Davis v. Hinds County, Mississippi et al

Filing 166

ORDER denying 92 Motion for Sanctions; denying 154 Motion for Sanctions. Signed by Magistrate Judge F. Keith Ball on 9/27/18 (RBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHAKAKHAN R. DAVIS

PLAINTIFF

vs.

CIVIL ACTION NO. 3:16-cv-674-DPJ-FKB

HINDS COUNTY, MISSISSIPPI

DEFENDANT
ORDER

This case is before the Court on two motions for sanctions, [92] and [154], filed by Plaintiff
Chakakhan R. Davis. Proceeding pro se, Davis asserts various claims under federal and state law
against Hinds County, Mississippi. Her claims relate to her May 26, 2015, arrest and subsequent
detention at the Hinds County Detention Facility. Davis requests that the Court impose sanctions
on Hinds County relating to certain discovery responses and the delayed production of body-worn
camera (“BWC”) footage of her arrest.
I. Factual Background
Davis filed suit in the Circuit Court of Hinds County, Mississippi on August 2, 2016. Hinds
County, along with other since-dismissed defendants, removed the case to this Court on August
29, 2016. On October 27, 2016, the Court stayed discovery in the case pending resolution of several
immunity-based motions to dismiss. The Court lifted the stay on May 23, 2017, and held a
telephonic case management conference on June 27, 2017.
On July 20, 2017, Davis propounded her first set of interrogatories and requests for
production of documents to Hinds County. [40]; [41]. Davis asked Hinds County to identify any
BWC footage of her arrest and detention and to produce the same. [90-1] at 14; [92] at 8. In an
interrogatory response propounded on September 26, 2017, Hinds County stated, “[t]here were no
body cameras worn by any of the County officers on May 26, 2015, or during the course of

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Plaintiff’s May 2015 incarceration.” [90-1] at 14. In response to a request for production, Hinds
County stated, “Defendant would affirmatively aver that the officers did not wear ‘body cam
recorder[s]’ and as such, no such recordings exist. Defendant does not have in its possession any
other video or audio recording pertaining to Plaintiff.” [92] at 8.
After receiving Hinds County’s discovery responses, Davis continued to seek information
regarding the existence of BWC footage of her arrest and detention. On December 21, 2017, she
propounded a second set of interrogatories and requests for production. [69]; [70]. Davis requested
that Hinds County identify any written policies it had with regard to BWCs and the date that those
policies went into effect. [90-2] at 1. In response, on February 8, 2018, Hinds County produced a
a copy of the Hinds County Sheriff’s Department (“HCSD”) policy on BWCs. [92-2]. That policy
went into effect on May 1, 2015, twenty-five days before Davis’s arrest. Id. The policy required,
inter alia, that officers assigned cameras “activate the BWC to record all law enforcement related
contacts with citizens in the performance of official duties.” Id. at 2.
On February 20, 2018, Davis filed her first motion for sanctions [92]. Davis contended that
Hinds County improperly destroyed, or failed to preserve, BWC footage of her arrest. In support
of this allegation, Davis attached as an exhibit an audio CD containing recordings from her cell
phone of the arrest. [92-1]. One of the audio recordings includes her interaction with an HCSD
deputy in the minutes prior to her arrest. Id. at Track 2, time stamp 1:20. In the recording, the
deputy tells Davis, “I got it right here, right here. You trying to record everything? You don’t need
it, I got it right here. See what I’m saying? I’m recording.” Id.
Based on the HCSD policy and her cell phone recording, Davis asserted that her arrest
must have been recorded using a BWC. Davis contended that despite Hinds County’s discovery

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responses to the contrary, BWC footage of her arrest must have existed at some point, but Hinds
County had failed to preserve or produce it. She requested sanctions under Fed. R. Civ. P. 37(e).
On March 14, 2018, Hinds County filed its response to Davis’s motion for sanctions. In its
response, Hinds County shifted its position on whether the two deputies at the scene, Bobby
Nichols and Corey Carr, had been wearing BWCs at the time of the arrest. Specifically, Hinds
County essentially admitted that they had been wearing cameras at the time, but denied that any
footage of the arrest existed.
In support of its response, Hinds County filed an affidavit from HCSD IT Officer Warren
Finch. In his affidavit, Officer Finch testified that “[i]n May 2015, at the time of [Davis’s arrest] .
. . , patrol deputies were assigned body cameras which were worn by the officers.” [104-3] at 1.
However, Finch testified that he had conducted a search of Deputy Nichols’s and Deputy Carr’s
cameras and their respective folders on the HCSD server, and he found no footage of Davis’s May
26, 2015, arrest. Id. at 2. Further, Finch explained that he was the only employee with the ability
to delete BWC footage and that he had not deleted footage from these officers’ folders. Id. He
testified, “[t]o my knowledge no one has deleted any footage created by and/or uploaded by
Deputies Nichols or Carr . . . .” Id.
The Court considered Davis’s motion, Hinds County’s response, and Davis’s rebuttal.
Because the Court could not reconcile Finch’s affidavit with Davis’s recording of the deputy
telling her that he was filming the arrest, the Court deferred ruling on the motion and set the matter
for hearing. [145] at 6. The Court scheduled the hearing for July 17, 2018, and required that Hinds
County secure the presence of Deputies Nichols, Carr, and Finch. Id.
On July 9, 2018, defense counsel served supplemental discovery responses stating that
Hinds County had recovered video files of Davis’s arrest, which had been recorded by Deputy

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Carr’s BWC, and was producing them. [152], [154] at 3-4. On July 10, 2018, defense counsel sent
an email to the undersigned’s chambers explaining that “[t]he County’s IT Officer was able to
recover two video files created by Deputy Carr from the scene of Plaintiff’s May 26, 2015, arrest.”
Counsel stated that Hinds County had supplemented its discovery responses and provided Davis
with a disc containing the files.
On July 13, 2018, Davis filed a second motion for sanctions against Hinds County [154].
Davis argued that Hinds County “willfully provided discovery answers or responses known to be
false.” [154] at 9. She moved for sanctions pursuant to Fed. R. Civ. P. 11 and 37.
On July 17, 2018, the Court held its hearing. Davis failed to attend despite having received
notice, and the Court held the hearing in her absence.1 Defendants made available two of the three
witnesses addressed in the June 28, 2018, Order: Deputy Nichols and IT Officer Finch.2
Although the hearing had originally been set to determine the appropriateness of sanctions
under Fed. R. Civ. P. 37(e), the production of the BWC footage of Davis’s arrest changed the focus
of the hearing. Instead, the hearing focused on whether Hinds County and/or its counsel should be
sanctioned for Hinds County’s incorrect discovery responses from September 2017, inaccurate
response to Davis’s motion and supporting Finch affidavit, and failure to recover and produce the
BWC footage sooner.

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The July 17, 2018, hearing date and time was set by the Court in Order [145]. The Court mailed a copy of the
Order to Davis on June 28, 2018 (as noted by a non-public staff note in the CM/ECF docketing system).
Additionally, Davis has signed up to receive electronic notification of, and access to, docket entries in this case. The
CM/ECF system reflects that she received a copy of the Order by email at 9:21 AM CDT on June 28, 2018.
Moreover, Plaintiff has sent numerous emails to the Court during the course of this litigation from that email
address. In fact, she sent an email to the undersigned’s chambers on the morning of July 17, 2018, informing the
Court that she would not be attending the hearing due to pending motions to recuse [143] and [146], as well as
transportation issues. The Court read a summary of that email into the record at the start of the July 17 hearing.
2
In an affidavit filed prior to the hearing, defense counsel informed the Court that former Deputy Carr is now
employed with the United States Department of Homeland Security/Immigration and Customs Enforcement, and is
presently located in New Mexico. [151]. For these reasons, and because Defendants made the other two witnesses
available, the Court excused his absence during the hearing.

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Deputies Nichols and Finch both testified at the hearing. Defense counsel also provided
explanations and answered questions from the Court regarding Hinds County’s discovery
responses, Finch’s affidavit, and defense counsel’s efforts to comply with discovery obligations.
After considering the deputies’ testimony and the attorneys’ explanations, the Court finds that the
relevant facts are as follows:
A different administration now heads the HCSD than in 2015. In preparing
discovery responses, defense counsel contacted the former sheriff, Tyrone Lewis,
who led the HCSD on May 26, 2015, and asked about the department’s use of
BWCs at that time. Former-Sheriff Lewis advised counsel that the HCSD did not
use BWCs at the time of Davis’s arrest. Based on that information, defense counsel
prepared the factually incorrect discovery responses, which the current Sheriff,
Victor Mason, signed, and Hinds County propounded those discovery responses to
Davis on September 26, 2017.
After receiving Davis’s first motion for sanctions [92], defense counsel
further investigated whether the HCSD deputies could have been wearing or using
BWCs during Davis’s arrest on May 26, 2015. Defense counsel’s investigation led
them to Deputy Finch, who explained that the HCSD had in fact maintained a shortlived BWC program that began in May 2015 and ended before the end of that year.
Finch advised that the HCSD had issued each officer in the program a camera with
a memory card. The officer would upload video from the camera’s memory card to
their own folder on an HCSD server. The file would remain in the officer’s folder
unless a supervisor wanted the file preserved and moved it into their own folder.

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Finch advised defense counsel that no officer or supervisor had the ability to delete
any BWC videos and that only he had the ability to delete any such videos.
Finch also told defense counsel that in order to conserve space on the
computer server, the department originally intended to delete BWC videos after
sixty days, unless a supervisor moved the video to the supervisor’s folder. Finch
advised defense counsel that in order to implement the sixty-day deletion policy,
the IT department developed a computer script to delete automatically files from
the deputies’ folders after sixty days, while leaving the BWC videos in the
supervisor’s folders. But Finch further told defense counsel that the IT department
never activated the script to run automatically. Since the script had never been
activated to delete files automatically, defense counsel erroneously assumed that
no BWC video files had ever been deleted.
As to whether Nichols or Carr had worn BWCs at the time of Davis’s arrest,
Finch told defense counsel that the HCSD had issued Nichols and Carr BWCs on
May 13, 2015. At defense counsel’s request, Finch performed a search of the
folders belonging to Nichols, Carr, and their supervisors, but did not find any video
of Davis’s arrest. Based on that information, defense counsel prepared Finch’s
affidavit, he signed it, and Hinds County submitted it in support of its response to
Davis’s first motion for sanctions. See [104-3].
Eventually, defense counsel conferred with Deputy Nichols, who is sixtytwo years old and retired. Nichols confirmed to defense counsel that it was his voice
on Davis’s audio recording of her arrest. He admitted that during his encounter with
Davis on May 26, 2015, he had told Davis that he was filming her with his BWC,

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even though he never activated his camera.3 Nichols explained that at that time, he
had only recently been issued the BWC and was unfamiliar with how to use it.
However, he stated that while he did not record any footage, Deputy Carr had
recorded their interaction with Davis and her arrest on May 26, 2015.
Continuing to investigate the BWC issue, defense counsel again conferred
with Deputy Finch. In a conversation with defense counsel after his affidavit, Finch
told defense counsel for the first time that he had tested the computer script on two
occasions in approximately July and August of 2015. Therefore, even though the
IT department had never set the computer script to delete files automatically, any
BWC footage of Davis’s arrest would have been deleted when he had tested the
computer script.
After receiving this new information, defense counsel asked Finch if there
was any way to find and recover deleted BWC video. Finch told them that it would
take specialized software and that it would not normally be possible. Nevertheless,
Finch acquired specialized software, and through the use of the specialized
software, Finch was able, on Saturday, July 7, 2018, to locate and recover two
videos taken by Deputy Carr’s BWC of Davis’s encounter with the officers and
arrest. Defense counsel supplemented Hinds County’s discovery responses on
Monday, July 9, 2018, and mailed a copy of the video to Davis.

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At the hearing, Deputy Nichols testified that he told Davis that he was recording her on his BWC in an attempt to
calm her down. He explained that he believed that Davis would be less likely to do something wrong if she thought
he was recording her.

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II. Analysis
Davis’s first motion for sanctions [92] was filed pursuant to Fed. R. Civ. P. 37(e), which
provides for sanctions in the event a party fails to preserve electronically stored information such
that it “cannot be restored.” The uncontested testimony in this matter is that the only officer who
actually recorded video of Davis’s arrest was Deputy Carr, and that video was ultimately retrieved
and produced by Defendant. Thus, sanctions are not warranted under Rule 37(e). Davis’s first
motion for sanctions [92] is, therefore, denied.
Davis filed her second motion for sanctions [154] after Hinds County produced Deputy
Carr’s BWC footage. She moved for sanctions pursuant to Fed. R. Civ. P. 11, which makes
misrepresentations to the Court sanctionable, and pursuant to Rule 37(c), which provides for
sanctions if a party fails to supplement an earlier discovery response. Additionally, Plaintiff’s
motions raise the possibility of sanctions pursuant to the Court’s inherent authority to sanction a
party for certain conduct amounting to bad faith during the course of litigation. See In re Yorkshire,
LLC, 540 F.3d 328, 332 (5th Cir. 2008).
The approximately ten-month delay between Hinds County’s initial discovery responses,
in which it denied that the deputies even wore BWCs, and its supplementation of those responses
and production of the BWC video raises the possibility of sanctions under Rule 37(c). However,
Rule 37(c) does not permit sanctions when a party’s failure to supplement is “substantially
justified.” After considering the witnesses’ testimony and counsel’s explanation at the July 17
hearing, the Court finds that Hinds County was substantially justified in its failure to supplement
its September 2017 discovery responses until July 2018. Accordingly, Davis’s motion for
sanctions [154] is denied to the extent it seeks any sanctions pursuant to Fed. R. Civ. P. 37.

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Rule 11(c) provides sanctions for violation of Rule 11(b). Rule 11(b) states, in pertinent
part, that “[b]y presenting to the court a . . . written motion, [motion response,] or other paper . . .
an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances[,] . . . the factual contentions have evidentiary
support . . . .” Fed.R.Civ.P. 11(b)(3). The record indicates that Hinds County’s attorneys undertook
a reasonable investigation and that the subject discovery responses and response to Davis’s
sanction motion were consistent with the information they had at the time. Therefore, Davis’s
request for sanctions under Rule 11 is also denied.
Finally, although the Court has the authority to sanction a party for misrepresentations and
for discovery misconduct, the record reveals no such impropriety by Hinds County. Defendant’s
inaccurate discovery responses, the mistaken factual assertions in response to Davis’s sanctions
motion, and the erroneous statements in Finch’s affidavit were not submitted in bad faith. The
witnesses’ testimony and defense counsel’s explanations provided credible and plausible
explanations for each mistake. The Court suspects that a more thorough and aggressive
investigation into Davis’s allegations regarding the use of BWCs during her arrest would have
resulted in the video footage being located and produced to Davis more quickly. But Hinds
County’s possible shortcomings in this regard do not rise to the level of sanctionable conduct.
As it is, Davis has suffered no harm as a result of Hinds County’s delayed production of
the video. Hinds County has supplemented its responses, and Davis now has the video footage at
issue. Davis has plenty of time to make use of the video in filing or responding to dispositive
motions and in preparing for trial. Accordingly, she has suffered no actual prejudice as a result of
the delay. Davis’s second motion for sanctions [154] is denied.

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III. Conclusion
The Court has considered all the parties’ arguments. Those not specifically addressed do
not change the outcome. For the reasons described above, Davis’s first motion for sanctions [92]
and second motion for sanctions [154] are both denied.
SO ORDERED, this the 27th of September, 2018.
/s F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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