Braham v. Lantz et al

Filing 177

ORDER denying 135 plaintiff's motion for sanctions for spoliation. See attached ruling, 17 pages. Signed by Judge Donna F. Martinez on 3/27/14. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL BRAHAM,
Plaintiff,
V.
THERESA LANTZ, et al.,
Defendants.

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CASE NO. 3:08cv1564(DEW)

RULING ON PLAINTIFF'S MOTION FOR SANCTIONS FOR SPOLIATION
The plaintiff, Michael Braham, a Connecticut state inmate,
brings this action pursuant to 42 U.S.C. § 1983 against various
Department of Correction employees.

The plaintiff alleges that he

was removed him from his job as a teacher's aide in retaliation for
filing a grievance.

Pending before the court is the plaintiff's

"motion for sanctions for spoliation and failure to comply with
discovery orders." (Doc. #135.)
I.

Factual Background
From August 2006 to August 2007, the plaintiff was a student

in the Small Engine Repair Class at the Cheshire Correctional
Institution.

(Doc. #32, Am. Compl. ¶9.)

He was paid 75¢ a day.

On July 31, 2007 and August 1, 2007, the plaintiff filed a
complaint and grievance alleging that correctional officer Manzi,
who is not a party to this action, made a racial slur.

Defendant

grievance coordinator Acas received the grievance on August 13,
2007 and shared it with defendant Deputy Warden Adgers. (Doc. #32,
Am. Compl. ¶¶29, 46.)

Meanwhile, in August 2007, upon completion of the class, the
instructor of the Small Engine Repair Class, Douglas Sweeney, now
deceased, requested that the plaintiff be approved as a teacher's
aide.

(Doc. #32, Am. Compl. ¶17.)

The request required the

approval of defendants Counselor Lowe, Unit Manager Esposito,
Classification Counselor Senecal and Deputy Warden Adgers.

(Doc.

#32, Am. Compl. ¶20.)
The plaintiff was approved for the teacher's aide position and
worked as a teacher's aide from August 20, 2007 through August 24,
2007.1

(Am. Compl. ¶31.)

His pay changed from the student rate of

75¢ to the teacher's aide rate of $1.25 per day.

(Doc. #144, Defs'

Oppn at 2.)
On September 4, 2007, the plaintiff was informed that he no
longer had the job.

(Am. Compl. ¶36.)

Plaintiff protested to

defendant Lowe that he met all the eligibility requirements and
that

his

removal

from

the

teacher's

aide

position

was

in

"retaliation for the grievance he had filed regarding CO Manzi."
(Am. Compl. ¶37.) On September 5, 2007, the plaintiff submitted an
Inmate Request Form to defendant Warden Lee stating that he had
been

removed

from

the

position

in

retaliation

grievance against correction officer Manzi.
¶83.)

for

filing

a

(Doc. #32, Am. Compl.

Warden Lee responded "I was informed that your job was not

1

Thereafter, there was a break in the program from August 27,
2007 to September 3, 2007. (Am. Compl. ¶31.)
2

taken away from you.
course.

You were removed after you completed your

You are now on the list to work in the small engine shop."

(Doc. #135, Ex. C, Inmate Request Form.)

The plaintiff also

submitted an Inmate Request Form to defendant Deputy Warden Adgers
complaining of retaliation.
Form.)

(Doc. #135, Ex. B, Inmate Request

Adgers responded that he denied the plaintiff's "request

[to be a teacher's aide] for justified reason [sic] in which
Officer Manzi had no involvement."

(Doc. #135, Ex. B, Inmate

Request Form.) The defendants maintain that the plaintiff "was not
approved for the position because of his disciplinary history and
an investigation of the plaintiff by the Cheshire Intelligence
Unit."

(Doc. #144, Def's Oppn at 2.)

The plaintiff contends that

the defendants' claim that they denied his application on the basis
of an old disciplinary ticket or an Intelligence Unit investigation
is "pretext to cover up their retaliation."

(Doc. #135, Pl's Mem.

at 3.)
In October 2008, the plaintiff, proceeding pro se, filed this
action alleging retaliation in violation of the First Amendment
against

Counselor

Acas,

Deputy

Warden

Adgers,

Unit

Manager

Esposito, Warden Lee, Counselor Lowe and Classification Counselor
Senecal.
plaintiff.

In May 2013, pro bono counsel appeared on behalf of the
(Doc. #115.)

In the pending motion, the plaintiff seeks sanctions for
spoliation on the grounds that the defendants had a duty to

3

preserve certain records but failed to do so. (Doc. #135.)

The

plaintiff argues that the defendants should be sanctioned for
failing to preserve and produce three documents requested during
discovery: (1) the Job Request Form, (2) the Inmate Pay Plan form
and (3) an Intelligence Unit file concerning an investigation of
the plaintiff in 2007.2 (Doc. #135 at 4.)

As relief, the plaintiff

seeks entry of default judgment. In the alternative, the plaintiff
requests

that

the

court

(1)

"preclude[]

the

defendants

from

offering evidence of an alleged denial of plaintiff's application
to be a teacher's aide; (2) instruct[] the jury that an adverse
inference may be drawn against the defendants on the basis of their
destruction of evidence; (3) award[] the plaintiff his costs and
attorneys' fees, and (4) award[] any other relief as the Court
deems just and proper."
II.

(Doc. #135 at 2.)

Legal Standard for Spoliation
"Spoliation is the destruction or significant alteration of

evidence, or the failure to preserve property for another's use as
evidence in pending or reasonably foreseeable litigation." West v.
Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir. 1999).

See

Pension Committee of University of Montreal Pension Plan v. Banc of
America

Securities,

685

F.

Supp.2d

2

456,

466

(S.D.N.Y.

2010)

In addition to these three documents, the plaintiff contends
that the defendants spoliated emails. This issue is the subject of
further discovery (see doc. #157) and will be addressed in a
separate opinion.
4

("breach of the duty to preserve, and the resulting spoliation of
evidence, may result in the imposition of sanctions by a court").
"It is not enough for the innocent party to show that the
destroyed
request."

evidence

would

Id. at 467.

have

been

responsive

to

a

document

"[A] party seeking an adverse inference

instruction based on the destruction of evidence must establish
(1)

that

the

party

having

control

over

the

evidence

had

an

obligation to preserve it at the time it was destroyed; (2) that
the records were destroyed with a culpable state of mind; and
(3) that the destroyed evidence was relevant to the party's claim
or defense such that a reasonable trier of fact could find that it
would support that claim or defense." Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).

"The

determination of an appropriate sanction for spoliation, if any, is
confined to the sound discretion of the trial judge and is assessed
on a case-by-case basis." Fujitsu Ltd. v. Fed. Express Corp., 247
F.3d 423, 436 (2d Cir. 2001).

Sanctions for the spoliation of

evidence
should be designed to: (1) deter parties from engaging in
spoliation; (2) place the risk of an erroneous judgment
on the party who wrongfully created the risk; and
(3) restore 'the prejudiced party to the same position he
would have been in absent the wrongful destruction of
evidence by the opposing party.'
West v. Goodyear Tire & Rubber, Co., 167 F.3d 776, 779 (2d Cir.
1999).

"[T]he

severity

of

the

sanctions

imposed

should

congruent with the destroyer's degree of culpability."
5

be

Richard

Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y.
2009).
III. Discussion
The plaintiff seeks spoliation sanctions regarding the Job
Request Form, the Inmate Pay Plan form and the Intelligence Unit
file.
A.

Job Request Form
The plaintiff submitted the Job Request Form seeking approval

to work as a teacher's aide.
Manager Esposito,

Defendants Counselor Lowe, Unit

Classification

Warden Adgers completed the form.

Counselor

Senecal

and

Deputy

The completed form would show

whether each approved or denied the plaintiff's request to work as
a teacher's aide and would give their "review recommendations."3
The plaintiff contends that the form "would have conclusively
established that [he] was approved by the defendants for the very
job for which they now claim he was unsuitable and not approved."
(Doc. #135 at 25.)

The defendants do not agree.

It is undisputed,

however, that the Job Request Form was completed for the teacher's
aide position and the defendants are unable to locate it.

3

(Doc.

A completed form should include, inter alia, the inmate's
escape score, discipline history, aggravating/mitigating factors
and the recommendation and date of each of the four levels of
approval.
During discovery, the defendants produced (1) the
plaintiff's original Job Request Form dated August 1, 2006, which
showed that he was approved to participate as a student in the
small engine repair class and (2) a blank form. (Doc. #135, Ex.
F.)
6

#144 at 2, 4.)
Defendant Lowe testified in his deposition that he recommended
approval of the request for the plaintiff to be a teacher's aide.
After

that,

the

form

was

Esposito,

Classification

Adgers.

When

the

routed

Counselor

form

came

to

defendants

Senecal

back

to

and
Lowe,

Unit

Manager

Deputy
he

saw

Warden
that

Classification Counselor Senecal and Deputy Warden Adgers had not
approved the plaintiff's request to be a teacher's aide.

(Doc.

#135, Ex. E, Lowe Dep. at 63-64.) Defendant Lowe does not remember
if he filed the completed form in the plaintiff's master file or
gave it to a secretary.

(Doc. #135, Ex. E, Lowe Dep. at 74, 76.)

He later looked for the form in the plaintiff's master file but
could not find it.

(Doc. #135, Ex. E, Lowe Dep. at 71, 73, 74.)

No one instructed Lowe to take any steps to preserve the document.
(Doc. #135, Ex. E, Lowe Dep. at 73.)

He testified that he "was not

in the habit of . . . preserv[ing] a document for something like a
job assignment."

(Doc. #135, Ex. E, Lowe Dep. at 74.)

Classification Counselor Senecal's testimony differed from
Counselor Lowe's. Senecal said that the job request form would not
normally be kept in an inmate's master file.
Senecal Dep. at 8.)

(Doc. #144, Ex. E,

According to Senecal, it might be kept "with

the secretary" and either Counselor Lowe or Unit Manager Esposito
would keep a copy.

(Doc. #144, Ex. E, Senecal Dep. at 8-9.)

Senecal was not responsible for maintaining it. (Doc. #144, Ex. E,

7

Senecal Dep. at 8.)
B.

Inmate Pay Plan Form
The next document at issue is the Inmate Pay Plan Form.

According to defendant Warden Lee, before an inmate's pay can be
altered, the deputy warden must complete and approve an "inmate pay
plan form."

(Doc. #135, Ex. E, Lee Dep. at 117.)

would be sent to the "Central Office."

(Id.)

The document
The plaintiff

maintains that the Inmate Pay Plan form would be "highly relevant"
because it would establish that he had been approved for the
teacher's aide position4 and contradict defendant Lowe's testimony
that Mr. Sweeney, the instructor of the small engine class, changed
the plaintiff's pay without approval. (Doc. #135, Ex. E, Lowe Dep.
at 68-69.)
C.

Any Intelligence Unit file concerning an investigation of
plaintiff during 2007
The third document for which the plaintiff seeks sanctions is

a 2007 Intelligence Unit investigation file. As indicated earlier,
the defendants allege that the plaintiff was not approved for the
teacher's

aide

job

because

of,

inter

alia,

"an

ongoing

investigation of the plaintiff by [the] Cheshire Intelligence
Unit."

(Doc. #144, Defs' Oppn at 2.)

The defendants, however,

produced no documents or files from the Intelligence Unit showing
an investigation of the plaintiff during the relevant time frame.

4

As previously indicated, the defendants concede that the
plaintiff's pay was changed to that of a teacher's aide.
8

(Doc. #135 at 4.)

The defendants have declined to stipulate that

there never was such a file.

The plaintiff contends that "[g]iven

that an alleged investigation by [Intelligence Unit] appears to be
a reason being offered by defendants for [plaintiff's] removal from
his teacher's aide job, the defendants should have preserved and
produced an [Intelligence Unit] file or, alternatively, stipulated
that no such file existed."

(Doc. #135 at 4.)

The record reveals the following:

Nonparty Captain Harlow, a

supervisor in the Intelligence Unit during the relevant time
period, testified that the Intelligence Unit did not maintain files
on every inmate.

(Doc. #144, Ex. D, Harlow Dep. at 65.)

Deputy

Warden Sienkiewicz, who oversaw the Intelligence Unit, testified in
her deposition that she did not recall any investigations of the
plaintiff. (Doc. #153, Sienkiewicz Dep. at 10.) Lieutenant Smith,
who also worked in the Intelligence Unit, testified that he was not
aware of any formal investigation of the plaintiff.

(Doc. #153,

Smith Dep. at 32, 33).
D.

Application of Residential Funding Corp. v. DeGeorge Fin.
Corp.
The plaintiff argues that he satisfies the three part test in

Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107
(2d Cir. 2002), to obtain an adverse instruction regarding the Job
Request Form, the Inmate Pay Plan form and the Intelligence Unit
file because (1) the defendants had an obligation to preserve the
documents; (2) the defendants were grossly negligent (or at least
9

negligent) in losing or destroying the documents, and (3) the
documents are relevant to the plaintiff's claim. (Doc. #135, Pl's
Mem. at 17-20.)
As to the first prong of Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) - "that the party
having control over the evidence had an obligation to preserve it
at the time it was destroyed" - the plaintiff argues that the
defendants "had an obligation to preserve the document[s]" but
"breached this obligation because no timely litigation hold was
ever issued or honored nor did the defendants otherwise take
appropriate measures to preserve evidence."

(Doc. #135 at 19.)

Addressing the Job Request Form first, the plaintiff contends
that under the DOC's retention policy, documents in an inmate's
master file "should have been maintained" and that "[s]omeone
wrongfully lost or destroyed these files and it is reasonable to
infer that one or more of the defendants (or those acting in
concert with them) were the ones who have done so."
2.)

(Doc. #147 at

The plaintiff further states that defendants Lowe and Senecal

"handled" the Job Request Form and "all of the defendants had
access to the Inmate Master file where it was kept."

(Doc. #147 at

4.)
The defendants dispute that they had control over the Job
Request Form and the concomitant responsibility of preservation
required for spoliation sanctions.

10

That the document passed

through someone's hands, they argue, does not necessarily mean that
they

have

spoliation.

control

over

it

to

the

extent

required

to

show

They point out that the DOC is responsible for record

retention and has a document retention policy.5

(Doc. #144 at 5.)

But the DOC is not a defendant; the defendants are six current and
former employees sued in their individual capacities.

Some had no

involvement with the Job Request Form. None had responsibility for
the DOC's record retention policy.

(Doc. #144 at 5; doc. #158 at

130, "None of the defendants is a custodian of the records.")

They

were not instructed to hold or preserve any documents.

They

reasonably relied on the DOC and "should not be held personally
responsible" for their employer's failure to preserve documents.
(Doc. #144 at 5-6.)
The evidence regarding the Job Request Form is scant.
appears to

have

been

signed

by Counselor

Lowe,

Unit

It

Manager

Esposito, Classification Counselor Senecal and Deputy Warden Adgers
and returned to defendant Lowe.
form after that.
maintained

in

It is unclear what happened to the

It also is unclear where the form should be
the

normal

course

responsibility it is to maintain it.

of

business

and

whose

The evidence does not

demonstrate that the parties against whom an adverse inference and
sanctions are sought had a duty or role with respect to the

5

Defense counsel did not issue a written litigation hold
letter to the DOC. (Doc. #158 at 82.)
11

maintenance or destruction of the evidence at issue.
Judge Arterton addressed a similar scenario in Grant v.
Salius, No. 3:09cv21, 2011 WL 5826041 (D. Conn. Nov. 18, 2011).
The plaintiff in Grant alleged that an inmate attacked him and the
defendants, three corrections officers, failed to protect him.
Plaintiff served a production request for the video.

When the

video was not produced, the plaintiff claimed spoliation and sought
sanctions.

After setting forth the Residential Funding standard,

the

observed

court

that

"[t]he

rationale

behind

the

adverse

inference instruction sanction is aimed at 'a party's destruction
of evidence which it has reason to believe may be used against it
in litigation.'" 2011 WL 5826041, at *2 (quoting Kronisch v. United
States, 150 F.3d 112, 126 (2d Cir. 1998)).

The court also noted

that the "threefold purpose behind this sanction [of] (1) deterring
parties from destroying evidence; (2) placing the risk of an
erroneous evaluation of the content of the destroyed evidence on
the party responsible for its destruction; and (3) restoring the
party harmed by the loss of evidence helpful to its case to where
the party would have been in the absence of spoliation." Id.
(quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir.
2001)).

The court concluded

[t]hat the first and second of these purposes are aimed
at a party that both has the ability to destroy the
evidence at issue and is responsible for the destruction,
suggests that this sanction is inapplicable to these
Defendants as [plaintiff] has not shown that [the three
individual] Defendants had any control over the
12

recordings, any duty to maintain them, or were in any way
involved in the failure to preserve them. . . .
In light of the Second Circuit's focus in applying
spoliation sanctions on parties with a duty to preserve
evidence and a role in the destruction of that evidence,
the Court is persuaded . . . that spoliation sanctions,
particularly an adverse inference instruction, are
unwarranted where the party against whom sanctions are
sought
has
not
been
shown
to
have
had
any
responsibilities
related
to
the
maintenance,
preservation, or destruction of the evidence at issue,
and the loss of that evidence is instead attributable to
non-parties. Here, [plaintiff] has not shown that [the]
Defendants . . . had any role with respect to the
maintenance or participated in the destruction of the
video footage in question. He therefore is not entitled
to spoliation sanctions.
2011 WL 5826041, at *2-3.6
Similarly, the Sixth Circuit in Adkins v. Wolever, 692 F.3d
499 (6th Cir. 2012), also a prisoner case, determined that the
district court did not err in denying the plaintiff's request for
an adverse inference as to the destruction of video footage.

In

that case, the defendant correction officer had no access to or
control over the video and reasonably would have expected the
prison's retention policy to cover the item.
appeal, the

plaintiff

argued that

the

Id. at 502. On

"'failure

to

impose a

spoliation sanction against [defendant] opens the door for [the

6

Although the court in Grant denied the plaintiff's request
for an adverse inference instruction, the court permitted the
plaintiff "at trial to offer admissible evidence that the
Defendants were aware of the likely existence of the video footage
at the time and location of the attack and could have requested
that it be preserved after being made aware of [plaintiff's]
grievances, but declined to do so." Grant, 2011 WL 5826041, at *3.
13

prison] and other prisons to destroy evidence in all prisoner
rights cases' because the prison itself is not subject to suit
under the Eleventh Amendment, thus it would have an incentive to
destroy evidence that is damaging to its employee's case." 692 F.3d
at 506.

The Sixth Circuit acknowledged the plaintiff's concern -

which the plaintiff in this case also raises - but reasoned that
to hold that all defendants in situations like
[defendant's] must take affirmative steps to ensure that
their employing prison continues to maintain evidentiary
records for every incident with a prisoner would impose
an added burden on prison employees. . . . [T]o impose a
rule to cover every such situation would unnecessarily
interrupt a prison administrators' judgment as to how to
operate their prisons and force prison employees to
constantly second-guess their employer's ability to
maintain potential evidence for possible litigation. That
is not a burden we are willing to impose.
692 F.3d at 506.
more

prudent

The Sixth Circuit went to conclude that "[t]he

path

.

.

.

is

to

consider

incidences

raising

spoliation questions on a case-by-case basis, considering the
purposes of a spoliation sanction and the factors for determining
whether one should be imposed."

Id. at 507.

See Field Day v.

County of Suffolk, No. 04–2202, 2010 WL 1286622 at *13 (E.D.N.Y.
Mar.

25,

inference

2010)

(spoliation

instruction,

were

sanctions,

including

unwarranted

against

an

adverse

individual

defendants because "[a]ny spoliation" was "attributable solely to
the County" and the plaintiffs did not show that the individual
defendants actually spoliated any evidence); Parlin v. Cumberland
County, No. 08–cv–186–P–S, 2009 WL 2998963, at *2 (D. Me. Sept. 16,

14

2009) (denying plaintiff's motion for adverse inference against
individual defendants where the County, which was no longer a
defendant, destroyed videotape because there was "nothing in the
record

indicating

that

[the

two

individual

defendants]

were

involved in the destruction of the videotape" and "[i]t would be
inequitable to sanction a blameless party for another's spoliation
of evidence.")7
Here, the plaintiff does not show that the defendants had
control over the Job Request Form and an obligation to preserve it.
See Grant v. Salius, No. 3:09cv21(JBA), 2011 WL 5826041, at *3 (D.
Conn. Nov. 18, 2011).

The plaintiff's motion for spoliation

sanctions as to the Job Request Form is therefore denied.
The court similarly finds that no spoliation sanctions should
be imposed against the defendants as to the Inmate Pay Plan form
and the Intelligence Unit file. The plaintiff has not demonstrated
spoliation as to these documents.

There is no evidence that any of

the defendants ever saw either of these documents.

See Farella v.

City of New York, Nos. 05 Civ. 5711 & 05 Civ. 8264, 2007 WL 193867,
at *2 (S.D.N.Y. Jan. 25, 2007) ("[F]or sanctions to be appropriate,
it

is

a

necessary,

but

insufficient,

condition

that

the

sought-after evidence actually existed and was destroyed."), aff'd,

7

The Parlin court denied the plaintiff's motion for sanctions
without prejudice, allowing the plaintiff to "re-raise the issue"
of whether a spoliation inference was warranted based on the
evidence at trial. 2009 WL 2998963, at *2.
15

323 Fed. Appx. 13 (2d Cir. 2009).

The record is bereft of evidence

that an Intelligence Unit file on the plaintiff in 2007 actually
existed.

The

absence

of

a

file

from

the

Intelligence

Unit

regarding an investigation of the plaintiff in 2007 certainly
provides grist for cross-examination. However, on this record, the
plaintiff has not established spoliation.8
Finally, the court would be remiss if it failed to remark on
the defendants' discovery conduct.

"[T]he courts have a right to

expect that litigants and counsel will take the necessary steps to
ensure that relevant records are preserved when litigation is
reasonably

anticipated,

and

that

such

records

are

collected,

reviewed, and produced to the opposing party."

Pension Committee

of

Banc

University

of

Montreal

Pension

Plan

v.

of

Securities, 685 F. Supp.2d 456, 461 (S.D.N.Y. 2010).

America
See The

Sedona Conference Commentary on Legal Holds: The Trigger and the
Process, 11 Sedona Conf. J. 265, 269) (Fall 2010)(guidelines
concerning preservation obligations and legal holds); Zubulake v.
UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)(Zubulake
IV)(Once a party reasonably anticipates litigation, it must suspend
its routine document retention/destruction policy and put in place
a

"litigation

documents.).

hold"

to

ensure

the

preservation

of

relevant

This motion arose because the DOC and its counsel

8

Because spoliation has not been established, the court cannot
grant the plaintiffs' alternate requests for "other" spoliation
sanctions that might be available.
16

were less than diligent in their efforts to preserve relevant
evidence in this case.

They would do well to review their

procedures and policies concerning preservation.
D.

Conclusion
For these reasons, the plaintiff's motion (doc. #135) is

denied.
SO ORDERED at Hartford, Connecticut this 26th day of March,
2014.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

17