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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

______) DUANE ZIEMBA ) CIVIL ACTION NO. ) 3:98CV2344 (JDH)(HBF) V. ) ) JOHN ARMSTRONG, ET AL ) NOVEMBER 11, 2003 ______)

MOTION TO COMPEL VIDEOTAPES AND FOR SANCTIONS; MEMORANDUM OF LAW IN SUPPORT THEREOF; AND SUPPORTING AFFIDAVIT

Pursuant to Local Civil Rules 9 and 31(a), plaintiff hereby moves to compel the production of videotapes, and for sanctions.

THE NATURE OF THE CASE

This case concerns a mentally ill man in the custody of the Connecticut

Department of Correction who, in August 1998, was maced and beaten by correctional guards, tied down by his hands and feet for more than 22 consecutive hours, deliberately denied medical care for his injuries, and deliberately denied psychotropic medications that had been ordered by his treating psychiatrist. ORAL ARGUMENT IS NOT REQUESTED

Following the incident, the Department’s own Security Division found that the senior supervisory officer in charge of the restraint, defendant Captain Sebastian

Mangiafico, intentionally used excessive force against Mr. Ziemba by striking him in the face. Captain Mangiafico’s excessive use of force occurred at a time when Mr.

Ziemba’s ankles and wrists were completely secured by the mechanical restraints and/or by the other six correctional guards at the scene. A videotape taken at the time shows the officers placing Mr. Ziemba face down into the restraints, his cries for help, the profound indifference of the medical staff (their “examination” of him lasted less than

10 seconds), and Mr. Ziemba’s injuries and release from restraints 22 hours and 45 minutes later.

According to Captain Mangiafico’s sworn deposition testimony, Mr. Ziemba urinated on himself during the restraint. The videotape shows that Mr. Ziemba was clothed only in underwear and a tee-shirt. He was given no mattress. He was placed face-down on a steel bed frame, in violation of the Department’s own Administrative

Directives. He was never offered liquids and was fed only once. He was never allowed to use toilet facilities. The tape clearly shows, on August 13, an injury under Mr.

Ziemba’s left eye that was not there the day before.

The Security Division investigator also found that three of the other guards on the scene “failed to truthfully report what took place,” and that, despite Mr. Ziemba’s

2 complaints of injuries, the medical staff “neglect[ed] to do a thorough assessment of

Inmate Ziemba” and failed to document the results.

Incredibly, despite the Security Division’s findings concerning Captain Mangiafico striking Mr. Ziemba in the face, the “neglect” of the medical staff and the lack of truthful reporting by the guards, and despite the obvious failure of the remaining staff members to tell the truth, no one was disciplined for using excessive force against Mr. Ziemba, no one was disciplined for violating the Department’s truthfulness directives, and no one was disciplined for denying Mr. Ziemba needed medical care. Only Captain Mangiafico received discipline of any kind; he was suspended for five days for “failure to supervise.”

Recently, plaintiff’s counsel learned that on or about September 25 and 27, 2003,

Mr. Ziemba was again maced, extracted from his cell, and placed in four-point restraints. These incidents were videotaped. After learning this, plaintiff’s counsel wrote to the defendants’ counsel on October 1, 2003 requesting copies of the tapes.

That request was denied. All of the relevant correspondence is attached to the Ponvert

Affidavit, filed herewith.

Following a telephone status conference with the Court on October 14, 2003, during which the defendants’ counsel reiterated his opposition to producing these tapes and suggested that “we ought to go through the normal context where he got the discovery request [sic], we object to it, he moves to compel, and we present our objections at that time” (October 14, 2003 Hearing Transcript at 19), plaintiff served a

3 Request for Production of Documents formally seeking the videotapes. On November

5, 2003, the defendants objected to the Request. Also on November 5, 2003, the defendants filed a Motion for In Camera Review of Videotapes.

During the October 14 telephone conference, following defendants’ counsel’s suggestion that the Court should not rule on this issue until the “normal” discovery process is exhausted, the Court stated:

That’s fine, and when you move to compel Attorney Ponvert you should be sure to include a – part of your motion as a motion for sanctions for wasting everyone’s time. I really think it’s – I think at this stage of a ’98 case, yes, we can go through the procedures.... Attorney Ponvert, why don’t you go ahead – I’ll give you permission to make that discovery request and then I’ll wait 30 days, I’m sure, and ... you’ll hear from the defendants ... then I’ll hear from you next on a motion to compel.

Hearing Transcript at 19.

This motion follows.

ITEMS REQUESTED AND THE REASONS WHY THEY SHOULD BE COMPELLED

Plaintiff requests the production of all videotapes (by hand-held or stationary surveillance camera) concerning the use-of-force incidents that occurred on or about

September 25 and 27, 2003.

The reasons that these tapes should be produced are those set forth in plaintiff’s counsels’ October 10, 2003 letter to the Court. Specifically:

4 1. Plaintiff’s counsel has reason to believe that, during the course of the

September 2003 incidents, staff members of the Department of Correction again used excessive force against Mr. Ziemba and again violated his constitutional rights. In order to assess whether Mr. Ziemba’s rights were violated, and in order to fully protect our client from further harm and injury, we need to review the videotapes;

2. Even if the September 25 and 27 videotapes have no relevance to Mr.

Ziemba’s pending claims, they are part of his D.O.C. master file, and, according to the

Department’s own Directives, he is entitled to receive copies of them at his request or to direct that copies be produced to his counsel upon proper authorization;

3. Plaintiff’s counsel has requested, and received from the D.O.C., inmate files and use-of-force videotapes many times in the past, even when there was no case pending; attorneys in Mr. Beizer’s office have never before refused such a request;

4. Not only could plaintiff’s counsel obtain the videotapes through a Bill of

Discovery in State Court (a proceeding that will require many hours of Mr. Beizer’s time and the resources of his Office), see Journal Publishing Co. v. Hartford Courant Co.,

261 Conn. 673 (2002), but the voluntary production of the tapes to plaintiff at this time may likely have the effect of preventing the filing of another civil rights lawsuit because, if the tapes reveal no misconduct, counsel will be able to advise Mr. Ziemba not to file yet another complaint against Mr. Beizer’s clients. This seems like a win-win situation

5 for everyone especially since, if such a lawsuit is filed, the defendants will be compelled to produce the tapes in that case in any event;

5. Despite the defendants’ protestations to the contrary, the tapes are potentially relevant to the pending action in that they may show a continuing course of retaliation against and mistreatment of this mentally ill inmate. Counsel does not know the identity of the guards responsible for these most recent incidents, but Mr. Ziemba is still housed at the Northern Correctional Institution (where the incident that is the subject of this case took place), and it is reasonable to assume that the tapes could contain evidence of either (a) continuing direct misconduct by the same defendants named in that complaint, and/or (b) a continuing course of retaliation and mistreatment, condoned and permitted by supervisory officials at the Department;

7. Even if the September 2003 restraints of Mr. Ziemba were done perfectly properly and no excessive force was used, they may still be relevant to the current actions because they will show, in contrast to the August 1998 extraction and 22-hour restraint, how an extraction and restraint can and should be done without causing injury to the inmate. As this Court well knows, “relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1); and

8. Even if these tapes were not “reasonably calculated to lead to the discovery of admissible evidence” in the current case (and they are), Federal Rule 15(d)

6 allows the plaintiff “to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” As this Court has held, the filing of a supplemental pleading is especially called for where the events alleged in the supplemental pleading “are directly connected to, and a continuation of, the defendants' wrongful conduct as set forth in plaintiffs' prior amended complaint....” Wells v. Harris, 185 F.R.D. 128, 133 (D. Conn.

1999).

The point is: the videotapes are discoverable in the pending action because they are “reasonably calculated” to lead to discoverable evidence concerning the pattern of retaliation and excessive force perpetrated against Mr. Ziemba at the D.O.C. or, at the very least, to show how a proper cell extraction and restraint should be conducted; but, even if they were not, they would certainly be discoverable in the action after the filing of a supplemental pleading, specifically alleging constitutional violations during the

September incidents.

For all of these reasons, plaintiff asks this Court to compel the production of the videotapes of the use-of-force incidents that occurred on or about September 25 and

27, 2003, so that evidence of continuing misconduct can be uncovered if it exists, so that evidence of proper protocol can be discovered if it exists, and so that additional unnecessary lawsuits can be avoided if possible. Plaintiff has no objection to the Court reviewing these videotapes in camera; however, for the reasons previously articulated,

7 he believes that the tapes are properly discoverable no matter what they show, and that it would be a waste of the Court’s time to expend any more energy on this matter.

Plaintiff’s counsel also seeks sanctions against the defendants for their refusal to voluntarily produce these tapes, and for their waste of the Court’s and the plaintiff’s time. As stated in the accompanying Affidavit of plaintiff’s counsel, counsel’s current hourly rate is $350 per hour, and it required three and a half hours of counsel’s time to prepare his October 10 letter to the Court and this motion and memorandum.

Accordingly, counsel seeks sanctions in the amount of $1225. This figure does not include copying and mailing costs or the time expended by secretarial staff.

Respectfully submitted,

______Antonio Ponvert III (Ct 17516) Koskoff, Koskoff & Bieder P.C. 350 Fairfield Avenue Bridgeport, CT 06604 Tele: (203) 336-4421 Fax: (203) 368-3244 E-mail: [email protected]

James Nugent Nugent and Bryant 236 Boston Post Road Orange, CT 06477 Tel: 203-795-1111 Fax: 203-795-1019 Email: [email protected]

8 LOCAL CIVIL RULE 9(d)(2) AFFIDAVIT

I, Antonio Ponvert III, hereby certify, under penalty of perjury and pursuant to

Local Civil Rule 9(d)(2), that:

1. I have conferred with counsel for the defendants in an effort in good faith to resolve by agreement the issues raised by this Motion without the intervention of the

Court, and I have been unable to reach such an agreement;

2. A true and correct copy of all of the relevant correspondence between myself and the defendants’ counsel, Assistant Attorney General Matthew Beizer, is attached hereto (Mr. Beizer did not respond to my November 7, 2003 e-mail by the time of the filing of this Affidavit); and

3. My current hourly rate is $350 per hour, and it required three and a half hours of my time to prepare the October 10 letter to the Court and this motion and memorandum.

November 11, 2003 ______Antonio Ponvert III (Ct 17516) Koskoff, Koskoff & Bieder P.C. 350 Fairfield Avenue Bridgeport, CT 06604 Tele: (203) 336-4421 Fax: (203) 368-3244 E-mail: [email protected]

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