Sanchez v. Bremer et al

Filing 54

MEMORANDUM AND ORDER that the motion to stay 44 filed by plaintiff Jessica M. Sanchez is denied. The objection 49 filed by defendants is sustained. Sanchez's request for additional discovery is denied. Sanchez may file a brief in opposition to defendants' Motion for Summary Judgment on or before August 7, 2012, and defendants may file any reply brief on or before August 17, 2012. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESSICA M. SANCHEZ,
Plaintiff,

8:11-CV-314

v.
MEMORANDUM AND ORDER
ANDREW J. BREMER; JAMIE
CARDENAS; AND CITY OF
ALLIANCE,
Defendants.
This matter is before the Court on the motion to stay (filing 44) filed by
plaintiff Jessica Sanchez and the objection (filing 49) filed by defendants
Andrew Bremer, Jamie Cardenas, and the City of Alliance. Sanchez moves
the Court to stay defendants' motion for summary judgment (filing 19). The
Court has considered the parties' submissions (filings 43, 49, 50, and 52) and
Sanchez's supplemental index of evidence (filing 51). For the reasons
discussed below, Sanchez's motion to stay is denied, and defendants' objection
is sustained.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Incident
The Court incorporates by reference the factual background set forth in
its previous memorandum and order of April 23, 2012 (filing 42, at 2–4) and
provides the following brief summary of the case. Bremer and Cardenas were
police officers, employed by the third defendant, the City of Alliance,
Nebraska. Sanchez's suit arises from the events leading up to her arrest on
the early morning of September 6, 2009. Sanchez has “no personal
recollection" of the events directly leading up to her arrest (filing 26-1, at ¶ 3)
but nevertheless alleges the following version of events.
Sanchez arrived at the lobby of the Alliance Police Department ("APD")
headquarters in the early hours of September 6, 2009. She alleges that hours
earlier, she had been drugged and sexually assaulted. Sanchez was
distraught and in search of help. She was still frightened when she arrived,
and she was further alarmed by the presence of Bremer, a male, in the room.
At some point, one or more firemen or EMTs arrived, at least some of whom

were males. She yelled at these men to leave, but they did not. When another
male came into the room, Sanchez became even more alarmed. She picked up
the chair next to her, and while she was lifting it, the chair “inadvertently”
hit Cardenas in the shin. Filing 1, at ¶ 23. After this point, Sanchez alleges
only that, according to Bremer and Cardenas, she began to swing the chair
around, and to kick Bremer in the shins after she was restrained and placed
in handcuffs. Filing 1, at ¶¶ 23–24.
Sanchez was charged with assault in the second degree and assault on
an officer in the second degree.1 The charges were ultimately dismissed,
following a preliminary hearing before the County Court of Box Butte
County, Nebraska. See filing 20-5. At this hearing, Bremer testified that
there was a video camera in the lobby and that there was a tape of their
encounter with Sanchez. Filing 20-5, at 8. Sanchez has not been allowed to
see any such tape, nor is it before the Court.
Sanchez claims that she was wrongfully arrested and subjected to
excessive force by Bremer and Cardenas, and that she was wrongfully
charged with assault in the second degree and assault on an officer in the
second degree. Sanchez brings her claims under 42 U.S.C. § 1983, alleging
that Bremer and Cardenas violated her right to be free from unreasonable
seizures under the Fourth Amendment; that Bremer is liable as a supervisor
for Cardenas' actions; and that the City of Alliance caused these violations
through its policies and procedures. Filing 1, at ¶¶ 11, 33–45. Sanchez seeks
recovery against Bremer in his individual and official capacities, and against
Cardenas in her individual capacity. Filing 1, at ¶¶ 8–12.
B. Procedural Background
On December 16, 2011, defendants moved for summary judgment
(filing 19) and filed a motion to stay discovery and further proceedings (filing
22). Bremer and Cardenas contend that the doctrine of qualified immunity
bars Sanchez’s § 1983 claims and, furthermore, shields them from discovery.
They have also moved for summary judgment on the merits. Filing 19. The
City of Alliance has also moved for summary judgment on the merits, arguing
that it is not independently liable to Sanchez. Filing 19. In response, Sanchez
moved the Court to stay consideration of defendants' motion for summary
judgment and allow her to begin discovery. See filings 25, 36, and 37.
In its previous order of April 23, 2012, the Court found that Sanchez
had alleged sufficient facts in her complaint and affidavits to permit limited
discovery under Fed. R. Civ. P. 56(d). Filing 42. Specifically, the Court

1

Neb. Rev. Stat. §§ 28-309, 28-930 (Supp. 2009).

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ordered defendants to produce all video recordings of the events underlying
this suit. Filing 42, at 11.
C. Defendants' Response
Defendants responded, not by producing any video recordings, but with
affidavits from Bremer and E. John Kiss, the Chief of the APD. Filing 43, at
3–6. Kiss and Bremer stated that "[n]o such audio or video tapes currently
exist." Filing 43, at 3, 5. Kiss explained that the APD shares its lobby with
the Box Butte County Sheriff's Department (the "Sheriff's Department").
Filing 43, at 3. The camera and video system in the lobby were operated and
maintained by the Sheriff's Department, not the APD. Filing 43, at 3. In
September 2009, the normal practice was to maintain the recordings on a
7-day loop. Filing 43, at 3. Kiss also averred that no one with the APD
instructed the Sheriff's Department to destroy any recordings. Filing 43, at 4.
Bremer explained that, after he testified at the preliminary hearing, he and
Cardenas viewed the video at the Sheriff's Department. Filing 43, at 5–6.
Bremer also stated that, at the time he testified at the preliminary hearing,
he had been unaware that the Sheriff's Department recorded over the videos
every 7 days. Filing 43, at 6.
D. Sanchez's New Motion to Stay
In response to these affidavits, Sanchez filed a new motion to stay
consideration of defendants' motion for summary judgment. Filing 44.
Sanchez argues that Bremer has given inconsistent statements regarding the
existence of the tape and that the failure to preserve the tape may amount to
spoliation of evidence. Filing 44, at 2. Sanchez requests the Court to allow
additional discovery, including:
(1)
(2)
(3)

a deposition of Bremer into his purportedly inconsistent
statements and the facts surrounding the failure to preserve
the tape;
depositions of two members of the Alliance Fire Department
who were present at the time of Sanchez's arrest and have
refused to be interviewed without a subpoena; and
the issuance of subpoenas to the Box Butte County Attorney
and the Sheriff's Department requesting any copies of the
video in their possession.

Filing 44, at 3.
Sanchez also filed a motion requesting leave to file supplemental
evidence (filing 50), including an affidavit from Rae Jean Thomas, an
administrative deputy with the Sheriff's Department. Filing 51-1. The Court
previously granted that motion and has considered the supplemental
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evidence. Filing 53. Thomas was responsible for maintaining and operating
the video surveillance system and for making copies of videos when
requested. Filing 51-1, at ¶ 3. She verified that the video surveillance system
was working on September 6, 2009. Filing 51-1, at ¶ 5. Thomas confirmed
that videos were generally kept for only 7 days before being recorded over,
but added that preserving videos was a "common and standard procedure."
Filing 51-1, at ¶ 6. Thomas received a request from the APD to preserve a
copy of the recording of the Sanchez incident. Filing 51-1, at ¶ 4. She found
the video, made a copy, and delivered it to the APD. Filing 51-1, at ¶¶ 7–8.
Thomas does not state when any of this occurred.
II. ANALYSIS
The Court's previous order set forth the standards governing qualified
immunity in greater detail, and the Court provides only a brief overview
here. See filing 42, at 4–10. The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223,
231 (2009). Qualified immunity provides officials with immunity from suit,
not simply from liability. Janis v. Biesheuvel, 428 F.3d 795, 800 (8th Cir.
2005). Its purpose is to avoid subjecting government officials to the costs of
trial or to the burdens of broad-reaching discovery in cases where the legal
norms the officials are alleged to have violated were not clearly established at
the time. Id. To determine if defendants are entitled to qualified immunity,
the Court must ask (1) whether Sanchez has stated a violation of a
constitutional right; and (2) whether that right was clearly established at the
time, such that a reasonable officer would have known that his or her conduct
violated the law. Pearson, 555 U.S. at 232.
If the allegations in a plaintiff’s complaint do not state a claim of
violation of clearly established law, a defendant pleading qualified immunity
is entitled to dismissal before the commencement of discovery. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Conversely, if the Court determines that,
assuming the truth of the plaintiff's allegations, the official's conduct violated
clearly established law, the plaintiff will ordinarily be entitled to some
discovery. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see also Castro v.
United States, 34 F.3d 106, 112 (2d Cir. 1994); cf. Lovelace v. Delo, 47 F.3d
286, 287 (8th Cir. 1995).
Qualified immunity is an affirmative defense, and defendants carry the
burden of proof. Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 679
(8th Cir. 2012). The plaintiff, however, must demonstrate that the law was
clearly established at the time of the alleged violation. Id. Defendants have
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offered evidence that they did not violate Sanchez's rights (clearly established
or not). See filing 20; filing 42, at 2–4. To defend against the pending motion
for summary judgment, Sanchez must come forward with evidence that
creates an issue of material fact as to defendants' claim of qualified immunity
and the merits of her claims. Fed. R. Civ. P. 56(c).
The Court previously found that Sanchez had alleged sufficient facts in
her complaint and affidavits to permit limited discovery under Fed. R. Civ. P.
56(d). Under Rule 56(d), a party opposing summary judgment may seek a
continuance to conduct discovery, but the party must file an affidavit showing
what specific facts further discovery is expected to uncover. Anuforo v. C.I.R.,
614 F.3d 799, 809 (8th Cir. 2010).
The Court's discretion to allow discovery under Rule 56(d) is further
limited when a summary judgment motion is based on qualified immunity,
because insubstantial lawsuits against government officials should be
resolved prior to discovery and on summary judgment if possible. Jones v.
City and Cnty. of Denver, Colo., 854 F.2d 1206, 1211 (10th Cir. 1988). The
nonmovant must show "how discovery will enable [it] to rebut a defendant's
showing of objective reasonableness." Id. In other words, the nonmovant must
demonstrate a "connection between the information [it] would seek in
discovery and the validity of the officers' qualified immunity assertion." Id.
In its previous order, the Court found that Sanchez had satisfied Rule
56(d) as to discovery of the video:
Although Sanchez cannot say what the video will actually show,
since she does not remember, it will show what happened on the
night in question. The video is clearly material to the pending
summary judgment motion: it will either corroborate Sanchez’s
version of the facts or the testimony of officers Bremer and
Cardenas.
Filing 42, at 11.
The Court found that Sanchez's complaint plausibly alleged the
violation of a clearly established right—but just barely. Sanchez made a very
limited showing under Rule 56(d), and the Court permitted correspondingly
limited discovery. Obtaining the video should have been easy, and did not
risk imposing a burden on defendants that would cause any disruption of
government affairs. See Marksmeier v. Davie, 622 F.3d 896, 903 (8th Cir.
2010). The Court also recognized the difficult situation Sanchez was placed
in: unable to conduct discovery and unable to remember what occurred,
purportedly through no fault of her own.

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Now the video has come up missing, and Sanchez has requested
additional discovery. But little else has changed. The new evidence before the
Court only shows that at one time the APD had a copy of the video, but now it
does not. The Court will not impose additional discovery without a greater
showing by Sanchez of what specific facts further discovery might uncover,
and how these facts would enable her to rebut defendants' claim of qualified
immunity. Rule 56(d) "does not condone a fishing expedition where a plaintiff
merely hopes to uncover some possible evidence of a constitutional violation."
Duffy v. Wolle, 123 F.3d 1026, 1041 (8th Cir. 1997) overruled on other
grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011). Therefore, as explained in greater detail below, the Court finds that
Sanchez is not entitled to the requested discovery.
A. Deposition of Bremer and Evidence of Spoliation
Sanchez seeks to depose Bremer to find out what happened to the video
and whether it was intentionally destroyed by defendants. She also wishes to
depose Bremer regarding his purportedly inconsistent statements concerning
the tape. The Court is not convinced this discovery is warranted. Sanchez has
presented no evidence of spoliation, and even if she could uncover such
evidence, it would not avail her at summary judgment. Additionally, the
Court does not see any significant inconsistencies in Bremer's statements.
Spoliation refers to the destruction or material alteration of evidence or
to the failure to preserve property for another's use as evidence in pending or
reasonably foreseeable litigation. Micron Technology, Inc. v. Rambus Inc., 645
F.3d 1311, 1320 (Fed. Cir. 2011). To find spoliation the Court must determine
that the party who held the evidence intentionally destroyed it with a desire
to suppress the truth. Bakhtiari v. Lutz, 507 F.3d 1132, 1136 (8th Cir. 2007).
The party who desires access to the evidence must also show prejudice.
Stevenson v. Union Pacific R. Co., 354 F.3d 739, 748 (8th Cir. 2004). Federal
courts may impose a range of sanctions and remedies when a party abuses
the judicial process by destroying evidence. Id. at 745–46. This includes
giving an "adverse inference" instruction, precluding the offending party from
offering evidence on the matter, or even settling a disputed matter of fact. Id.
at 750–51.
A charge of spoliation is a serious accusation, and the Court will not
allow discovery into the matter without some basis for suspecting wrongdoing
by defendants. Sanchez has not presented any evidence that defendants
intentionally destroyed the video with a desire to suppress the truth. And
because defendants have presented a colorable claim of qualified immunity,
the Court must limit discovery to the issue of qualified immunity, so that
defendants are not exposed to unnecessary and burdensome discovery or trial
proceedings. Crawford–El, 523 U.S. at 597–98. Inquiries into spoliation, on
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the facts before the Court, would be straying too far from the limited
discovery the Court may allow.
The evidence before the Court amounts to only a rough timeline. The
incident Sanchez complains of occurred in September 2009. Following the
preliminary hearing in October, the charges against Sanchez were dismissed
on February 26, 2010. Filing 1, at ¶ 29. Sanchez filed her complaint
approximately 18 months later, on September 1, 2011. Filing 1, at 14. At
some point in between, Deputy Thomas made a copy of the video for the APD.
Filing 51-1. Presumably this occurred within 7 days of the tape's creation, or
it would have already been recorded over pursuant to the Sheriff's
Department's practice. Filing 51-1, at ¶ 6. Kiss and Bremer averred that no
copy of the tape "currently exists" and that no one in the APD ordered the
Sheriff's Department to destroy their copy of the tape. Filing 43, at 3–6. So,
all Sanchez has shown is that, at some point, the APD had a copy of the tape,
and now they do not. Without knowing when—in the 2 years between the
incident and Sanchez's suit—or under what circumstances the tape was lost
or destroyed, the Court will not infer an intent to destroy evidence and hide
the truth. The most reasonable inference, in fact, is that the APD asked for a
copy of the videotape as potential evidence in Sanchez' criminal prosecution,
but discarded the tape after the criminal charges against Sanchez were
dismissed.
Even if Sanchez could show spoliation, it will not matter if she cannot
present some further evidence of what occurred on September 6, 2009. At
summary judgment, Sanchez will be unable to rest on her pleadings,
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009), and the
Court will have to evaluate defendants' claims of qualified immunity based
on the facts in the record. Sanchez must come forward with evidence that
challenges Bremer and Cardenas' accounts of what occurred, sufficient to
raise an issue of fact. Fed. R. Civ. P. 56(c). Evidence of spoliation will not
suffice, even when combined with any sanctions the Court could impose.
The most common sanction, an adverse inference instruction, would
clearly be insufficient. With an adverse inference instruction, the jury is told
that it may draw an inference that the evidence destroyed was unfavorable to
the party who destroyed it. Stevenson, 354 F.3d at 746. "[A]t the margin,
where the innocent party has produced some (not insubstantial) evidence in
support of his claim, the intentional destruction of relevant evidence by the
opposing party may push a claim that might not otherwise survive summary
judgment over the line." Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.
1998), abrogated on other grounds by Rotella v. Wood, 528 U.S. 549 (2000).
But an adverse inference alone is not enough to survive summary judgment
when a plaintiff has produced no other evidence, or "utterly inadequate"
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evidence. Id. A jury might infer that the tape contained some evidence
damaging to defendants, but without any indication of what the tape might
show, this would amount to nothing more than speculation. And at the
summary judgment stage, if defendants meet their burden under Rule 56(c),
Sanchez must do more than simply show there is some "metaphysical doubt"
as to the material facts. Scott v. Harris, 550 U.S. 372, 380 (2007).
Spoliation may also support an inference that the contents of a missing
document are as alleged by the party prejudiced by its absence. Wolfe v.
Virginia Birth-Related Neurological Injury Compensation Program, 580
S.E.2d 467, 475 (Va. Ct. App. 2003). But this will not help Sanchez, because
she does not remember what happened and has not alleged what the video
would show. Courts may also preclude the spoliating party from offering
evidence on related issues in the case. See, e.g., Dillon v. Nissan Motor Co.,
Ltd., 986 F.2d 263, 266–68 (8th Cir. 1993). Again, this would not save
Sanchez's complaint. Even if defendants were barred from presenting
evidence supporting their claim of qualified immunity—on which they have
the burden of proof, Harrington, 678 F.3d at 679—defendants have also
moved for summary judgment on the merits, where Sanchez bears the burden
of proof. And if neither party presents evidence, defendants would still
prevail.
In short, evidence of spoliation would not materially affect the outcome
of defendants' motion for summary judgment. Nor is it relevant to the issue of
qualified immunity. Sanchez's request for additional discovery on the issue of
spoliation will be denied.
Nor will the Court allow discovery into any purportedly inconsistent
statements by Bremer. As with spoliation, any resulting evidence that merely
cast doubt on Bremer's credibility would not suffice on summary judgment.
The Court also fails to see any significant inconsistencies in Bremer's
statements. At the preliminary hearing, Bremer testified that a tape existed.
Filing 20-5, at 8. He later averred that the tape no longer exists, and that
when he testified at the preliminary hearing, he was unaware that the
Sheriff's office recorded over videos every 7 days. Filing 43, at 5–6. Bremer
has adequately explained any inconsistencies, and further discovery would
provide little, if any help.
B. Depositions of Alliance Fire Department Personnel
Sanchez renews her request to depose members of the Alliance Fire
Department who were present when she was arrested. But she gives the
Court no reason to believe their statements would contradict the affidavits of
Bremer and Cardenas. Allowing Sanchez to depose these personnel would
amount to an unnecessary burden and is not warranted on the evidence
before the Court.
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C. Subpoenas to the Sheriff's Department and County Attorney
Sanchez also asks that she be allowed to subpoena the Box Butte
County Attorney and the Sheriff's Department for any copies of the tape in
their possession. When the Court previously permitted discovery of the tape,
there was evidence a tape actually existed (Bremer's testimony at the
preliminary hearing). This time around, Sanchez has offered the Court no
reason to believe either office possesses a copy of the tape. Therefore,
additional discovery into the existence of the tape is not warranted at this
time.
III. CONCLUSION
Sanchez has not shown what specific facts further discovery might
uncover, nor how these facts would enable her to rebut defendants' claim of
qualified immunity. Because defendants have raised a colorable claim of
qualified immunity, the Court is charged with limiting discovery to prevent
unnecessary expenditures of government officials' time and resources.
Biesheuvel, 428 F.3d at 800. Defendants' motion for summary judgment has
been pending for over 6 months; and it is now time to move forward.
Accordingly,
IT IS ORDERED:
1.

The motion to stay (filing 44) filed by plaintiff Jessica M.
Sanchez is denied;

2.

The objection (filing 49) filed by defendants is sustained;

3.

Sanchez’s request for additional discovery is denied; and

4.

Sanchez may file a brief in opposition to defendants’ Motion
for Summary Judgment on or before August 7, 2012, and
defendants may file any reply brief on or before August 17,
2012.

Dated this 24th day of July, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge