Opinion
10-P-1477
09-30-2011
STANLEY DONALD v. LUIS MELENDEZ & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the order denying his motion for new trial, pursuant to Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974), and the judgment entered in favor of the defendants after a jury trial. In essence, the plaintiff's case concerned his claim that the defendants used excessive force against him when they learned that he had sent a 'prison incident report' to Federal authorities complaining about various wrongdoings by correction officers. He raises five issues in this appeal. We consider each argument in turn below, and affirm.
First, the plaintiff argues that the defendants deliberately altered and withheld videotape footage to conceal the use of excessive force such that he was deprived of evidence to support his Federal civil rights claim under 42 U.S.C. § 1983 (2006). It appears undisputed that some videotape footage had been deleted and was therefore not available during the case below. The jury heard testimony explaining that the footage had been taped over as part of a routine recycling schedule because correction officials did not believe that it contained anything of relevance to the plaintiff's claims. Specifically, the jury heard that the footage was of a corridor on the third floor, and that the plaintiff's claims at that time involved only events on the second floor of the facility. Other footage was preserved and that footage was shown to the jury. The judge instructed the jury:
The plaintiff suggests on appeal, although he did not make such a claim below, that this footage was altered so as to make it blurry. See Fogarty v. Commonwealth, 406 Mass. 103, 110 (1989) (arguments not made below will not be considered on appeal).
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'Now, regarding the videotapes, you've heard testimony about videotapes that were not placed into evidence but were taken during the events of 6/10/03. In determining whether the plaintiff has proved by a preponderance of the evidence any violation of his state and federal civil rights and/or his claim of assault and battery, you may consider, first, whether and how the availability of these videotapes would have assisted you in determining whether one or more of the defendants committed any civil wrongdoing; second, the reasons given for the unavailability of the videotapes; and, third, any other evidence you've heard relating to how these videotapes were made, where they were stored, and why they cannot be shown at this trial, any of this which may assist you in reaching a verdict.'
'I further instruct you that while you may not guess or speculate on this or any other issue in the trial, the content of these videotapes, the oral testimony of the eyewitnesses about the videotapes, and the fact that videotapes were not produced for this trial are all matters for your consideration in deciding this case.'
Thus the fact of destruction, and the inferences to be drawn from it, were fully placed before the jury as factual matters to be determined by them. In other words, the plaintiff was permitted to ask the jury to draw the inference that the videotape would have corroborated his version of events, and the jury were permitted to consider, and accept, that theory. That the jury credited the defendants' explanation for the destruction of the videotape is no basis upon which to find error now.
Relying on Beryl v. Superintendent, Souza-Baranowski Correctional Center, 55 Mass. App. Ct. 906 (2002), the plaintiff argues that the destruction of some of the videotape footage requires that we vacate the judgment. We disagree. Beryl is factually and procedurally inapposite. Beryl holds only that, in a certiorari action seeking review of a prison disciplinary decision, the reviewing court is required to review the entire record that had been before the disciplinary board, including the videotape of the incident. Id. at 907. Because the reviewing court had not reviewed the videotape (which was available), the judgment was vacated and the matter remanded for consideration of the videotape. Ibid.
Second, the plaintiff argues that the judge erroneously allowed defendant Kenneth Arsenault's motion for a directed verdict. The plaintiff argues that Arsenault wrote a false report in order to punish the plaintiff for 'speaking against things that happened within the institution and this constitutes a violation of the plaintiff's First Amendment Rights.' Even were we to accept, arguendo, that this states a cognizable claim, there was no evidence to support it in this case. The evidence did not show that Arsenault's report was false.
Third, the plaintiff argues that the jury's verdict was improperly influenced by introduction of the defendant's prior criminal history. It does not appear from the record that any information concerning the plaintiff's criminal history was introduced. The plaintiff's main argument appears to be based on the isolated reference in a letter he wrote to the then Middlesex District Attorney, which began, 'Your office prosecuted me, and if anything happens to me while I'm in prison, your office will be held responsible.' There is no reason to conclude that this sentence in any way influenced the jury, particularly since it was certainly no mystery that the plaintiff had been prosecuted; his entire case revolved around events he claimed occurred while incarcerated.
Fourth, we see no merit in the plaintiff's argument that certain special questions for the jury did not conform to the testimony or evidence presented. Those questions were properly framed and the one question that incorrectly stated a defendant's name was not reached by the jury.
Finally, the plaintiff's argument that the verdict was against the weight of the evidence also lacked merit. The evidence presented by the defendants amply supported the verdict in their favor.
Judgment affirmed.
Order entered May 29, 2008, denying motion for new trial affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),