GRIFFITH v. A. DOWNEY et al

Filing 132

ORDER denying 99 Motion for Sanctions and granting 131 Notice regarding spoliation of video footage. The Court finds that though Defendants did have a duty to preserve video footage and failed to comply with such duty, the Plaintiff has not met his burden to show, nor can the Court infer, that the Defendants acted in bad faith(REDACTED). Signed by Magistrate Judge Mark J. Dinsmore on 4/15/2019 (dist made) (CBU) Modified on 4/15/2019 (GD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAMES F. GRIFFITH,

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Plaintiff,
v.
F. BRANNICK,
D. HASKINS,
YARBAR,
DEVINE,
E. DRADA,
N. LYDAY,
PHILLIPS,
Defendants.

No. 1:17-cv-00194-TWP-MJD

ORDER ON MOTION TO SANCTION DEFENDANTS
FOR SPOLIATION OF EVIDENCE 1

This matter comes before the Court on Plaintiff’s Motion to Sanction Defendants for
Spoliation of Evidence. [Dkt. 99.] Plaintiff filed his motion on December 6, 2018. [Dkt. 99.]
Defendants filed their Response to Motion for Sanctions, Docket No. 99 on December 11, 2018.
[Dkt. 101.] Plaintiff then filed his Reply on January 2, 2019. [Dkt. 102.] On March 18, 2019,
the Court held an in-person hearing on Plaintiff’s motion at the Wabash Valley Correctional

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The Court will also address Plaintiff’s Verified Notice Regarding the Spoliation of Video
Footage from F Cellhouse and Motion for Court to Take Notice of It [Dkt. 131], filed on March
27, 2019, in this Order. The Court GRANTS Docket No. 131 to the extent the Court will take
notice that Plaintiff did request preservation of the F cellhouse video footage, further discussed
in this Order.
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Facility (“WVCF”); the Plaintiff appeared in person and Defendants appeared by counsel. After
the Court’s review of the parties’ briefing and the on-location hearing, the Court DENIES
Plaintiff’s motion.
I. Background
In this action, Plaintiff, a prisoner now incarcerated at New Castle Correctional Facility,
brings excessive use of force claims against correctional officer Defendants that he asserts
occurred while he was housed at WVCF. [Dkt. 5 at 1.] Plaintiff alleges that on June 2, 2016,
Defendants dragged him handcuffed from D cell house to F cell house. [Dkt. 5 at 2.] While
Plaintiff was handcuffed, he contends Defendants body slammed, jumped on, and began beating
him. [Dkt. 5 at 2.] On June 3, 2016, the Plaintiff was interviewed by Lieutenant Christopher
Nicholson during a screening on a Conduct Report regarding the housing reassignment incident.
[Dkt. 99-1 at 1.] Plaintiff communicated to Nicholson that Plaintiff had been assaulted by
WVCF officers who carried out the bed move. [Dkt. 99-1 at 1.] On June 15 and 16, 2016,
Investigator Fernell McDonald interviewed the Plaintiff to discuss the incident and recorded that
Mr. Griffith “[didn’t] want anything done about it anyway.” [Dkt. 99-1 at 3.] Further,
McDonald interviewed Officer Brannick and Sergeant Lyday. [Dkt. 99-1 at 3-4.] Defendants
contended that the Plaintiff attempted to trip the officers during the escort causing the Plaintiff to
fall onto the sidewalk and the officers to fall on top of him. [Dkt. 99-1 at 3.]
On June 21, 2016, the Plaintiff argued he “made it abundantly clear to top level
administrative and investigative staff that litigation was imminent, and requested that video and
photographic evidence be preserved.” [Dkt. 99 at 2.] Plaintiff’s motion included Exhibits D, E,
F, and G, which are Indiana Department of Correction Request(s) for Interview that Plaintiff
submitted to Superintendent Brown, Lieutenant Nicholson, and Internal Affairs personnel Rob

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Marshal and Fernell McDonald. [Dkt. 99-1.] Exhibits D through G were submitted by the
Plaintiff to each respective party on June 21, 2016, just nineteen days after the incident. [Dkt.
99-1.] In each request the Plaintiff stated the following:
After giving it some thought I have changed my mind. Accordingly I ask that you
please save all video evidence of the staff escort from D-602 to FHU320 on June
2, 2016 and any use of force used on me at that time. That includes when I was
slammed to the ground and beaten.
[Dkt. 99-1.] (emphasis added). On July 14, 2016, the Plaintiff sent additional Request(s)
for Interview, as evidenced by Exhibits H, I, J, and K, to Superintendent Brown, Lieutenant
Nicholson, ASR-Gilmore, and the Office of Investigations and Intelligence. [Dkt. 99-1.] In
these supplemental requests the Plaintiff stated:
I am writing to notify and request that the video surveil[l]ance videos from D dormCenter on 6-2-16 from approximately 1:00 p.m. up to 3:00 p.m. be kept/preserved
so that they may be used in future court proceedings. I need this length/duration so
that it covers the complete incident and all the actions that led up to the incident
and also to support and/or rebut statements that were made pertaining to the
incident.
[Dkt. 99-1.] (emphasis added). Additionally, the Plaintiff issued five separate Request(s) for
Interview, Exhibits L, M, N, O, and P to preserve all photographs taken on June 3, 2016, of
Plaintiff’s injuries and any reports that were produced during the investigation of the incident.
[Dkt. 99-1.] On July 26, 2016, the Plaintiff received official correspondence from the Office of
Investigations and Intelligence, R. Marshall, to notify the Plaintiff that his requests had been
reviewed on July 25, 2016, that all documents “were considered confidential[,]” and that while
Plaintiff’s request was denied, “all documents will be retained in the Investigations Dept.” [Dkt.

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99-1, Exh. Q.] This memorandum of correspondence appears to only be related to Plaintiff’s
request for “photos and written reports” and does not acknowledge any video footage requests. 2
[Dkt. 99-1.]
During discovery the Plaintiff submitted requests for production on January 31, 2018,
which included Request No. 11:
Copy of all video surveillance which would have observed cell D-602, the dayroom
of the dorm, and the route to F dorm during the time of this incident[.]
[Dkt. 99-1.] On September 4, 2018, Defense counsel showed Plaintiff video footage which
Plaintiff contended “only showed Plaintiff being taken out of D-602, being drug down the stairs
and across (and out of) the dayroom.” [Dkt. 99 at 3.] Plaintiff argued this video “did not show
Griffith’s exit from D cellhouse or him being taken to F cellhouse . . . [and] is thus,
incomplete.” 3 [Dkt. 99 at 3.] Plaintiff’s Motion to Sanction Defendants for Spoliation of
Evidence asserted that additional video footage “outside of D cellhouse, and showing the route to
F cellhouse had to have existed, because Plaintiff had previously seen several cameras outside of
the cellhouses, and aiming up and down the sidewalks, which connected all the cellhouses.”
[Dkt. 99 at 3.] The Plaintiff argued that through his own daily observations in his two years at
WVCF he noticed these cameras and that “if there is nothing further to produce, the video had to
have been destroyed.” [Dkt. 99 at 4.] Defendants’ Response argued Plaintiff’s premise for
spoliation was based on “a mistake or misstatement . . . .[t]here was no video to retain.” [Dkt.

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The Court notes that neither party has included any supplemental exhibits in their briefing to
show any correspondence regarding Plaintiff’s requests for preservation of the video footage
surrounding the incident.
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The Court notes Plaintiff’s contentions about the incompleteness of the video footage shown to
him on September 4, 2018, was an argument addressed in Plaintiff’s Verified Fourth Motion to
Compel Discovery. [Dkt. 87.] Defendants’ Response to Plaintiff’s motion to compel
unequivocally stated, “There is nothing further to produce.” [Dkt. 91 at 1.]
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101 at 1.] Defendants further stated that discussion of what video surveillance does or does not
actively exist in the maximum-security prison is information best not disclosed to an offender
and poses security risks. [Dkt. 101 at 2.]
On March 18, 2019, the Magistrate Judge conducted an in-person hearing at WVCF with
the Plaintiff, Defense counsel, and the Warden of the facility. During this hearing, the
undersigned walked the outdoor path from D cellhouse to F cellhouse with the parties to observe
the location of specific cameras Plaintiff believed to have been able to capture video footage of
the incident. During the hearing, Plaintiff acknowledged that no camera coverage existed to
cover the route from D cell house to F cell house. However, counsel for Defendants
acknowledged that video from the entry of F cell house to cell FHU320 did exist and had not
been preserved. The Court, in turn, weighs the parties briefing and the in-person hearing held on
site at WVCF in its analysis of the Plaintiff’s spoliation claim.
II. Legal Standard
The Plaintiff points to a court’s authority to sanction a party for spoliation of evidence
pursuant to Federal Rule of Civil Procedure 37 and its inherent authority “to fashion an
appropriate sanction for conduct which abuses the judicial process.” [Dkt. 99 at 4.] See
Chambers v. Nasco, Inc., 501 U.S. 32, 50-51 (1991) (sanctions utilized when bad faith conduct
exists in litigation). A court’s authority under Federal Rule of Civil Procedure 37 applies in
those instances where a party has failed to comply with a court order, though this order need not
be “a formal order”; rather, “[a]n agreement or promise between the parties to conduct discovery
in particular fashion may constitute an order.” Blasius v. Angel Auto., No. 3:13-CV-46-JVBCAN, 2014 WL 12783287, at *3 (N.D. Ind. Apr. 3, 2014). Though the Court notes that the
Plaintiff has raised numerous discovery dispute issues in his multiple motions to compel

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information from Defendants, it does not find that the Plaintiff has argued Defendants have
violated a court order. Furthermore, the Court finds no evidence the parties explicitly agreed or
promised to preserve video evidence; the only documentation provided in context with Plaintiff’s
spoliation motion was correspondence regarding Defendants assertion to preserve “photos and
written reports.” [Dkt. 99-1, Exh. Q.] Therefore, the Court finds Rule 37 is not applicable as a
basis for sanctions and will in the alternative address Plaintiff’s motion based on its inherent
authority.
Assessing whether spoliation occurred requires a two-part inquiry. First the Seventh
Circuit has noted that “courts have found a spoliation sanction to be proper only where a party
has a duty to preserve evidence because it knew, or should have known, that litigation was
imminent.” Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008); see also
Norman-Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 429 (7th Cir. 2010) (observing that
Plaintiff “fail[ed] every element of the test for spoliation inference” where evidence was
destroyed “before [defendant] knew or should have known that litigation was imminent”). Thus,
any sanction for spoliation must follow a finding that Defendants were under a duty to preserve
evidence.
Second, in the Seventh Circuit, a showing of “bad faith” is “a prerequisite to imposing
sanctions for the destruction of evidence.” Trask-Morton, 534 F.3d at 681. “‘[B]ad faith’ means
destruction for the purpose of hiding adverse information.” Mathis v. John Morden Buick, Inc.,
136 F.3d 1153, 1155 (7th Cir. 1998) (To determine whether “bad faith” exists is a “question of
fact like any other, so the trier of fact is entitled to draw any reasonable inference.”). The mere
showing that “a party intentionally destroyed evidence” does not constitute bad faith. Blasius,
2014 WL 12783287 at *5. Sanctions for spoliation thus may not be imposed simply because

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evidence was destroyed; more precisely, “the crucial element is not that evidence was destroyed
but rather the reason for the destruction.” Park v. City of Chi., 297 F.3d 606, 615 (7th Cir.
2002). The movant bears the burden to make the showing of bad faith. Bracey v. Grondin, 712
F.3d 1012, 1019 (7th Cir. 2012).
III. Discussion
On March 18, 2019, the Plaintiff identified a total of four cameras that he believed
existed on the WVCF premises that would have captured video footage of his allegations against
Defendants. The Plaintiff pointed out the location of these four cameras while walking the route
of his transportation from D cellhouse to F cellhouse. These identified cameras included: 1) a
camera located in the hallway or vestibule area of D cellhouse that could have recorded the
Plaintiff’s exit outside and 2) one camera located on each of the three gates surrounding the
cellhouses that may have recorded outdoor footage of the Plaintiff’s escort between D and F
cellhouses. The Magistrate Judge questioned Warden Richard Brown as to the existence,
position, and filming capabilities of these identified cameras. The Magistrate Judge confirmed
with the Plaintiff that his allegations of excessive force occurred while exiting the vestibule area
of D cellhouse and along the outdoor pathway to F cellhouse. The Magistrate Judge questioned
Warden Richard Brown and Defense counsel about a fifth camera located inside F cellhouse that
would have recorded Plaintiff’s entrance inside F cellhouse and the remainder of the escort to his
assigned cell there. The Court’s analysis regarding Plaintiff’s spoliation motion will address
each of these identified cameras in turn.
A. Indoor/Vestibule Camera in D Cellhouse
Defendants did produce D cellhouse footage of Plaintiff being taken from his original cell
and escorted down the stairs and across the dayroom. [Dkt. 99 at 3.] At the hearing on

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Plaintiff’s spoliation motion, Plaintiff pointed out a camera located in the hallway of D cellhouse
that he believed would show his exit out of the original cellhouse and to the sidewalk. Warden
Richard Brown confirmed there was an existing camera in this location but that the camera is
positioned in the opposite direction and would not have, from its vantage point, captured the
Plaintiff’s exit. Upon observation of this indoor camera, Plaintiff conceded that the camera angle
does point in the opposite direction. The Court finds, due to the nature of the location of this
camera, there was no video footage relevant to the Plaintiff’s claims that was captured.
Defendants cannot preserve and subsequently produce that which does not exist. Therefore, in
the absence of such video capability, the Court finds there was no spoliation of any such
video from this indoor/vestibule camera in D cellhouse.
B. Three Outdoor Cameras Between D and F Cellhouses
The Plaintiff pointed out three outdoor cameras, one placed on each of the three gate
locations surrounding the cellhouses, as devices able to record the alleged incident that occurred
during his transportation between the two buildings. Warden Richard Brown confirmed there
were existing cameras in these locations but that the cameras were positioned in opposite
directions and would not have, from their vantage point, captured transportation of the Plaintiff
between the two cellhouses. Rather, the Warden confirmed the cameras were designed to record
activity, entrances, and exits outside the gate. The Plaintiff conceded that the cameras do point
in the opposite direction. The Court finds, due to the nature of the location of these outdoor
cameras, there was no video footage relevant to Plaintiff’s claims that was captured. Defendants
cannot preserve and subsequently produce that which does not exist. Therefore, in the absence
of such video capability, the Court finds there was no spoliation of any such video from
these outdoor cameras installed on the gates surrounding the cellhouses.

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C. Indoor Camera in F Cellhouse
The Magistrate Judge inquired about the indoor camera in F cellhouse that would have
recorded Plaintiff’s entrance inside and the transportation to Plaintiff’s new cell assignment.
Warden Richard Brown confirmed a camera inside the F dorm does exist and would have
recorded this footage but that after a certain (unspecified) time period, the footage would have
been recorded over. When the Court asked why this portion of the video footage was not
preserved, Defense counsel responded that this video “was never requested [by the Plaintiff]”
and “We can’t keep everything.” The Plaintiff contended he had requested the preservation of
this footage as a part of the entire transaction of his bed move from D to F cellhouse. On March
20, 2019, Defendants filed their Submission Regarding Video in F Cell House to supplement
Defense counsel’s statements made during the hearing on Plaintiff’s motion. [Dkt. 128.] In this
supplemental filing Defendants argued Plaintiff’s July 28, 2017 request for the videos had “a
blank certificate of service” and only requested the videos “to F Dorm . . . not inside the
building.” [Dkt. 128 at 1-2.] On March 27, 2019, Plaintiff filed a Verified Notice in which he
“moves the Court” to take notice that he did request the F cellhouse video footage through his
preservation requests on June 21, 2016. [Dkt. 131 at 1.] Plaintiff’s Verified Notice also
addresses his Request for Production No. 11, asking the Court to take notice that the Plaintiff’s
request meant “his escourt [sic] from D-602 to F-320” to include the entire transaction and not
just the walk outside and between the cellhouses as Defendants would contend. [Dkt. 131 at 2.]
The Plaintiff askes the Court to construe language in his Request for Production No. 11 liberally
to be inclusive of the entire incident. [Dkt. 131 at 2.] The Court, hereby, GRANTS Plaintiff’s
Verified Notice and Motion for the Court [Dkt. 131], to the extent the Court acknowledges the

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Plaintiff’s assertions that he “unambiguously requested [F cellhouse video on June 21, 2016] be
saved for use in future litigation.” 4
1. Duty to Preserve vs. Duty to Produce
“A party has a duty to preserve evidence when it knows, or should have known, that
litigation was imminent.” Trask-Morton, 534 F.3d at 681. “At the latest, this duty attaches when
the plaintiff informs the defendant of his potential claim.” Chandler v. Buncich, No. 2:12-CV175, 2012 WL 4343314, at *1 (N.D. Ind. Sept. 24, 2012). The duty may arise “even prior to the
filling of a complaint as long as it is known that litigation is likely to commence.” MacNeil Auto
Prods., Ltd. v. Cannon Auto. Ltd., 715 F. Supp. 2d 786, 801 (N.D. Ill. 2010). Once the duty of
preservation attaches, it imposes a “broad” obligation “encompassing any relevant evidence that
the non-preserving party knew or reasonably could foresee would be relevant to the action.”
Chandler, 2012 WL 4343314 at *1 (emphasis added); see also MacNeil, 715 F. Supp. 2d at 800
(“A party has a duty to preserve evidence over which it had control and reasonably knew or
could reasonably foresee was material to a potential legal action.”).
The Plaintiff notified WVCF officials of his intent to file a lawsuit on June 21, 2016.
[Dkt. 99 at 2.] Further, Plaintiff initiated specific preservation requests at that time for “all video
evidence of the staff escort” to be saved. [Dkt. 99 at 2.] Within nineteen days of the alleged
incident, WVCF officials were on notice of a potential claim to be brought by the Plaintiff; this
notification triggered the Defendants’ duty to preserve the video footage of the entire transaction
of the Plaintiff’s escort under the broad interpretation that any relevant evidence be included in

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While the Court does also note Plaintiff’s supporting assertions that he meant the entire
transaction surrounding the housing reassignment incident in his Request for Production No. 11,
the Court finds this argument is not needed to establish the Defendants’ duty of preservation, as
is further discussed by this Order.
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the Defendants’ preservation obligation. Plaintiff again followed up this initial notification with
additional requests to WVCF officials on July 14, 2016, well after Defendants’ duty to preserve
had arisen. [Dkt. 99 at 2.]
In Defendants’ Response, Defense counsel made a number of statements that invoke the
concern of this Court. Such statements include the following: “There was no video to retain. It
was not deleted. It never existed. There was no spoliation.” [Dkt. 101 at 1.] Defense counsel
further asserted that “[t]here was nothing withheld or to withhold . . . no video to submit to the
court for in camera review . . . [a]ll video of the incident that exists and that ever existed has
been shown to the plaintiff and consists of the video inside the [D] cell house.” [Dkt. 101 at 2.]
The Court finds that video inside F cellhouse did exist and was recorded over and
deleted, and thereby, withheld from the Plaintiff. Though Defense counsel attempts to qualify
such statements to pertain to the outdoor areas in which Plaintiff’s excessive force allegations
occurred, the representations to the Court that no other video ever existed were clearly untrue. 5
Further, Defendants’ argument that Mr. Griffith requested only video footage “to” the F
Dorm and not “inside the building” is unsatisfactory and meritless. The Court will not engage in
parsing out this attenuated contention that Plaintiff’s request that Defendants produce a “[c]opy
of all video surveillance which would have observed cell D-602, the dayroom of the dorm, and

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In light of a recent case filed in the Southern District of Indiana, as it pertains to the existence
of video footage of incidents surrounding inmate claims asserted against WVCF, the Court
further cautions parties from making statements in briefs submitted to the Court that may be
construed as misrepresentations. See Littler v. Martinez, et al., No 2:16-cv-00472-JMS-DLP,
2019 WL 4043256, at *1 (S.D. Ind. Mar. 5, 2019) (The Court “expressed grave concerns
regarding the truth of sworn statements submitted by defendants” when through the plaintiff’s
“persistence and court intervention, video evidence and emails were uncovered that cast serious
doubt on the veracity of their sworn statements.” The Court imposed serious sanctions for the
parties’ and counsel’s misconduct.)
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the route to F dorm during the time of this incident” absolved the Defendants’ of their duty to
preserve all evidence related to the Plaintiff’s cause of action.
The Defendants’ duty to preserve the relevant evidence from the indoor F cellhouse
camera is separate and distinct from the parties’ duties to produce in compliance with the rules of
discovery. Mr. Griffith was not required to specifically request preservation of the video footage
surrounding his claim; this duty arose the moment Mr. Griffith informed WVCF officials he had
changed his mind about pursuing litigation. At that moment, litigation become “imminent” and
the duty to preserve arose. The Court notes that, even though Mr. Griffith was not required to
submit an explicit request for this video’s preservation, he did in fact request “all video
surveillance” be preserved and produced through the submission of his June 21, 2016 Indiana
Department of Correction Requests for Interview [Dkt. 99-1] and in his January 31, 2018,
Request for Production No. 11 [Dkt. 99 at 3]. In the case at hand, Defendants preserved the
indoor D cellhouse footage of the Plaintiff being taken from his cell, down the stairs, and through
the dayroom. There is little to no excuse why the additional indoor footage from F cellhouse was
not also preserved in conjunction with this inmate escort to a new housing assignment.
To provide the utmost clarification to the question of when the duty to preserve arises
surrounding inmate litigation cases, the Court suggests a bright line rule to prevent further issues
of failure to comply with this duty. The duty to preserve begins at the time an inmate files a
grievance with the correctional facility and/or formally submits a request for preservation
of evidence by way of submission of an Indiana Department of Correction Request for
Interview, whichever may occur first. After that date, all information, to include video
evidence, that could be potentially relevant to the inmate’s claims MUST BE
PRESERVED.

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For the foregoing reasons, the Court finds Defendants did have a duty to preserve
video footage that existed from the indoor F cellhouse camera. Defendants failed to comply
with this duty to preserve evidence.
2. Spoliation & Bad Faith
A finding that Defendants had a duty to preserve evidence is only the initial step in a
spoliation analysis. The Court must also determine that Defendants acted in bad faith in their
deletion of and recording over the indoor F cellhouse footage showing Mr. Griffith’s entrance
inside the building and movement into his new cell assignment.
The Court acknowledges the tall hurdle that the Plaintiff must overcome to show the bad
faith element required to attain sanctions for spoliation. The Court may infer bad faith from the
circumstances of the destruction of evidence. See Mathis, 136 F.3d at 1155. Had the outdoor
cameras posted on the gates at WVCF been designed to record activity on the sidewalks
connecting the cellhouses and such footage was not preserved, compounded with Plaintiff’s
assertions that the excessive force took place in these outdoor locations, the Court would most
likely have a different analysis. In that scenario, an inference that the destruction of the video
occurred in bad faith to hide adverse information could arguably be made.
However, the Court is not faced with those circumstances here. Rather, the Plaintiff
acknowledged during the in-person on site hearing that he requested the video of the entirety of
the transaction that took place in the movement of his housing assignment. The Plaintiff
contended that his allegations of excessive force occurred during the exit of D cellhouse and in
the outdoor areas between the two buildings; Mr. Griffith has never claimed any of these
allegations happened upon his entrance into the F cellhouse or on the pathway to his new cell
assignment once he was inside F cellhouse. The Court notes that the only evidence the indoor F

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cellhouse video may have shown was the existence and extent of any injuries the Plaintiff
received during the escort, whether inflicted by the Defendants or sustained from the trip and fall
version of the facts that the Defendants contend took place. The Court finds that Mr. Griffith has
additional avenues to show evidence of the existence and extent of his injuries through
photographic evidence taken during medical consultation, his medical records, and through his
own testimony. Simply because Plaintiff has established there was a camera in F cellhouse, the
footage from this camera was not provided to him after his requests, and that the footage was not
preserved by the Defendants, the Plaintiff does not automatically complete the second step of
spoliation to show Defendants destroyed any video due to any potentially damaging information.
The Court cannot make a finding of spoliation under these circumstances. See Bracey, 712 F.3d
at 1019-20 (defendants had a duty to preserve prison videos but plaintiff failed to show bad
faith); Trask-Morton, 534 F.3d 672, 681-82 (denial of spoliation upheld due to no bad faith
element established); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985)
(“documents were destroyed under routine procedures, not in bad faith . . .”).
For the foregoing reasons, the Court finds that though Defendants did not preserve
the indoor F cellhouse video, Plaintiff has failed to demonstrate that the destruction of the
video was committed in bad faith, and as such, no spoliation of evidence occurred.
IV. Sanctions
As noted above, sanctions for spoliation of evidence can be entered only if the culpable
party destroyed evidence in bad faith. Trask-Morton, 534 F.3d at 681. The majority of the
cameras Plaintiff asserted could have recorded his claims of excessive force were demonstrated
to be incapable of capturing any outdoor footage of the Plaintiff’s escort to his new bed
assignment. The only remaining video footage in question concerned that of the indoor F

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cellhouse camera. The Court finds that the Plaintiff has not met his burden of establishing the
Defendants acted in bad faith in the destruction and recording over of any footage that existed
showing the Plaintiff entering the F cellhouse. Therefore, without a finding of spoliation, the
Court DENIES Plaintiff’s request for the sanctions of a default judgment or an adverse inference
spoliation jury instruction.
Conclusion
For the reasons stated above, the Court finds that though Defendants did have a
duty to preserve video footage from the indoor F cellhouse camera and failed to comply
with such duty, the Plaintiff has not met his burden to show, nor can the Court infer, that
the Defendants acted in bad faith. The Court hereby DENIES Plaintiff’s Motion to
Sanction Defendants for Spoliation of Evidence.

Dated: 15 APR 2019

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Distribution:
JAMES F. GRIFFITH
117892
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
David A. Arthur
INDIANA ATTORNEY GENERAL
[e-mail]
Joshua Robert Lowry
INDIANA ATTORNEY GENERAL
[e-mail]

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