Avery v. Taylor et al
Filing
31
OPINION AND ORDER denying 18 motion for summary judgment, denying motion for sanctions 15 , dismissing J. Michael Taylor and setting Final Pretrial & Trial dates. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMAL AVERY,
Case No. 10-10447
Plaintiff,
HONORABLE DENISE PAGE HOOD
v.
J. MICHAEL TAYLOR, DWAYNE
CRAWFORD, KEYONN WHITFIELD,
CHRISTOPHER KURISH, NICHOLAS
KURISH, MICHAEL ZARATE, and
SAMUEL LENTINE,
Defendants.
________________________________________/
OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT,
DENYING MOTION FOR SANCTIONS,
DISMISSING J. MICHAEL TAYLOR AND SETTING
FINAL PRETRIAL AND TRIAL DATES
I.
INTRODUCTION
This matter is before the Court on a Motion for Sanctions and Motion for Summary
Judgment. Responses and replies have been filed and a hearing held on the matter.
On November 17, 2009, Plaintiff Jamal Avery filed the instant action before the Wayne
County Circuit Court, State of Michigan, which was removed to this Court on February 2, 2010.
The Defendants are Michigan State Troopers: J. Michael Taylor,1 Dwayne Crawford, Keyonn
Whitfield, Christopher Kurish, Nicholas Kurish,2 Michael Zarate and Samuel Lentine. The
Complaint alleges four counts: Violation of Plaintiff’s Constitutional Rights under the Fourth and
1
A Suggestion of Death was filed as to J. Michael Taylor (Doc. No. 13). No amendment
to the Complaint was filed to add the Estate of J. Michael Taylor. The Court dismisses
Defendant J. Michael Taylor from this action.
2
No Answer or appearance by counsel has been filed on behalf of Nicholas Kurish.
Fourteenth Amendments–Excessive Force (Count I); Violation of Plaintiff’s Fourth Amendment
Right against Malicious Prosecution (Count II); Assault and Battery (Count III); and Malicious
Prosecution (Count IV). A Stipulation and Order was entered dismissing the malicious prosecution
claims in Counts II and IV. (Doc. No. 29) The remaining claims are the Excessive Force claim
(Count I) and Assault and Battery3 (Count III).
On May 3, 2008, Avery went with friends, Maultees Hill and Delano Dumas, to Windsor,
Canada. (Avery Dep., p. 31) They went to a few bars in Canada. After his third beer, Avery claims
he stopped drinking because he lost his wallet and he did not have any more money. (Avery Dep.,
pp. 36-37) Avery and his friends left Canada after 2:00 a.m., returning to the United States via the
Detroit-Windsor tunnel. (Avery Dep., pp. 36, 39) Dumas was driving a blue Volvo with Hill in the
front passenger seat and Avery in the back seat behind Hill. (Avery Dep., pp. 39-40) They were
on the Lodge Freeway when they came upon an accident. Trooper Crawford instructed Dumas to
stop and wait for the wrecker to clear. (Avery Dep., pp. 50-51) Dumas asked Trooper Crawford
about getting by the scene, and after words were exchanged between the two, a verbal altercation
ensued between Dumas and Trooper Crawford. (Avery Dep., p. 53) Dumas drove past the accident
scene at which time Crawford radioed other Troopers to find and pull over the blue Volvo.
(Crawford Dep. at 14)
Troopers C. Kurish and Whitfield pulled over the blue Volvo. (Kurish Dep., p. 13) Trooper
C. Kurish went to the driver’s side of the blue Volvo, while Whitfield went to the other side.
(Kurish Dep., p. 14) Trooper C. Kurish informed Dumas he was being pulled over for not having
his seatbelt buckled even though Avery claims Dumas had his seatbelt fastened. (Avery Dep., p.
3
No summary judgment motion was filed on the Assault and Battery claim.
2
59) Dumas was asked to produce his driver’s license which he could not immediately find. (Avery
Dep., p. 59) Trooper C. Kurish removed Dumas from the blue Volvo, handcuffed him, and placed
him in C. Kurish’s police vehicle. (Kurish Dep., p. 16) Dumas’ blood alcohol level was .05.
(Kurish Dep., p. 18)
Troopers Crawford and Taylor arrived at the scene at 3:21 a.m. (Crawford Dep., p. 30)
Avery claims that Trooper Taylor approached the blue Volvo and threatened him with a shotgun.
(Avery Dep., pp. 61-62) Words and profanities were exchanged between Avery and the Troopers
at ths scene. (Avery Dep., p. 72) Avery exited the blue Volvo voluntarily and he was handcuffed
by Trooper Whitfield. (Avery Dep., p. 75) Avery and Hill were then placed on the pavement
against the embankment. (Video, at 3:23:30) Avery thereafter calmed down. (Crawford Dep., p.
29; Zarate Dep. p. 30) A third police vehicle arrived occupied by Troopers Zarate and Lentine.
(Crawford Video at 3:25:06) Avery complained to Zarate that his handcuffs were too tight. (Avery
Dep., p. 125) Whitfield walked over to Avery and squeezed the handcuffs tighter which Avery
claims caused a bruised nerve and numbness. (Avery Dep., p. 126)
The blue Volvo was searched and nothing was found. (Whitfield Dep., p. 39) C. Kurish
performed a search on the Law Enforcement Information Network (LEIN) to determine whether
Avery and his friends had criminal records and none were found. (Kurish Dep., p. 24) Trooper
Zarate informed Avery there was no cause to arrest him, removed his handcuffs and told him to
climb up the freeway embankment, indicating the blue Volvo was going to be impounded. (Zarate
Dep., pp. 30, 45; Avery Dep. pp. 85-86, 89) Avery refused to climb the embankment, not wanting
to have to walk home and not wanting to leave his friends. (Avery Dep., p. 89) Avery asked what
the alternative to climbing the embankment was and Trooper Zarate told him that he would be
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arrested. (Zarate Dep., p. 47) Avery told Trooper Zarate he would rather be arrested than climb the
embankment and walk home. (Zarate Dep., p. 48) Avery asked Trooper Zarate twice to arrest him.
(Avery Dep. pp. 90-91) Trooper Zarate then grabbed Avery by the right arm and choked him.
(Avery Dep., p. 91) Avery deflected Trooper Zarate’s second strike. (Avery Dep., p. 91) Avery
and Trooper Zarate wrestled, at which time, Trooper Lentine used the Taser on Avery. (Avery Dep.,
p. 95) The taser did not work so Trooper Lentine helped Trooper Zarate by throwing Avery down
to the ground. (Avery Dep., p. 95) Trooper Zarate held Avery down on the ground and after Avery
was subdued, Trooper Whitfield knelt down beside him and punched Avery around his eye. (Every
Dep., p. 101) Avery was then placed in handcuffs, lifted to his feet and slammed onto the hood of
the police vehicle by Trooper Zarate. (Crawford Video at 3:38:05) Troopers Zarate and Lentine
placed Avery in the back of their vehicle, drove to the Michigan State Police post and placed Avery
in a cell.
Avery was released within the hour and asked to file a complaint form. (Avery Dep., p. 119)
The Post was out of complaint forms and he was told to file a complaint with the Detroit Police
Station. The Detroit Police told Avery to return to the Post to file his complaint, which he did and
discussed the events with a Lieutenant at the Post. (Avery Dep., pp. 114, 121) Photos and medical
records from the Henry Ford Hospital show that Avery suffered swelling and bruising around his
right eye, contusion to the eye, had an abrasion to the left forehead, subconjunctival hemorrhage and
neck pain. (Response, Exs. F and G)
II.
ANALYSIS
A.
Summary Judgment Standard
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary
4
judgment if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The presence of factual disputes
will preclude granting of summary judgment only if the disputes are genuine and concern material
facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact
is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. Although the court must view the motion in the light most favorable to the
nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial. In such a situation, there can be
“no genuine issue as to any material fact,” since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp.,
477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material.
Anderson, 477 U.S. at 248.
B.
Qualified Immunity
1.
Law
Defendants Crawford, Whitfield, C. Kurish, Zarate and Lentine move for summary judgment
asserting they are entitled to qualified immunity. Avery responds that the motion should be denied
because these Defendants used excessive force on Avery and/or failed to intervene against the use
of excessive force on Avery.
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Government officials are entitled to qualified immunity where their actions do not “violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Green v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity is an initial threshold question the court is required to rule
on early in the proceedings so that the costs and expenses of trial are avoided where the defense is
dispositive. Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is “an entitlement not
to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.
The Supreme Court in Saucier v. Katz instituted a two-step inquiry to determine qualified
immunity which inquiry was to be performed sequentially. In Pearson v. Callahan, 555 U.S. 223
(2009), the Supreme Court abandoned the requirement that the inquiry must be performed
sequentially. Although courts are free to consider the questions in whatever order is appropriate,
the Supreme Court ruled that the two questions announced in Saucier v. Katz remain good law and
that it is often beneficial to engage in the two-step inquiry. Pearson, 555 U.S. at 236.
The first inquiry to determine qualified immunity is, taken in the light most favorable to the
party asserting the injury, do the facts alleged show the official’s conduct violated a constitutional
right. Siegert v. Gilley, 500 U.S. 226, 232 (1991). ?To successfully state a claim under 42 U.S.C.
§ 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation
of that right by a person acting under color of state law.” Russo v. City of Cincinnati, 953 F.2d 1036
(6th Cir. 1992). The following requirements must be met: (1) the conduct at issue must have been
under color of state law; (2) the conduct must have caused a deprivation of constitutional rights; and
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(3) the deprivation must have occurred without due process of law. Nishiyama v. Dickson County,
814 F.2d 277, 279 (6th Cir. 1987). As § 1983 is not itself a source of substantive rights, and only
a method for vindicating federal rights elsewhere conferred, a plaintiff must set forth specific
constitutional grounds for asserting a § 1983 claim. Graham v. Connor, 490 U.S. 386, 393-394
(1989); Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).
If no constitutional right would have been violated, there is no necessity for further inquiries
concerning qualified immunity. Saucier, 533 U.S. at 201. If a violation could be made out, the next
step is to determine whether the right was clearly established in light of the specific context of the
case, not as a broad general proposition. Id. Under the doctrine of qualified immunity, an official
will not be found personally liable for money damages unless the official’s actions violate “clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow, 457 U.S. at 818. The “clearly established” rights allegedly violated by the official cannot
be considered at an abstract level, but must be approached at a level of specificity, “[t]he contours
of the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “Reasonableness” is
a question of law to be decided by the trial court. Jeffers v. Heavrin, 10 F.3d 380 (6th Cir. 1993).
?The right to be free from excessive force is a clearly established right. Excessive force
claims are to be analyzed under the Fourth Amendment’s ‘objectively reasonable’ test, not under
a substantive due process standard.” Walton v. City of Southfield, 995 F.2d 1311, 1342 (6th Cir.
1993) (citing Graham v. Connor, 490 U.S. 386 (1989)). The Court addresses Avery’s five-identified
incidents of excessive force to determine whether Avery’s clearly established right to be free from
excessive force has been violated and if so whether the officers are entitled to qualified immunity.
7
2.
Excessive Handcuffing Claim against Whitfield
Avery’s first excessive force claim is that Trooper Whitfield handcuffed Avery too tightly
and then further tightened the cuffs after Avery complained that the cuffs were too tight. The Fourth
Amendment prohibits unduly tight or excessively forceful handcuff during the course of a seizure.
Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009). To create a genuine
issue of material fact to survive summary judgment on an excessive handcuffing claim, a plaintiff
must offer sufficient evidence that: 1) he complained the handcuffs were too tight; 2) the officer
ignored those complaints; and 3) the plaintiff experienced some physical injury resulting from the
handcuffing. A defendant officer may still be entitled to summary judgment on the basis of qualified
immunity if it would not be clear to a reasonable officer that he was violating plaintiff’s rights. Id.
at 401.
Avery presented sufficient evidence to show an excessive handcuffing claim in order to
survive summary judgment. Avery testified that he complained that his handcuffs were “too tight”
to Trooper Zarate. (Avery Dep., p. 125). Trooper Zarate then told Trooper Whitfield that “[you]
put the cuffs on too tight” but instead of loosening the cuffs, Avery testified that Trooper Whitfield
walked over to him and “squeezed the cuffs tighter on me,” causing a bruised nerve and numbness
on Avery’s thumb which lasted for a “month and a half.” (Avery Dep., pp. 125-26) Trooper
Whitfield’s action in making the cuffs tighter, as testified to by Avery, was not an action a
reasonable officer in the same situation would have made. Trooper Whitfield is not entitled to
qualified immunity on Avery’s excessive handcuffing claim.
3.
Choke Claim against Zarate
Avery asserts that Zarate choked him in violation of his right to be free from excessive force.
8
“[T]he reasonableness of an officer’s belief as to the appropriate level of force should be judged
from that on-scene perspective.” Graham, 490 U.S. at 396. “[C]areful attention the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id.
Avery has shown sufficient facts to survive summary judgment on this claim. Both Avery
and Zarate testified that Avery was told to climb up the freeway embankment and leave the scene
after it was determined there were no outstanding warrants on Avery. (Avery Dep., pp. 85-86;
Zarate Dep., pp. 30, 45) Avery refused to do so claiming that he did not want to walk by himself
at 3:30 a.m. and leave his friends. (Avery Dep., p. 89) Avery instead asked to be arrested, placing
his wrists together in front of his body to invite a handcuffing. (Avery Dep., pp. 90-91) Instead,
AVERY testified that Zarate grabbed his right arm and with Zarate’s left arm, choked Avery before
engaging Avery’s entire body. (Crawford Video at 3:36:19-21) Avery testified that after being
choked the first time by Zarate, Avery deflected Zarate’s second strike. (Avery Dep., at 91)
Defendants argue that Zarate was defending himself after Avery first made contact with Zarate and
that the video supports their version of the contact. A review of the video, which is grainy, does not
clearly show whether Avery attacked Zarate in the first instance. Avery’s testimony that he
requested to be arrested instead of having to walk away from the scene at 3:30 in the morning and
that Zarate initially choked him after his request, create a genuine issue of material fact that his right
to be free from excessive force was violated. Avery was not attempting to flee; to the contrary, he
requested to be arrested. Trooper Zarate’s initial choking of Avery was not objectively reasonable
in light of Avery’s request to be arrested. Griffith v. Coburn, 473 F.3d 650, 657 (6th Cir.
9
2007)(Choking an individual without provocation is excessive force which is objectively
unreasonable.). Trooper Zarate is not entitled to qualified immunity.
4.
Taser Use Claim against Lentine
Avery asserts that Lentine’s use of the Taser on him was excessive force given that Avery
was not attempting to flee or resist arrest. Sixth Circuit precedent dating back to 1994, indicates that
spraying a suspect with mace–then the equivalent of later-developed sprays and electroshock
devices–can amount to excessive force if used unreasonably against a non-resisting suspect.
Schmalfeldt v. Roe, 412 Fed.Appx. 826, 828 (6th Cir. Feb. 23, 2011)(citing Adams v. Metiva, 31
F.3d 375, 387 (6th Cir. 1994)).
Avery has presented sufficient facts to create a genuine issue of material fact that Lentine’s
use of the Taser was excessive force. It was after Avery requested to be arrested instead of walking
away from the scene that the Taser was used on him by Lentine. Avery claims that the video of the
incident shows that Trooper Crawford stated right before the use of the Taser, “What did I tell you
... he’s gonna zap his ass.” (Video, 3:36:29) As Trooper Zarate wrestled with Avery, Trooper
Lentine approached the two and deployed the Taser into Avery’s chest. (Video, 3:36:30) Although
Defendants argue that at this point, Avery was not cooperating with the Troopers, given that Avery
requested to be arrested there is a genuine issue of material fact whether the use of the Taser was
necessary. The use of a Taser on an individual is unreasonable if not necessary. Trooper Lentine
is not entitled to qualified immunity.
5.
Face Punch Claim against Whitfield
Avery claims that Trooper Whitfield’s punch to his face after Avery was subdued was
excessive force. After Avery had asked to be arrested instead of leaving the scene, he was subdued
10
on the ground by the Trooper. Avery testified that Trooper Whitfield knelt down beside him saying,
“shut the fuck up, shut the fuck up,” while punching him around his eye. (Avery Dep., p. 101)
Trooper Whitfield testified that he had applied a “mandibular angle” technique to Avery’s neck to
subdue him. (Whitfield Dep., p. 59) It is clearly established that putting exceptional pressure on
a suspect’s back while that suspect is in a face-down prone position after being subdued and/or
incapacitated, constitutes excessive force. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904
(6th Cir. 2004). Avery has presented sufficient evidence to create a genuine issue of material fact
that Trooper Whitfield used excessive force when he punched Avery repeatedly who was already
subdued on the ground. Given that it was Avery who requested to be arrested, any force used to
arrest him would be unreasonable. Trooper Whitfield is not entitled to qualified immunity.
6.
Slamming Claim against Zarate
Avery claims that Trooper Zarate slammed him onto the hood of the police vehicle when he
was already subdued and handcuffed. After Avery had asked to be arrested, placed on the ground,
handcuffed and then lifted to his feet, Avery claims Trooper Zarate forcefully slammed him onto the
hood of the police vehicle. (Video, 3:38:05) Avery has presented sufficient facts to avoid summary
judgment on this claim. It was Avery who requested to be arrested so any force used to arrest him,
including slamming Avery onto the police vehicle was not reasonable. Trooper Zarate is not entitled
to qualified immunity.
7.
Failure to Intervene Claim against Crawford and C. Kurish
Avery argues that Troopers Crawford and C. Kurish’s failure to intervene during the use of
excessive force by the other troopers is in violation of his Fourth Amrendment right to be free from
excessive force. An officer who fails to act to prevent the use of excessive force may be held liable
11
when 1) the officer observed or had reason to know that excessive force would be or was being used;
and 2) the officer had both the opportunity and the means to prevent the harm from occurring.
Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).
Avery asserts that it was the video on Crawford’s police vehicle which taped the incident.
Crawford’s voice could be heard saying, “He keeps fucking with Keyonn [Whitfield], he’s going
to be in trouble,” and then “What did I tell you ... he’s gonna zap his ass.” (Video 3:36:10, 3:36:29)
Trooper C. Kurish was in a vehicle with Trooper Whitfield. Trooper Kurish stayed in the vehicle
when Avery was being arrested. (Kurish Dep., pp. 24, 27) When interviewed by the Michigan State
Police Internal Affairs on May 23, 2008, Trooper C. Kurish testified that he saw Trooper Lentine
use the Taser on Avery and then Avery fell to the ground with Troopers Lentine and Zarate. (Resp.,
Ex. H) Avery has shown that Troopers Crawford and C. Kurish observed or had reason to know that
excessive force would be or was being used on Avery. Avery has also shown that Troopers
Crawford and C. Kurish had the opportunity and the means to prevent any use of excessive force
on Avery by the other Troopers since Avery was the one who requested to be arrested. All the
troopers were in close proximity to Avery. Avery has presented sufficient evidence to defeat
summary judgment on the claim that Troopers Crawford and C. Kurish failed to prevent the use of
excessive force. Given that Avery requested to be arrested, a reasonable officer in Troopers
Crawford and C. Kurish’s positions would have known that they were required to intervene during
any use of force to arrest Avery. Troopers Crawford and C. Kurish are not entitled to qualified
immunity.
8.
Avery’s Injuries
Defendants argue that because Avery suffered “modest injuries,”on his claims of excessive
12
force the jury would find against Avery. The extent of the injury is not relevant since the Sixth
Circuit has declined to adopt a de minimis injury requirement for excessive force claims under the
Fourth Amendment. A plaintiff may “allege use of excessive force even where the physical contact
between the parties did not leave excessive marks or cause extensive physical damage.” Morrison,
583 F.3d at 407. Here, Avery presented testimony of his injuries, as well as photographs and
medical records. Defendants’ summary judgment motion based on the “modest” extent of Avery’s
injuries is denied.
C.
Motion for Sanctions Based on Defendants’ Spoliation of Evidence
Avery seeks sanctions under Rule 37(b)(2) of the Rules of Civil Procedures against
Defendants for spoliation of evidence–the video and audio of the incident. Avery claims that there
is missing footage on the video that was produced during discovery. Avery also claims Defendants
failed to preserve the audio/video recording from the other two vehicles at the scene. Avery cites
to a different case involving Trooper Kurish where Trooper Kurish also failed to produce a video
recording of an incident. See, Kamel v. Whitfield, Case No. 09-11782 (E.D. Mich.)(O’Meara).
In response, Defendants argue that sanctions are not appropriate in this case because they
have not violated any court order regarding the production of the videos. As to the two video tapes
Avery alleges were not preserved, Troopers Kurish and Zarate explained in their depositions why
no videos of the incident were generated in their cars. Trooper Kurish testified that he had ejected
the tape in the course of investigating another case when he received a call to assist another trooper
and did not place another video tape in his car. (Kurish Dep., pp. 20-21) Trooper Zarate testified
at his deposition that his car was the last to arrive at the scene and he was in back of a large Police
vehicle, a Tahoe. Trooper Zarate indicated he probably did not switch on his video when he came
13
on the scene. (Zarate Dep., pp. 24-26) Regarding the gap on the video of the incident produced to
Avery by Defendants, Defendants explain that the gap in the video happens during the traffic stop,
but not at a critical or important moment of the incident. The most probative part of the video was
preserved. Defendants claim that none of the witnesses testified about anything crucial that occurred
before the altercation. Defendants argue that no sanctions should be issued as to the video tapes.
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve
property for another’s use as evidence in pending or reasonably foreseeable litigation.” Forest
Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402, at *1 (E.D. Mich. Apr. 14,
2009)(quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)) Spoliation
is “the intentional destruction of evidence that is presumed to be unfavorable to the party responsible
for its destruction.” Beck v. Haik, 377 F.3d 624, 641 (6th Cir. 2004)(overruled on other grounds).
The Sixth Circuit, in an en banc decision, joined its sister circuits in ruling that spoliation of
evidence issue is governed by federal law and is evidentiary in nature. Adkins v. Wolever, 554 F.3d
650, 652 (6th Cir. 2009)(en banc). The district court has broad discretion in crafting a proper
sanction for spoliation, including dismissing a case, granting summary judgment, or instructing a
jury that it may infer a fact based on lost or destroyed evidence. Id. at 652-53. A proper sanction
will serve the purpose of leveling the evidentiary playing field and sanctioning the improper
conduct. Id. at 652 (quotation omitted). Any adverse inference from spoliation, while not entirely
dependent on bad faith, is based on the spoliator’s mental state. Joostberns v. United Parcel Serv.,
Inc., 166 Fed. Appx. 783, 797 (6th Cir. 2006)(citation omitted). The standards of conduct regarding
the duty to preserve evidence have evolved in recent years.
The Sixth Circuit has required a
showing of bad faith to justify an adverse inference from spoliation of evidence. Tucker v. General
14
Motors Corp., 1991 WL 193458, at *2 (6th Cir. Sept. 30, 1991)(unpublished)(A court may not allow
an inference that a party destroyed evidence that is in its control, unless the party did so in bad faith.)
“When a party is found to have deliberately destroyed evidence that is important to the opposing
party’s ability to present a claim or defend itself from a claim, the court has the discretion to impose
sanctions on the spoliating party.” Chrysler Realty Co., LLC v. Design Forum Architects, Inc., 2009
WL 1872444 (6th Cir. Jun. 30, 2009)(unpublished).
In this case, Avery has not alleged that any spoliation of the evidence was made in bad faith.
It is true that a litigant has the duty to preserve evidence; however, the court may not allow an
inference that a party destroyed evidence at trial unless bad faith is shown. If relevant, at trial, the
Court will allow testimony regarding the video tapes. However, the Court will not give the
spoliation instruction presented by Avery since bad faith has not been shown or alleged in this
instance.
III.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 18, filed
2/2/2011) is DENIED. Counts I (Excessive Force) and III (Assault and Battery) remain.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Sanctions (Doc. No. 15, filed
1/20/2011) is DENIED.
IT IS FURTHER ORDERED that Defendant J. Michael Taylor is DISMISSED.
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IT IS FURTHER ORDERED that the Final Pretrial Conference is set for Monday,
November 21, 2011, 3:15 p.m. The proposed Joint Final Pretrial Order as set forth in E.D. Mich.
LR 16.2, be submitted by November 14, 2011. Trial is scheduled for Tuesday, January 10, 2012,
9:00 a.m.
s/Denise Page Hood
United States District Judge
Dated: September 30, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 30, 2011, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
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