Perez v. Molina
- Barbara Moses
- 1:23-cv-00801
- U.S. District Court · Southern District of New York
- 12
In Perez v. Molina, Magistrate Judge Moses sanctioned defendants for failing to preserve potentially helpful surveillance video but rejected harsher penalties.
The sanction affects the defendants—Louis Molina, Captain Terrance Shaw, other individual Department of Correction defendants, and the City of New York—by allowing Perez to present evidence at trial about the lost surveillance video. Perez is affected because the ruling recognizes prejudice from the loss and permits him to describe that loss to the jury, but it does not create a presumption that the missing video favored him.
What happened
In Perez v. Molina, Jarrell D. Perez, who was representing himself, claimed that New York City Department of Correction personnel violated his constitutional rights at Rikers Island, including by using chemical spray during a February 2023 incident. Defendants preserved handheld and body-camera recordings but failed to preserve surveillance footage from the relevant area.
The court found that defendants failed to take reasonable steps to preserve the surveillance video, that the video could not be recovered or replaced, and that Perez was harmed because it might have clarified whether Captain Terrance Shaw used the spray appropriately or as punishment. The court did not find enough evidence that defendants intended to deprive Perez of the video, so it rejected the most severe sanctions, including an instruction allowing the jury to presume the missing evidence was unfavorable.
Magistrate Judge Moses sanctioned defendants under Federal Rule of Civil Procedure 37(e)(1). If the case reaches trial, Perez may tell the jury that the surveillance video existed, was reviewed for the incident report, should have been preserved, and was lost because of a mistake; the jury may not be instructed to presume that the video favored Perez.
The detailed version
- Perez v. Molina · No. 1:23-cv-00801
- Barbara Moses
- Feb. 25, 2025
Background
Jarrell D. Perez brought this action against Louis Molina and other defendants, including New York City Department of Correction officials and employees and the City of New York. Perez alleged that officials violated his constitutional rights while he was housed at Rikers Island. Among his allegations was that Captain Terrance Shaw sprayed him with a large canister of chemical agent during a February 13, 2023 use-of-force incident.
During discovery, defendants produced handheld-camera and body-worn-camera footage. The handheld video showed correctional officers entering Perez's cell, attempting to handcuff him, and removing him, but it did not show the actual use of chemical spray. Defendants did not preserve or produce the relevant Genetec surveillance footage from the West Facility. The court ordered defendants to explain why they should not be sanctioned for failing to preserve that footage.
The Court's Findings
Federal Rule of Civil Procedure 37(e) governs the loss of electronically stored information that should have been preserved for litigation. Under Rule 37(e)(1), when the loss prejudices another party, the court may impose measures no greater than necessary to cure that prejudice. More severe measures under Rule 37(e)(2), such as allowing a jury to presume that the lost evidence was unfavorable or dismissing the action, require a finding that the party acted with the intent to deprive the other party of the evidence.
Judge Moses found that defendants failed to take reasonable steps to preserve the Genetec footage. The Department of Correction had identified and reviewed 13 relevant Genetec camera angles for the incident and was required under its own policy to preserve the footage, but the correct footage was not marked for preservation and was deleted after 90 days. Instead, unrelated Genetec footage from a different facility was preserved.
The court also found prejudice. Although it was possible that the missing footage would not have shown more than the surviving recordings, it was plausible that footage from cameras outside Perez's cell could have helped determine whether Shaw's use of chemical spray was necessary to obtain compliance or was unnecessary and punitive. The court stated that Perez did not have to prove the precise contents of the missing footage to establish prejudice.
The court did not find that defendants acted with the required intent to deprive Perez of the footage. There was no direct evidence that the Department of Correction personnel responsible for preserving the footage acted intentionally rather than negligently, and the court would not infer the required intent merely from the failure to preserve the video. The court therefore found that the more severe sanctions under Rule 37(e)(2) were unavailable.
Ruling
Judge Moses sanctioned defendants under Rule 37(e)(1). If the action reaches trial, Perez may present evidence that Genetec surveillance video of the incident existed, that it was reviewed for purposes of the incident report, that it should have been preserved, and that it was not preserved and cannot now be restored. The jury may not be instructed that it may or must presume that the lost evidence was unfavorable to defendants. The opinion did not decide the merits of Perez's underlying constitutional claims.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.