22

- 2902(L) Barnes v. Rock 

### 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 P ARTY 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 for the 1 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 2 Foley Square, in the City of New York, on the 13 th day of June , two thousand 3 twenty-four. 4 5 PRESENT: 6 JOSÉ A. CABRANES, 7 BARRINGTON D. PARKER, 8 MARIA ARAÚJO KAHN, 9 Circuit Judges . 10

_____________________________________ 11 12 Jessie J. Barnes, 13 14 Plaintiff-Appellant , 15 16 v. 22-2902 (L) , 17 22-3152 (Con), 23-729 (Con) 18 David A. Rock, Superintendent, Upstate 19 Correctional Facility, sued in individual 20 capacity, et al., 21 22 Defendants -Appellees , 232 1 Brian Fischer, Commissioner of DOCCS, 2 sued in individual capacity, et al., 3 4 Defendants . 5 6

_____________________________________ 7 8 FOR PLAINTIFF- APPELLANT: S COTT A. E ISMAN , Freshfields 9 Bruckhaus Deringer US LLP, New 10 York, NY ( Carla Sung Ah Yoon, 11 Aedan Collins, Freshfields Bruckhaus 12 Deringer US LLP, New York, NY, 13 Benjamin Zweifach, Freshfields 14 Bruckhaus Deringer US LLP, 15 Washington, DC, on the brief ). 16 17 18 FOR DEFENDANTS - APPELLEES : J ONATHAN D. H ITSOUS ( Barbara D. 19 Underwood, Victor Paladino , on the 20 brief ), for Letitia James, Attorney 21 General , State of New York, Albany, 22 NY. 23 24 25 Appeal from the April 4, 2023 judgment of the United States District Court 26 for the Northern District of New York (Daniel J. Stewart, Magistrate Judge ). 27 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 28 ADJUDGED, AND DECREED that the April 4, 2023 judgment of the D istrict 29 C ourt is AFFIRMED

. 303 Plaintiff

- Appellant Jessie J. Barnes commenced a 42 U.S.C. § 1983 action 1 against former and current employees of the New York State Department of 2 Corrections and Community Supervision (“DOCCS”) alleging , inter alia , violations 3 of his First and Eighth Amendment rights

. Barnes alleges that he sustained serious 4 injur y , including a broken leg and a partially amputated finger, and that 5 Defendant Officers Gettmann, B. Clark and Ramsdell

— who were among the 6 defendant officers involved in the most egregious incidents

— targeted him in 7 retaliation for filing grievances against them

. 8 Before jury deliberation , the D istrict C ourt granted Defendants Gettmann, 9 B. Clark , and Ramsdell judgment as a matter of law on Barnes’ s retaliation claims. 10 T he C ourt also declined to issue an adverse

- inference instruction against 11 Defendants for a missing video of an altercation between Barnes and Defendants, 12 reasoning that Barnes failed to compel production of this footage during 13 discovery. T he Court nonetheless permitted Barnes to make an adverse

- inference 14 argument about the video to the jury during closing arguments. Joint Appendix 15 (“JA”) 818-20. The C ourt also declined to issue an adverse

- inference instruction 16 against Defendants for the destruction of the protective hatch that was allegedly 17 involved in the partial amputation of Barnes’s finger

. JA 817

- 18 . T he Court found 184 that the failure to preserve the hatch did not prejudice Barnes because he was able 1 to introduce a replica hatch and photographs of the original as evidence. J A 817- 2 18. Finally, the Court required that Barnes wear leg shackles during trial. JA 295- 3 96. 4 The jury found for Defendants on all of Barnes’ s remaining claims , and 5 Barnes timely appealed

. We assume the parties’ familiarity with the underlying 6 facts, the procedural history, and the issues on appeal, to which we refer only as 7 necessary to explain our decision to affirm. 8 First, Barnes challenges the District Court’s order grant ing Defendants 9 Gettmann, B. Clark and Ramsdell judgment as a matter of law on Barnes’ s 10 retaliation claims. Having carefully reviewed Barnes’ s arguments de novo , see Legg 11 v. Ulster County, 979 F.3d 101, 116 (2d Cir. 2020), w e find no reversable error . T he 12 jury verdict that Defendants Gettman n , B. Clark and Ramsdell did not subject 13 Barnes to excessive force precludes a finding that the same , objectively serious 14 conduct was exercised in retaliation for grievances filed against them

. See 15 Baskerville v. Mulvaney , 411 F.3d 45 , 49

– 50 (2d Cir. 2005) (holding that plaintiff’s 16 retaliation claim fails where “evidence before the jury would not support

... a 17 theory of actionable de minimis force” and “the jury found ... that the officers’ use 185 of force did not violate the Eighth Amendment”). 1 Second, Barnes argues that the D istrict C ourt erred in declining to issue an 2 adverse- inference instruction for the missing video footage and the protective 3 hatch on Barnes’ s cell door . We disagree . When “ the nature of the alleged breach 4 of a discovery obligation is the non

- production of evidence, a district court has 5 broad discretion in fashioning an appropriate sanction.” Residential Funding Corp. 6 v. DeGeorge Fin. Corp. , 306 F.3d 99, 107 (2d Cir. 2002). Finding no “abuse of 7 discretion” in the Court’s decisions, we affirm for substantially the reasons given 8 by Magistrate Judge Stewart

. 9 Third, Barnes argues that the D istrict C ourt violated his due process rights 10 by requiring him to wear leg shackles throughout the trial. We disagree. The 11 District Court’s decision to restrain a defendant is reviewable for “abuse of 12 discretion,” unless the Court “ has deferred entirely to those guarding the 13 prisoner.” Hameed v. Mann , 57 F.3d 217, 222 (2d Cir. 1995). The District Court 14 recognized that it “ha[d] to exercise an independent judgment” regarding how 15 Barnes “should be restrained while in the courtroom,” and the correction officer’s 16 recommendation— that only leg shackles, not handcuffs or a waist chain, were 17 necessary — was consented to by Barnes. See JA 295- 96. Moreover, the Court 186 mitigate d possible prejudice resulting from the leg shackles by granting Barnes’s 1 request that he sit between his attorneys , “so that his legs are underneath the 2 desk.” JA 296. On these facts, the District Court did not err, much less “abuse its 3 discretion,” in having Barnes wear leg shackles during trial. 4 * * * 5 We have considered Barnes’s remaining arguments and find them to be 6 without merit. Accordingly, we AFFIRM the judgment of the D istrict C ourt. 7 8 FOR THE COURT: 9 Catherine O ’Hagan Wolfe, Clerk of Court 10 11 12