Abascal v. Fleckenstein, Docket No. 14–1591–cv.

Decision Date29 April 2016
Docket NumberDocket No. 14–1591–cv.
Citation820 F.3d 561
PartiesIsidro ABASCAL, Plaintiff–Appellee, v. Dennis FLECKENSTEIN and Chester Kosmowski, Defendants–Appellants, William Kump, James T. Conway, Thomas G. Eagen, Defendants.
CourtU.S. Court of Appeals — Second Circuit

Martin A. Hotvet, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, and Frederick A. Brodie, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for DefendantsAppellants Dennis Fleckenstein and Chester Kosmowski.

Jeffrey F. Baase, Rupp Baase Pfalzgraf Cunningham LLC, Buffalo, NY, for PlaintiffAppellee Isidro Abascal.

Before POOLER, HALL, and CARNEY, Circuit Judges.

HALL, Circuit Judge:


PlaintiffAppellee Isidro Abascal was an inmate with the New York State Department of Corrections and Community Supervision from April 1997 to September 2005. In November 2003, the Department of Corrections transferred Abascal to the Attica Correctional Facility in upstate New York. While at Attica, Abascal alleges, he was prevented from leaving his cell during fourteen mealtimes and during several recreational periods. He also contends that Officer Fleckenstein physically assaulted him. These abuses allegedly were in retaliation for filing grievances against individual corrections officers. The retaliatory abuse occurred between November 2003 and March 2005.

In March 2005—a few weeks after the last alleged incident of abuse—members of the Correctional Association of New York (the “Association”) visited the Attica Correctional Facility to conduct research for a prison monitoring report (the “Report”), which was published six months later. The Association is a private, nonprofit corporation that is registered with the New York State Department of State, Division of Corporations. See NYS Department of State, Division of Corporations, Entity Information, http://www.dos.ny.gov/corps/bus_entity_search.html (last visited February 29, 2016). The Association describes itself as an “independent non-profit organization that advocates for a more humane and effective criminal justice system.” Correctional Association of New York, Who We Are, http://www.correctionalassociation.org/about-us/mission-history (last visited February 29, 2016).

The Report found a “widespread sense of fear and intimidation among inmates” and that corrections officers at Attica abused inmates by, among other things, refusing to let inmates out of their cells at mealtimes and physically assaulting them. Joint App'x at 75, 79. The Report further states that [i]nmates said that prisoners who make complaints about abuse or file grievances are retaliated against by staff and many are too intimidated to even raise allegations of abuse.” Id. at 79. Although generally critical of the facility, the Report also contained positive information about the Attica Correctional Facility including that many inmates were “generally satisfied with their [mental health] treatment, and the staff and inmates who work there [were] understanding and sensitive to the needs of inmates with mental illness.” Id. at 76.

Members of the Association gathered the underlying information in the Report by distributing anonymous questionnaires to inmates, interviewing guards, and observing the facility firsthand. The Report is fourteen pages long and contains summaries of the information collected by the investigators but does not contain the underlying data upon which the Report relies. The authors of the Report—who are nowhere identified—note that [d]uring [the] visit we could not adequately investigate the amount and severity of the abuse or evaluate the factors that contribute to the problems between inmates and staff.” Id. at 79.


Abascal, proceeding pro se, brought suit under 42 U.S.C. § 1983 alleging, among other things, that while he was incarcerated at Attica Correctional Facility, defendant corrections officers Dennis Fleckenstein and Chester Kosmowski subjected him to cruel and unusual punishment by depriving him of meals and defendant Fleckenstein physically assaulted him in violation of his Eighth Amendment rights. Abascal sought declaratory relief, compensatory damages, and punitive damages.

Before trial, defendants objected to the Report's admission into evidence. The magistrate judge initially admitted the Report under the public records exception to the rule against hearsay. The court mistakenly classified the Association as a state agency of the State of New York. A few days after the decision, the defendants moved for reconsideration on the grounds that the Association was a public advocacy group and not a state actor. In response to that motion, the district court altered its rationale for admitting the Report and ultimately admitted the Report under the business records exception.

At trial, the jury found that both defendants had violated Abascal's constitutional right to nutritionally adequate food and awarded Abascal $1 in nominal damages and $150,000 in punitive damages ($75,000 per defendant). The jury did not find Fleckenstein liable for use of excessive force. The district court denied defendants' motion for a new trial. On appeal, defendants argue that the district court's admission of the Report constitutes reversible error that warrants a new trial.


a. Standard of Review

We review for abuse of discretion the admission of evidence. United States v. Ford, 435 F.3d 204, 214 (2d Cir.2006). When reviewing a district court's decision to admit evidence, [e]ither an error of law or a clear error of fact may constitute an abuse of discretion.” Schering Corp. v. Pfizer Inc., 189 F.3d 218, 224 (2d Cir.1999) (internal quotation omitted). Even when a district court's evidentiary ruling is erroneous, we will not grant a new trial if the error was harmless. Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir.2010). We begin by addressing whether the district court erred when it admitted the Report into evidence.

b. Hearsay

The Federal Rules of Evidence prohibit the admission of hearsay. Fed R. Evid. 802. Hearsay is a “statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). The Report is classic hearsay because it was offered for the truth of the matter asserted, and it was not made under oath before the district court. Unless the Report may be admitted under an exception to the rule against hearsay, the district court erred by admitting it.

c. Business Records Exception

The district court ultimately admitted the Report under an exception commonly referred to as the “Business Records Exception” to the rule against hearsay. Fed.R.Evid. 803(6). A business record may be admitted into evidence even though it is hearsay if: (a) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (b) the record was kept in the course of a regularly conducted activity; (c) making the record was a regular practice of that activity; (d) the custodian certifies the record; and (e) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Fed.R.Evid. 803(6)(a–e). On examination of these factors, we hold that the Report does not satisfy the requirements of the Business Records Exception.

The Report was not “made at or near the time by—or from information transmitted by—someone with knowledge.” Fed.R.Evid. 803(6)(a). Timeliness is essential because “any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously. United States v. Strother, 49 F.3d 869, 876 (2d Cir.1995) (internal quotation omitted). Association employees visited Attica on March 17, 2005, and the Report was not issued until September 5, 2005. A six month delay is too long a time to be considered a contemporaneous recording. Even assuming, as Abascal argues, that the Report was “made within a reasonable time after the site visit,” Joint App'x at 99, there is nothing in the record that suggests the surveys and interviews were conducted at or near the time of the underlying events that make up the information in the Report. In other words, there is no way to verify that the incidents that the inmates recounted to Association employees occurred at or near March 17, 2005.

Moreover, the Report was not made by someone with personal knowledge of the underlying information. First, it is unclear from the record who, in fact, authored the Report. The Report was officially authored by the Association itself, and there is no way to verify if the actual author or authors had personal knowledge of the information that was reported. Second, and more importantly, even if the Report was created by an employee of the Association who personally visited Attica, there is no indication that the information gathered in the underlying surveys and interviews was reported by “someone with knowledge.” Fed.R.Evid. 803(6)(a). This significant deficiency also implicates similar problems surrounding embedded hearsay, which we briefly address below.

In addition, the making of the Report is not the kind of “regularly conducted activity” contemplated by the business records exception. See Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 633 (2d Cir.1994) (affirming lower court's decision not to admit a document under the business records exception because it “required significant selection and interpretation of data, not simply a downloading of information previously computerized in the regular course of business”). The creation of the Report required interpreting survey results and inmate interviews and then creating a summary of the findings. This process is a far cry from the...

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