Kounelis v. Sherrier

Citation529 F.Supp.2d 503
Decision Date03 January 2008
Docket NumberCiv. No. 04-4714 (DRD).
PartiesMichael KOUNELIS, Plaintiff, v. Lydell SHERRER; Carlos Atuncar; Nathaniel Bush; Eddie Cannon; Canute Forte; Frankie James; Carlos Perez; Doris Sagebiel; Vincent Sanders; and William Schwenk, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

Lowenstein Sandler P.C. by Matthew M. Oliver, Esq., Ramsey C. Ong, Esq., Roseland, NJ, for Plaintiff.

Anne Milgram, Attorney General of New Jersey by Thomas E. Kemble, Esq., Deputy Attorney General, Trenton, NJ, for Defendant's.

DEBEVOISE, Senior District Judge.

This case arises out of a November 14, 2003 altercation between Plaintiff, Michael Kounelis, and guards at the Northern State Prison ("NSP"), in Newark, New Jersey, where Kounelis was an inmate. Kounelis alleges that guards assaulted him in retaliation for complaints he had made against one of them and that they, and other Defendants, took further action against him that violated his First, Fifth, Eighth, and Fourteenth Amendment rights. He brings his action under 42 U.S.C. § 1983 and also asserts certain state law claims. Defendants are Lydell Sherrer, NSP's Administrator; Vincent Sanders, NSP's Director of Custody Operations; Senior Corrections Officers ("SCO") Carlos Atuncar, Nathaniel Bush, William Schwenk; Sergeants Frankie James and Canute Forde; Disciplinary Sergeant Carlos Perez; Captain Doris Sagebiel; and Lieutenant Eddie Cannon. Defendants contend that Kounelis assaulted a guard and resisted arrest and that none of his federal or state law rights were violated.

Coloring this controversy is the loss of video surveillance footage, purportedly portraying the assault, that was recorded onto a DVR hard drive but not transferred to a more permanent medium. The circumstances of the November 14, 2003 altercation are hotly contested, rendering the video highly relevant. Its loss has been the source of much of the litigation in this case including the current motions. Now before the Court are the parties' cross-appeals of Magistrate Judge Shwartz's order of October 2, 2007, granting in part and denying in part Kounelis's application for spoliation sanctions against Defendants; Kounelis's motion for summary judgment against Sergeants Forde and Perez for violation of his due process rights; and Defendants' second motion to dismiss, or in the alternative, motion for summary judgment.

For the reasons set forth below, the Magistrate Judge's order will be reversed in part and affirmed in part; Kounelis's motion for summary judgment will be denied; and Defendants' motion to dismiss, or in the alternative, for summary judgment will be denied in part and granted in part.

BACKGROUND
A. The November 2003 Altercation

Most of the background facts are set forth in a Stipulation of the parties contained in the Final Pretrial Order. On the morning of November 14, 2003, Kounelis was in the prison doctor's office when he was informed that he had a visitor. On receiving this information, Kounelis proceeded from the doctor's office in the North Compound of the prison to the South Compound to get a pass to meet with his visitor. In order to reach the South Compound from the North Compound, inmates are required to pass through a frisk machine located in the center of the Education Department ("E/D area"). As in other areas of the NSP, surveillance video cameras are mounted on the walls of the E/D area and two cameras in the upper northwest and upper southeast corners a the E/D area are directed towards the frisk machine in the center.

As Kounelis passed through the frisk machine, an altercation between Kounelis and members of NSP staff ensued. According to Kounelis, he was assaulted by SCO Atuncar. Kounelis submits that the assault was in retaliation for complaints that Kounelis had filed against SCO Atuncar on September 4 and September 11, 2003.

The Defendants' account differs dramatically. Defendants contend that as Kounelis was passing through the E/D area, he began shouting obscenities at SCO Schwenk and that as Kounelis passed through the frisk machine, he intentionally bumped SCO Schwenk in the chest with his right shoulder. SCOs Schwenk and Bush then restrained Kounelis, forcing him to the ground while other officers, including Sergeant James and Lieutenant Cannon, responded to the emergency situation.

Following the altercation, Kounelis was placed in prehearing detention. Kounelis was then taken to NSP's medical facility where he was examined by the medical staff, and one of the nurses recorded his injuries. A medical report dated November 14, 2003 states that Kounelis suffered a right index finger laceration and a left check bone injury. A doctor's examination on November 19, 2003 further reports that Kounelis was suffering from a lower back sprain and had abrasions on both knees and on his left cheek.

Kounelis was issued a disciplinary infraction for assaulting any person for his alleged assault of SCO Schwenk. Sergeant Forde, acting as the Disciplinary Sergeant on November 15, 2008, was responsible for investigating the disciplinary charges lodged against inmates and gathering evidence related to the charges. He served Kounelis with a copy of the disciplinary charge and then concluded his investigation shortly thereafter.

The disciplinary charge contained the statement of SCO Schwenk that Kounelis bumped into SCO Schwenk's chest as Kounelis was passing through the frisk machine in the E/D area and the statement of SCO Bush that he had witnessed the event. On receiving the disciplinary charge, Kounelis maintains that he informed Sergeant Forde that the statements contained in the charge were incorrect because it was not SCO Schwenk, but rather SCO Atuncar, who had assaulted him. Kounelis further maintains that at this time he asked Sergeant Forde for a copy of the surveillance footage in order to prove his version of the events.

According to Captain Antonio Campos, Defendants' Rule 30(b)(6) witness, the surveillance system at the NSP records surveillance footage onto a digital video recorder ("DYE"). The footage is only stored on the DVR hard drive for approximately seven to ten days before it is overwritten on the hard drive by new footage. In order for surveillance footage to be preserved, it must be downloaded and recorded onto a video tape. NSP policy permits inmates to request a copy of surveillance footage for use at a disciplinary hearing and recordings are routinely made on request for later use at various types of administrative proceedings.

Sergeant Forde, however, has no recollection of being asked for the surveillance footage. In addition, Sergeant Forde's report contains no notation that such a request was made. Defendants submit that this is because the request was never made. Because the report contained no notation, Sergeant Perez, who took over the investigation of Kounelis's disciplinary infraction on November 17, 2003, claims that he did not know that a request for surveillance footage had been made.

Kounelis also claims to have requested a copy of the surveillance footage from Hearing Officer Gary Styer. Kounelis met with Hearing Officer Styer on several occasions prior to the disciplinary hearing. In addition to making verbal requests for the surveillance footage, Kounelis submitted written confrontation questions to be used at the disciplinary hearing which referred to the surveillance footage. Yet no copy of the surveillance footage was ever provided to Kounelis.

A prison disciplinary hearing was held on December 5, 2003. Kounelis pleaded "not guilty" to the disciplinary charge of assaulting any person. After hearing the evidence, including SCO Bush's corroborative account of the altercation, Hearing Officer Styer modified the charge against Kounelis from assault to unauthorized contact. Kounelis was then found guilty of unauthorized contact and sanctioned with fifteen days detention.

Kounelis appealed the adverse decision within the NSP, filed a claim for tort damages with New Jersey Bureau of Risk Management, and filed additional administrative complaints against SCO Atuncar. In the administrative complaints, Kounelis stated that SCO Atuncar had warned him not to file a civil action regarding the November 14, 2003 incident or else he would be taught another lesson. Kounelis also requested that his cell be relocated to an area of the NSP farther away from SCO Atuncar.

B. The § 1983 Action

When none of these administrative actions yielded a favorable result, Kounelis filed a pro se complaint on September 27, 2004. The six counts of the Complaint seek relief, pursuant to 42 U.S.C. 1983, for violations of Kounelis's First, Fifth, Eighth, and Fourteenth Amendment rights and compensation for intentional infliction of emotional distress and negligence.1

In his Complaint, Kounelis alleges that he was assaulted by SCOs Atuncar, Schwenk, and Bush because he filed administrative complaints against SCO Atuncar. The Complaint explains that on September 4, 2003, Kounelis filed an Administrative Remedy Form stating that SCO Atuncar denied him access to the NSP law library because he was allegedly wearing improper footwear. On September 11, 2003, Kounelis claims that he was again denied entry to the law library by SCO Atuncar, who warned him not to file any more complaints. Kounelis reported this interaction in another Administrative Remedy Form, which described how SCO Atuncar had threatened to set Kounelis up and retaliate against him through his subordinates if Kounelis continued to file complaints against him.

Kounelis further alleges that SCO Atuncar carried out his threats by attacking him as he passed through the E/D area on November 14, 2003, and that, to cover up the assault, SCOs Atuncar, Schwenk, and Bush caused a false disciplinary infraction for...

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