Opinion
Civil Action No. 08-133.
May 8, 2008
BEFORE THE HONORABLE JOHN W. BISSELL, SPECIAL MASTER
PAUL J. HIRSH, PC, MORRISTOWN, NEW JERSEY, ATTORNEY FOR THE PLAINTIFFS.
ROSELLI CRTECEL, PC, BY: MARK ROSELLI, ESQUIRE, — and — BY: JAMES LAZZARO, ESQUIRE, HAMILTON SQUARE, NEW JERSEY, ATTORNEYS FOR THE DEFENDANTS.
Transcript of proceedings in the above matter taken by Theresa O. Mastroianni, Certified Court Reporter, license number 30X100085700, and Notary Public of the State of New Jersey at the United States District Court House, One Gerry Plaza, Camden, New Jersey, 08102, commencing at 9:30 AM.
As we know, I'm not going to paraphrase Rule 52C to any great extent, but that if a party has been fully heard on an issue or claim, and that's the case here because the plaintiff has rested in this matter tried without a jury, this Court may consider the matter in a plenary fashion, among other things, making findings with regard to credibility and the weight of the evidence. I'm not required to treat such a motion with the deference that would be required in the matter of a jury trial.
A Court determines — pardon me, this Master determines that the only reasonable conclusion from all of the evidence before me is that the video in question depicts the day in question on or about August 9th, with which Carroll did not quarrel. When he was extracted from his cell, moved through the infirmary, as it turns out, to — from F Unit to B Unit, together with this plaintiff's cell mate. The description, of course, of the events that occurred as related on direct examination without the presence of a videotape is, of course, what it is. And the Court refers to the record as generated.
However, in my opinion, the videotape completely refutes the version of the offense given by the plaintiff. Obviously, nothing took place on camera as the plaintiff describes. Plaintiff then in an effort when he was off camera for a matter of seconds, certainly no more than a minute plus, as I noticed the logging on the TV screen, that that is when the beatings and the vilification occurred. And as the witness described, among other things, those comments yelled at the witness were such things as, quote, fag, don't say nothing or I'll luck you up. Quote, fag, I'm going to tell you to lift a foot. After which he said I didn't tell you which foot to lift. And he presumably was struck again. More such nasty things. Quote, you lucking faggot. Quote, I'll luck you up, et cetera.
This tape had audio as well as video. And it's equally clear from the sequence of events as the plaintiff admitted on cross-examination that he was standing just off camera to what would be the left side of the screen as we look at it. Indeed, I can see a SOG officer on the left side of the screen with his attention in that direction as opposed to the others who were looking at the cell mate, Tyrone.
And in that few seconds later when both of them began to be marched out, the plaintiff appeared from the immediate vicinity in the very left of the screen, indicating that the plaintiff was not far away. Perhaps no more than the width of this bench.
Accordingly, given the level of volume at which the tape was played, and the conversational tone of other remarks in the course of it, there is absolutely no way whatsoever that the yelling and screaming and swearing which the plaintiff described could have taken place without being overheard. And it was not, there was none of it.
Furthermore, there are other details of the events which just don't jive with the plaintiff's version. Being shackled around the ankles was testified to on direct examination. There was no leg irons used in the course of this transportation.
While the clear insistence on direct examination that the plaintiff was never taken to the infirmary, now one could excuse a lapse of recollection there, I gather. But once again, upon being confronted with the videotape, it was obvious that the person was taken to the infirmary.
While no video, of course, could supply a microscopic examination, there are no evidences whatsoever in the course of that tape that we're dealing with the result of any beatings or any hard beatings around the head. Among other things, the curlers remained in place. I don't know enough about that sort of thing to know whether they would likely be dislodged or disrupted by such beatings, but they weren't.
The opportunity for us to observe on the tape the inspection taking place at the infirmary, indicating nothing about — from a visual point of view, the prospects of any beatings around the head.
The testimony with regard to being slammed into the podium upon arrival at B Unit completely belied by the tape, which ran in continuous sequence as we could tell from the timing device on it, into an uneventful entry into the B Unit cell.
The plaintiff's efforts in the course of the cross-examination then to say, well, you know, maybe all this happened to me while I was in B Unit and I was being transferred from one cell to the other during the whole time I was there, that frankly I can only conclude is an effort to somehow or other salvage this claim in the wake of such strong evidence to the contrary.
Accordingly, I make a determination that there was no credible evidence on this record of any beating or assault or physical activity or even rude language employed against this plaintiff on this occasion, which of course is the essence of his claim.
The motion under Rule 52C is granted. The Court will recommend — this Master will recommend to the district Judge the entry of a judgment of no cause for action.
CERTIFICATE
I, Theresa O. Mastroianni, a Notary Public and Certified Shorthand Reporter of the State of New Jersey, do hereby certify that the foregoing is a true and accurate transcript of the testimony as taken stenographically by and before me at the time, place, and on the date hereinbefore set forth.I DO FURTHER CERTIFY that I am neither a relative nor employee nor attorney nor counsel of any of the parties to this action, and that I am neither a relative nor employee of such attorney or counsel, and that I am not financially interested in the action.
Exhibit