Pettit v. Ryan et al

Filing 256

ORDER granting in part and denying in part 219 Motion for Sanctions. Signed by Judge David G Campbell on 9/9/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ron Zachary Pettit,

No. CV-11-02139-PHX-DGC
Plaintiff,

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v.

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ORDER

Smith, et al.,

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Defendants.

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Plaintiff Ron Zachary Pettit filed a motion for spoliation sanctions in January

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2014. Doc. 163. The Court held a hearing on March 26, 2014, at which it heard oral

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argument on Plaintiff’s motion. Doc. 195. Based on the argument, the Court allowed

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Plaintiff to conduct additional discovery and file a renewed motion for sanctions. Id.

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Plaintiff has now filed the renewed motion against Defendants Torrey Smith, Scott

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Mueller, Jose Luque, and Amy Morrow. Doc. 219. The motion is fully briefed and the

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Court heard oral argument on August 13, 2014. For the reasons that follow, the Court

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will grant the motion in part and deny it in part.

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I.

Background.

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Plaintiff is a prisoner at the Arizona State Prison Complex – Eyman, Special

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Management Unit I, in Florence, Arizona. The Eyman facility is operated by the Arizona

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Department of Corrections (“ADC”). Defendants are correctional officers employed by

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ADC and assigned to Eyman. Plaintiff alleges that on April 16, 2011, Defendant Smith

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violated Plaintiff’s Eighth Amendment rights by using excessive force during an escort of

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Plaintiff from the shower to his cell. In his renewed motion for sanctions, Plaintiff

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asserts that several items of evidence relevant to his claim are now missing.

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At the time of the alleged unlawful use of force, Plaintiff had been returned by

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Defendants from the shower and was standing inside his cell “facing away from the

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closed door.” Doc. 163 at 5. His arms were behind him and extended through the “food

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trap” in order to be uncuffed by Defendants. Id. Plaintiff claims that Smith “pulled on

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the chain hard, snatching [his] wrist through the food trap[.]” Doc. 142-1 at 2. He states

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that after he pulled back on the chain, his “arm’s (sic) were almost pulled out of socket,”

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and that he had to turn “toward the door to relieve the amount of pressure on [his]

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shoulders and wrist.” Id. He claims that Smith pressed down on his wrist and held it

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against the trap, then hit Plaintiff’s arm with his closed hand and “administered strikes.”

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Doc. 163 at 5. The sergeant in charge of the transfer, Defendant Morrow, allegedly

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intervened and told Smith to stop. Id.

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Defendants allege that Plaintiff is “notorious for assaulting staff, disobeying

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orders, starting fires, and was designated ‘high risk.’” Doc. 167 at 2. They argue that

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Plaintiff attempted to grab Smith’s “stab vest” and repeatedly yanked his lead chain, and

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that Smith’s conduct was necessary to “compel [Plaintiff] to be properly uncuffed.” Id. at

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5-6. Defendants do not dispute that Smith used “some modicum of force, up to and

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including pressing down on and/or striking [Plaintiff]’s hand/wrist/arm[.]” Id. at 6.

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Defendants also do not dispute the following facts: (1) Defendant Mueller

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recorded the incident on a video camera and Sergeant Morrow immediately took the

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video recording to her supervisor, Lieutenant Littleton; (2) Morrow reported to Littleton

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that Smith had behaved unprofessionally, which caused Littleton to order her to write a

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personnel notation (“PACE report”) for Smith; and (3) Plaintiff went to medical on

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April 20, 2011, where he was interviewed about the incident and his hand was

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photographed. Doc. 149 at 3-8.

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At some point on the day of the alleged assault, Morrow, Mueller, and Sergeant

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Navarrete (Smith’s supervisor) spoke to Plaintiff about the incident. Doc. 163 at 6. The

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accounts of this conversation vary, but it apparently caused Navarette to report to

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Littleton that the issue was resolved. Doc. 219-4 at 17 (“I had been notified by Sergeant

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Navarrette . . . . Everything was resolved. No issues.”). Plaintiff was also visited by a

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nurse on the day of the incident. The nurse noted injuries to his hands and gave him

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ibuprofen. Doc. 163 at 6.

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Later that night, Plaintiff wrote an inmate letter to “CO III McClellan” which

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stated several times that he had been assaulted by Smith, that he “was repeatedly grilled

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by Sgt. Navarrette to resolve the issue,” and that he “started to feel threatened by

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[Navarette’s] words, so [he] just gave in” to make it back to his cell safely. Doc. 142-1

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at 2.

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Plaintiff was taken to medical on April 20, 2011 – four days after the alleged

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assault – where an investigative report was completed by Sergeant Reyes and a

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photograph was taken of Plaintiff’s hand. Doc. 149 at 8. Reyes’s report notes that on the

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date of the incident Navarette asked Plaintiff multiple times if he was going to “pursue”

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the incident and Plaintiff said he would not pursue anything as long as he was taken back

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to his cell. See Doc. 219-2 at 2.

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At issue in this motion are several pieces of evidence that are missing. The first is

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the escort video. Littleton testified to several facts in his deposition: (1) he reviewed the

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video, (2) it showed Plaintiff acting belligerently, (3) it did not show Smith doing

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anything wrong, and (4) the camera’s view at the moment where Smith is accused of

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using excessive force was obscured by other Defendants who were standing between the

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camera and Plaintiff’s cell door. Doc. 219 at 8. Littleton testified that he ordered the

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video to be erased three to five days after the incident. Id. at 9; Doc. 219-4 at 21, 26.

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Morrow’s PACE report about Smith’s unprofessional conduct is also missing.

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Defendants previously asserted that the report was discarded by Littleton, but Littleton

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testified that he forwarded it to ADC’s central office. Doc. 219 at 10. Navarrette

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testified that two copies are usually made. Doc. 219-5 at 19. No explanation has been

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offered as to what happened to the PACE report or whether a second copy was made.

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Plaintiff initially alleged that two investigative reports were missing: a report by

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the Criminal Investigation Unit (“CIU”), and an internal investigation report based on the

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April 20, 2011 interview of Plaintiff by Reyes (“SSU report”). Doc. 219 at 5. Following

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discovery, there is some uncertainty as to whether this incident was ever actually referred

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to the CIU. Plaintiff alleges that Deputy Warden Curran “asked the [CIU] to investigate

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the incident, which per ADC policy should have triggered the creation of a CIU report.”

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Id. at 5. But no CIU report exists, and Curran stated in a declaration that his signature on

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the CIU referral form was “scribbled out” and he does not know whether it was ever

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actually submitted to CIU for action. Id. at 11.

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As to the SSU report, during discovery Defendants produced a one-page SSU

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memorandum, written by Reyes, which had not been produced at the time of Plaintiff’s

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initial spoliation motion. Doc. 219-2 at 2. At oral argument, Plaintiff’s counsel argued

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that the final sentence of the memorandum, which states that “[a]ll information has been

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forwarded to administration for review and further action if needed,” indicates that the

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report was accompanied by supporting documentation which has not been produced. It is

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unclear whether any such documentation exists, but defense counsel stated that if it does,

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it may be available for production.

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The April 20, 2011 photograph of Plaintiff’s hand is also missing. No new

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information was uncovered in discovery regarding the location of the photo. Defendants

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cannot explain its disappearance. Plaintiff asserts that Captain Ping took the photo, but

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she testified that she does not recall taking the photograph and does not know what

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happened to it. Doc. 219-6 at 10.

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As a remedy for loss of the video, PACE report, photo, attachments to the SSU

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report, and possibly a CIU report, Plaintiff seeks case-dispositive sanctions. He asks the

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Court to “designate as established for purposes of the case, that Defendants used

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excessive force and [Plaintiff] was injured as a result.” Doc. 219 at 21. He further asks

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the Court to “exclude evidence by Defendants regarding the amount of force used, to

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instruct the jury that Defendants have destroyed evidence that, if admitted at trial, would

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show that Defendants used excessive force against [Plaintiff] and that [Plaintiff] was

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injured as a result[.]” Id. Essentially, Plaintiff asks the Court for a directed verdict.

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II.

Legal Standard.

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“The failure to preserve electronic or other records, once the duty to do so has

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been triggered, raises the issue of spoliation of evidence and its consequences.”

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Thompson v. U.S. Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003).

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Spoliation is the destruction or material alteration of evidence, or the failure to otherwise

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preserve evidence, for another’s use in litigation. See Ashton v. Knight Transp., Inc., 772

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F. Supp. 2d 772, 799-800 (N.D. Tex. 2011).

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“A party seeking sanctions for spoliation of evidence must prove the following

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elements: (1) the party having control over the evidence had an obligation to preserve it

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when it was destroyed or altered; (2) the destruction or loss was accompanied by a

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‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’

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to the claims or defenses of the party that sought the discovery[.]” Goodman v. Praxair

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Servs., Inc., 632 F. Supp. 2d 494, 509 (D. Md. 2009) (quoting Thompson, 219 F.R.D.

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at 101); see Victor Stanley, Inc. v. Creative Pipe, Inc. (“Victor Stanley II”), 269 F.R.D.

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497, 520-21 (D. Md. 2010); In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060,

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1070-78 (N.D. Cal. 2006).

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“There are two sources of authority under which a district court can sanction a

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party who has despoiled evidence: the inherent power of federal courts to levy sanctions

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in response to abusive litigation practices, and the availability of sanctions under Rule 37

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against a party who ‘fails to obey an order to provide or permit discovery.’” Leon v. IDX

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Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Fjelstad v. Am. Honda Motor

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Co., 762 F.2d 1334, 1337-38 (9th Cir. 1985)). A district court exercising its inherent

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power may consider a number of sanctions, including (1) exclusion of evidence,

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(2) admitting evidence of the circumstances of the destruction or spoliation,

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(3) instructing the jury that it may infer that the lost evidence would have been

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unfavorable to the party accused of destroying it, or (4) entering judgment against the

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responsible party, either in the form of dismissal or default judgment. See Peschel v. City

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of Missoula, 664 F. Supp. 2d 1137, 1142 (D. Mont. 2009); see also Leon, 464 F.3d

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at 958.

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The Ninth Circuit has instructed that before a district court imposes the “harsh

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sanction” of dismissal or a directed verdict, it “should consider the following factors:

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‘(1) the public’s interest in the expeditious resolution of litigation; (2) the court’s need to

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manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.’”

Leon, 464 F.3d at 958 (quoting Anheuser-Busch v. Natural Beverage

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Distrib., 69 F.3d 337, 348 (9th Cir. 1995)).1 A “finding of ‘willfulness, fault, or bad

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faith’ is required for dismissal to be proper.” Leon, 464 F.3d at 958 (quoting Anheuser-

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Busch, 69 F.3d at 348).

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III.

Analysis.

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A.

Duty to Preserve.

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A duty to preserve information arises when a party knows or should know that the

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information is relevant to pending or future litigation. See Surowiec v. Capital Title

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Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011); Ashton, 772 F. Supp. 2d at 800;

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Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010).

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The duty to preserve is triggered not only when litigation actually commences, “but also

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extends to the period before litigation when a party should reasonably know that evidence

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may be relevant to anticipated litigation.” Surowiec, 790 F. Supp. 2d at 1005 (citations

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and quotation marks omitted).

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Initial Considerations.

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Although the duty to preserve is well established, there is some debate in this case

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as to who bore that duty. The Eighth Circuit has observed that the duty to preserve

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These five factors, which have been developed and applied most often in cases of
failure to prosecute or disobedience of court orders, are not all applicable in a spoliation
analysis. The factors of expeditious resolution of cases and management of the court’s
docket, for example, often will not be implicated when spoliation issues arise. The Court
nonetheless will apply the analysis consistent with the direction in Leon.
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evidence generally applies only to parties: “Absent some special relationship or duty

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arising by reason of an agreement, contract, statute, or other special circumstance, the

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general rule is that there is no duty to preserve possible evidence for another party to aid

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that other party in some future legal action against a third party.” Wilson v. Beloit

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Corp., 921 F.2d 765, 767 (8th Cir. 1990) (internal citation omitted).

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Defendants ask the Court to hold that no sanctions are appropriate in this case

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because they personally have no culpability for the loss or destruction of any evidence

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and ADC is not a party and therefore had no duty to preserve evidence. But ADC is not a

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disinterested third party. It is responsible for Defendants’ training and conduct, and it

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had complete control over the relevant evidence in this case and over Plaintiff’s ability to

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access that evidence and Defendants’ ability to preserve it. Defendants individually had

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no ability to control the evidence; Morrow, for example, could not have walked into the

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office of her superior – Littleton – and taken custody of the video and the PACE report in

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order to preserve them for her defense. Nor could an inmate like Plaintiff exercise any

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control over evidence in ADC’s possession.

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What is more, the State of Arizona, of which ADC is an agency, indemnifies its

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employees for “any damages . . . for which the . . . employee becomes legally responsible

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if the acts or omissions resulting in liability were within the . . . employee’s course and

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scope of employment.” A.R.S. § 41-621(P). Arizona also funds the defense of its

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employees in civil cases arising out of the scope of their employment. See A.R.S. § 41-

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192.02(A). Thus, although suits directly against ADC and Arizona are barred by the

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Eleventh Amendment, suits brought against ADC employees have virtually the same

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effect – Arizona funds the defense and pays any judgment.

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Because ADC controls the evidence and who has access to it, and the State is

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defending this case and will pay any judgment that results from it, the Court cannot

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conclude that ADC is merely a disinterested third party with no duty to preserve

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evidence. In all practical respects, ADC is in the same position as parties on whom

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courts routinely impose a duty to preserve – it is an agency of the State that funds the

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defense and pays any judgment, its employees are subject to suit for their actions while in

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its employ, and it has sole custody and control over most of the relevant evidence. Given

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these special circumstances, the Court finds that ADC had a duty to preserve evidence

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relevant to this case once it knew that litigation was reasonably likely. See Wilson, 921

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F.2d at 767 (“special circumstance” can impose duty to preserve on a nonparty).
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Is There An Exception to the Duty?

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Defendants “do not deny that a common law duty could apply to the evidence in

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question” (Doc. 232 at 13), but argue that requiring ADC to retain videos of inmate

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escorts would be unduly burdensome (id. at 4-6). Defendants contend that “an inordinate

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amount of space would be required to preserve the voluminous and sizeable videos of

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inmate escorts conducted on a daily basis.” Id. at 4. But nobody has suggested that ADC

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must preserve every video of every escort. The common law duty to preserve arises only

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when a party reasonably anticipates litigation. The vast majority of escorts at ADC

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undoubtedly are unremarkable events that give no reason to anticipate litigation. No duty

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to preserve would apply to the recordings of such escorts.

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But when an incident does occur on an escort that is sufficiently concerning for the

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officer in charge to take the video to her commanding officer and write a PACE report

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about the unprofessional conduct of her co-worker on the escort, and when the inmate

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that very evening writes a grievance alleging excessive force on the escort, litigation over

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the escort can reasonably be anticipated and a duty to preserve arises. The video of such

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a transport should be retained. Defendants have provided no evidence regarding the cost

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or burden that would be imposed by retaining videos in such unusual circumstances, and

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the Court therefore has no reason to conclude that retaining them would be so

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burdensome or disruptive to a state agency that an exception must be made to the

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common law duty to preserve.2

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The Court notes that Captain Hope Ping, an associate deputy warden with ADC,
testified in this case that videos from the Browning facility are routinely saved to a
computer hard drive. Doc. 219-6 at 15. ADC apparently has encountered no capacity or
cost problems in retaining these videos.
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3.

Additional Issues Regarding the Duty in this Case.

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Having concluded that ADC is not exempt from the common law duty to preserve,

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the Court must address additional factual issues regarding when exactly the duty arose in

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this case. Defendants argue that the letter written by Plaintiff on the evening of the escort

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was sent to “COIII McClellan” and not to any of the Defendants, Littleton, or Navarette.

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Doc. 232 at 16. They contend that McClellan did not respond to Plaintiff until April 28,

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2011, and that there is “no indication that he had discussed the matter with Lt. Littleton

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about preserving the video.” Id. These facts, combined with Littleton’s assertion that

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Navarette told him the issue with Plaintiff had been resolved, raise a question about

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whether Defendants reasonably could have anticipated litigation before the video was

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deleted a few days after the event in question.

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As discussed above, the duty to preserve applies to ADC. The relevant question,

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then, is not when Defendants or Littleton could reasonably anticipate litigation, but when

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ADC could reasonably anticipate litigation.

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The Court is mindful that “the duty to preserve evidence should not be analyzed in

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absolute terms . . . because the duty cannot be defined with precision.” Victor Stanley

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II, 269 F.R.D. at 522. The Court must look at “reasonableness under the circumstances.”

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Id. “Whether preservation or discovery conduct is acceptable in a case depends on what

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is reasonable, and that in turn depends on whether what was done – or not done – was

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proportional to that case and consistent with clearly established applicable standards.”

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Rimkus, 688 F. Supp. 2d at 613 (emphasis in original).

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Plaintiff submitted his grievance letter to McClellan on the night of the incident,

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alleging that he had been assaulted by Smith. See Doc. 142-1 at 2. At oral argument,

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defense counsel argued that no duty to preserve arose at that time. Counsel argued

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instead that the duty would not arise until after ADC had the opportunity to review

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Plaintiff’s grievance and determine its merit. The Court has great difficulty with this

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suggestion. If a party has no duty to preserve evidence until after it has evaluated the

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merits of a potential claim, then presumably that party can with impunity destroy relevant

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evidence while the evaluation is being conducted. The party can, in effect, immunize

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itself from liability by destroying the very evidence needed to prove its liability, all

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because it has not yet completed its internal evaluation of the claim and a duty to preserve

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the evidence therefore has not arisen. The Court cannot accept such a conclusion.

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At the same time, the Court recognizes that some entities, particularly prisons,

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undoubtedly receive hundreds or thousands of complaints and grievances, some portion

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of which are plainly meritless and should not trigger a duty to preserve evidence. How

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one balances this reality against the need to preserve evidence in clearly anticipated

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claims is not easy to determine in the abstract. Such line-drawing is perhaps best left to

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the experience-based development of the common law.
The Court can conclude in this case, however, that a duty to preserve arose before

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the evidence was destroyed.

This was no routine transport or frivolous complaint.

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Morrow was sufficiently concerned about what occurred at Plaintiff’s cell door to take

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the video to Littleton, tell him of Smith’s unprofessional conduct, and then write a PACE

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report at Littleton’s direction.

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McClellan asserting that he had been subjected to excessive force by Smith. The Court

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concludes that these facts were sufficient to put ADC on notice that litigation was likely

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and to trigger a duty to preserve relevant evidence. The Court does not purport to adopt a

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broader rule.

That evening, Plaintiff wrote a grievance letter to

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B.

Imputation.

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Defendants correctly note that none of them was responsible for the loss or

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destruction of evidence in this case – the evidence was lost while in the hands of others

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within the prison system. Defendants would have the Court conclude that Plaintiff has no

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remedy because they are not personally responsible for the destruction of evidence. The

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Court must therefore decide whether ADC’s loss of evidence may be imputed to

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Defendants for purposes of resolving this case.

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Plaintiff contends that courts “regularly impute any spoliation by the real party in

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interest – the state and its agencies – to the named officer in a § 1983 action,” and cites

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three district court cases where spoliation sanctions were granted against § 1983

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defendants. Doc. 219 at 12 (citing Peschel, 664 F. Supp. 2d 1137; LaJocies v. City of N.

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Las Vegas, No. 2:08-cv-00606-GMN-GWF, 2011 WL 1630331, at *5 (D. Nev. Apr. 28,

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2011); and Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)). These cases are not

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particularly helpful, however, because none of them directly addresses the standard for

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imputing spoliation. Further, in each case the entity or individual accused of destroying

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evidence was named as a party.

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Defendants argue that the Court cannot sanction them because they were not

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involved in the alleged spoliation, and that sanctioning them for conduct of other prison

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staff would violate the sovereign immunity granted Arizona by the Eleventh Amendment.

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Doc. 232 at 8. Defendants contend that the Court has no jurisdiction over Arizona or

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ADC because neither is a party, and Arizona has neither consented to jurisdiction nor

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waived its sovereign immunity. Id. No party has suggested, however, that the Court

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exercise jurisdiction over Arizona or ADC. The question is whether the Court should

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impose spoliation sanctions in this case for the loss of evidence by ADC.

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Defendants argue that a recent Ninth Circuit decision, Peralta v. Dillard, 744

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F.3d 1076 (9th Cir. 2014), shows that the Court cannot impute wrongdoing of other

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prison employees to Defendants who have no personal culpability. Doc. 232 at 9.

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Peralta involved a claim of deliberate indifference to serious medical needs. 744 F.3d

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at 1081. The plaintiff, Peralta, experienced delays in getting necessary dental work while

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incarcerated in a California prison, was injured as a result, and brought a § 1983 action

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against the prison’s chief dental officer, chief medical officer, and a staff dentist. Id. The

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district court granted a directed verdict to the chief dental and medical officers and

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allowed the claim against the staff dentist to go to the jury, which ultimately found for the

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defense. Id. At issue on appeal was the district court’s instruction to the jury that it could

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consider the lack of resources available to the dentist in deciding whether he had met his

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duty. Id. at 1082. Peralta argued such an instruction was improper and cited Jones v.

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Johnson, 781 F.2d 769, 771 (9th Cir. 1986), for the proposition that budgetary constraints

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are not a justification for Eighth Amendment violations. Peralta, 744 F.3d at 1083. The

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Ninth Circuit reasoned that holding the defendant “liable for delay in treatment caused by

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shortages beyond his control, on the theory that the state will wind up paying any

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damages award” would violate Eleventh Amendment sovereign immunity. Id. at 1084.

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“We may not circumvent [the Eleventh Amendment] by imputing the state’s wrongdoing

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to an employee who himself has committed no wrong.” Id.

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Peralta does not control this case. Peralta concluded that assessing a damages

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award against the defendant dentist which the State ultimately would pay through its

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indemnification duty, on the basis of the State’s wrongdoing (failure to provide adequate

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medical resources for its prisons), would be tantamount to awarding damages against the

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State for its wrongful conduct, something the Eleventh Amendment forbids. Such an

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award would constitute “an end run around the Eleventh Amendment by subjecting the

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state to precisely the kind of economic pressure against which the amendment protects.”

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Id.

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This case is different. Plaintiff seeks damages for violation of his constitutional

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right to be free from cruel and unusual punishment, not for spoliation of evidence. He

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asks the Court to impute ADC’s loss of evidence to Defendants in order to remedy the

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loss of evidence through appropriate trial sanctions. He does not ask the Court, as did the

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plaintiff in Peralta, to impute to Defendants any wrongful actions by the State that

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contributed to or caused the constitutional violation. Thus, this is not a case where the

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requested imputation would effectively establish the State’s violation of Plaintiff’s

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constitutional rights and subject it to an award of damages for that violation – a tactic

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which constituted the “end run around the Eleventh Amendment” in Peralta.

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Plaintiff provides other valid distinctions. He notes that the state action at issue in

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Peralta was a “policy or practice” of California, and that such policies and practices are

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protected from suit by the Eleventh Amendment. Doc. 235 at 10. He argues that the

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spoliation here is not a policy or practice of Arizona and accordingly “does not subject

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Arizona to ‘the kind of economic pressure against which the [Eleventh Amendment]

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protects.’” Id. (quoting Peralta, 744 F.3d at 1084). Plaintiff argues that if Littleton were

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a party to this action the Eleventh Amendment would not prevent the imposition of

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spoliation sanctions based on his destruction of evidence, and that the amendment

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accordingly should not “act as a bar to imputation here[.]” Doc. 235 at 10 n.5. Plaintiff

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further notes that Peralta discussed the availability of other remedies, specifically the

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availability of injunctive relief, and argues that in this case he has no other available

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remedy. Id. (citing Peralta, 744 F.3d at 1083). For these and the reasons discussed

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above, the Court concludes that Peralta does not bar the spoliation relief sought by

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Plaintiff.

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The authority cited by the parties is largely unhelpful in determining whether

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spoliation may be imputed to Defendants. Indeed, the Court has had difficulty finding

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any authority squarely considering whether spoliation of evidence may be imputed to a

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defendant who did not participate in the spoliation. The court in Victor Stanley II noted

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that an act of spoliation by an agent is attributable to the principal. 269 F.R.D. at 515

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n.23. But there is no allegation here that any evidence was destroyed by an agent of

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Defendants. In Gurvey v. Fixzit Nat’l Install Servs., Inc., Civ. No. 06-1799(DRD), 2011

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WL 550628, at *5 (D.N.J. Feb. 8, 2011), the court observed that “spoliation inferences

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are only appropriately entered against the party that actually destroyed the evidence,” and

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that “it would serve no sensible purpose to punish innocent co-defendants so severely for

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the malfeasance of others.” Gurvey is distinguishable, however, because the court found

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that the plaintiffs had provided no evidence that any spoliation occurred. Id. Moreover,

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Gurvey did not involve the sort of relationship between the defendant and the spoliator

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that exists in this case.

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The Sixth Circuit has affirmed a district court’s denial of spoliation sanctions in a

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case that is factually similar to Plaintiff’s. In Adkins v. Wolever, 692 F.3d 499 (6th

26

Cir. 2012), the plaintiff, a Michigan state prisoner, alleged that he was assaulted by a

27

correctional officer, Wolever, who “yank[ed] his hands through a slot in the cell door

28

before removing his handcuffs.” Id. at 501. Surveillance footage of the incident was

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lost, likely because it was stored on a computer that automatically deleted footage after

2

ten days. Id. at 502. The district court concluded that Adkins was not entitled to

3

spoliation sanctions because “the preservation of the evidence ‘was entirely beyond

4

Officer Wolever’s control.’” Id. at 504. The Sixth Circuit affirmed, noting that it owed

5

substantial deference to the professional judgment of prison administrators, and that a

6

holding “that all defendants in situations like Wolever’s must take affirmative steps to

7

ensure that their employing prison continues to maintain evidentiary records for every

8

incident with a prisoner would impose an added burden on prison employees.” Id. at 506.

9

The court also noted that “incidences raising spoliation questions” should be considered

10

“on a case-by-case basis,” and that the determination of whether sanctions are appropriate

11

“rests within the broad discretion of the district courts.” Id.

12

Although the facts of the assault in this case are similar to those in Adkins, the

13

facts surrounding the spoliation of evidence are not. The video in this case was deleted

14

by an ADC staff member who knew that a supervising officer viewed the incident as

15

professional misconduct. Further, the Adkins court did not address whether the prison

16

itself had any duty to preserve evidence or to intervene in the operation of their computer

17

system, and it is unclear whether arguments regarding those issues were presented.

18

Adkins is therefore unhelpful in resolving the issue of imputation in this case.

19

For the same reasons that the Court found that ADC had a duty to preserve the

20

evidence lost in this case, the Court finds that there is strong reason to impute the

21

spoliation of ADC to Defendants to ensure that fairness is done at trial. But the Court

22

need not go that far to resolve this motion. As will be explained below, the Court does

23

not find that Plaintiff has made the showing required for case-dispositive sanctions. The

24

Court instead concludes that ADC’s breach of duty and loss of evidence should be

25

explained to the jury, that the jury should be allowed to infer that the lost evidence would

26

have favored Plaintiff’s position, and that Defendants should be precluded from

27

presenting a substitute video they created to show why the lost video would not have

28

contained meaningful information. Although these steps will result in ADC’s spoliation

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having some negative consequences for Defendants at trial, it will not impute spoliation

2

to them – no suggestion will be made to the jury that Defendants themselves are in any

3

way responsible for the loss of evidence.

4

C.

Relevance and Prejudice.

5

Defendants argue that the spoliated evidence is of “dubious relevance,” and assert

6

that “the Court should recognize that all witnesses are available for testimony and cross-

7

examination at trial, as is the critical mass of information reports, supplements, the CIU

8

complaint, SSU Memorandum, and Petit’s medical records.” Doc. 232 at 18. Defendants

9

further argue that the video would be duplicative of Plaintiff’s testimony, and that the

10

PACE reports would also be duplicative of other evidence. Id. The Court does not agree.

11

The video recorded the very events that Plaintiff claims constituted excessive

12

force and that Morrow found sufficiently troubling to report to her superiors. The Court

13

and Plaintiff can take no comfort in Defendants’ assertion that defense witnesses, who

14

will favor the defense position, can testify about these events at trial. Nor is it sufficient

15

to say that Plaintiff, a convicted felon being held in high security, can testify against

16

uniformed prison guards at trial. The video camera was an objective witness that bore

17

neither the potential pro-defense leanings of the defense witnesses nor the credibility

18

problems of Plaintiff. Without question, that objective evidence was highly relevant to

19

the claims at issue in this case. In addition, as other courts have explained in virtually the

20

same circumstance: “Despite the limited viewing angle of the videotape . . . it is likely

21

that it did still capture at least some of the altercation (whether sights or sounds) and

22

could have potentially assisted the jury to understand the tenor of the event and to

23

evaluate the credibility of the witnesses who are providing conflicting descriptions.”

24

LaJocies, 2011 WL 1630331, at *2. “The obvious inherent value of the video recording

25

is that it would have allowed the jury, the arbiter of the facts, to see the actual events

26

unfold and make its own collective assessment as to whether the force used . . . was or

27

was not reasonable under the circumstances.” Peschel, 664 F. Supp. 2d at 1145. “The

28

jury would not be forced to rely on the conclusions drawn by the various witnesses as to

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the reasonableness of the force used. Rather the jury would have been able to form its

2

own conclusions – unfiltered by the perceptions or sentiments of the various witnesses.”

3

Id.

4

The PACE report and the medical photograph were also plainly relevant. They

5

were contemporaneous records, recorded without the influences of a federal court lawsuit

6

and the risks of trial. They would have provided valuable information about the extent of

7

Plaintiff’s injuries and Morrow’s fresh perception of Smith’s conduct. The fact that other

8

evidence about the incident is available does not diminish the relevance of the missing

9

evidence. Plaintiff clearly has been prejudiced by the loss of important evidence.

10

D.

Culpability.

11

Various Ninth Circuit cases have noted that sanctions may be imposed “not only

12

for bad faith, but also for willfulness or fault by the offending party.” Unigard Sec. Ins.

13

Co. v. Lakewood Eng’g & Mfg. Co., 982 F.2d 363, 368 n.2 (9th Cir. 1992) (citing Halaco

14

Eng’g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988)). The Court is not persuaded,

15

however, that this authority would support a dismissal of claims or a directed verdict

16

without a finding of culpability approaching bad faith.

17

The concepts of willfulness and fault are imprecise. Willfulness could include

18

virtually any intentional act, such as adoption of an email management system that

19

deletes stored emails after 30 days, even if the intentional action was not taken with an

20

intent to destroy relevant information. Fault is also broad, including mere negligence.

21

Ninth Circuit cases cited by the parties and found by the Court have not imposed case-

22

terminating sanctions for negligence-level actions.

23

In Leon, the Court of Appeals affirmed a dismissal sanction. Leon cited the

24

“willfulness, fault, or bad faith” standard, 464 F.3d at 958, but affirmed the dismissal

25

based on the litigant’s “bad faith,” a factual finding the Ninth Circuit found not clearly

26

erroneous, id. at 959. Specifically, the trial court and court of appeals both found that the

27

plaintiff willfully deleted information and then ran a program to scrub his computer’s

28

memory, after he knew that the information was relevant in ongoing litigation with his

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former employer.

Id. at 958-59 (noting that the plaintiff’s “deletion and ‘wiping’

2

of 2,200 files, acts that were indisputably intentional, amounted to willful spoliation of

3

relevant evidence”).

4

In Anheuser-Busch, a case upon which Leon relied, the Ninth Circuit affirmed a

5

dismissal sanction where the party had repeatedly and willfully lied that relevant

6

documents were destroyed in a fire, when in fact she knew they had survived the fire.

7

The case quoted the “willfulness, fault, or bad faith” standard, but the Ninth Circuit noted

8

that the sanctioned party “had willfully and in bad faith violated the rules of discovery by

9

withholding the documents from Anheuser and had repeatedly violated [the trial court’s

10

order].” Anheuser-Busch, 69 F.3d at 348.

11

In Halaco Engineering, the Ninth Circuit again cited the “willfulness, fault, or bad

12

faith” standard, but reversed the district court’s dismissal of an EPA counterclaim for

13

misleading and incomplete litigation disclosures. Although the Ninth Circuit did not

14

dispute that the EPA had improperly failed to disclose portions of an investigative report

15

and had used improper accusatory language in another public document, it held that

16

“[t]he fault at issue was insufficient to support a dismissal.” 843 F.2d at 380-81. The

17

Court noted that “[d]ismissal under a court’s inherent powers is justified in extreme

18

circumstances, in response to abusive litigation practices, and to insure the orderly

19

administration of justice and the integrity of the court’s orders.” Id. at 380 (emphasis

20

added; citations omitted).

21

Finally, the Supreme Court’s leading decision on a trial court’s use of inherent

22

power to impose sanctions, Chambers v. NASCO, Inc., 501 U.S. 32 (1991), speaks in

23

terms of bad faith. The Supreme Court held that a district court can assess attorney’s fees

24

as a sanction when a party has “acted in bad faith, vexatiously, wantonly, or for

25

oppressive reasons.” Id. at 45-46 (quotation marks and citations omitted); see also

26

Roadway Exp., Inc. v. Piper, 447 U.S. 752, 765-66 (1980) (attorneys’ fees may be

27

imposed as sanctions under court’s inherent power for “bad faith”).3

28
3

In Unigard, the Ninth Circuit addressed Chambers and Roadway Express and
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These cases persuade the Court that case-terminating sanctions require conduct

2

akin to bad faith.

As Halaco demonstrates, lesser forms of wrongful conduct are

3

insufficient to support dismissal or a directed verdict. Thus, although the cases speak

4

broadly of “willfulness, fault, or bad faith,” the Court concludes that negligence or

5

intentional-but-innocent conduct normally will not justify case-ending orders.4

6

There is no question in this case that the video was intentionally deleted at

7

Littleton’s direction. It is unclear exactly when the video was deleted, but Littleton

8

testified that he met with Deputy Warden Curran approximately “three to five days after”

9

the incident (Doc. 219-4 at 21) and had ordered that the video be deleted before he spoke

10

with Curran (id. at 26). It is also unclear what Littleton knew about Plaintiff’s allegations

11

of assault at the time the video was deleted. McClellan received Plaintiffs’ grievance in

12

the evening after the incident occurred, but there is no evidence that Littleton was told

13

about it. Further, Littleton testified that he was told by Navarette that the issue between

14

Plaintiff and Smith had been resolved. See id. at 17.

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16
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18
19
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observed that “[t]he bad-faith requirement . . . is very likely limited to the context of
sanctions in the form of cost- and fee-shifting.” 982 F.2d at 368 n. 2. The Ninth Circuit
then went on to apply the “willfulness, fault, or bad faith” standard discussed above. Id.
The Court cannot conclude from the Unigard footnote, however, that the high standard of
bad faith would be required for an award of attorneys’ fees, but not for the more severe
sanctions of dismissal, directed verdict, or adverse inference instructions. As explained
in the next footnote in this order, the Court views Unigard as an example of a unique line
of product liability cases where loss of the allegedly defective product eliminates the
defendant’s ability to mount a meaningful defense.
4

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The Ninth Circuit faced a unique situation in Unigard, where the plaintiff
insurance company sued the manufacturer of a space heater that allegedly had caused the
insured boat to catch fire. Before the lawsuit was filed, but after its experts had examined
the space heater and the boat, the plaintiff innocently destroyed the space heater and sold
the boat for salvage, depriving the defendant of any opportunity to examine this key
evidence. As a result, the district court precluded the plaintiff from presenting testimony
from its experts and, because the plaintiff could not prove its claim without its experts,
entered summary judgment for the defendant. The Ninth Circuit affirmed, noting that the
plaintiff’s actions “precluded Lakewood from any opportunity to inspect the evidence”
and “rendered unreliable virtually all of the evidence that a finder of fact could
potentially consider.” 982 F.2d at 369. In the Court’s view, Unigard falls within a
unique line of cases where a party has destroyed the very item at issue in the lawsuit.
Those cases generally dismiss the party’s claim or defense because loss of the critical
item effectively deprives the opponent of any meaningful opportunity to litigate the case.
See, e.g., Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001); Flury v.
Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005). In this case, the lost evidence
was important, but not the actual object of the litigation as in Unigard.
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On the other hand, the evolution of Littleton’s testimony about the video is

2

concerning. Defendants filed a declaration by Littleton on February 7, 2013 in response

3

to Plaintiff’s original motion for sanctions. Doc. 130-1. The declaration says nothing

4

about Littleton watching the video or ordering its deletion. In his subsequent deposition,

5

Littleton testified that he remembered – about “a month and a half” before the deposition

6

– that he had in fact watched the video. See Doc. 219-4 at 34. Littleton now recalls

7

specific details of what the video showed. While it is possible that Littleton had a sudden

8

resurgence of memory, his testimony is at least suspicious. The suspicion is compounded

9

by the fact that the PACE report Littleton ordered Morrow to write about the incident is

10

also missing, as is the photo of Plaintiff’s hand.

11

This suspicion notwithstanding, Plaintiff has not shown that the video, PACE

12

report, photo, and other possible documents were deliberately destroyed for the purpose

13

of making them unavailable in this lawsuit. And Defendants do provide at least some

14

explanation for why they were not retained.

15

Considering the evidence as a whole, the Court cannot conclude that Defendants

16

acted in bad faith. The Court can conclude, however, that ADC breached a duty to

17

preserve important evidence.

18

relevant to likely litigation. Morrow’s reaction to the incident strongly suggested that

19

something improper had occurred at Plaintiff’s cell door. The same day, a nurse visited

20

Plaintiff and found injuries. That night, Plaintiff wrote a letter of complaint to an ADC

21

supervisor. In light of these facts, the Court concludes that intentional deletion of the

22

video and failure to preserve the PACE report and the photo of Plaintiff’s injuries were at

23

least grossly negligent.

ADC clearly had reason to believe the evidence was

24

E.

Sanctions.

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Although Rule 37 does not appear to be implicated in this case because there was

26

no violation of a court order or other discovery rule, the Court concludes that sanctions

27

are warranted under the Court’s inherent powers. The Court must “exercise caution in

28

invoking its inherent power[.]” Chambers, 501 U.S. at 50. The Court is also mindful of

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two of the five factors the Ninth Circuit has instructed the Court to consider: the public

2

policy favoring disposition of cases on their merits and the availability of less drastic

3

sanctions. Leon, 464 F.3d at 958; see also Halaco, 843 F.2d at 381 (“The district court

4

must, before dismissing an action under its inherent powers, consider less drastic

5

sanctions.”).

6

The Court is not convinced that Plaintiff’s requested sanction – instructing the jury

7

that Defendants used excessive force which injured Plaintiff – is appropriate. Such a

8

sanction would direct judgment in favor of Plaintiff.

9

surrounding the destruction of evidence are suspicious, Plaintiff has not presented clear

10

evidence of bad faith. The Ninth Circuit’s instruction to adopt a resolution that favors

11

disposition of this case on the merits, and that is the least onerous sanction needed to cure

12

the prejudice caused by ADC’s loss of the evidence, persuade the Court that it should not

13

impose a case-dispositive sanction.5

Although the circumstances

14

Instead, the Court will allow the parties to present evidence and argument

15

concerning the lost evidence and will instruct the jury that ADC had a duty to preserve

16

evidence, ADC did not preserve the evidence, and the jurors may, but are not required to,

17

infer that the lost evidence would have been favorable to Plaintiff. The Ninth Circuit has

18

authorized adverse inference instructions where the spoliator acted wrongly, which

19

requires notice that the destroyed evidence was relevant to likely litigation. See Akiona v.

20

United States, 938 F.2d 158, 161 (9th Cir. 1991) (adverse inference instruction warranted

21

for destruction of documents “if it was wrong to do so, and that requires, at a minimum,

22

some notice that the documents are potentially relevant”). The Ninth Circuit has affirmed

23

the denial of such instructions where the actions of the alleged spoliator “did not evidence

24

bad faith, was not intentional, and reflected only inadvertence that at most was

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27
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5

The Court would reach this conclusion even if case-terminating sanctions were
available for conduct less severe than bad faith. Decisions affirming case-ending
sanctions have involved more culpable conduct than has been shown here. See, e.g.,
Leon, 464 F.3d at 958; Anheuser-Busch, 69 F.3d at 348. Thus, even if something less
than bad faith could support dispositive sanctions, the Court, as in Halaco, would find
Defendants’ conduct insufficient for such sanctions. 843 F.2d at 380-81.
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negligence.” Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 824

2

(9th Cir. 2002). ADC’s actions in destroying the video recording were not inadvertent or

3

merely negligent.

4

negligent, that prejudice resulted, and that the circumstances surrounding the destruction

5

are suspicious.6

As noted above, the Court finds that ADC was at least grossly

6

The Court will also preclude Defendants from presenting the videos they created

7

after-the-fact to suggest that the lost video would not have contained helpful information.

8

Permitting the display of such videos when the actual video was not retained would, in

9

the Court’s view, be very unfair.

10
11

These sanctions will restore, as much as possible, the accuracy of the fact-finding
process and relieve the disadvantage imposed on Plaintiff.7

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6

The Court does not mean by this holding to suggest that adverse inference
instructions – which rightly are viewed as serious sanctions – should be too readily
imposed. The Court notes that the Advisory Committee on the Federal Rules of Civil
Procedure, of which the undersigned is the current chair, has proposed that adverse
inference instructions be allowed for the loss of electronically stored information (“ESI”)
only when the party that lost the information acted with the intent to deprive another
party of the information’s use in the litigation. See www.uscourts.gov/uscourts/
RulesAndPolicies/rules/civil rules redline.pdf at 36-47.
The reasons for this
recommendation can be found in the Advisory Committee Note to the proposed
amendment. Id. Although this case concerns deletion of a digital video file, it does not
concern ESI in the sense addressed in the proposed amendment, which is concerned more
with the operation of modern ESI systems and the ease with which information can be
added to and lost by such systems.
7

Defendants argue that the Court may not impose sanctions because current
Rule 37(e) provides that “a court may not impose sanctions . . . on a party failing to
provide electronically stored information lost as a result of the routine, good-faith
operation of an electronic information system.” Fed. R. Civ. P. 37(e). This rule, which
refers to operations that occur “without the operator’s specific direction or awareness,”
Fed. R. Civ. P. 37, advisory comm. note (2006), has no bearing here. The video was not
“lost as a result of the routine, good-faith operation of an electronic information system”
– it was deliberately deleted. Furthermore, even if ADC had an ESI system that deleted
the video, once a party is aware of reasonably anticipated litigation it has a duty to
intervene in the operation of such a system to prevent the loss of potentially relevant
evidence. Id. (“When a party is under a duty to preserve information because of pending
or reasonably anticipated litigation, intervention in the routine operation of an
information system is one aspect of what is often called a ‘litigation hold.’”). There has
been no allegation that the other missing evidence was lost due to the operation of an
electronic information system. All indications are that the PACE report and photographs
were physical copies rather than electronic. Rule 37(e) therefore does not apply to them.

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3

IT IS ORDERED that Plaintiff’s renewed motion for sanctions (Doc. 219) is
granted in part and denied in part as set forth above.
Dated this 9th day of September, 2014.

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