In the U.S. District Court for the Eastern District of New York. Judge David G. Trager saw no constitutional violation in a state trial court’s failure to give a missing witness charge in a manslaughter trial. Judge I. Leo Glasser dismissed civil rights claims by a former Riker’s Island inmate relating to a ‘slip and fall’ in a flooded prison bathroom. Judge Arthur D. Spatt granted a motion for class certification in a suit against the Village of Belle Terre for the conduct of its officials in enforcing traffic laws. And Magistrate Judge Joan M. Azrack found no duty on the part of the Post Office to warn a courier not to jump onto a loading dock.
§ 2254: Missing Witness Charge
In Reyes v. Miller, 04 CV 3653 (EDNY, Dec. 29, 2005), Judge Trager, denying a habeas petition, held that the trial judge’s refusal to give a missing witness charge was not an abuse of discretion.
After a jury trial in Supreme Court, Kings County, petitioner was found guilty of manslaughter and criminal possession of a weapon. The evidence showed that the victim, Mr. Adanmes, had threatened to kill petitioner’s brother. This led to an argument in a parking lot between petitioner and Mr. Adanmes. A witness, Carrasquillo, intervened to quiet the fight. Mr. Adanmes turned away from petitioner and got into his car. In a pretrial statement to police, petitioner claimed to have seen Mr. Adanmes reach for a revolver inside the glove compartment. Petitioner then reached for his own gun. In his statement he asserted that Mr. Carrasquillo and another tried to wrest the gun from his hands. The gun fired, striking Mr. Adanmes, who got out of his car and collapsed after a second shot was fired. Petitioner admitted killing Mr. Adanmes, but claimed self-defense.
Mr. Carrasquillo also gave a statement to police, identifying petitioner as the killer, but mentioning neither the victim’s gun nor a struggle for petitioner’s gun.
Defense counsel requested a missing witness charge to allow the jury to draw an unfavorable inference against the prosecution for failing to call Mr. Carrasquillo as a witness. Counsel emphasized that Mr. Carrasquillo had given a statement to police inculpating petitioner and should thus be expected to testify favorably for the prosecution.
Opposing the request, the prosecutor stated that Mr. Carrasquillo had refused to cooperate unless the prosecution agreed to his demand for a favorable plea bargain in a narcotics case. This the prosecution would not do. Under the circumstances, the prosecution also had a concern that Mr. Carrasquillo’s testimony would not be truthful.
Defense counsel’s summation noted the prosecution’s failure to call civilian witnesses to the stand, and repeatedly alluded to Mr. Carrasquillo’s presence in the moments before the shooting. The prosecutor’s summation, by portraying Mr. Carrasquillo as petitioner’s friend, implicitly suggested that the defense could have called Mr. Carrasquillo.
The trial court declined to give a missing witness charge against either party.
As Judge Trager observed:
Carrasquillo’s demand for a favorable plea was sufficient for the trial court to deny the missing witness charge. Carrasquillo had refused to testify without a favorable plea bargain which the prosecution had no desire or obligation to give…. Public policy requires that the prosecution not be obligated to pay such a price for the witness’ testimony.
In any event, the refusal to instruct did not so infect the entire trial as to violate due process. And, given defense counsel’s emphasis in summation on Mr. Carrasquillo’s absence as a witness, there was no prejudice. Slip op. 12.
Prisoners’ Civil Rights
In Sylla v. City of New York, 04 CV 5692 (EDNY, Dec. 8 2005), Judge Glasser granted defendants’ motion to dismiss a complaint by a former prisoner alleging civil rights violations at Riker’s Island Correctional Facility.
The complaint alleged the following: (1) While plaintiff was incarcerated at Riker’s Island, he slipped and fell in a flooded bathroom, which should have been closed. Defendant Correction Officer Doe instructed him to use the bathroom, knowing that plaintiff might injure himself. (2) Though he requested medical attention immediately, he had to wait four weeks to be treated for injuries to his spine, back and neck, as well as psychological trauma. (3) Defendants City of New York and Department of Corrections failed to provide training to enable defendant Doe to detect potentially dangerous conditions and follow standard procedures and guidelines.
Concerning plaintiff’s § 1983 claims based on the Fifth, Eighth, Ninth and Fourteenth amendments against Officer Doe, Judge Glasser found no facts warranting an inference that a constitutional right had been violated. The court dismissed plaintiff’s Fifth Amendment claim because it applied only to the federal government, not the municipal defendants here. Similarly, the Ninth Amendment was inapplicable in a § 1983 case.
The Eighth Amendment ‘protects prisoners from ‘cruel and unusual punishment’ in the form of ‘unnecessary and wanton infliction of pain’ at the hands of prison officials,’ arising from confinement imposing an ‘excessive risk to the inmate’s health or safety.’ Slip op. 5. But as Judge Glasser noted, a wet or slippery floor does not pose such an excessive risk to prisoners. In any event, negligence is an insufficient basis for an Eighth Amendment claim. By alleging that Officer Doe had negligently directed him to use the bathroom, plaintiff failed to allege facts giving rise to an inference of deliberate indifference on Mr. Doe’s part. In short, plaintiff had merely alleged a ‘slip-and-fall’ accident on a wet bathroom floor.
As to the ‘medical indifference’ claim under the Eighth Amendment, plaintiff had not pleaded any facts to suggest a need for immediate attention from a doctor or, indeed, any facts at all on which the court could infer an objectively serious medical condition.
Similarly, Judge Glasser dismissed plaintiff’s Fourteenth Amendment claim that officials had unlawfully deprived him of his liberty interest in freedom from bodily injury. As Judge Glasser noted, the Supreme Court has routinely rejected claims based on the negligent acts of prison officials.
Finally, Judge Glasser found no allegations of deliberate conduct that would sustain a § 1983 claim against the municipality. The complaint did not identify any policy or custom of the Department of Corrections that might have led to plaintiff’s injuries. Instead, the complaint alleged that Mr. Doe had violated municipal policies. Slip op. 13.
In Coco v. The Incorporated Village of Belle Terre, 01 CV 5061 (EDNY, Nov. 26, 2005), Judge Spatt granted plaintiff’s motion for class certification under Rule 23(b)(2) (injunctive relief) and Rule 23(b)(3)(damages) for three classes of drivers who had been stopped by Village of Belle Terre employees. The three classes are: (1) persons whose personal information from a motor vehicle record was obtained or disclosed for an unpermitted use; (2) all persons who were stopped or detained by any Village of Belle Terre employee; and (3) all persons who were stopped or detained by a Belle Terre employee and paid or were directed to pay amounts of money to Belle Terre in connection with ensuing citations and appearance tickets.
The complaint alleged that the Village of Belle Terre and its employees created a scheme in which they purported to enforce traffic and collect fines through a RICO enterprise. Accepting the complaint’s allegations as true, Judge Spatt found that plaintiff had met the four requirements for class certification. First, plaintiff met the numerosity requirement by alleging that the class contains at least 800 persons who had been defendants in the Village Court. Second, all members of the class shared common questions of law or fact. The court pointed to the core allegations that ‘defendants, without authority to do so, purported to enforce traffic and other laws and collect purported fines for alleged violations of those laws.’ Third, plaintiff had satisfied the typicality requirement because each class member’s claim arose from the same course of events and each class member would make the same legal argument that defendants enforced an illegal scheme by which they sought to enforce traffic laws and collect purported fines for violation of these laws. Fourth, the court found ‘adequacy’ based on class counsel’s experience in class action litigation and the lack of antagonistic interests among class members.
Federal Tort Claims Act
In Lombardo v. United States, 04 CV 0277 (EDNY, Nov. 8, 2005), a negligence action under the Federal Tort Claims Act, Magistrate Judge Azrack found that plaintiff, a courier for DHL/Airborne Express, had failed to make out a prima facie case against the government in connection with his alleged injuries sustained when making a delivery at a U.S. Post Office. Both parties waived jury trial and consented to trial by a magistrate judge.
In 2002, plaintiff arrived at the Post Office’s Bayside Annex, a sorting facility, to drop off packages for delivery by the Postal Service. The loading dock there is about two and a half feet above street level. Plaintiff attempted to jump onto the loading dock to obtain a supervisor’s signature on a manifest. He fell backward, sustaining injuries.
Because the loading dock was not defective, plaintiff had to show that the government had a duty to instruct plaintiff to use a nearby door leading to the interior of the facility rather than jumping onto the dock.
Plaintiff had several options for ascending the platform. As Judge Azrack stated:
Defendant was not required to protect [plaintiff] from his own poor judgment in electing to use the loading dock for an unintended purpose, thereby exposing himself to an obvious risk of injury.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[This article is reprinted with permission from the January 13, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]