1 11-5154 (L) DeMeo v. Kean 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **29 th** **day of January, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROSEMARY S. POOLER,** 8 **DENNY CHIN,** 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **DEREK DEMEO,** 13 **Plaintiff-Appellee-Cross** 14 **Appellant ,**  15 16 **-v.- 11-5154 (Lead)** 17 **11-5391 (XAP)** 18 **DORIAN TUCKER, SHARLEEN SPILLENGER,** 19 **RALPH SPILLENGER, THE BAYOU CAFÉ, INC.,** 20 **Defendants ,**  21 22 **JOSHUA KEAN, M.K. REYNER,** 23 **Defendants-Cross Appellees ,**  24 25 **PHLIP’N SPILL, INC., INDIVIDUALLY AND** 26 **DOING BUSINESS AS THE BAYOU CAFÉ,** 27 **Defendant-Appellant-Cross** 28 **Appellee**

**.** 29
- - - - - - - - - - - - - - - - - - - -X 302 **FOR PLAINTIFF-APPELLEE-** KEVIN A. LUIBRAND, Luibrand Law 1 **CROSS APPELLANT:** Firm, PLLC, Latham, New York. 2 3 **FOR DEFENDANTS-CROSS** KATE H. NEPVEU, Assistant 4
**APPELLEES:** Solicitor General, Albany, New 5 York, forEric T. Schneiderman, 6 Attorney General of the State of 7 New York, andBarbara D. 8 Underwood, Solicitor General of 9 the State of New York (Denise A. 10 Hartman, Assistant Solicitor 11 General, Albany, New York, on 12 the brief ). 13 14 **FOR DEFENDANT-APPELLANT-** Gretchen M. Greisler, Albany, 15 **CROSS APPELLEE:** New York

**.** 16 17 Appeal from a judgment of the United States District 18 Court for the Northern District of New York (Hurd, J. ). 19 20 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 21 **AND DECREED**that the judgment of the district court be 22
**AFFIRMED IN PART** and **REVERSED IN PART**

. 23 24 Defendant Phlip’N Spill, the corporate owner of a bar 25 called The Bayou Café, appeals from a judgment of the United 26 States District Court for the Northern District of New York 27 (Hurd, J. ) following a jury verdict rendered against it for 28 compensatory and punitive damages in the total amount of 29 $110,000. Plaintiff Derek DeMeo cross appeals from the 30 district court’s denial of his motion for a new trial 31 pursuant to Fed. R. Civ. P. 59(a). We assume the parties’ 32 familiarity with the underlying facts, the procedural 33 history, and the issues presented for review. 34 35 Phlip’N Spill, along with State Defendants Joshua Kean 36 and M.K. Reyner, argues that the district court erred by 37 denying its motion to amend the judgment to rectify a clear 38 error of law with respect to DeMeo’s due process claim. See 39 Fed. R. Civ. P. 59(e); Schwartz v. Liberty Mut. Ins. Co.

, 40 539 F.3d 135, 153 (2d Cir. 2008). We agree. 41 42 DeMeo claimed that he was assaulted by Officer Kean and 43 the bar bouncer, Dorian Tucker, and that Phlip’N Spill and 443 the officers violated his due process rights under 42 U.S.C. 1 § 1983 by altering, destroying, or losing video surveillance 2 footage of the alleged assault, thereby impairing his right 3 to access the courts. To succeed on a denial of access 4 claim, a plaintiff must show that the defendants (1) engaged 5 in deliberate and malicious conduct that (2) resulted in 6 actual injury, i.e. , that hindered the plaintiff’s effort to 7 pursue a legal claim. Davis v. Goord , 320 F.3d 346, 351 (2d 8 Cir. 2003). To recover under § 1983, a plaintiff must 9 establish in addition that the defendants deprived him of 10 this right while acting “under color of law.” Adickes v. S. 11 H. Kress & Co. , 398 U.S. 144, 174 n.44 (1970) (citation and 12 internal quotation marks omitted). A person acts under 13 color of law when, e.g. , “he is a willful participant in 14 joint activity with the State.” Id. (citation and internal 15 quotation marks omitted). “It is not enough, however, for a 16 plaintiff to plead state involvement in ‘ some activity of 17 the institution alleged to have inflicted injury upon a 18 plaintiff’; rather, the plaintiff must allege that the state 19 was involved ‘with the activity that caused the injury ’ 20 giving rise to the action.” Sybalski v. Indep. Grp. Home 21 Living Program, Inc. , 546 F.3d 255, 257-58 (2d Cir. 2008) 22 (quoting Schlein v. Milford Hosp., Inc. , 561 F.2d 427, 428 23 (2d Cir. 1977)). 24 25 Here, the jury concluded that Phlip’N Spill acted as a 26 willful participant in joint activity with Trooper Reyner 27 and deprived DeMeo of due process by altering, destroying, 28 or losing video evidence. However, the jury concluded that 29 Trooper Reyner did not deprive DeMeo of due process by 30 altering, destroying, or losing video evidence. After the 31 verdict was rendered, Phlip’N Spill moved for an amended 32 judgment dismissing the due process claim. The district 33 court denied the motion, suggesting that Phlip’N Spill might 34 have “engage[d] in legal joint activity involving the video 35 evidence” or could have “destroyed or lost it at Reyner’s 36 suggestion or encouragement, or to curry favor with the 37 police.” A 199-200. 38 39 Both of these theories are flawed. First, as set out 40 above, involvement in legal joint activity with a state 41 official will not turn a private citizen into a state actor. 42 SeeSybalski , 546 F.3d at 257-58. The existence of “state 43 action” depends on “whether there is a sufficiently close 441The 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 nexus between the State and the challenged action of the 1 [private citizen or entity] so that the action of the latter 2 may be fairly treated as that of the State itself.” Jackson 3 v. Metro. Edison Co. , 419 U.S. 345, 351 (1974). DeMeo could 4 not satisfy this standard by showing that Trooper Reyner and 5 Phlip’N Spill engaged in just any joint activity; rather, 6 DeMeo had to prove that they engaged in joint activity 7 involving the loss of video evidence. 8 9 The district court’s hypothesis that Trooper Reyner may 10 have encouraged Phlip’N Spill to destroy the evidence would 11 suffice to establish state action; but it rests on naked 12 conjecture and has no basis in the facts of this case--a 13 point that counsel was forced to concede at oral argument. 1 14 It is, quite simply, a fiction. Accordingly, because 15 Phlip’N Spill was not a state actor, the district court 16 erred by denying Phlip’N Spill’s motion to amend the 17 judgment and dismiss DeMeo’s due process claim. 18 19 DeMeo’s cross appeal seeks a new trial on several 20 grounds. First, he argues that the jury’s verdict (on the 21 assault claims) was wholly unsupported by the record, 22 highlighting the testimony favorable to his position. 23 However, a “claim that the jury verdict was against the 24 weight of the evidence,” and that therefore a party is 25 entitled to a new trial under Rule 59(a), “is not reviewable 26 on appeal.” Espinal v. Goord

, 558 F.3d 119, 131 (2d Cir. 27 2009) (citing Stonewall Ins. Co. v. Asbestos Claims Mgmt. 28 Corp. , 73 F.3d 1178, 1199 (2d Cir. 1995)). 29 30 DeMeo also takes issue with the language of the adverse 31 inference instruction concerning the spoliation of evidence. 32 The court instructed the jury that if they find that the 33 missing video evidence “would have been relevant and helpful 34 to you in determining the facts of this case, you are 35 permitted--but you are not required--to infer that the 365 images contained on the harddrives would have supported 1 plaintiff’s version of the events.” A l36. DeMeo urges 2 that the court should have mandated this inference. But 3 courts have “wide discretion” in formulating sanctions, 4 Reilly v. Natwest Markets Group, Inc. , 181 F.3d 253, 267 (2d 5 Cir. 1999), and DeMeo offers no authority indicating that a 6 trial court must compel the jury to draw an adverse 7 inference. 8 9 Finally, DeMeo argues that the court erred in 10 permitting the Defendants to elicit expert testimony 11 regarding blood-alcohol levels from Trooper Reyner, a lay 12 witness. DeMeo did not preserve this issue for appeal. His 13 motion in limine sought to broadly exclude evidence of 14 intoxication, but it did not raise the issue of lay witness 15 testimony concerning blood-alcohol levels. Nor did DeMeo’s 16 counsel object when defense counsel inquired generally about 17 the number of drinks needed to reach a certain blood-alcohol 18 content. When an objection was raised, the court sustained 19 it. But even if the district court made an erroneous ruling 20 (which it did not) and even if DeMeo properly preserved his 21 objection to this entire line of questioning, he cannot 22 demonstrate that the “jury’s judgment would be swayed in a 23 material fashion by the error.” Arlio v. Lively , 474 F.3d 24 46, 51 (2d Cir. 2007). 25 26 For the foregoing reasons, and having considered the 27 parties’ other arguments, we hereby **REVERSE** the judgment 28 insofar as it awards damages to DeMeo, and as to all 29 remaining issues we **AFFIRM** . We direct the district court to 30 enter judgment for Phlip’N Spill on DeMeo’s due process 31 claim. 32 33 FOR THE COURT: 34 CATHERINE O’HAGAN WOLFE, CLERK 35 36