Session v. Clemings et al

Filing 440

ORDER. The Recommendation of United States Magistrate Judge 427 is ACCEPTED. Plaintiff's Motion for Spoliation Sanctions 387 is GRANTED in part and DENIED in part. By Judge Philip A. Brimmer on 1/25/19. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02406-PAB-KLM
FRANKY L. SESSION,
Plaintiff,
v.
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and
DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of the United States
Magistrate Judge [Docket No. 427] filed on January 10, 2019. The magistrate judge
recommends that the Court grant in part Plaintiff’s Motion for Spoliation Sanctions
[Docket No. 387] and allow the parties “to present evidence relating to the lost or
destroyed Review Board records and to argue whatever inferences they hope the jury
will draw from their absence.” Docket No. 427 at 15-16. Plaintif f filed a timely objection
to the magistrate judge’s recommendation on January 17, 2019, Docket No. 434, to
which defendants responded on January 23, 2019. Docket No. 438.
I. BACKGROUND1
This case arises out of plaintiff’s pretrial detention at the Denver Detention
Center (“DDC”) in 2013. Plaintiff asserts that defendants violated his due process rights

1

A more complete recitation of the facts and procedural history can be found in
the magistrate judge’s report and recommendation. See Docket No. 427.

under the Fourteenth Amendment by keeping him in administrative segregation for a
period of eight and one-half months without a legitimate reason. Docket No. 300 at 2-3.
Plaintiff proceeded pro se throughout most of the litigation, but was appointed pro bono
counsel in August 2018. Docket No. 352. On September 28, 2018, plaintiff, through
pro bono counsel, moved to reopen discovery to seek additional information regarding
the DDC’s policies and procedures for placing inmates in administrative segregation.
Docket No. 364. As a result of defendants’ subsequent disclosure of unredacted policy
documents, plaintiff learned that defendants were required to keep written records of
the Administrative Review Board’s weekly reviews of plaintiff’s housing placement. See
Docket No. 376 at 4 n.1 (discussing new categories of documents sought by plaintiff as
a result of defendants’ production of unredacted Post Orders and DDC regulations);
Docket No. 387 at 3 (discussing written records defendants were required to keep
regarding plaintiff’s housing placement). On November 9, 2018, the Court granted in
part plaintiff’s request to modify the scheduling order and ordered defendants to
produce, within thirty days: “(1) any DDC regulations governing the classification,
housing, and/or placement of inmates in Unit 4D during 2013; (2) any records of weekly
interviews conducted by an administrative review board Classification officer between
March 24, 2013 and December 18, 2013; (3) any DDC weekly administrative board
reports dated between March 24, 2013 and December 18, 2013; and (4) any
classification review forms for plaintiff, dated between March 24, 2013 and December
18, 2013.” Docket No. 376 at 5. On December 17, 2018, plaintiff moved for spoliation
sanctions, arguing that defendants had lost or destroyed “weekly interviews and
reports” that “they created . . . as part of their duties on the Administrative Review
2

Board (the ‘Review Board’).” Docket No. 387 at 1. On January 10, 2019, the
magistrate judge recommended that plaintiff’s motion be granted in part. Docket No.
427 at 1. The magistrate judge found that, although plaintiff had demonstrated both
spoliation of relevant evidence and resulting prejudice, he had not made an adequate
showing of bad faith to warrant the giving of an adverse inference instruction at trial. Id.
at 6-15.
II. STANDARD OF REVIEW
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
In the absence of a proper objection, the Court reviews the magistrate judge’s
recommendation to satisfy itself that there is “no clear error on the face of the record.”2
Fed. R. Civ. P. 72(b), Advisory Committee Notes.
III. ANALYSIS
Plaintiff objects to the magistrate judge’s report and recommendation to the
extent that the magistrate judge found insufficient evidence of bad faith. Docket No.
434 at 1.3 Plaintiff argues that the “recommendation fails to recognize the significant
2

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
3

Notably, plaintiff does not object to the magistrate judge’s legal conclusion that a
litigant must demonstrate bad faith in order to be entitled to an adverse inference
instruction. See Docket No. 427 at 12 (discussing ambiguity in Tenth Circuit case law
but concluding that plaintiff “must provide evidence of bad faith to be permitted an
3

evidence of bad faith in the record and, in effect, imposes such a high legal standard for
showing bad faith that litigants will have license to ‘lose’ clearly relevant documents long
after litigation has commenced.” Id.
Regarding the issue of bad faith, the magistrate judge determined that, although
the evidence presented was “consistent with bungled record-keeping, bungled records
management, and extreme carelessness,” it did not show that defendants were
responsible for the loss or destruction of the weekly Review Board records. Docket No.
427 at 14.
In his objection, plaintiff argues that four factors warrant a finding of bad faith: (1)
defendants’ violation of DDC’s record-keeping requirements; (2) defendants’ failure to
preserve the Review Board records after the case was filed; (3) defendants’ attempts to
conceal the Review Board records from plaintiff while he was proceeding pro se; and
(4) defendants’ inability to explain the loss of the Review Board records. Docket No.
434 at 4-9.
With regard to the first factor, plaintiff argues that defendants’ failure to maintain
electronic records of administrative review board decisions in violation of DDC policy is
sufficient evidence, by itself, to warrant a finding of bad faith. Docket No. 434 at 4.
Plaintiff relies on Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987), in which
the Tenth Circuit held that a plaintiff was entitled to a presumption that certain
personnel records would have supported her case because the def endant had
destroyed the records in violation of a federal regulation. Id. at 1419. Plaintiff argues

adverse inference instruction” in this case).
4

that Hicks stands for the proposition “that a violation of policies and procedures can be
sufficient evidence alone to show bad faith.” Docket No. 434 at 4-5. As defendants
point out, however, the court in Hicks held that plaintiff was entitled to a presumption
notwithstanding the fact that the record did not demonstrate bad faith. See 833 F.2d at
1419 n.5. Hicks therefore does not support plaintiff’s position. This case is also
distinguishable from Hicks because plaintiff has presented no evidence that defendants
themselves were responsible for the loss or destruction of the Review Board records.
See Alvariza v. Home Depot, 241 F.R.D. 663, 668 (D. Colo. 2007) (distinguishing Hicks,
where the employer admitted to intentionally destroying documents in violation of a
federal regulation, from a situation in which a defendant “agreed to provide certain
documents, looked for such documents, and was unable to find them”).4
Plaintiff also argues that defendants’ failure to preserve the Review Board
records when litigation was already pending constitutes evidence of bad faith. Docket
No. 434 at 5, 8-9. The Court disagrees. While the failure to preserve records after a
litigation hold is in place supports the imposition of spoliation sanctions, see E.E.O.C. v.

4

While the magistrate judge found that defendants had custody and control over
the documents for a certain period of time after this case was filed, Docket No. 427 at
9-11, defendants presented evidence that the documents went missing only after
defendants had left the special management unit. See Docket No. 418-1 at 12, 109:1622 (Sergeant Jordan’s deposition testimony that copies of the Administrative Review
Board records still existed when he left the special management unit in August 2015);
Docket No. 418-4 at 2, ¶ 8 (Sergeant Gary Tribble’s declaration stating that “the boxes
of older Classification documents were still in the Classification office when Captain
Romero” retired in June 2017). In his declaration, Sergeant Tribble stated that the
Captain of Classification who took over after defendant Romero’s retirement in June
2017 directed that the boxes of older Administrative Review Board records be sent to
the Imaging Department to be scanned. Docket No. 418-4 at 2, ¶ 9. Serg eant Tribble
does not know what happened to the records after they left the Classification office. Id.
5

Jetstream Ground Servs., 878 F.3d 960, 964 (10th Cir. 2017) (stating that “spoliation
sanctions are proper when (1) a party has a duty to preserve evidence because it knew,
or should have known, that litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence” (internal quotation marks and brackets
omitted), it does not, standing alone, establish bad faith. To hold otherwise would
collapse the spoliation and bad faith inquiries into one and mandate the giving of an
adverse inference instruction in every case where evidence is improperly lost or
destroyed. Such a result would be inconsistent with Tenth Circuit law. See Turner v.
Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (explaining that an
adverse inference instruction requires proof of bad faith in addition to evidence of
spoliation).5
Plaintiff next contends that defendants’ discovery conduct – specifically, their
efforts to conceal policy documents that would have revealed the existence of the
Review Board records – is indicative of bad faith. Docket No. 434 at 6. Plaintiff bases
his argument on defendants’ failure to produce three categories of documents: (1) the
Review Board records themselves which, plaintiff asserts, were responsive to plaintiff’s
2016 request for “[a]ny and all documents . . . created by any Denver Sheriff Staff
member or any Denver Sheriff Department or official concerning ‘Franky L. Session,’
5

Although plaintiff is correct that Turner and Jetstream did not involve the loss or
destruction of documents after the commencement of litigation, Docket No. 434 at 5-6,
neither case mandates a finding of bad faith merely because a party has violated a duty
to preserve evidence. See Jetstream, 878 F.3d at 965 (noting that the “central debate
between the parties on appeal [was] whether [an adverse inference instruction was]
proper absent a court finding of bad faith”); Turner, 563 F.3d at 1150 (finding that the
“record as a whole,” including the fact that defendant produced other evidence related
to its hiring plan, did not support a finding of bad faith).
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from January 22, 2013 to May 20, 2015”; (2) DDC policy documents that would have
revealed defendants’ record-keeping obligation; and (3) unredacted Post Orders
discussing the Review Board records. Id. at 6-7.6 Defendants respond that it was
proper for them to redact non-public portions of the DDC Post Orders because plaintiff
was a prisoner in the custody of the Colorado Department of Corrections at the time
those documents were produced. Docket No. 418 at 13; Docket No. 438 at 12-13.
They further contend that the production of the redacted Post Orders in 2016 does not
suggest an effort to conceal spoliation, as the evidence indicates that the Review Board
records were not lost until 2017. Docket No. 438 at 12-13. Finally , defendants argue
that they did not produce the Review Board records in response to plaintiff’s request for
production because they interpreted the discovery request as being limited to
“documentation regarding Plaintiff’s housing location history within the DDC.” Id. at 11.
The Court is not entirely satisfied by defendants’ explanation for their failure to
produce certain policy documents during discovery. For example, it is not clear why the
production of redacted Post Orders in 2016 could not support an inf erence that
defendants were engaged in an ongoing effort to conceal unfavorable evidence that
ultimately included the actual destruction of the Review Board records. However, the
Court finds that any connection between defendants’ discovery conduct and the loss or
destruction of the Review Board records is wholly speculative and thus insufficient to
satisfy plaintiff’s burden of showing bad faith. While plaintiff cites Adams v. Gateway,

6

As discussed above, the DDC policy documents and unredacted Post Orders
were obtained by plaintiff after he moved, through newly-appointed pro bono counsel,
to reopen discovery on September 28, 2018.
7

Inc., 2006 WL 2563418 (D. Utah Mar. 22, 2006), for the proposition that a “pattern of
behavior” can constitute circumstantial evidence of bad faith, see Docket No. 434 at 2,
9, the evidence of bad faith in that case was substantial. The evidence included an
email (the “DeRusso to Holstein email”), which, like the email at issue in the plaintiff’s
spoliation motion (the “Ma to Woon email”), was not initially disclosed by the defendant.
Adams, 2006 WL 2563418, at *3. W hen a complete copy of the DeRusso to Holstein
email was finally produced, it contained incriminating information and was
“accompanied by a stack of Declarations setting forth information that [the defendant’s]
employees and attorneys claim they had previously forgotten, but were reminded of by
the re-discovered email.” Id. The court found that “this sequence of events,” as well as
the defendant’s “total inability to account for what became of the crucial Ma to Woon email,” constituted sufficient evidence of bad faith spoliation. Id.
When compared with the evidence in Adams, defendants’ failure to produce
certain policy documents during discovery is far less suggestive of a “pattern of
behavior” aimed at concealing incriminating evidence. Notably, the redacted portions of
the DDC Post Orders include a substantial amount of information not related to the
DDC’s record-keeping policies. Compare Docket No. 371-1 at 6-9 (unredacted Post
Order), with Docket No. 364-1 at 6-9 (redacted Post Order). To the extent plaintiff
suggests that the purpose of the redactions was to conceal the existence of the weekly
Review Board records, he has provided no explanation for why defendants would have
redacted portions of the Post Order unrelated to those records. Similarly, although
defendants’ failure to produce Review Board records and DDC regulations during

8

discovery may reflect an unduly narrow interpretation of plaintiff’s discovery requests,
such evidence does not, standing alone, establish that defendants intentionally lost or
destroyed evidence. Cf. Mueller v. Swift, No. 15-cv-01974-WJM-KLM, 2017 WL
3058027, at *5 (D. Colo July 19, 2017) (expressing a “dim view” of plaintiff’s actions in
“‘cherry picking what he wanted’ from the recording, then ‘conveniently destroying the
multiple copies,’” but finding that the record did not clearly support an intent to deprive
defendants of relevant evidence).
Plaintiff’s final argument is that defendants’ inability to explain the loss of the
Review Board records suggests it is “possible that the review board records were
destroyed or intentionally lost by Defendants.” Docket No. 434 at 8. The magistrate
judge correctly found, however, that the mere possibility of malfeasance does not
satisfy plaintiff’s burden of showing bad faith. See Docket No. 427 at 15 (“Although it is
possible that Defendants may have contributed to the loss or destruction of the Review
Board records, the evidence demonstrates that it is probable on this record that other
employees at DDC . . . caused their loss or destruction.”); see also Zbylski v. Douglas
Cty. Sch. Dist., 154 F. Supp. 3d 1146, 1160 (D. Colo. 2015) (noting that a party moving
for spoliation sanctions “has the burden of proving, by a preponderance of the
evidence, that the opposing party failed to preserve evidence or destroyed it”); Alvariza,
241 F.R.D. at 668 (finding defendants’ inability to locate the requested documents
“insufficient to support a reasonable inference of intentional destruction . . . let alone an
inference of bad faith”).
In summary, plaintiff has failed to show that defendants acted in bad faith by

9

losing or destroying the Review Board records. This conclusion is further supported by
defendants’ production of the Review Board records for the week of May 31, 2013
[Docket No. 388-5] and the native Excel spreadsheets [Docket No. 418-2], which
undermines an inference of bad faith. See Aramburu v. Boeing Co., 112 F.3d 1398,
1407 (10th Cir. 1997) (finding that “any inference of bad faith [was] undermined by the
other attendance records produced” by the defendant); see also Docket No. 418 at 3-4,
8 (explaining purpose of spreadsheets and noting that they contained the “same alert
codes as would be reflected in the misplaced paper documents”).7 Plaintiff’s objection
to the magistrate judge’s recommendation is therefore overruled.
IV. UNOBJECTED-TO RULINGS
As for the unobjected-to portions of the recommendation, in the absence of a
proper objection, the district court may review a magistrate judge’s recommendation
under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear
that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to
those findings”). In this matter, the Court has reviewed the unobjected-to portions of
the recommendation and satisfied itself that there is “no clear error on the face of the

7

It is not clear why the May 31, 2013 records are available, but the records from
the other weeks are not. See Docket No. 418-1 at 17, 162:1-9 (defendant Jordan
testifying that he did not know where the only records from 2013 came from). However,
plaintiff makes no argument that the records from May 31, 2013 were selectively
produced and instead contends that the records do not support def endants’ position.
See Docket No. 387 at 7, 10-11 (arguing that the May 31, 2013 Review Board records
do not support defendants’ story).
10

record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes.
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 427] is ACCEPTED. It is further
ORDERED that Plaintiff’s Motion for Spoliation Sanctions [Docket No. 387] is
GRANTED in part and DENIED in part. It is further
ORDERED that the parties will be permitted to present evidence at trial relating
to the lost or destroyed Review Board records and to argue whatever inferences they
hope the jury will draw from their absence.

DATED January 25, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

11