Gambino v. Hershberger et al

Filing 20

MEMORANDUM ORDER denying 3 Motion for TRO; granting 6 Motion to Amend; denying 9 MOTION for Court Order for Recovery and Preservation of E-Mails Being Stored at Advanced Technologies Groups LLC; dismissing complaint and directing clerk to close this case. Signed by Judge Theodore D. Chuang on 6/8/2017. (c/m 6/8/2017 aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

DAVID A. GAMBINO,
Plaintiff,

v.
FRANK HERSHBERGER,
SHANE SHEETZ,
MR. EIRICH,
BRETT DODD,
LEON BRYAN and
7 UNKNOWN OFFICERS AND 3
UNKNOWN NURSES,

Civil Action No. TDC-16-3806

Defendants.

MEMORANDUM ORDER
Self-represented Plaintiff David A. Gambino is a federal inmate presently housed at the
Federal

Correctional

Institution-Fort

Dix ("FCI-Fort

Dix") in New Jersey.

Gambino's

allegations in this matter arise from the time during which he was housed at the Federal
Correctional

Institution in Cumberland,

Maryland ("FCI-Cumberland").

2016, Gambino filed a "Motion for a Preliminary

Temporary

On November

Restraining

22,

Order to End

Spoliation of Evidence, Preserve Remaining Evidence Recently Deleted Pursuant to FRCP Rule
65," which is pending before the Court.
Gambino's

ECF NO.3

("TRO Motion").

Also pending are

"Motion to Amend [Dkt 1-1] and [Dkt 3] That Will Replace Original Filing on

11/1612016" ("Motion to Amend"), ECF No.6, and his "Motion for Court Order for Recovery
and Preservation of E-mails Being Stored at Advanced Technologies Groups LLC" ("Motion for
a Court Order"), ECF NO.9.

BACKGROUND
In February 2016, Gambino was incarcerated at FCI-Cumberland.

On February 4,2016,

Gambino sent two emails to friends through a Bureau of Prisons ("BOP") monitored email
service. Gambino alleges that on the same day he entertained suicidal thoughts and went to the
Mental Health Department.

Gambino was placed on suicide watch.

Gambino alleges that at

some point thereafter, Lt. Eirich sexually abused him and threatened to rape him.
On February 16, 2016, Dr. Hershberger, Chief Psychologist, determined that Gambino
could be removed from suicide watch and placed back in the general population. Gambino
alleges that he made two suicide attempts that day and was then placed back on suicide watch.
He further alleges that prison officials used excessive force against him that same day.
On February 29, 2016, Gambino was again removed from suicide watch.
2016, he was transferred to FCI-Fort Dix.

On March 8,

According to Gambino, he has filed administrative

claims by submitting a Standard Form 95 Claim for Damages, Injury, or Death, which is a
prerequisite to filing a suit pursuant to the Federal Tort Claims Act ("FTCA").

The first claim,

dated October 13, 2016, alleges "Attempted murder, providing material support for suicide to a
suicidal patient, neck and shoulder injury, pain and suffering, abuse of mental health patient,
intentional infliction of emotional distress that caused suicide attempts and further degenerated
mental health." Mot. TRO Ex. 1 at 25, ECF NO.3-I.

The second claim, dated October 15,2016,

states "Denied trial evidence, case studies, strategies and prepared trial strategies for multiple
cases going to trial, including materials about the F.C.I. Cumberland included in suits." Id. at 24.
A third, also dated October 15, 2016, alleges "[ c]urrent denial of proper mental health care due
to false mental health records, mental health injury while attempting mental health crisis
intervention, suicide attempts caused by abuse and conditions, injury to neck and shoulder from

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suicide and guards abuse, denial of proper care today, intentional inflection of emotional distress
that did end in suicide attempts that ended in injury." Id. at 26.
Gambino filed the TRO Motion on November 22, 2016 with the intent to preserve
evidence while he "waits for Federal Tort exhaustion at the Federal Bureau of Prisons Level."
Mot. TRO at 1. On December 2, 2016, the Court ordered the Government to file an expedited
Response to the TRO Motion. In addition, because the Complaint failed to identify what claims,
if any, Gambino intended to assert, and because it appeared that portions of the Complaint were
missing, the Court granted Gambino 28 days to state whether the Complaint was complete and, if
not, to file the missing pages. On December 14, 2016, Gambino filed the Motion to Amend.
On December 23, 2016, the Government filed a Response to the TRO Motion.
reviewing the Government's

After

Response, the Court determined that additional information was

necessary in order to assess whether a preservation order was warranted.

Consequently, on

January 24, 2017, the Court ordered the Government to file a supplemental response including
(1) a copy of FCI-Cumberland's
FCI-Cumberland's

video recording retention policy and schedule, (2) a copy of

email retention policy and schedule, and (3) an affidavit or declaration by an

official with personal knowledge, accompanied

by appropriate attachments

such as sample

litigation hold letters, listing the specific records or categories of records preserved and a list of
all individuals or record custodians who had received a litigation hold letter. The Government
filed a Supplemental Response, which included declarations executed by Todd Craig, the BOP
Chief of the Office of Security Technology;

Lindsey George, Chief of the Information

Management Section; and the five named defendants, Chief Psychologist Frank Hershberger,
Chief Psychologist Leon Bryan, Staff Psychologist Shane Sheetz, Staff Psychologist Brett Dodd,

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Jr., and Special Investigations Supervisor ("SIS") Steven Eirich. Gambino filed a Supplemental
Reply.
DISCUSSION
I.

Motion to Amend
In the Motion to Amend, Gambino asks to amend the TRO Motion by adding two additional

pages. Attached to the Motion are a Table of Contents and an amended Statement of Claim and
Relief that Gambino requests be added to the TRO Motion. The Motion to Amend clarifies that
Gambino's Complaint does not include claims separate and apart from Gambino's request for a
temporary restraining order. Rather, Gambino's intent is to obtain injunctive relief to preserve
evidence for anticipated future litigation.
Amendments to complaints are to be freely allowed.

Fed. R. Civ. P. 15(a). Leave to

amend should be denied only when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the amendment would be futile. See
Johnson v. Oroweat Foods Co., 758 F.2d 503, 509 (4th Cir. 1986). Accordingly, the Motion to
Amend is granted.
II.

TRO Motion
Gambino seeks an Order from the Court directing the BOP to preserve video footage and

other evidence while his administrative claims are pending. Specifically, the TRO Motion seeks
to enjoin alleged "destruction of evidence known to be needed for a future lawsuit filed in this
District Court while the Plaintiff waits for Federal Tort exhaustion at the Federal Bureau of
Prisons level." TRO Mot. at 1, ECF NO.3. The TRO Motion lists the evidence to be preserved,
which includes emails, copies of Gambino's mental health records, a video recording taken of
the Special Housing Unit ("SHU") on February 16, 2016, all video taken on February 16, 2016

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of the inside and outside of Unit A-2 and the outside of the SHU, and all video of excessive force
perpetrated against Gambino on February 16, 2016.

Gambino does not describe why this

information will be needed as evidence in future litigation or why he believes this material is at
risk of spoliation.

The Government opposes the Motion based on its claims that (l) this Court

lacks jurisdiction to issue such an order and (2) the order requested is unnecessary.
A plaintiff seeking a preliminary injunction must establish (1) a likelihood of success on
the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief, (3) that the
balance of equities tips in the plaintiffs

favor, and (4) that an injunction is in the public interest.

Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7,20 (2008).
Gambino's request for an injunction fails because he has not established a likelihood of
irreparable harm.
preservation

Gambino's Motion, in effect, asserts that the Court must issue an evidence

order to avoid irreparable harm to his future legal claims.

however, acknowledges

The Government,

that receipt of the TRO Motion placed it on notice that it should

anticipate litigation relating to Gambino's time on suicide watch in February 2016 and that it
therefore has a duty to preserve relevant evidence.
Fourth Circuit has acknowledged

The United States Court of Appeals for the

such a duty to preserve material evidence:

"The duty to

preserve material evidence arises not only during litigation but also extends to that period before
the litigation when a party reasonably should know that the evidence may be relevant to
anticipated litigation." Silvestri v. General Motors Corp., 271 F.3d 583,591 (4th Cir. 2001). To
prevent spoliation of evidence, the Court may impose a sanction on a party that fails to preserve
evidence as required.

Hodges v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004);

Silvestri, 271 F.3d at 590 ("The policy underlying this inherent power of the courts is the need to

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preserve the integrity of the judicial process in order to retain confidence that the process works
to uncover the truth. ").
A federal court may also issue preservation orders as part of its inherent authority to
manage its own proceedings.

Cognate BioServices, Inc. v. Smith, No. WDQ-13-1797, 2014 WL

988857, at *6 (D. Md. Mar. 12, 2014); Capricorn Power Co., Inc. v. Siemens Westinghouse
Power Corp., 220 F.R.D. 429, 431, 433-34 (W.D. Pa. 2004); Pueblo of Laguna v. United States,
60 Fed. Cl. 133, 135 (Fed. Cl. 2004); Manual for Complex Litig. ~ 11.442 (4th ed. 2004)
("Before discovery starts ...

the court should consider whether to enter an order requiring the

parties to preserve and retain documents, files, data and records that may be relevant to the
litigation.").

The burden is on the party moving for the preservation order to "demonstrate that it

is necessary and not unduly burdensome."

Cognate BioServices, 2014 WL 988857 at 6; Pueblo

of Laguna, 60 Fed. Cl. at 138. A party seeking a preservation order "must show that absent a
court order, there is significant risk that relevant evidence will be lost or destroyed-a

burden

often met by demonstrating that the opposing party has lost or destroyed evidence in the past."
Cognate BioServices, 2014 WL 988857 at 6; Pueblo of Laguna, 60 Fed. Cl. at 138; see also
Humble Oil & Rejin. Co. v. Harang, 262 F. Supp. 39, 43 (E.D. La. 1966) (finding that a party
seeking an injunction requiring the preservation of documents must demonstrate "that there is
real danger that acts to be enjoined will occur").

Courts have found that in instances where a

party is already under a duty to preserve material evidence and appears to be fulfilling that duty,
there is no need preemptively to issue a separate preservation order. See Cognate BioServices,
2014 WL 988857 at 7; Pueblo of Laguna, 60 Fed. Cl. at 137-138.
Here, Gambino has not demonstrated that there is a significant risk that any material
evidence will be destroyed without a court order. Rather, the Government has acknowledged its

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duty to preserve evidence related to Gambino's potential claims and has established that the BOP
has taken, and will continue to take, reasonable measures to ensure preservation of all relevant
evidence that currently exists. The Supplemental Response provides details on the steps taken
by BOP to preserve evidence.

BOP provided to all of the named Defendants a memorandum

instructing them to preserve emails, medical records, memoranda, and other documents related to
their interactions with Gambino in February 2016.

SIS Lieutenant Eirich, Chief Psychologist

Bryan, Chief Psychologist Hershberger, Staff Psychologist Dodd, and Staff Psychologist Sheetz
each executed a declaration acknowledging receipt of the December 19, 2016 memorandum
from agency counsel and attaching their signed certifications that they were complying with the
preservation requirement as of December 2016.

Eirich, Bryan, Dodd, and Hershberger each

stated that after receiving the memorandum, they searched their emails and files and found no
relevant documents.

Sheetz attested that he has "taken steps to preserve all documents that may

be relevant to David Gambin.o's medical care in February 2016, and understand that I am to
continue to preserve any relevant documents until instructed otherwise by agency counsel."
Decl. of Shane Sheetz,-r 4, ECF No. 16-7.
Moreover, BOP has established that under its standard record retention policies, the video
and email evidence sought by Gambino would have been discarded by the time he filed his
Complaint.

The Government has provided evidence establishing the time period during which

video recordings, emails, and telephone call data are maintained in the ordinary course of
business. With respect to video recordings, Todd Craig, the BOP Chief of Security Technology,
has stated that when video surveillance at BOP facilities "is not deemed to contain a case-related
or category-related event," the content is considered "Temporary" and may be erased or deleted
within ten days of the recording. Decl. of Todd Craig,-r 3, ECF No. 16-1. BOP's written policy

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confirms this retention schedule. According to Craig, FCI-Cumberland is equipped with closed
circuit television cameras connected to DVR devices with standard storage capacities of 14 to 28
days. Once the recording capacity of a DVR device is reached, "the data loops back and records
over older stored data on the device. The over-recording is machine, not user, driven process."
Id. ~ 4. According to Lindsey George, Chief of the Management Section in the BOP Policy and
Information Management Branch, video recordings are overwritten "depending on the amount of
traffic that is captured at the institution and how much space is on the DVRs." Decl. of Lindsey
George ~ 4, ECF No. 16-2.
With respect to inmate emails, George states that the emails, which are sent through the
Trust Fund Limited Inmate Communication System ("TRULINCS"), are "held temporarily and
deleted 180 days after the date of creation, or when no longer needed for legal or administrative
purposes."

Id. ~ 3.

Thus, the Government's

submissions establish that under BOP record

retention policies, video recordings or emails relating to the February 2016 incident would have
been deleted well before Gambino filed his administrative
Complaint in this case in November 2016.

claims in October 2016 or the

Accordingly, the injunction sought by Gambino

would not be likely to prevent the loss of evidence.
Finally, to the extent that Gambino seeks an injunction ordering the preservation of his
mental health records, he acknowledges that he received the requested records, but disputes the
decision to redact large portions of the records. Redaction of a record in this manner, however,
is not spoliation.

Thus, there is no likely irreparable harm that would result from a failure to

order the preservation of Gambino's mental health records.

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Having failed to establish likely irreparable harm that would result from the absence of an
injunction requiring evidence preservation, the Court need not address the remaining factors.
The TRO Motion will be denied.
III.

Motion for a Court Order
On January 13,2017, Gambino filed the Motion for a Court Order, in which he requests

that the Court direct Advanced Technology Group, LLC ("ATG") to recover "any and all
emails" he sent through the CorrLinks E-Mail service used by the Bureau of Prisons.
Order at 1, ECF No.9.

Mot. Ct.

Gambino appears to allege that ATG is a private contractor that helps to

manage BOP inmate email storage, that ATG erases email data after a period of time, but that the
email data can still be recovered if requested in a timely manner.
The Court construes this Motion as another request for an injunction, this time to order
the recovery of emails backed up by ATG on the CorrLinks email system.

As with the TRO

Motion, this request fails because Gambino has not established a likelihood of irreparable harm
in the absence of the requested court order. Significantly, the information submitted regarding
CorrLinks states that emails older than 30 to 60 days are "automatically purged." CorrLinks
Email, ECF No. 9-1. Thus, emails relating to the February 2016 incident were no longer retained
by the time Gambino filed this Motion, such that the requested court order would not prevent the
loss of the emails in question. Accordingly, the Court denies the Motion.
IV.

Dismissal
Because the Complaint alleges no cause of action other than the request for an injunction

to preserve evidence, the Court's resolution of that issue leaves no remaining claims. Gambino
has not asserted his tort claims because, as he acknowledges, he must first exhaust administrative
remedies.

The Court therefore concludes that the Complaint, even as amended, does not state a

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claim upon which relief may be granted and must be dismissed.

S

See 28 U.S.C.

1915(e)(2)

(2012) (authorizing a court to dismiss a case brought in forma pauperis if the court determines
that the action fails to state a claim upon which relief may be granted); 28 U.S.C.

S

1915A(b)(l)

(permitting a court to dismiss a case filed by a prisoner against a governmental entity or officer
that fails to state a claim). Any future FTCA claim must be filed as a new case.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
1. The Motion to Amend, ECF No.6, is GRANTED.
2. The "Motion for a Preliminary Temporary Restraining Order to End Spoliation of
Evidence, Preserve Remaining Evidence, and Recover Evidence Previously Deleted
Pursuant to FRCP Rule 65," ECF No.3, is DENIED.
3. The "Motion for a Court Order for Recover and Preservation ofE-mails Being Stored
at Advanced Technologies Groups LLC," ECF No.9, is DENIED.
4. The Complaint is DISMISSED.
5. The Clerk shall CLOSE this case.
6. The Clerk is DIRECTED to send a copy of this Order to Gambino.

Date: June 8, 2017
THEODORE D. CHU
United States District ud

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