Van Buren et al v. Crawford, County of et al
ORDER Denying Second 140 Motion to File Third Amended Complaint and Holding 139 Motion for Relief in Abeyance. (Motion Hearing/Evidentiary Hearing set for 9/28/2017 at 2:00 PM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHELLE VAN BUREN, Personal Representative
for the ESTATE OF WILLIAM REDDIE, deceased
and WILLIAM REDDIE,
Case No. 13-cv-14565
Honorable Thomas L. Ludington
CRAWFORD COUNTY, CITY OF GRAYLING,
JOHN KLEPADLO, and ALAN SOMERO,
in their individual and official capacities,
ORDER DENYING SECOND MOTION TO FILE THIRD AMENDED COMPLAINT
AND HOLDING MOTION FOR RELIEF IN ABEYANCE
Michelle Van Buren brought this suit on behalf of William Reddie, who was fatally shot
by a Crawford County Sheriff’s Department Deputy, John Klepadlo, on February 3, 2012. ECF
No. 1. On August 3, 2016, this Court issued an order which concluded that, based on the
evidence then presented, summary judgment should be granted for the Defendants. ECF No. 84.
However, because Plaintiff was contending that the Defendants had spoliated audio evidence of
the shooting, summary judgment was not entered. During the fall of 2016, the Court held three
days of evidentiary hearings on the spoliation issue. On January 17, 2017, the Court issued an
order concluding that the City of Grayling and Officer Somero spoliated evidence and
sanctioning them, reasoning that the “simplest explanation for the missing recordings, taking all
evidence into account, is deliberate spoliation.” ECF No. 118 at 25.
The Court also found that there was no evidence that the Crawford County Sheriff’s
Department had possession of a recording of the shooting and declined to sanction Crawford
County or Deputy Klepadlo. Id. at 29–32. Although Klepadlo had not spoliated evidence and
was not being sanctioned, the questions raised by the destroyed audio recordings (in combination
with the sanctions imposed against Somero) demonstrated a material issue of fact regarding
whether Klepadlo shot Mr. Reddie with excessive force and, further, whether Somero should
have prevented that use of force. The City of Grayling and Crawford County were dismissed
because Plaintiff did not allege a policy and practice of permitting the use of excessive force,
meaning that there was no basis for liability under Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978).
Defendants have filed an interlocutory appeal of the order sanctioning Defendants. ECF
No. 119. Simultaneously with the appeal, Defendants filed a motion to stay the case during the
pendency of the appeal. ECF No. 121. On February 16, 2017, Plaintiff filed a motion seeking
leave to file a third amended complaint which adds new parties and claims related to the
evidence spoliation. ECF No. 127. On April 13, 2017, the Court denied Plaintiff’s first motion to
file a third amended complaint and denied Defendants’ motion to stay. ECF No. 133. As regards
the motion to file a third amended complaint, the Court concluded that Plaintiff’s proposed civil
conspiracy claim was noncognizable and so amendment would be futile. That is because civil
conspiracy claims are derivative and thus depend on an underlying claim. Plaintiff identified no
evidence that the Defendants had conspired, before the shooting, to use excessive force against
Mr. Reddie. And, under Michigan and federal law, there is no an independent claim or cause of
action for evidence spoliation. Thus, Plaintiff’s attempt to premise a civil conspiracy claim on
either of those two theories was futile.
Now, Plaintiff has filed two more motions. On June 15, 2017, Plaintiff filed a motion for
relief from the Court’s January 17, 2017, opinion and order imposing sanctions on Defendants.
ECF No. 139. Plaintiff explains that Defendants recently disclosed that they have discovered the
SD card which would have contained the audio recordings in question. Because Defendants have
repeatedly indicated that they did not have the card, Plaintiff now argues that this new disclosure
justifies additional sanctions. On June 21, 2017, Plaintiff filed a second motion for leave to file a
third amended complaint. ECF No. 140. Plaintiff seeks to add a First Amendment claim for
denial of access to courts. For the following reasons, the motion for leave to amend will be
denied, and the motion for relief will be held in abeyance.
The allegations surrounding Mr. Reddie’s death and the evidence spoliation were
provided in the Court’s January 17, 2017, Opinion and Order. ECF No. 118. Because the
evidence of spoliation bears considerable relevance to the current motions, a portion of that
summary will be reproduced here:
Because Mr. Reddie is deceased, all allegations regarding what transpired
in his apartment come solely from the testimony of the officers and care workers
who were present at the time. On February 3, 2012, Defendants Somero and
Klepadlo responded to reports of a potential domestic violence incident at Mr.
Reddie’s home. The officers found no evidence of domestic violence, but, after
questioning Mr. Reddie and searching his apartment, the officers discovered that
Mr. Reddie had been using marijuana in his home. Somero told Mr. Reddie that
he would be reported for using marijuana in front in his minor child, despite Mr.
Reddie’s indication that his son was sleeping in another room at the time he
smoked the marijuana. Naturally enough, Mr. Reddie was upset during his
conversation with the officers. Klepadlo Dep. at 45, ECF No. 68, Ex. A. Based on
that report, Child Protective Services visited Mr. Reddie, who admitted to
smoking marijuana but refused to consent to removal of his son. Child Protective
Services sought and obtained a court order to remove Mr. Reddie’s son. Somero,
Klepadlo, and two Child Protective Services care workers went to Mr. Reddie’s
apartment to effectuate the removal.
Upon seeing the officers, Mr. Reddie immediately picked up his son and
retreated into the apartment. He repeatedly told the officers he would not allow
them to take his son. The officers and care workers followed Mr. Reddie into his
apartment, where the situation quickly escalated. The officers testified that Mr.
Reddie was five to ten feet away from them, separated by a coffee table. They
further testified that Mr. Reddie was playing loud music and they believed he was
preparing himself to fight.
Defendant Klepadlo testified that he drew his Taser and pointed it at Mr.
Reddie. Around the same time, the care workers removed Mr. Reddie’s son from
the apartment. Soon after Klepadlo drew his Taser, one of the care workers
shouted that Mr. Reddie had a knife. In response, Klepadlo holstered his Taser
and drew his handgun. The officers testified that they told Mr. Reddie to drop the
knife, but he did not do so. Mr. Reddie then came out from behind the coffee
table. The officers testify that they told Mr. Reddie they would shoot if he did not
comply with their orders.
According to the officers, Mr. Reddie raised his hands to shoulder height
and moved towards the officers (described as a “lunge”). Klepadlo fired at Mr.
Reddie, who died instantly.
Jan. 17, 2017, Op. & Order at 2–3, ECF No. 118.
Testimony at the evidentiary hearing established that Defendants City of Grayling and
Officer Somero did not preserve any potential audio recording of the incident:
Somero testified that, on the day of the Reddie shooting, he activated his
recording device prior to both visits with Mr. Reddie. Evid. Hearing Tr. I at 12,
34. Somero also testified that he believed the in-car video was working but not the
audio. Id. at 15. After Mr. Reddie was fatally shot, Somero remained at the
apartment. Id. at 36. Once additional officers arrived, Somero was assigned to
guard the apartment door. Id. During the approximately forty-five minutes
Somero was securing the scene, he did not return to his vehicle. Id. Eventually,
Grayling Police Chief Baum told Somero to report to the Grayling Police
Department and await questioning by the Michigan State Police (MSP). Id.
Somero drove his vehicle, by himself, back to the department. Id. at 37. He
testified that he followed normal procedures for handling the SD card: he
removed the card from the system, gathered his other equipment, and set
everything down on his office desk. Id. . . . Somero testified that he does not
remember whether he handed the card to the Chief or simply referred to the
presence of the card. Id. Regardless, Somero testified that he physically furnished
the card to Chief Baum. Id. at 65. See also Somero Dep. at 157–59, ECF No. 85,
Ex. B. According to Somero, he has not seen the SD card since that evening.
Evid. Hearing Tr. I at 65. He further testified that he never talked to any other
person about the SD card. Id. at 44–45.
Chief Baum’s account of events is different. He testified that he does not
have “memory of exactly how” the post-incident events occurred. Id. at 84.
However, he did assert that “I did not make a copy of it because I did not have the
knowledge to do that.” Id. Chief Baum further stated that he did not know what
happened to the SD card and that he did not have a memory of ever seeing it. Id.
When asked if he ever handled it, Chief Baum said, “Not that I remember.” Id.
When asked if he had ever represented that the SD card had been given directly to
the MSP, Chief Baum denied any knowledge of making that representation. Id. at
84–85. At the evidentiary hearing, Chief Baum was asked whether the SD card
should have been handled with a proper chain of custody. Id. at 89. He admitted
that it should have been and that leaving the SD card lying on a desk would
violate chain of custody principles. Id. He also admitted that, to the best of his
recollection, the SD card was in Grayling Police Department custody when taken
out of Somero’s vehicle. Id. at 90.
Jan. 17, 2017, Op. & Order at 7–8.
The Michigan State Police (MSP) investigated the shooting but did not seize the SD card
containing the original audio files or pursue the possibility that the files had been intentionally
Detective Rick Sekely was the investigating MSP detective. Id. at 125. He
testified that he received a compact disc which purportedly contained the
recordings from Somero’s car on March 1, 2012, twenty-seven days after the
Reddie shooting occurred. Id. at 126. Detective Sekely was never given the SD
card and never discussed the SD card during his investigation. Id. at 126–27.
Detective Sekely requested a copy of the recordings from Chief Baum on the
night of the shooting. Id. at 127. He testified that, when questioned about the
recordings, both Chief Baum and Somero stated that there would be no audio, but
that “we’ll see if there’s video.” Id. at 128. Detective Sekely also testified that
Chief Baum told him that the manufacturer helped the department download the
SD card to the compact disc. Evid. Hearing Tr. II at 38. ProVision has no records
of doing so and Defendants have not provided any other substantiation for this
According to Detective Sekely, he asked for a copy of the recordings from
Somero’s vehicle during his initial investigation of the shooting. Evid. Hearing
Tr. I at 127. Detective Sekely did not receive the recordings, in the form of a
compact disc, until March 1, 2012. According to Detective Sekely, Chief Baum
contacted him when the disc was available. Id. at 138. Detective Sekely traveled
to the Grayling Police Department and picked up the compact disc along with
some paper reports. Id. Detective Sekely is unsure if Chief Baum came out to
greet him. Id. Several days later, Detective Sekely tried for the first time to play
the files on the disc. Id. He was unable to get the files to play, despite trying
several different computer programs. Id. at 139. Detective Sekely then emailed
Chief Baum and asked if a special program was needed to view the files. Id. at
141. Chief Baum did not respond, and Detective Sekely never followed up. Id.
The identity of the person who burned the compact disc remains unknown.
Jan. 17, 2017, Op. & Order at 9–10.
Forensic analysis of the disc provided to the MSP strongly suggested that a recording
existed at one point, that a member of the Grayling Police Department listened to it, and that the
individual then created the disc which was given to the MSP but did not transfer the actual audio
recordings onto the disc:
During the evidentiary hearing, witnesses testified about the operation of
the ProVision system and interpreted the metadata found on the otherwise
inoperable compact disc. Plaintiff’s expert, Edward Primeau, has worked in the
audio/video surveillance field for over thirty years. [Evid. Hearing Tr. III] at 62.
In that time, he provided audio/video authentication and enhancement services, as
well as evidence recovery services. Id. at 63. At the evidentiary hearing, Mr.
Primeau explained that although the compact disc provided to the MSP did not
contain any audio/visual files, it contained “metadata.” Id. at 65. According to Mr.
Primeau, metadata is “information about the file such as when it was created, the
system it was created on, the date it was created, the size of the file.” Id. at 66.
This metadata can be found using special software programs. Id.
The compact disc provided to the MSP contained fourteen “.xspf files.” Id.
at 69. These files act as a kind of directory or playlist: they point towards the
location of the underlying audio/visual recordings. Id. These .xspf files are
generated by the VLC Player software, a media player used by the Grayling
Police Department. Id. at 71. According to Mr. Primeau, .xspf files are created
through a multi-step process. First, an audio/visual file must be accessed on a
computer. Id. at 72. Second, the file must be opened in the VLC Player. Id. Third,
a playlist file had to be created via the VLC Player, named by the user, and then
saved. Id. Mr. Primeau was able to recover metadata contained in the .xspf files
which provided information about the underlying but now missing audio/visual
recording files. Id. at 72. First, he explained that each of the 14 .xspf files were
renamed by a user and contained “Reddie” in the filename. Id. at 72–73. He
further testified that the metadata indicated that each recording was exactly five
minutes long and that all fourteen recordings were created on February 3, 2012.
Id. at 73. The metadata also revealed that the recordings were from GPD02. In
summary, Mr. Primeau testified that the metadata showed that fourteen
audio/visual recordings, which were each five minutes long, were made on
February 3, 2012. Id. at 74. Those recordings were then opened in the VLC Player
and fourteen playlist files were created. Id. Those playlist files, but not the actual
audio/visual files, were then saved to the compact disc that was provided to the
MSP. Id. When asked to confirm that the metadata proved that audio/visual
recordings existed at some point in time, Mr. Primeau explained that VLC Player
would not be able to make or save the playlist files unless there was an
audio/visual file. Id. at 75–76. In order to have functionality, VLC Player must
open an actual audio/visual file. Id. However, he admitted several times that there
was no way to know conclusively whether the recordings made in this instance
contained both video and audio or only video. Id. at 116, 140.
Mr. Primeau further testified that, if a user was attempting to burn
audio/visual recordings from an SD card to a disc, loading the files in VLC Player
is both unnecessary and “clunky.” Id. at 76. Instead, a user could simply insert the
SD card into the computer, insert a blank disc, and directly copy the files from the
SD card or computer to the disc. Id. When asked what the use of the VLC Player
indicated to him, Mr. Primeau opined:
It indicates to me that the operator of this process was very
knowledgeable of taking data, putting it onto a computer and being
able to open it and view it in a player, that wasn’t the Pro-Vision
player, and save it as a playlist file, and create a name for it to help
organize all of the content.
Id. at 78.
Mr. Primeau also testified that Grayling Police Department officers
sometimes utilized the simple two step approach rather than unnecessarily using
the ProVision software. Id. at 85–86. During his search of the Grayling Police
Department computer, Mr. Primeau found evidence that, on December 5, 2012, an
individual logged into Officer Somero’s account “created a video disk by
dragging and dropping files from an SD card to his computer and then from the
computer onto a compact disc.” Id. at 86. As already mentioned, Mr. Primeau
recovered 92 recording files from GPD01 when he searched the Grayling Police
Department computer. Id. at 132. He testified that none of the files were .xspf
files, meaning that the person who downloaded the files did not use the VLC
Player to transfer the files. Id.
Mr. Primeau was asked why an individual would choose to use VLC
Player to transfer recordings from an SD Card to a compact disc. Id. at 87. He
explained that using VLC Player was “pretty much unnecessary,” and that the
only reasons he could think were “to rename the files” or “view the files.” Id.
Detective Wesley Smith also testified at the evidentiary hearing. He
confirmed that the metadata on the compact disc indicated that someone had to
affirmatively name the underlying audio/visual files. Id. at 39. He also provided
several possible reasons why the compact disc might include the .xspf pointer
files but not the actual recording files: equipment failure, operator error, or
intentional deletion. Id. 41–43. He admitted that the .xspf files indicated that
audio/visual recording files had existed at some point, meaning that equipment
failure was an unlikely explanation. Id. at 43. At least, the existence of the pointer
files indicated that there was not a complete failure of the recording system.
Detective Smith further testified that, after talking with two other MSP computer
specialists, he concluded that user error was the most likely explanation for the
missing files. Id. at 51–52. When asked how he concluded that user error was the
likely explanation, Detective Smith explained that, given the metadata on the disc,
equipment failure was unlikely. Id. at 56. He further opined that intentional
deletion was unlikely because there were better ways to destroy data than to
create the .xspf pointer files. Id. at 58.
Jan. 17, 2017, Op. & Order at 13–16.
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading
with the court’s leave and that “the court should freely give leave when justice so requires.”
Denial of a motion to amend is appropriate, however, “‘where there is ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.’” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.
2002) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Attempts to add a party to an existing case are governed by Federal Rules of Civil
Procedure 15, 20, and 21. After a responsive pleading has been served, “the standard for adding a
party is the same regardless of the rule under which the motion is made: the decision lies within
the discretion of the court.” Boyd v. D.C., 465 F. Supp. 2d 1, 2 n.3 (D.D.C. 2006) (citing Wiggins
v. Dist. Cablevision, Inc., 853 F.Supp. 484, 499 n.29 (D.D.C.1994)). See also Oneida Indian
Nation of N.Y. State v. Cty. of Oneida, N.Y., 199 F.R.D. 61, 73 (N.D.N.Y. 2000); 6 Fed. Prac. &
Proc. Civ. §§ 1474, 1479 (3d ed.).
An amendment would be futile if the amended complaint does not state a claim upon
which relief can be based. A pleading fails to state a claim under Rule 12(b)(6) if it does not
contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal,
556 U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the
pleading in the non-movant’s favor and accepts the allegations of facts therein as true. See
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed
factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678-79 (quotations and citation omitted).
Plaintiff’s proposed amended complaint seeks to add two Defendants, City of Grayling
Police Chief Doug Baum and Crawford County Sheriff Kirk Wakefield, and three claims:
violation of Plaintiff’s First Amendment right of access to courts, conspiracy under 42 U.S.C. §
1983 and conspiracy under state law. ECF No. 142, Ex. B.
The differences between Plaintiff’s second amended complaint and proposed third
amended complaint will be briefly summarized. Compare ECF No. 32 with ECF No. No. 142,
Ex. B. Besides allegations regarding the shooting, the proposed amended complaint alleges that
Klepadlo and Somero were both equipped with audio recording devices on the day of the
shooting. Prop. Am. Compl. at 4. Plaintiff asserts that the shooting was recorded onto an SD card
which was later downloaded onto a City of Grayling computer. Id. Eventually, a compact disc
was created without the underlying audio files. Plaintiff alleges that “the individually-named
Defendants destroyed the SD card and computer files” for the purpose of defeating subsequent
investigations and lawsuits. Id. The proposed amended complaint further alleges that Klepadlo’s
recording equipment saved a recording of the incident to a VHS tape system in his vehicle.
According to Plaintiff, the “individually-named Defendants destroyed the VHS tape, VHS
recording system, and police vehicle” to obstruct later investigations and lawsuits. Id. at 5.
Plaintiff’s second proposed third amended complaint as includes the following allegation:
That the individually-named Defendants not only conspired to intentionally
destroy wholly relevant evidence to the subject shooting but also conspired to
make false representations to the Michigan State Police as to the operability of the
recording systems and existence of the recorded evidence for the unlawful
purpose of hindering, obstructing, and/or defeating the due course of justice
including not only a homicide police investigation but also a subsequent civil §
The proposed third amended complaint frames a First Amendment claim for obstructing
Plaintiff’s access to the courts. Id. at 7. Plaintiff alleges that “Defendants’ actions were
obstructive when they destroyed relevant evidence” and that “substantial prejudice will inure to
Plaintiffs that cannot be remedied if this matter proceeds solely on Plaintiffs’ excessive force
claims and the jury rules for Defendants.” Id. at 8. The proposed third amended complaint also
contains a conspiracy claim under § 1983 and a conspiracy claim under state law. The substance
of the allegations regarding those claims is that each of the individually-named Defendants had
an agreement to “destroy the audio recordings, recording operation systems, [and] police
vehicles” and conspired “to make false representations of the unlawful actions to law
enforcement personnel.” Id. at 13.
Defendants argue that Plaintiff’s proposed denial of access claim is futile and thus that
the motion to amend should be denied. Defendants also contends that “Plaintiff’s motion and
brief fail to even discuss” the proposed conspiracy claims, and thus those claims are also futile.
Def. Resp. Br. at 1, ECF No. 145. However, the most reasonable reading of Plaintiff’s proposed
complaint is that that the conspiracy claims relate to the denial of access claim. In other words,
Plaintiff is alleging a conspiracy among the Defendants to deprive her of her First Amendment
right of access to courts.
To prevail on her conspiracy claims, Plaintiff must prove “an agreement between two or
more persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th
Cir. 2007). To adequately plead a conspiracy, the complaint must allege that “(1) a single plan
existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their
constitutional rights, and (3) an overt act was committed.” Id. See also Bazzi v. City of Dearborn,
658 F.3d 598, 602 (6th Cir. 2011). “Express agreement among all the conspirators is not
necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of
the details of the illegal plan or all of the participants involved.” Hooks v. Hooks, 771 F.2d 935,
944 (6th Cir. 1985). Importantly, the pleading standard for conspiracy claims under § 1983 is
“‘relatively strict.’” Gavitt v. Born, 835 F.3d 623, 647 (6th Cir. 2016) (quoting Heyne v. Metro.
Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011)). “Although circumstantial evidence may
prove a conspiracy, ‘[i]t is well-settled that conspiracy claims must be pled with some degree of
specificity and that vague and conclusory allegations unsupported by material facts will not be
sufficient to state such a claim under § 1983.’” Id.
Under both federal and Michigan law, civil conspiracy claims are derivative. They are
cognizable only insofar as there is an underlying cognizable legal claim. See Spadafore v.
Gardner, 330 F.3d 849, 854 (6th Cir. 2003); In re Rospatch Sec. Litig., 760 F. Supp. 1239, 1265
(W.D. Mich. 1991) (“The focus of a civil conspiracy claim is the damage, not the conspiracy
itself. Thus, conspiracy allegations not attached to allegations of a substantive wrong are not
actionable.”). Plaintiff’s proposed amended complaint adequately alleges that the Defendants
conspired to destroy evidence and, by doing so, committed an overt act in furtherance of the
conspiracy. Thus, the futility analysis will focus on the second element: whether the alleged
conspiracy actually impacted Plaintiff’s constitutional rights. Plaintiff’s proposed conspiracy
claims are non-futile only if Plaintiff’s claim of substantive wrong, the denial of access claim, is
A constitutional right of access to courts exists for plaintiffs with nonfrivolous legal
claims.1 Christopher v. Harbury, 536 U.S. 403, 415 (2002). Thus, like a civil conspiracy claim, a
right of access claim is predicated upon another, nonfrivolous cause of action. “Denial of access
to the courts claims may be ‘forward-looking’ or ‘backward-looking.’” Flagg v. City of Detroit,
715 F.3d 165, 173 (6th Cir. 2013). “In backward-looking claims . . . , the government is accused
of barring the courthouse door by concealing or destroying evidence so that the plaintiff is
unable to ever obtain an adequate remedy on the underlying claim.” Id. The Sixth Circuit has
summarized the elements of a backward-looking denial of access claim as follows:
(1) a non-frivolous underlying claim; (2) obstructive actions by state actors; (3)
“substantial[ ] prejudice” to the underlying claim that cannot be remedied by the
state court,; and (4) a request for relief which the plaintiff would have sought on
the underlying claim and is now otherwise unattainable. Plaintiffs must make out
the denial-of-access elements against each defendant in conformance with the
requirements of § 1983.
Id. at 174 (quoting Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997)) (internal
citations otherwise omitted).
In Swekel, the Sixth Circuit further distinguished between a denial of access claim where
the alleged abuse “occurred pre- or post-filing.” 119 F.3d at 1263.
The constitutional right of access to courts has been premised on different constitutional provisions, including the
Privileges and Immunities Clause, the First Amendment, the Fifth Amendment, and the Fourteenth Amendment. See
Cristopher, 536 U.S. at 415 n. 12.
When the abuse transpires post-filing, the aggrieved party is already in court and
that court usually can address the abuse, and thus, an access to courts claim
typically will not be viable. If the abuse occurs pre-filing, then the plaintiff must
establish that such abuse denied her “effective” and “meaningful” access to the
courts. She can do this only by showing that the defendants’ actions foreclosed
her from filing suit in state court or rendered ineffective any state court remedy
she previously may have had.
Id. at 1263–64 (internal citations omitted).
The evidence destruction here most likely occurred pre-filing. The recent revelation that the SD
card still exists raises the possibility that certain spoliation occurred after filing (when the files
on the SD card were written over). But, absent further information, the evidence spoliation likely
occurred at the time the recordings on the SD card were accessed and renamed but not properly
burned to the disc that was sent to the MSP. This case thus appears to involve pre-filing abuses.
Federal courts have consistently dismissed denial of access claims when any injury or
prejudice the plaintiff might have suffered can be redressed by pursuing existing remedies. In
Joyce v. Mavromatis, for example, the plaintiff “filed a § 1983 complaint alleging that the
defendants, acting in concert, sought to defeat her state court damage suit by revoking a traffic
citation issued to the son in Wintersville in connection with the accident and by altering the
police report filed by the Wintersville police officer who investigated the accident.” 783 F.2d 56,
56 (6th Cir. 1986). The Sixth Circuit dismissed the plaintiff’s attempt to bring a “First
Amendment access-to-the-courts claim.” Id. In so holding, the Sixth Circuit reasoned as follows:
If she is able to prove that the Police Chief’s son and his confederates undertook
to destroy evidence of the son’s negligence as a driver, there is no reason to
believe that an Ohio court and jury would be unavailable and would not do justice
between the parties. Rather than having denied access, the defendants have
opened themselves to punitive damages and converted a small claims matter into
a significant case, albeit not a federal case.
The Supreme Court has rejected denial of access claims in similar circumstances. In
Christopher v. Harbury, the plaintiff alleged that “Government officials intentionally deceived
her in concealing information that her husband, a foreign dissident, was being detained and
tortured in his own country by military officers of his government, who were paid by the Central
Intelligence Agency (CIA).” 536 U.S. 403, 405 (2002). The issue was whether that intentional
deception gave rise to a cognizable claim for denial of access to the courts. The Supreme Court
explained that, in a denial of access case, “the remedy sought must itself be identified to hedge
against the risk that an access claim be tried all the way through, only to find that the court can
award no remedy that the plaintiff could not have been awarded on a presently existing claim.”
Id. at 416. In Christopher, the Supreme Court noted that the plaintiff had advanced a number of
tort claims, other than the denial of access claim, against the Defendants. Ultimately, the
Supreme Court dismissed the plaintiff’s denial of access claim:
She has not explained, and it is not otherwise apparent, that she can get any relief
on the access claim that she cannot obtain on her other tort claims, i.e., those that
remain pending in the District Court. And it is just because the access claim
cannot address any injury she has suffered in a way the presently surviving
intentional-infliction claims cannot that Harbury is not entitled to maintain the
access claim as a substitute, backward-looking action.
Id. See also id. at n. 22 (explaining that a denial of access claim might arise “where, for example,
the underlying claim had been tried or settled for an inadequate amount given official deception,
and thus likely barred by res judicata, or where the statute of limitations had run”) (internal
citations omitted); Flagg v. City of Detroit, 715 F.3d 165, 178 (6th Cir. 2013) (explaining that
the plaintiffs had not shown substantial and irreparable prejudice to their wrongful death claim
because, even if the obstruction had not occurred, plaintiffs would not have prevailed on the
wrongful death claim).
Here, Plaintiff succeeded in filing suit and in bringing her excessive force claim to a trialready state. Plaintiff has thus not shown absolute denial from access to the courts. Accordingly,
the issue is whether Defendants’ evidence spoliation has so substantially and irreparably
prejudiced Plaintiff as to deny her a meaningful and effective opportunity to prevail on her
excessive force claim. For the reasons stated below, it did not.
Plaintiff asserts that the evidence spoliation has “frustrated and obstructed Plaintiff’s First
Amendment right to petition the judiciary for redress of grievance.” Mot. File Third Am. Compl.
at 11. But Plaintiff concedes that Plaintiff will be denied relief only if the jury concludes “that the
testimony of the four government employees sufficiently rebuts the adverse inference and
establishes that the contents of the recordings would not have favored Plaintiff.” Id.
Undoubtedly, the destruction of the audio recordings has eliminated evidence that would have
potentially been extremely probative. But it has not been established that the recording
equipment in question actually recorded intelligible audio, much less that the audio would have
conclusively established that excessive force was used. And, further, the absence of the audio
recording does not necessarily negate Plaintiff’s excessive force claim: plaintiffs regularly
succeed on excessive force claims without the benefit of audio/visual recordings of the incident.
But Plaintiff clearly suffered prejudice to her claim here. Given the circumstances
surrounding the creation and destruction of the audio files, it is more than plausible that the
recording would have aided Plaintiff’s suit. And the Sixth Circuit has held that when police
destroy evidence and delay an investigation, they substantially prejudice the plaintiff’s ability to
recover. Swekel, 119 F.3d at 1264. Thus, Plaintiff has suffered prejudice because of the
However, Plaintiff has not shown that the prejudice to her claim cannot be remedied by
this Court or that she is “unable to ever obtain an adequate remedy on the underlying claim.”
Flagg, 715 F.3d at 173. This is a fine distinction. A denial of access claim does not arise
whenever government officials engage in egregious and potentially obstructive behavior. Rather,
a plaintiff may bring a denial of access claim only when she has been denied meaningful and
effective access to courts, not simply where her claim has been disadvantaged. Because much
evidentiary misconduct can be remedied through traditional sanctions, not every instance of
evidence destruction by government officials gives rise to an independent, constitutional claim.
Here, the Court has already imposed sanctions on Defendants for the spoliation. Plaintiff
has repeatedly reiterated her belief that the sanctions were unfittingly mild. The Court has
articulated the rationale underlying the choice of sanctions in previous orders. See Jan. 17, 2017,
Op. & Order at 32–34; Feb. 8, 2017, Op. & Order at 3–4. In the January 17, 2017, Opinion and
Order, the Court noted that entry of judgment for Plaintiff based on the spoliation was a plausible
remedy, but explained that “the unlawfulness of the shooting has not been conclusively
established” and “[g]iven the absence of other evidence of excessive force, summary judgment
will not be entered for Plaintiff.” Id. at 32–33.
Thus, the sanction applied—the rebuttable presumption that the destroyed recordings
would have favored Plaintiff—was chosen because outstanding factual uncertainties remain. And
it is unlikely that recovery of the recording would fundamentally change that fact. It is very
possible that the recording was unintelligible and thus would not have provided any insight into
what occurred in Mr. Reddie’s apartment. It is also possible that the recording might have
established that Mr. Reddie was behaving in a threatening manner. Perhaps most likely, the
recording might have provided ambiguous evidence regarding the use of force. In each of those
situations, there would either be genuine issues of material fact for a jury to resolve or
Defendants would be entitled to summary judgment. Even with the audio recording, then,
Plaintiff would prevail only if she received a jury verdict. The evidence spoliation has thus
prejudiced Plaintiff’s case, but did not make success on the excessive force claim “unattainable.”
119 F.3d at 1263–64.
The present situation is comparable to that in Christopher. The Government misconduct
which occurred here has not prevented Plaintiff from litigating the underlying claim. The
evidence spoliation might have disadvantaged Plaintiff’s efforts to prevail on the excessive force
claim. But Christopher suggests that, as long as the injury which gives rise to the purported
denial of access claim can be redressed through surviving claims, the existence of some
prejudice to the plaintiff does not render a denial of access claim cognizable. Rather, a denial of
access claim can be brought only if the prejudice is so significant as to prevent effective redress
by the court where the underlying claim was brought. In Swekel, the Sixth Circuit held that “the
plaintiff must present evidence that the defendants’ actions actually rendered any available state
court remedy ineffective.” 119 F.3d 1259. Here, the Court has already sought to remedy the
evidence spoliation by imposing a rebuttable presumption that the destroyed recordings would
have favored Plaintiff. Plaintiff argues that the rebuttable presumption is insufficient to allow her
to receive effective redress, but has not adequately explained why that is so. Certainly, the jury
might find for Defendants at trial, but the Plaintiff will still have received meaningful access to
the court system. A denial of access claim is not cognizable where an alternative remedy is
sufficient to ensure effective access. The sanction imposed here was adequate. As such,
Plaintiff’s proposed denial of access is futile and the motion to amend will be denied.
Plaintiff has also filed a motion for relief wherein she essentially requests that the Court
revisit its decision to impose sanctions in light of the revelation that the City of Grayling has had
possession of the SD card all along. Plaintiff premises its motion for relief on Federal Rule of
Civil Procedure 60(b), which provides that “[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding” in certain
circumstances. The January 17, 2017, Opinion and Order where the Court sanctioned Defendants
was not a final judgment or order. As such, Rule 60(b) does not apply. But, as Defendants
concede, district courts “have authority both under common law and Rule 54(b) to reconsider
interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez
v. Tennessee Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004). Generally
speaking, reconsideration of interlocutory orders is warranted when “there is (1) an intervening
change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.” Id.
Plaintiff brings the present motion because, on June 6, 2017, Defendants provided
Second Amended Initial Disclosures which revealed that Officer Somero’s SD card has been
discovered. See Sec. Am. Discl. at 2, ECF No. 139, Ex. A. Defendants provided an
accompanying explanation for the disclosure:
Recently, we were informed by the City of Grayling that it had discovered what it
believes to be the SD card used by Officer Alan Somero on February 3, 2012.
This information was discovered during unrelated litigation where a document to
which we were not privy was located. With this document, we are able to verify
the specific SD card through its serial number. The City has reported that the
audio/video files contained on the SD card, however, are not from the subject
incident, but are from years after the subject incident. Defendants have not
conducted a forensic analysis, and, as such, have no information regarding
whether any useful information remains on the SD card. Defendants will make the
SD memory card available for inspection at a Defense Counsel’s office at a
mutually convenient time and date.
Id. at n. 1.
Plaintiff argues that the revelation that the City of Grayling still has possession of the SD
card demonstrates the falsity of the testimony of several members of the Grayling Police
Department. Plaintiff contends that, because the January 17, 2017, Opinion and Order was thus
premised on fraudulent information provided by Defendants, it should be revised. Defendants
argue that Plaintiff’s motion for relief is premature because it is currently unknown whether the
recordings of the shooting can be recovered from the card.
Given the numerous uncertainties regarding the discovery of the SD card and whether
any relevant files can be recovered from it, Plaintiff’s motion for relief cannot be resolved at this
time. It is undisputedly true that Plaintiff has sought the SD card in question since the initiation
of the litigation and that the City of Grayling and its representatives have repeatedly asserted that
the SD card’s location was unknown. As reflected in the factual summary above, there was
contradictory testimony regarding who took possession of the card after the shooting and
whether (and when) it was provided to the MSP. Accordingly, the disclosure that the SD card in
question has not only been in the City’s possession the entire time, but has also been in use, is
nothing short of surprising. The fact that Officer Somero was assigned the same card after
returning to active duty also merits further investigation. It is unclear whether Defendants
contend that the assignment was random, which would be a striking coincidence. If the
assignment was not random, that strongly suggests that the Grayling Police Department not only
knew where the SD card was, but also knew whose it was during the time in question.
Given the fact that the card was apparently used by Officer Somero upon his return to
active duty after the shooting, it seems likely that the audio files have been overwritten. If that is
the case, then the prejudice to Plaintiff has not fundamentally changed: because of Defendants’
recklessness (or worse) regarding the SD card, the audio files recorded at the time of the
shooting have been lost. Thus, the discovery of the SD card is relevant primarily to the
determination of the Grayling Police Department’s level of culpability when it destroyed
evidence. Additional investigation is necessary to determine whether additional sanctions should
On the other hand, if the recordings made on the day of the shooting can be recovered
from the SD card, then the order sanctioning Defendants might need to be revisited for different
reasons. The evidentiary spoliation here was sanctionable precisely because it deprived Plaintiff
of what might have been extremely probative evidence of what occurred in Mr. Reddie’s
apartment. If that evidence is available to Plaintiff after all, then Plaintiff has suffered little
prejudice (apart from delay). If the recordings of the event in question exist, it would make little
sense to impose a rebuttable presumption regarding the content of the recordings. Rather, the
jury would be permitted to listen and draw its own conclusions.
In short, more information is needed to determine whether the discovery of the SD card
necessitates revisions to the sanction imposed against Defendants. If further investigation reveals
additional evidence of culpable, obstructive behavior by the Grayling Police Department,
additional sanctions might be warranted. On the other hand, if forensic analysis recovers the
recordings in question, then the existing sanction is superfluous. An evidentiary hearing will be
scheduled. At the hearing, testimony should focus on whether forensic analysis of the SD card
has occurred, what that analysis revealed, why the SD card was only identified recently, and why
contradictory testimony regarding the location of the SD card was previously provided.
Accordingly, it is ORDERED that Plaintiff’s second motion for leave to file a third
amended complaint, ECF No. 140, is DENIED.
It is further ORDERED that an evidentiary hearing on Plaintiff’s motion for relief, ECF
No. 139, is SCHEDULED for September 28, 2017 at 2:00 p.m.
Dated: August 14, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 14, 2017.
KELLY WINSLOW, Case Manager
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