Brian BACON, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, 355 F. App'x 569

SUMMARY ORDER Brian Bacon, a federal prison inmate, appeals pro se from a judgment in favor of the United States entered after a bench trial on his claim that federal corrections officers acted negligently while escorting him to his cell, with the result that he fell and was injured. See 28 U.S.C. §§ 1346(b), 2671-80.

Bacon contends that the district court erred by (1) permitting the government to cross-examine him regarding certain aspects of his deposition testimony; (2) requiring him to participate in trial via telephone from prison; (3) crediting the testimony of a corrections officer; and (4) not reaching the issue of causation. We assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1.

Cross-Examination Bacon asserts that the district court erred by permitting him to be cross-examined regarding statements contained in a letter in which he appeared to request assistance with smuggling contraband and whose discovery prompted disciplinary action. We review a district court’s evidentiary rulings for abuse of discretion, reversing only where a party’s substantial rights have been affected. See United States v. Wexler, 522 F.3d 194, 201-02 (2d Cir.2008). A trial judge has “broad discretion” in determining the permissible scope of cross-examination. United States v.

Wilkerson, 361 F.3d 717, 734 (2d Cir.2004) (internal quotation marks omitted). We identify no abuse of discretion in the district court’s decision to permit cross-examination regarding deposition statements indicating that Bacon’s letter was part of a “scheme” to obtain money, Bacon Dep. Tr. at 72, as these bore on his truthfulness, see Fed.R.Evid. 608(b) (“Specific instances of the conduct of a witness ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination .... ”); Hynes v. Coughlin, 79 F.Sd 285, 293-94 (2d Cir.1996). 2.

Trial Participation Bacon submits that the district court erred in having him participate in the bench trial by telephone rather than in person. Because Bacon was incarcerated, the district court offered him two alternatives: (1) submit testimony on videotape and participate in the trial itself both via live audio link and through the appearance in person of his counsel; or (2) delay trial until his release in 2010 when he could appear in person. Bacon elected and exercised the former option. Reviewing Bacon’s challenge to the district court’s management of trial for abuse of discretion, see United States v.

Yakobowicz, 427 F.3d 144, 150 (2d Cir.2005), we detect none. Moreover, even if Bacon had a right to be present at his own civil trial, which we need not here decide, cf. Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 63 L.Ed. 853 (1919) (noting right of parties to be present at civil trials “in person or by counsel” (emphasis added)), we would conclude that his selection effectively waived any such right, cf. Clark v. Stinson, 214 F.3d 315, 323 (2d Cir.2000) (holding right to be present at one’s own criminal trial is “clearly waivable” (internal quotation marks omitted)).

Indeed, his counsel expressly consented, on the record—in Bacon’s hearing and without his objection—to Bacon’s electronic participation. 3. Credibility Determination Bacon challenges the district court’s decision to credit the testimony of corrections officer Steven Robla rather than of Bacon regarding aspects of the relevant events. After a bench trial, we review the district court’s factual findings, including its findings as to credibility, for clear error, see Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir.2007), and we identify none here.

Where a district court is presented with two permissible views of the evidence, its decision to credit one view over another “cannot be clearly erroneous.” See Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 297 (2d Cir.2009) (internal quotation marks omitted). 3. Causation Finally, we reject Bacon’s assertion that the district court erred by not reaching the question of causation. We review this claim of legal error de novo. See Reynolds v. Giuliani, 506 F.3d at 189.

Under New York law, which governs Bacon’s federal tort claim, see 28 U.S.C. § 1346(b)(1), a plaintiff alleging negligence must prove: (1) the existence of a duty; (2) a breach of that duty; (3) a “reasonably close causal connection” between defendants’ conduct and his injury; and (4) “actual loss, harm or damage,” Integrated Waste Servs. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 299 (2d Cir.1997) (internal quotation marks omitted). Because the district court found that Robla had not breached the duty owed Bacon, there was no need for it to reach the issue of causation.

We have considered Bacon’s remaining arguments on appeal, and we conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.