Davison v. Georgia Correctional Health, LLC et al

Filing 98

ORDER granting in part and denying in part 79 Motion for Sanctions. Signed by Magistrate Judge G. R. Smith on 8/29/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CINDY DAVISON, as Administrator
of the Estate of Randall Davison,
Plaintiff,
v.
STEPHEN NICOLOU,
Defendant.

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CV616-039

ORDER
Plaintiff Cindy Davison, in her executory capacity, moves the Court
to sanction defendant Stephen Nicolou, a Georgia State Prison
physician’s assistant, for spoliation of certain medical records, including
decedent Randall Davison’s sick call slips and segregation checklists that
would demonstrate his physical condition in the days leading to his
death. See doc. 79-1 & 91. Defendant opposes. See docs. 85 & 87.1
1

Defendant e-filed his opposition a few minutes before midnight the night it was
due. Doc. 85. Twelve hours later, without requesting leave of Court to do so or even
getting a stipulation from plaintiff that it would not be opposed, defendant also filed
a “supplement” brief. Doc. 87. Plaintiff moves the Court to strike defendant’s
supplemental response opposing the motion as being untimely filed, citing Fed. R.
Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified time, the
court may, for good cause, extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable neglect.”). Doc. 90 at 2. In his
supplemental response, Nicolou explained that his “counsel attempted to respond as

I.

BACKGROUND
Plaintiff pursues this civil rights action after Randall, the decedent,

died “from a serious infection stemming from a tattoo on his forearm”
while in the custody of the Georgia Department of Corrections.

See

quickly and succinctly as possible to the motions [for sanctions, to amend the
complaint, as well as file his own motion for summary judgment by the filing
deadline] but inadvertently omitted . . . from the response” the information and
arguments contained in the supplemental response. Doc. 87 at 1; see also doc. 94 at 1
(offering no explanation why the information in the supplemental response was not
included in the initial filing, instead emphasizing that counsel had focused instead on
the summary judgment motion).
While the Court is sympathetic to counsel’s plight, being slammed with multiple
deadlines all at once, it is reticent to excuse counsel’s attempt to sneak in more
argument to a timely-submitted response half a day later. It was merely through
counsel’s own “inadvertence” that he “omitted” the additional argument and
exhibits. Doc. 87 at 1. But the inquiry for “excusable neglect” under Rule 6(b) “is at
bottom an equitable one, taking account of all relevant circumstances surrounding
the party’s omission.” Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d
1198, 1201 (11th Cir. 1999). Excusable neglect is evaluated by: “the danger of
prejudice to the nonmovant, the length of delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Advanced
Estimating System, Inc. v. Riney, 130 F.3d 996, 997-98 (11th Cir. 1997) (quotes and
cite omitted). The “absence of prejudice to the nonmoving party” and “the interest of
efficient judicial administration” are to be accorded “primary importance.” Cheney v.
Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (cite omitted).
Here, though defendant’s explanation for his “inadvertence” is thin at best,
plaintiff offers little but indignation at the untimeliness (it was filed twelve hours
and four minutes after the deadline) in support of striking the supplemental
response. See doc. 90 at 2-3. She does not even suggest that she would be prejudiced
by the filing, much less that the Court’s own interest in efficient judicial
administration would be harmed or that defendant acted in bad faith. Id. Because
the relevant factors militate in favor of permitting the untimely filing, see Riney, 130
F.3d at 997-98, plaintiff’s motion to strike defendant’s supplemental response (doc.
90) is DENIED.
2

doc. 14 (Amended Complaint) at ¶ 2.2 Despite multiple complaints and
obvious physical symptoms of serious infection (i.e., discoloration around
the tattoo; purplish-red skin on his arm, neck, and chest; a reddened
mass on his neck and tenderness in his chest; pain; and difficulty with
breathing and walking), prison medical providers refused to treat
Randall between January 16 and 26, 2015. Id. at ¶¶ 3-4.
He submitted multiple sick call requests -- all ignored -- and after
demanding antibiotics from defendant in the medical unit on January 23,
2015, Davison was temporarily placed in a segregation cell, untreated.
Doc. 14 at ¶ 5; see also doc. 79 at Exh. 2 (Deposition of Calvin Ball
(medical unit nurse)) & Exh. 3 (Deposition of Stacy Thrift (prison
officer)). Three days later, Randall was finally seen and, based on his
symptoms, given antibiotics and rushed to the local emergency
department.

See id., Exh. 4 (Deposition of Tim Hiller (nurse

practitioner)) at 34 (Randall “looked like he had a bad infection and that
he was at risk of developing or going into septic shock.”).

Randall’s

condition worsened, however, and he was transferred by air to Atlanta

2

Since the facts of Davison’s injury and death are not directly relevant to the
present motion, the Court relies on plaintiff’s account. That reliance should not be
construed as an endorsement of the merits of plaintiff’s claims.
3

Medical Center where he died on February 15, 2015. Doc. 14 at ¶ 7; see
also Thrift Depo. at 52 & 79 (describing Randall as “a big old pus pocket”
full of infection, such that his “toes turned black and he had to be placed
on dialysis because his kidneys were shutting down.”); doc. 79, Exh. 7
(Atlanta Med. Ctr. Discharge Summary).
The State initiated an immediate review of Randall’s medical care.
See doc. 79, Exh. 9 (Mortality Review, concluding Randall had received
appropriate care on March 7, 2015); Exh. 8 (Deposition of Dean Broome
(medical director)) at 8-10. On March 26, 2015, plaintiff’s counsel mailed
a litigation hold notice to the Georgia Department of Corrections Office
of Legal Services, requesting the preservation of “[a]ll medical and
mental health records pertaining to Randall Davison, including any
inmate requests and responses thereto,” his “inmate file,” and more
generally, “[d]ocuments . . . of any kind pertaining to Randall Davison.”
Id., Exh. 10. The letter informed the Department of Corrections that
such preservation was necessary because Randall “may have died as a
result of deliberate indifference to his serious medical needs.” Id.
The Office of Legal Services forwarded the litigation hold notice on
to Georgia State Prison warden Stanley Williams, public information

4

officer Lynette Mobley, and statewide medical director Sharon Lewis.
Doc. 79, Exh. 11. From there, it was forwarded on to deputy warden
Trevonza Bobbitt, mental health director Madia West, and health
services administrator Roy Sabine. Id., Exh. 12. Sabine responded that
medical records had been archived at Department of Corrections offices
in Tift, Georgia. Id.
Sick call requests, however, are not archived with medical records,
and instead are retained on site for “six months” before being destroyed.
Doc. 79, Exh. 13 (Ga. Dep’t of Corr. Pol’y VH30-0003); see also Broome
Depo. at 54 (they are sometimes kept up to two or three years). So,
Randall’s sick call requests weren’t retained with his medical records,
and were apparently routinely destroyed at some point before plaintiff
specifically sought them in 2016. See id., Exh. 18 (letter dated May 13,
2016, seeking “sick call requests” and noting that none were included in
Randall’s medical records); Exh. 20 (request for production of documents
dated October 19, 2016, seeking “sick call requests”); Exh. 22 (subpoena
on the Department of Corrections Commissioner dated January 5, 2017,
seeking same); Exh. 24 (subpoena on managing director of Georgia
Correctional Healthcare dated January 13, 2017, seeking same).

5

Defendant offers no explanation as to why they were not saved from
routine destruction in response to plaintiff’s March 2015 litigation hold
notice, which arrived long before they would have been destroyed
pursuant to the standing retention policy. See docs. 85 & 87.
Segregation checklists (“30 minute documented checks” to verify
the health and safety of prisoners held in segregation or isolation cells),
however, are supposed to be kept with a prisoner’s case history file for
three years. See doc. 79, Exh. 26 (Ga. Dep’t of Corr. Pol’y IIB09-0001) at
¶ VI.M (Individual Records to be kept of segregated inmates) & VII.C
(Retention Schedule for individual records); Ga. Archives Schedule 1974042A

(Institutional

Inmate

Case

History

File),

available

at

http://www.georgiaarchives.org/records/agency_view/161/P20 (last visited
August 23, 2017) (requiring retention for three years). Despite that a
segregation checklist was completed during Randall’s temporary medical
unit segregation, see Thrift Depo. at 41, and plaintiff requested copies of
any segregation checklists well within the three year retention period,
see doc. 79, Exh. 20 (request for production of documents dated October
19, 2016, seeking Randall’s “complete institutional file”); Exh. 22
(subpoena on the Department of Corrections Commissioner dated

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January 5, 2017, seeking same), it has not been located, see Thrift Depo.
at 45.
Plaintiff seeks sanctions against defendant Nicolou 3 for the
Department of Corrections’ failure to maintain and preserve Randall’s
sick call requests and the segregation checklist completed while he was in
the medical unit segregation cell on January 23, 2015. Doc. 79. She
contends that the Department of Corrections is his agent, and he must
be held to bear its failure to maintain these records. Id. Defendant
Nicolou opposes, arguing that he did not have control over the lost
documents; that plaintiff should have pursued this discovery dispute
with the actual custodian of record (the Department of Corrections); the
sick call requests were destroyed as part of a routine document retention
policy; and that plaintiff has not been prejudiced by the loss of the
segregation checklist, which contained at most “an officer signature and
a time entry,” not any comments about “the state of the inmate.”
Doc. 85 at 1-6; see also doc. 82, Exh. G (Deposition of Tomeka Browder

3

Plaintiff also wants to sanction the “putative defendants” she seeks to add in her
pending motion to amend the complaint (see doc. 73 (seeking to name Nurse Ball and
Officer Thrift as defendants)). See doc. 79-1 at 1. The Court will not sanction
hypothetical defendants. If leave to amend is granted, plaintiff is free to refile her
motion at that time.
7

(registered nurse)) at 36-37; Exh. N (Deposition of Stacey Thrift,
complete) at 56-57.
II.

ANALYSIS
“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.” Brown v. Chertoff, 563 F.
Supp. 2d 1372, 1377 (S.D. Ga. 2008). The Court has “broad discretion”
to impose sanctions as part of its “inherent power to manage its own
affairs and to achieve the orderly and expeditious disposition of cases.”
Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).
Spoliation sanctions may include dismissal, exclusion of testimony, or an
instruction to the jury to presume that the evidence would have been
unfavorable to the spoliator. Id. The Court examines “the extent of the
prejudice caused by the spoliation (based on the importance of the
evidence to the case), whether that prejudice can be cured, and the
culpability of the spoliator.” Oil Equip. Co. v. Modern Welding Co., 661
F. App’x 646, 652 (11th Cir. 2016).
Assuming without deciding that the Department of Corrections’
loss of the sick call slips and segregation checklist can be imputed to

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defendant Nicolou, 4 extreme sanctions are unwarranted. In considering

4

Only those with possession, custody, and control may be sanctioned for their failure
to preserve. Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App.
2012) (“[i]t is axiomatic that in order for there to be spoliation, the evidence in
question must have existed and been in the control of a party.”); Brewer v. Quaker
State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (“it is essential that the
evidence in question be within the party’s control.”) (cite omitted), cited in Watson v.
Edelen, 76 F. Supp. 3d 1332, 1343 (N.D. Fla. 2015) (“For a spoliation sanction to
apply, it is essential that the evidence in question be within the party’s control, that
is, the party actually destroyed or was privy to the destruction of the evidence.”).
Plaintiff does not argue that Nicolou, a physician’s assistant with the Department
of Corrections, had the authority to either preserve or destroy the sick call requests
or the segregation checklist. Rather, she contends that the State of Georgia (and its
arms, including the Department of Corrections) is his agent, and he should be
sanctioned for its failure to preserve the evidence. Doc. 79-1 at 14 (quoting O.C.G.A.
§ 10-6-1 & Daniels v. United States, 86 F. Supp. 3d 1375, 1379 (S.D. Ga. 2015). The
Court is unconvinced that Nicolou and the Department of Corrections have an
insured-insurer type relationship of the same nature as the cases plaintiff has cited,
none of which involved a corrections employee. See doc. 79-1 at 15-16. Indeed, the
case law cited by plaintiff was largely unhelpful in determining whether spoliation
may be imputed in this context to Nicolou, who did not participate in the spoliation.
See id. & doc. 91 at 16-18.
The State of Georgia, of which the Department of Corrections is an agency,
indemnifies corrections employees from civil suit and funds the defense of its
employees in civil cases arising out of the scope of their employment. See O.C.G.A.
§ 45-9-1 et seq. In similar circumstances, a State’s failure to preserve has been
imputed to the individual defendant employee, even when he lacked any control over
the retention or destruction himself. See, e.g., Pettit v. Smith, 45 F. Supp. 3d 1099,
1109-11 (D. Az. 2014); Cordero v. Guzman, 2017 WL 2610063 at *3 (E.D. Cal. June
16, 2017); Ramos v. Swatzell, 2017 WL 2857523 at *6 n. 1 (C.D. Cal. June 5, 2017);
Muhammad v. Mathena, 2016 WL 8116155, at *7-8 (W.D. Va. Dec. 12, 2016). As in
these cases, the Department of Corrections bore responsibility for preserving
evidence and litigating cases filed by prisoners, and has taken control of Nicolou’s
defense. See Doc. 79, Exh. 37 (General Liability Agreement). This Court is skeptical
that “spoliation of evidence may be imputed to a [party] who did not participate in
the spoliation,” Pettit, 45 F. Supp. 3d at 1110, particularly where, as here, it is
undisputed that Nicolou himself could have done nothing to save the evidence, see
Storey v. Effinham Cty., 2017 WL 2623775 at *2 (S.D. Ga. June 16, 2017). The
reasoning of these out-of-circuit cases is ultimately persuasive, however, given the
Department of Corrections’ flagrant failure to abide its duty to preserve the
documents set forth in the litigation hold notice. It assumed the risk that, by failing
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the particular spoliation sanction to impose, “courts should consider the
following factors: (1) prejudice to the non-spoiling party as a result of the
destruction of evidence, (2) whether the prejudice can be cured,
(3) practical importance of the evidence, (4) whether the spoiling party
acted in good or bad faith, and (5) the potential for abuse of expert
testimony about evidence not excluded.” In re Delta/AirTran Baggage
Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) (citing
Flury, 427 F.3d at 945). Again, prejudice to plaintiff’s case is the key -even where the Department of Corrections clearly failed to abide its duty
to preserve this evidence, unless it harms plaintiff’s case, sanctions are
inappropriate.
Plaintiff has been able to fully depose all the relevant witnesses
(both staff and other prisoners), who described Randall’s condition as
they observed it in detail, and to gather sufficient facts to establish what
happened and when to the decedent.

See doc. 79, Exhs. 1-39; In re

Delta/Airtran, 770 F. Supp. 2d at 1311 (any prejudice the plaintiffs
suffered was mitigated by their opportunity to depose Delta employees

to conduct a thorough search to turn up all of Randall’s “inmate requests” (see
doc. 79, Exh. 10) it, and its employees which it otherwise indemnifies, would be
subject to spoliation sanctions.
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who had knowledge of facts related to the plaintiffs’ claims).
It’s clear from the deposition testimonies that Randall was in
increasing pain and discomfort as the infection progressed, that he
repeatedly sought and never received medical intervention, and that his
condition visibly deteriorated until he was finally rushed to the
emergency room on August 26, 2015.

See Ball, Thrift, Hiller (staff)

Depos.; see also doc. 79-1, Exh. 15 (Deposition of Jerry Reed (prisoner))
at 37-42 (testifying that he submitted several sick call requests for
Randall and recalled that one said Randall “had an infection on his arm
and he wanted to be seen.”); Exh. 17 (Deposition of Tavis Oates
(prisoner)) at 32-33 (testifying that he submitted “four or five” requests
for Randall because his condition had worsened so that “he wasn’t able
to move no more”); Exh. 36 (Deposition of Gordon Herrick (prisoner)) at
3-4 (describing his observation of the progression of Randall’s tattoo
infection).

It is not clear that any additional self-description of his

symptoms on the sick call requests would add anything significant to
plaintiff’s case. See doc. 79-1 at 17 (the forms “would have provided . . . a
contemporaneous record of the pain and other symptoms he was
experiencing, the progress of his symptoms, and his attempts to receive

11

appropriate treatment.”). Plaintiff simply has not demonstrated that she
is so prejudiced by their loss that harsh sanctions should be imposed. 5
As to the segregation checklist, assuming that it at some point
existed, there is no evidence that it even contained any description of
Randall’s medical state. These forms are often limited to “an officer
signature and a time entry,” without any comments about “the state of
the inmate.” See, e.g., doc. Browder Depo. at 36-37 & Thrift Depo. at 5657. Even had the checklist contained a description of his condition, it
would provide a single snapshot of Randall’s condition when he sought
antibiotics in the medical unit on January 23, 2015.

And plaintiff

already knows that “both Ball and Nicolou determined that [he] should
be examined that morning” based on his pain complaints, that Randall
had already been scheduled for sick call in response to one of his
requests, and that the providers knew he had been complaining of
muscular chest pain. See Ball Depo. at 27-32. Plaintiff does not say
precisely what more information the segregation checklist (if it exists)
5

Although it is unclear what, if any, prejudice plaintiff has suffered from the
Department of Corrections’ failure to preserve the documents expressly identified in
her timely litigation hold notice, the sick call request forms should have been
preserved, and they weren’t. The Court will therefore impose a limited sanction to
cure the loss, discussed below. Scruggs v. Int’l Paper Co., 2012 WL 1899414 at *1
(S.D. Ga. May 24, 2012) (sanctions “extend to negligent, reckless, and intentional
evidence destruction.”).
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could provide. See docs. 79-1 & 91.
Plaintiff has not shown that she is prejudiced to the extent that she
is unable to prove her case. An adverse jury instruction is, therefore,
unwarranted. See Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2011
WL 1456029 at *27 (S.D. Fla. Apr. 5, 2011) (if the plaintiff “cannot show
that it is ‘sufficiently impaired in [its] ability to prove its case,’ then it
cannot show ‘entitlement to an adverse inference based on any
destruction of [documents]’”). The Court does, however, find plaintiff’s
request to admit certain hearsay statements appropriate to remedy the
limited loss of the sick call request forms.

See doc. 79-1 at 21-22

(requesting the Court admit “any statements made by Randall [ ]
concerning his medical condition and attempts to obtain medical
attention”); West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d
Cir. 1999) (any sanction should “serve the prophylactic, punitive, and
remedial rationales underlying the spoliation doctrine.”); id. (any
sanction imposed 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 [or she] would have been in absent the wrongful

13

destruction of evidence by the opposing party.’”). “Limited sanctions are
therefore appropriate to redress this prejudice.”

Storey, 2017 WL

2623775 at *5.6
III. CONCLUSION
To address the destruction of the sick call request forms, any
hearsay statements made by Randall specifically regarding the contents,
submission, and medical unit’s response to those forms -- what he
reported about the progression and severity of his tattoo infection, when
and how often he had submitted them, and whether he had received any
reply to his requests -- will be admitted. This narrow sanction should
restore plaintiff to the same position she would have been in had the
forms not been routinely destroyed, despite her litigation hold notice.
Plaintiff’s motion for sanctions is thus GRANTED in part as to the sick
call request forms, and DENIED in part as to the segregation checklist.
SO ORDERED, this 29th day of August, 2017.

6

Plaintiff remains free to request modification or reconsideration of this Order if she believes she
can propose a more appropriately tailored sanction.

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