18-404 Tchatat v. City of New York 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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 20th day of December, two thousand nineteen. 4 5 PRESENT: 6 BARRINGTON D. PARKER, 7 DEBRA ANN LIVINGSTON, 8 JOSEPH F. BIANCO, 9 Circuit Judges. 10 _____________________________________ 11 12 Josias Tchatat, 13 Plaintiff-Appellant, 14 15 v. 18-404 16 17 City of New York, Police Officer Liam O’Hara, 18 Shield No. 20203, 19 Defendants-Cross Defendants- 20 Appellees, 21 22 Police Officer Harry Arocho, Shield No. 24345, 23 John Does, Richard Roes, Ian Palmer, Michael 24 Moes, 25 Defendants-Cross Defendants, 26 27 Best Buy Co., Inc., DBA Best Buy Co. of 28 Minnesota, Shwon Edmonds, Richard 29 Castellano, Van Mobley, Jesse Kempen, Jessica 30 Delestin, Eastern Security Corp., Samuel J. 31 Votta, Isidore Caleca, 32 Defendants-Cross Defendants-Cross Claimants. 33 _____________________________________
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34 FOR PLAINTIFF-APPELLANT: Josias H. Tchatat Nzimi, pro se, Bronx, NY. 35 36 FOR DEFENDANTS-APPELLEES: Deborah A. Brenner, Tahirih M. Sadrieh, 37 Assistant Corporation Counsels, for Zachary 38 W. Carter, Corporation Counsel of the City 39 of New York, New York, NY. 40 41 42 Appeal from a judgment of the United States District Court for the Southern District of New
43 York (Schofield, J.; Gorenstein, M.J.).
44 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 45 DECREED that the judgment of the district court is AFFIRMED. 46 Appellant Josias Tchatat, through counsel, sued the City of New York, Police Officer Liam 47 O’Hara, Best Buy employee Van Mobley, store security guard Shwon Edmonds, and others under 48 42 U.S.C. § 1983, alleging, inter alia, that he was falsely arrested and maliciously prosecuted by 49 O’Hara for shoplifting from a Best Buy store and assaulting Edmonds. Tchatat eventually settled 50 with Mobley, Edmonds, and the other Best Buy defendants. He moved for spoliation sanctions 51 against the City of New York and O’Hara defendants for failing to preserve certain evidence when 52 he was arrested. A magistrate judge recommended denying the motion, reasoning that the 53 defendants had no obligation at the time of Tchatat’s arrest to preserve evidence. The district court 54 adopted the recommendation. A jury later found in favor of the defendants. Tchatat, now 55 proceeding pro se, appeals. He further moves to amend the official caption to change the appellate 56 designations of certain parties from defendants to defendants-appellees. We assume the parties’ 57 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
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1 I. Waiver 2 The defendants argue that Tchatat waived all his arguments by failing to cite to the record 3 on appeal. Federal Rule of Appellate Procedure 28(a)(8)(A) requires that the appellant cite to the 4 relevant portions of the record on appeal to support his arguments. Failure to do so may result in 5 waiver of the argument. See Clark v. John Lamula Investors, Inc., 583 F.2d 594, 602 (2d Cir. 6 1978) (determining that “this court need not search the record to discover whether such error indeed 7 exists” when appellant failed to cite to the record in support of his argument). However, we 8 regularly give pro se litigants latitude and may overlook a failure to adhere to the rules of procedure. 9 Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (per curiam). 10 We do so here. Although Tchatat did not cite to the record, he refers to the magistrate 11 judge’s order denying spoliation sanctions and makes arguments challenging the denial. Similarly, 12 he makes cogent arguments about events at trial, the evidence offered, and the credibility of 13 witnesses. Therefore, we excuse Tchatat’s failure to cite specifically to the record and reach the 14 merits of his arguments. 15 II. Spoliation Sanctions 16 We review a district court’s denial of a motion for spoliation sanctions for abuse of 17 discretion. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 18 2007). “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve 19 property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. 20 Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). “The obligation to preserve 21 evidence arises when the party has notice that the evidence is relevant to litigation or when a party
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1 should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. 2 Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). 3 Tchatat did not demonstrate that the defendants’ actions warranted sanctions for spoliation. 4 With respect to the Best Buy surveillance tapes and Edmonds’s eyeglasses, the defendants never 5 possessed either item and cannot be sanctioned for failing to preserve them. Cf. United States v. 6 Greenberg, 835 F.3d 295, 303 (2d Cir. 2016) (concluding that defendant could not show spoliation 7 in a criminal trial based on the government’s failure to collect evidence). As to the remaining 8 items, the district court correctly pointed out that issues involved in determining spoliation 9 sanctions overlapped with the merits issues of the case, e.g., whether O’Hara deliberately destroyed 10 or failed to preserve the evidence and whether the evidence was exculpatory. See Morse v. Fusto, 11 804 F.3d 538, 547–48 (2d Cir. 2015) (a plaintiff may prove fabrication of evidence by showing that 12 a government official intentionally omitted material information that would have affected jury’s 13 verdict); Fujitsu Ltd., 247 F.3d at 436 (courts must consider whether evidence was intentionally 14 destroyed when determining if spoliation occurred). The district court did not err by denying 15 spoliation sanctions. 16 III. Sufficiency and Weight of the Evidence 17 Tchatat argues that the defendants did not carry their burden of proof with respect to their 18 affirmative defense of probable cause. “It is well established that a party is not entitled to challenge 19 on appeal the sufficiency of the evidence to support the jury’s verdict on a given issue unless it has 20 timely moved in the district court for judgment as a matter of law on that issue.” Kirsch v. Fleet 21 St., Ltd., 148 F.3d 149, 164 (2d Cir. 1998). Tchatat failed to move for a directed verdict during the 22 trial. Accordingly, we may not disturb the jury’s findings except to “prevent a manifest injustice
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1 in cases [w]here a jury’s verdict is wholly without legal support.” Pahuta v. Massey-Ferguson 2 Inc., 170 F.3d 125, 129 (2d Cir. 1999) (internal quotation marks omitted; alteration in original); 3 accord Kirsch, 148 F.3d at 164. Manifest injustice may result from plain error. See United States 4 v. Keppler, 2 F.3d 21, 24 (2d Cir. 1993) (“To meet [the] standard [of plain error], the alleged errors 5 or defects must affect a defendant’s substantial rights, the violation of which would result in 6 manifest injustice.” (internal quotation marks and citation omitted)). 7 A review of the trial transcripts reveals no such error. Probable cause is a complete defense 8 to claims for false arrest and imprisonment arising in New York. See Jenkins v. City of New York, 9 478 F.3d 76, 84, 88 (2d Cir. 2007). “Whether probable cause exists depends upon the reasonable 10 conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” 11 Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The defendants offered evidence that O’Hara had 12 probable cause to arrest Tchatat for robbery and assault. O’Hara stated that he interviewed Mobley 13 and Edmonds; learned that Tchatat had allegedly tried to leave the store without paying for a 14 memory card and obtained a sworn affidavit to that effect; was shown a receipt with the value of 15 the memory card and the card’s packaging; observed injuries to Edmonds’s face and damage to his 16 eyeglasses; and interviewed Tchatat, who confirmed that there had been a physical altercation. As 17 a result, O’Hara arrested Tchatat. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) 18 (“When information is received from a putative victim or an eyewitness, probable cause exists, 19 unless the circumstances raise doubt as to the person's veracity[.]” (internal citation omitted)). 20 Insofar as Tchatat’s brief can be construed as a challenge to the weight of the evidence, that 21 challenge is meritless. We cannot review the weight of the evidence on appeal. See Schwartz v.
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1 Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993) (“The weight of the evidence is a matter 2 for argument to the jury, not a ground for reversal on appeal.”). 3 IV. Credibility of Witnesses 4 Tchatat next argues that Edmonds and Mobley lacked credibility as witnesses because they 5 were former defendants in this case and failed to inform the jury of that fact. But we cannot review 6 a jury’s credibility determinations. See Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 875 (2d 7 Cir. 1992) (holding that a credibility assessment of the evidence is generally “a matter . . . for the 8 jury to resolve”); see also United States v. Landau, 155 F.3d 93, 104-05 (2d Cir. 1998) (“A jury’s 9 credibility assessments are entitled to deference[.]”). Tchatat also argues that Edmonds and 10 Mobley violated their settlement agreements by testifying at trial. But this argument is meritless. 11 First, Tchatat does not point to any settlement agreement in the record that prohibited either person 12 from testifying. The stipulation of dismissal simply required that Mobley and Edmonds cease 13 pursuing their counterclaims against him, not that they could not testify. Second, Tchatat called 14 Mobley as a witness, subpoenaed Edmonds, and did not object to Edmonds testifying during trial. 15 Therefore, we affirm the jury verdict. 16 V. Motion to Amend Caption and Appellate Designations 17 Finally, Tchatat moves to amend the caption and change the appellate designations of 18 Mobley, Edmonds, and the other Best Buy defendants. Official captions may be amended with 19 permission from the Court. See Hernandez-Avila v. Averill, 725 F.2d 25, 27 n.4 (2d Cir. 1984). 20 And we regularly amend captions to correct spelling errors or to correct the appellate designation 21 of a party. See, e.g., Zito I, L.P. v. Century/ML Cable Venture (In re Century/ML Cable Venture), 22 311 F. App’x 455, 455 n.* & n.** (2d Cir. 2009) (summary order). Nevertheless, Tchatat has not
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1 shown that the caption requires amendment. He asserts that Mobley and Edmonds, along with 2 other dismissed defendants, should be designated cross-appellees because they violated their 3 settlement agreements by testifying. But, as discussed above, Tchatat did not offer any evidence 4 showing that these defendants violated a settlement agreement. Further, even if they had, this 5 would not affect their appellate designations. We therefore deny the motion. 6 We have reviewed the remainder of Tchatat’s arguments and find them to be without merit. 7 For the foregoing reasons, the judgment of the district court is AFFIRMED and Tchatat’s motion 8 to amend the caption is DENIED.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk of Court