     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
 4       29th 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

                                                  1
 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

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 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

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

         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   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




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