1

11-5154 (L)

DeMeo v. Kean

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall

3 Courthouse, 40 Foley Square, in the City of New York, on the

29th 4 day of January, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROSEMARY S. POOLER,

9 DENNY CHIN,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 DEREK DEMEO, 

14 Plaintiff-Appellee-Cross

15 Appellant,

16

17 -v.- 11-5154 (Lead)

18 11-5391 (XAP)

19 DORIAN TUCKER, SHARLEEN SPILLENGER, 

20 RALPH SPILLENGER, THE BAYOU CAFÉ, INC.,

21 Defendants,

22

23 JOSHUA KEAN, M.K. REYNER,

24 Defendants-Cross Appellees,

25

26 PHLIP’N SPILL, INC., INDIVIDUALLY AND

27 DOING BUSINESS AS THE BAYOU CAFÉ, 

28 Defendant-Appellant-Cross 

29 Appellee.

30 - - - - - - - - - - - - - - - - - - - -X
2

1 FOR PLAINTIFF-APPELLEE- KEVIN A. LUIBRAND, Luibrand Law 

2 CROSS APPELLANT: Firm, PLLC, Latham, New York.

3

4 FOR DEFENDANTS-CROSS KATE H. NEPVEU, Assistant 

5 APPELLEES: Solicitor General, Albany, New

6 York, for Eric T. Schneiderman,

7 Attorney General of the State of

8 New York, and Barbara D. 

9 Underwood, Solicitor General of

10 the State of New York (Denise A.

11 Hartman, Assistant Solicitor

12 General, Albany, New York, on

13 the brief).

14

15 FOR DEFENDANT-APPELLANT- Gretchen M. Greisler, Albany, 

16 CROSS APPELLEE: New York.

17

18 Appeal from a judgment of the United States District

19 Court for the Northern District of New York (Hurd, J.).

20

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

22 AND DECREED that the judgment of the district court be

23 AFFIRMED IN PART and REVERSED IN PART. 

24

25 Defendant Phlip’N Spill, the corporate owner of a bar

26 called The Bayou Café, appeals from a judgment of the United

27 States District Court for the Northern District of New York

28 (Hurd, J.) following a jury verdict rendered against it for

29 compensatory and punitive damages in the total amount of

30 $110,000. Plaintiff Derek DeMeo cross appeals from the

31 district court’s denial of his motion for a new trial

32 pursuant to Fed. R. Civ. P. 59(a). We assume the parties’

33 familiarity with the underlying facts, the procedural

34 history, and the issues presented for review. 

35

36 Phlip’N Spill, along with State Defendants Joshua Kean

37 and M.K. Reyner, argues that the district court erred by

38 denying its motion to amend the judgment to rectify a clear

39 error of law with respect to DeMeo’s due process claim. See

40 Fed. R. Civ. P. 59(e); Schwartz v. Liberty Mut. Ins. Co.,

41 539 F.3d 135, 153 (2d Cir. 2008). We agree.

42

43 DeMeo claimed that he was assaulted by Officer Kean and

44 the bar bouncer, Dorian Tucker, and that Phlip’N Spill and
3

1 the officers violated his due process rights under 42 U.S.C.

2 § 1983 by altering, destroying, or losing video surveillance

3 footage of the alleged assault, thereby impairing his right

4 to access the courts. To succeed on a denial of access

5 claim, a plaintiff must show that the defendants (1) engaged

6 in deliberate and malicious conduct that (2) resulted in

7 actual injury, i.e., that hindered the plaintiff’s effort to

8 pursue a legal claim. Davis v. Goord, 320 F.3d 346, 351 (2d

9 Cir. 2003). To recover under § 1983, a plaintiff must

10 establish in addition that the defendants deprived him of

11 this right while acting “under color of law.” Adickes v. S.

12 H. Kress & Co., 398 U.S. 144, 174 n.44 (1970) (citation and

13 internal quotation marks omitted). A person acts under

14 color of law when, e.g., “he is a willful participant in

15 joint activity with the State.” Id. (citation and internal

16 quotation marks omitted). “It is not enough, however, for a

17 plaintiff to plead state involvement in ‘some activity of

18 the institution alleged to have inflicted injury upon a

19 plaintiff’; rather, the plaintiff must allege that the state

20 was involved ‘with the activity that caused the injury’

21 giving rise to the action.” Sybalski v. Indep. Grp. Home

22 Living Program, Inc., 546 F.3d 255, 257-58 (2d Cir. 2008)

23 (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428

24 (2d Cir. 1977)).

25 

26 Here, the jury concluded that Phlip’N Spill acted as a

27 willful participant in joint activity with Trooper Reyner

28 and deprived DeMeo of due process by altering, destroying,

29 or losing video evidence. However, the jury concluded that

30 Trooper Reyner did not deprive DeMeo of due process by

31 altering, destroying, or losing video evidence. After the

32 verdict was rendered, Phlip’N Spill moved for an amended

33 judgment dismissing the due process claim. The district

34 court denied the motion, suggesting that Phlip’N Spill might

35 have “engage[d] in legal joint activity involving the video

36 evidence” or could have “destroyed or lost it at Reyner’s

37 suggestion or encouragement, or to curry favor with the

38 police.” A 199-200.

39

40 Both of these theories are flawed. First, as set out

41 above, involvement in legal joint activity with a state

42 official will not turn a private citizen into a state actor. 

43 See Sybalski, 546 F.3d at 257-58. The existence of “state

44 action” depends on “whether there is a sufficiently close
1 The amended complaint itself contains no allegation

whatsoever concerning joint activity between Trooper Reyner

and Phlip’N Spill involving the destruction of video

surveillance footage. Phlip’N Spill contends that the court

independently erred by allowing DeMeo to proceed on an

unpleaded cause of action, but we need not reach this

argument.

4

1 nexus between the State and the challenged action of the

2 [private citizen or entity] so that the action of the latter

3 may be fairly treated as that of the State itself.” Jackson

4 v. Metro. Edison Co., 419 U.S. 345, 351 (1974). DeMeo could

5 not satisfy this standard by showing that Trooper Reyner and

6 Phlip’N Spill engaged in just any joint activity; rather,

7 DeMeo had to prove that they engaged in joint activity

8 involving the loss of video evidence. 

9

10 The district court’s hypothesis that Trooper Reyner may

11 have encouraged Phlip’N Spill to destroy the evidence would

12 suffice to establish state action; but it rests on naked

13 conjecture and has no basis in the facts of this case--a

point that counsel was forced to concede at oral argument.1 14

15 It is, quite simply, a fiction. Accordingly, because

16 Phlip’N Spill was not a state actor, the district court

17 erred by denying Phlip’N Spill’s motion to amend the

18 judgment and dismiss DeMeo’s due process claim. 

19

20 DeMeo’s cross appeal seeks a new trial on several

21 grounds. First, he argues that the jury’s verdict (on the

22 assault claims) was wholly unsupported by the record,

23 highlighting the testimony favorable to his position. 

24 However, a “claim that the jury verdict was against the

25 weight of the evidence,” and that therefore a party is

26 entitled to a new trial under Rule 59(a), “is not reviewable

27 on appeal.” Espinal v. Goord, 558 F.3d 119, 131 (2d Cir.

28 2009) (citing Stonewall Ins. Co. v. Asbestos Claims Mgmt.

29 Corp., 73 F.3d 1178, 1199 (2d Cir. 1995)).

30

31 DeMeo also takes issue with the language of the adverse

32 inference instruction concerning the spoliation of evidence. 

33 The court instructed the jury that if they find that the

34 missing video evidence “would have been relevant and helpful

35 to you in determining the facts of this case, you are

36 permitted--but you are not required--to infer that the
5

1 images contained on the harddrives would have supported

2 plaintiff’s version of the events.” A l36. DeMeo urges

3 that the court should have mandated this inference. But

4 courts have “wide discretion” in formulating sanctions,

5 Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 267 (2d

6 Cir. 1999), and DeMeo offers no authority indicating that a

7 trial court must compel the jury to draw an adverse

8 inference. 

9

10 Finally, DeMeo argues that the court erred in

11 permitting the Defendants to elicit expert testimony

12 regarding blood-alcohol levels from Trooper Reyner, a lay

13 witness. DeMeo did not preserve this issue for appeal. His

14 motion in limine sought to broadly exclude evidence of

15 intoxication, but it did not raise the issue of lay witness

16 testimony concerning blood-alcohol levels. Nor did DeMeo’s

17 counsel object when defense counsel inquired generally about

18 the number of drinks needed to reach a certain blood-alcohol

19 content. When an objection was raised, the court sustained

20 it. But even if the district court made an erroneous ruling

21 (which it did not) and even if DeMeo properly preserved his

22 objection to this entire line of questioning, he cannot

23 demonstrate that the “jury’s judgment would be swayed in a

24 material fashion by the error.” Arlio v. Lively, 474 F.3d

25 46, 51 (2d Cir. 2007). 

26

27 For the foregoing reasons, and having considered the

28 parties’ other arguments, we hereby REVERSE the judgment

29 insofar as it awards damages to DeMeo, and as to all

30 remaining issues we AFFIRM. We direct the district court to

31 enter judgment for Phlip’N Spill on DeMeo’s due process

32 claim. 

33

34 FOR THE COURT:

35 CATHERINE O’HAGAN WOLFE, CLERK

36