health

disabilities that impair major life activity.” (Id. at 9.) He

further maintains that Magistrate Judge Shields erred in stating

that allowing the Proposed New Claim “will invariably necessitate

the retention of new experts on both sides, . . . at significant

expense to Defendants, and . . . further delay[] a resolution of

this action” (No-Amend Order at 5), since “it is so clear that

Plaintiff is a qualified individual with a disability under the

ADA and Rehab Act, [that] there is nothing invariable or inevitable

about the need for further expert witnesses stemming from

Plaintiff’s assertion of [the Proposed New Claim].” (No-Amend

Obj. at 10 n.10.) Grief also relies upon the operative Second

Amended Complaint as a basis for Defendants having already been

put on notice of the Proposed New Claim. (-Se-e- -id-.- at 11-12.)

Plaintiff is unable to meet his heavy burden to overturn

the No-Amend Order. This Court is not left with the definite and

firm conviction that a mistake has been committed or that

Magistrate Judge Shields misapplied Rule 15(a)(2). As is apparent

from her ruling, Magistrate Judge Shields carefully considered

Grief’s amendment motion seeking to add the Proposed New Claim

together with corresponding supplemental factual allegations.

Given her expansive experience with this case, Magistrate Judge

Shields was well-versed in its history when she determined that

Grief’s delay in seeking to amend his Complaint a third time would

unduly prejudice Defendants. Her reasoning is sound: Grief

contends he become aware of the basis for the Proposed New Claim

only at the November 11, 2019 deposition of Defendant Weisdorfer,

but waited until after his March 2, 2020 deposition to give

Defendants notice of his intent to amend, and “did not advise the

Court of his intention to move to amend until July 30, 2020 – more

than seven month after he became aware of the purportedly new

information and after the close of fact discovery.” (No-Amend

Order at 4.) The Magistrate Judge determined this delay would be

unduly prejudicial to Defendants, i.e., requiring re-deposing of

Plaintiff and retaining new experts, at significant cost to

Defendants, and causing further delay of this action’s resolution.5

(See No-Amend Order at 5.)

While, in his Objection, Plaintiff highlights the

various instances he asserts put Defendants on notice of the

5 This Court recognizes that Plaintiff is no longer housed in a

correctional facility in Ohio, but is currently incarcerated at

the Metropolitan Detention Center in Brooklyn. (See No-Amend Obj.

at 10 n.9.) As Defendants aptly argue, “Regardless of where

Plaintiff is physically located, re-deposing Plaintiff and

conducting further discovery in connection with the new factual

allegations presented in the proposed Third Amended Complaint will

require Defendants to expend significant additional resources,

resulting in undue prejudice.” (No-Amend Opp’n at 6 (citing

Portelos v. City of N.Y., No. 12-CV-3141, 2015 WL 5475494, at *2

(E.D.N.Y. Sept. 15, 2015); further citation omitted).) Thus, while

Plaintiff currently being located within the District is likely to

eliminate certain costs associated with re-deposing Plaintiff, it

is not enough to find error with the No-Amend Order.

Proposed New Claim, which he contends pre-dated the November 2021

Weisdorfer deposition and Grief’s March 2020 deposition, the same

would be true as to Plaintiff himself. Indeed, if it were the

case with Defendants, it must have also been true that Plaintiff

“knew full well that [his] mental health disabilities were an

integral part of this case prior to [his] deposition, based upon

[Plaintiff] previously having . . . plead that [he] was on suicide

watch and extremely anxious at the time of the incident, and from

the rest of the record developed to that date . . . .” (No-Amend

Obj. at 6-7.) This would also include “Plaintiff’s medical records

which include his mental health diagnoses” upon which Plaintiff

also relies to advance his amendment argument. (Id. at 7; see

also id. at 9 (reiterating argument that “Defendants . . . knew

full-well that Plaintiff’s mental health disabilities are central

to the facts and issues in this case prior to his deposition, and

elicited plenty of information in that regard at his deposition

(including through the use of his mental health records) . . .”).)

Hence, more than Defendants, if it were as Plaintiff purports, he

should have known from the outset that he had a basis to plausibly

plead the Proposed New Claim. At the very least, then, the

Proposed New Claim could have been included in the Second Amended

Complaint. (See id. at 11; see also id. at 12 (arguing “the

pleadings have always put the Defendants on notice that this case

is in significant part about the Defendants placing a particularly

vulnerable inmate, who was undergoing great anxiety and on suicide

watch, into a cell with three other inmates who were violent . .

.”).) However, given Plaintiff’s representation that he was

unaware of the basis for the Proposed New Claim until November 11,

2019, and did not give Defendant notice of his intention to amend

the Second Amended Compliant to raise this Proposed New Claim until

April 30, 2020 (see Amend Support Memo, ECF No. 128, at 2), and

Plaintiff’s failure to notify the Court of this intention until

July 30, 2020, after the close of discovery, his so-called “should-

have-known” argument rings hollow.

In sum, considering (1) Magistrate Judge Shields’

protracted and significant involvement in this case, (2) the

underlying amendment motion papers, and (3) Plaintiff’s objections

and Defendants’ opposition thereto, this Court is not left with

the definite and firm conviction that a mistake has been committed

by the Magistrate Judge in making her ruling or that said ruling

is contrary to law. Magistrate Judge Shields’ well-reasoned No-

Amend Order was properly based upon the record and well within her

discretion. See Ruotolo, 514 F.3d at 191 (holding it “well within

the bounds of [the district court’s] discretion to deny a motion

to amend where plaintiff’s delay was “inexcusable given the

previous opportunities to amend, and the defendants' burden and

prejudice”). To the extent not directly addressed, the Court has

considered the Plaintiff’s remaining arguments and finds them to

be without merit. Accordingly, the No-Amend Order is affirmed.

B. The No-Sanctions Order6

In objecting to Magistrate Judge Shields’ No-Sanctions

Order, Plaintiff alleges error based upon the Magistrate Judge:

(1) referring only to the Forward Colored Headshot, but

consideration of that Headshot with the Profile Colored Headshot

“would show clearly that Plaintiff had suffered a visible injury

to his left eye” (No-Sanctions Obj. at 4); (2) declining to issue

a recommendation that sanctions be imposed (see id. (arguing “[i]t

was clear error and contrary to law to simply kick the can down

the road to trial where Plaintiff has made such a significant

showing concerning the Defendants’ spoliation and the prejudice to

6 In her No-Sanctions Order, Magistrate Judge Shields stated,

“Plaintiff does not request a discovery sanction.” (No-Sanctions

Order at 2.) Indeed, there is no mention of Federal Rule of Civil

Procedure 37 in Plaintiff’s spoliation sanctions motion papers.

(See ECF Nos. 140, 142, 145.) To the extent Plaintiff sought

sanctions pursuant to the Court’s inherent power, he has failed to

either address or put forth any clear and convincing evidence of

Defendants’ alleged bad faith. See, e.g., Kang v. Perri, No. 20-

CV-0746, 2021 WL 4487876, at *5 (E.D.N.Y. Sept. 30, 2021)

(discussing the standard for imposing sanctions pursuant to the

court’s inherent power); see also Hice v. Lemon, No. 19-CV-4666,

at *7-8 (E.D.N.Y. Nov. 17, 2021) (articulating the standard for

imposing sanctions pursuant to the court’s inherent power and

stating “the imposition of sanctions pursuant to the Court’s

inherent power requires a finding of bad faith” (emphasis added;

citation omitted)). Thus, given Plaintiff’s failure to present

requisite “clear and convincing evidence” of Defendants’ “bad

faith”, Yukos, 977 F.3d at 235, on that basis alone, Magistrate

Judge Shields’ No-Sanctions Order would be proper.

[Plaintiff] from that spoliation”)); and (3) “without explanation

denied Plaintiff’s request for attorneys’ fees in connection with

the spoliation sanctions motion” (id. at 5). In opposition,

Defendants argue that: (a) as to the Profile Colored Headshot: (i)

it is speculation whether said Headshot exists; and (ii) such

speculation is an insufficient ground upon which to base a

spoliation sanction; (b) as to declining to issue a sanctions

recommendation: Plaintiff has not articulated how the Magistrate

Judge was definitively mistaken in not recommending sanction

especially since Plaintiff’s expert merely surmised that Colored

Headshots would likely assist him in determining whether there had

been recent blunt trauma to Grief’s left eye versus relying upon

the provided forward-facing, black-and-white headshot photograph;

and (c) as to attorneys’ fees: Magistrate Judge Shields was within

her discretion to deny those fees, especially since she denied

Plaintiff’s underlying spoliation sanctions motion, which

distinguishes this case from those relied upon by Plaintiff where

the underlying spoliation sanction motions had been granted. (See

No-Sanctions Opp’n at 5-7.)

The Court disagrees with Plaintiff’s contention that he

has made a significant showing of Defendants’ spoliation and

resulting prejudice to Plaintiff. Rather, having considered the

underlying submissions on Plaintiff’s spoliation sanctions motion,

the Court agrees with the Magistrate Judge that, at this juncture,

Plaintiff’s requested sanctions are not warranted, but that Grief

may be entitled to an adverse inference jury instruction after the

record is more fully developed.

Even assuming, arguendo, that the duty to preserve

evidence was triggered here, the absence of (1) a colored version

of Grief’s Front Headshot taken after the alleged kicking incident,

and (2) any profile headshot photo taken after said incident, are

not, as Plaintiff argues, “strongly suggestive of the Defendants

purposefully discarding post-incident photographs from the date of

the incident that would depict trauma to Plaintiff’s left eye that

one of the Corrections Officer Defendants caused by kicking

Plaintiff in his left eye.” (Sanction Support Memo, ECF No. 142,

at 10.) Rather, as Defendants aptly counter, “Plaintiff has not

proffered any evidence that the alleged ‘missing’ profile

photograph ever existed in the first place,” but ‘merely speculates

that the photographs were ‘likely’ taken and spoliated.” (Sanction

Opp’n, ECF No. 146-6, at 7.) Cf. Warren v. City of N.Y. Dep’t of

Corr. Med. Staff, No. 17-CV-1125, 2021 WL 1163105, at *14 (E.D.N.Y.

Mar. 26, 2021) (“[T]here is nothing here but ‘speculative

assertions as to the existence of documents,’ which ‘do not suffice

to sustain a motion for spoliation of evidence.’” (quoting Tri-

County Motors, Inc. v. Am. Suzuki Motor Corp., 494 F. Supp. 2d

161, 177 (E.D.N.Y. 2007)). Rather, Defendants proffer evidence

that a diligent search of the records was conducted for the Colored

Headshots, but they could not be located; instead, a black-and-

white copy of the Forward Headshot was produced. (See Sanction

Opp’n at 8.) The Court agrees with Defendants that without more,7

evidence merely being missing is not enough to “reflect either bad

faith, the intentional destruction of evidence, or gross

negligence.” (Id. at 7 (citing Swindell Dressler Int’l Co. v.

Travelers Cas. & Sur., Co., 827 F. Supp. 2d 498, 507 n.10 (W.D.

Pa. 2011) (“A party’s mere inability to produce copies or versions

of materials that existed when the lawsuit began is not necessarily

sufficient to establish sanctionable misconduct, provided that the

party conducted a diligent search in response to the discovery

request and produced the best evidence that it found at the time.”

(further citation omitted)).) Hence, at this juncture, Plaintiff

has not established the Defendants had the requisite “culpable

state of mind” to support the imposition of spoliation sanctions.

See Estate of Jackson v. County of Suffolk, No. 12-CV-1455, 2014

WL 1342957, at *11 (E.D.N.Y. Mar. 31, 2014) (“Even where the

preservation obligation has been breached, sanctions will only be

warranted if the party responsible for the loss had a sufficiently

culpable state of mind.” (quoting In re WRT Energy Sec. Litig.,

246 F.R.D. 185, 195 (S.D.N.Y. 2007)).

7 The Court notes that, other than Plaintiff’s conjecture, it is

unknown whether a Colored Profile Headshot ever existed.

As to relevance, in the context of addressing the

“culpable state of mind” prong of the spoliation sanctions

analysis, Plaintiff summarily assets: “Even were these items’

relevance, and the prejudice from their absence, not so plain,

their relevance and the prejudice from their absence could be

presumed under the circumstances at bar.” (See Sanctions Support

Memo at 11.) Plaintiff also baldly claims he will suffer immense

prejudice “[w]ithout the post-incident color photo (and the

missing post-incident profile photos) showing that his eye was

red, [because] it becomes simply Plaintiff’s lone word against the

Corrections Officer Defendants’ words.” (Id. at 10.) The Court

is unpersuaded. As the Defendants assert, “it is far from a

foregone conclusion that the [Colored Headshots] would reveal any

trauma to Plaintiff’s [left] eye,”, especially since “none of the

medical evaluations performed in the aftermath of the incident

indicate that Plaintiff’s eye was damaged in any way”. (Sanctions

Opp’n, ECF No. 146-6, at 10 (citing Sept. 28, 2014 Urgent Care

Assessment form, Ex. B, ECF No. 146-2; Sept. 28, 2014 Post Use-

of-Force form, Ex. C, ECF No. 146-3).) Even if that were not the

case, Plaintiff has failed to articulate how the Colored Headshots

would demonstrate his alleged eye injury was caused by any

individual Defendant.

Declining to recommend the requested sanctions of

striking Defendants’ Answer or issuing an adverse inference jury

instruction, Magistrate Judge Shields was well within her

discretion to also deny Plaintiff’s request for attorney’s fees.

See Fujitsu, 247 F.3d at 436. Indeed, in the absence of finding

grounds to impose other sanctions, there was no reason to award

attorneys’ fees as a sanction.

In sum, considering (1) Magistrate Judge Shields’

intimate knowledge of this case, (2) the underlying amendment

motion papers, and (3) Plaintiff’s objections and Defendants’

opposition thereto, this Court is not left with the definite and

firm conviction that a mistake has been committed by Magistrate

Judge Shields in denying the Spoliation Sanction Motion or that

said ruling is contrary to law. Magistrate Judge Shields’ No-

Sanction Order was properly based upon the record and well within

her discretion. Cf., e.g., Kang v. Perri, No. 20-CV-0746, 2021 WL

4487876, at *6 (E.D.N.Y. Sept. 30, 2021) (quoting Fujitisu, 247

F.3d at 436). To the extent not directly addressed, the Court has

considered the Plaintiff’s remaining arguments and finds them to

be without merit. Accordingly, the No-Sanctions Order is affirmed.

* * *

In conjunction with its inherent authority to manage its

dockets and courtroom with a view toward the efficient and

expedient resolution of cases, see Dietz v. Bouldin, 136 S. Ct.

1885, 1892 (2016), the Court makes the following observations and

provides the following directives. Magistrate Judge’s additional

finding that “Plaintiff has made a sufficient showing to explore

at trial whether the Defendants had a policy with respect to the

taking of pictures of inmates that was violated in this action,”

warrants interpreting the No-Sanctions Order as being a denial of

the Spoliation Motion without prejudice to renew after the record

has been fully developed at trial. It is so deemed, especially as

this Court agrees with the Magistrate Judge’s finding of a

sufficient showing. If Plaintiff chooses to pursue this line of

questioning at trial, it will be subject to the Court’s evidentiary

rulings. Moreover, if such evidence is presented to the jury,

jurors (1) may assign to it the weight they deem appropriate, and

(2) will assess the credibility of the witnesses testifying about

it. Thus, for clarity: Plaintiff is not precluded from seeking

an adverse inference jury instruction regarding the lack of Colored

Headshots, if warranted. Cf. Swindell, 827 F. Supp. 2d at 507

(finding “that a spoliation sanction in the form of a spoliation

inference instruction is essentially an evidentiary ruling” which

“rest in the sound discretion of the court” and that “pretrial

rulings regarding evidentiary questions should rarely be granted”

(cleaned up; citations omitted)).

[Remainder of Page Intentionally Left Blank.]

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

A. As to Plaintiff’s Rule 72 Objections to the No-Amend Order:

1. The Objections are OVERRULED;

2. The No-Amend Order is AFFIRMED; and

3. Plaintiff’s Motion for Reconsideration (ECF No. 138) is

DENIED; and

B. As to Plaintiff’s Rule 72 Objections to the No-Sanctions

Order:

1. The Objections are OVERRULED;

2. The No-Sanctions Order is AFFIRMED; and

3. Plaintiff’s Motion for Reconsideration (ECF No. 155) is

DENIED.

IT IS FURTHER ORDERED that the Clerk of Court is directed

to amend the case caption in this action as stated herein (see

supra at note 1).

SO ORDERED.

_/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: February _2_, 2022

Central Islip, New York