Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Abascal v. Fleckenstein

United States Court of Appeals, Second Circuit

April 29, 2016

Isidro Abascal, Plaintiff-Appellee,
Dennis Fleckenstein and Chester Kosmowski, Defendants-Appellants, William Kump, James T. Conway, Thomas G. Eagen, Defendants.

Argued: January 6, 2016

Defendants Dennis Fleckenstein and Chester Kosmowski appeal from a July 15, 2013 judgment of the United States District Court for the Western District of New York (Schroeder, M.J.), entered against them pursuant to a jury verdict, and an April 7, 2014 order of the district court denying their motion to set aside the verdict. The jury found that both defendants had violated Isidro Abascal's constitutional right to nutritionally adequate food and awarded Abascal $1 in nominal damages and $150, 000 in punitive damages ($75, 000 per defendant). At trial, the district court admitted into evidence a report authored by the Correctional Association of New York regarding conditions at the Attica Correctional Facility, where Abascal's alleged abuse took place. The report included statements by other inmates alleging abuse at Attica, as well as the report's authors' views about the pervasive culture of abuse at the facility. On appeal, the defendants argue that the district court's admission of the report constitutes reversible error that warrants a new trial. We hold that the district court abused its discretion when it admitted the report into evidence because it was inadmissible hearsay and did not qualify for the business records or public records exceptions. We vacate the judgment and remand the case to the district court because this error was not harmless.

Martin A. Hotvet, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, and Frederick A. Brodie, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY for Defendants-Appellants Dennis Fleckenstein and Chester Kosmowski.

Jeffrey F. Baase, Rupp Baase Pfalzgraf Cunningham LLC, Buffalo, NY for Plaintiff-Appellee Isidro Abasacal.

Before: Pooler, Hall, and Carney, Circuit Judges.



Plaintiff-Appellee Isidro Abascal was an inmate with the New York State Department of Corrections and Community Supervision from April 1997 to September 2005. In November 2003, the Department of Corrections transferred Abascal to the Attica Correctional Facility in upstate New York. While at Attica, Abascal alleges, he was prevented from leaving his cell during fourteen mealtimes and during several recreational periods. He also contends that Officer Fleckenstein physically assaulted him. These abuses allegedly were in retaliation for filing grievances against individual corrections officers. The retaliatory abuse occurred between November 2003 and March 2005.

In March 2005-a few weeks after the last alleged incident of abuse- members of the Correctional Association of New York (the "Association") visited the Attica Correctional Facility to conduct research for a prison monitoring report (the "Report"), which was published six months later. The Association is a private, nonprofit corporation that is registered with the New York State Department of State, Division of Corporations. See NYS Department of State, Division of Corporations, Entity Information, (last visited February 29, 2016). The Association describes itself as an "independent non-profit organization that advocates for a more humane and effective criminal justice system." Correctional Association of New York, "Who We Are, " (last visited February 29, 2016).

The Report found a "widespread sense of fear and intimidation among inmates" and that corrections officers at Attica abused inmates by, among other things, refusing to let inmates out of their cells at mealtimes and physically assaulting them. Joint App'x at 75, 79. The Report further states that "[i]nmates said that prisoners who make complaints about abuse or file grievances are retaliated against by staff and many are too intimidated to even raise allegations of abuse." Id. at 79. Although generally critical of the facility, the Report also contained positive information about the Attica Correctional Facility including that many inmates were "generally satisfied with their [mental health] treatment, and the staff and inmates who work there [were] understanding and sensitive to the needs of inmates with mental illness." Id. at 76.

Members of the Association gathered the underlying information in the Report by distributing anonymous questionnaires to inmates, interviewing guards, and observing the facility firsthand. The Report is fourteen pages long and contains summaries of the information collected by the investigators but does not contain the underlying data upon which the Report relies. The authors of the Report-who are nowhere identified-note that "[d]uring [the] visit we could not adequately investigate the amount and severity of the abuse or evaluate the factors that contribute to the problems between inmates and staff." Id. at 79.


Abascal, proceeding pro se, brought suit under 42 U.S.C. § 1983 alleging, among other things, that while he was incarcerated at Attica Correctional Facility, defendant corrections officers Dennis Fleckenstein and Chester Kosmowski subjected him to cruel and unusual punishment by depriving him of meals and defendant Fleckenstein physically assaulted him in violation of his Eighth Amendment rights. Abascal sought declaratory relief, compensatory damages, and punitive damages.

Before trial, defendants objected to the Report's admission into evidence. The magistrate judge initially admitted the Report under the public records exception to the rule against hearsay. The court mistakenly classified the Association as a state agency of the State of New York. A few days after the decision, the defendants moved for reconsideration on the grounds that the Association was a public advocacy group and not a state actor. In response to that motion, the district ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.