Buster v. Board of County Commissioners for Lincoln County et al

Filing 224

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Jerry H. Ritter to GRANT IN PART and DENY IN PART Plaintiff's 158 Motion for Sanctions #1 and 160 Motion for Sanctions #2. Objections to PF&RD due by 9/13/2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ama)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CRYSTAL BUSTER,
Plaintiff,
v.

No. 21-cv-01208 MLG/JHR

BOARD OF COUNTY COMMISSIONERS FOR
LINCOLN COUNTY, CORRECTIONAL
SOLUTIONS GROUP, LLC, CARLOS MORALES,
individually and in his official capacity, CARLY
REYNOLDS, individually, ANITA HITTLE,
individually, and STEVE CHAVEZ, individually,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION TO GRANT IN PART
AND DENY IN PART BUSTER’S MOTIONS FOR SANCTIONS [DOCS. 158, 160].
THIS MATTER is before me on Plaintiff Crystal Buster’s Motion for Sanctions #1 [Doc.
158] and Motion for Sanctions #2 [Doc. 160]. Defendants Board of County Commissioners for
Lincoln County and Correctional Solutions Group, LLC (collectively “Defendants”) jointly
responded [Docs. 169, 171] 1 and Buster replied [Docs. 173, 175]. United States District Judge
Matthew L. Garcia referred these motions to me for proposed findings and a recommended
disposition. [Doc. 199]. I will address the motions together because of the related nature and
requested relief. For the reasons explained below, I RECOMMEND that the Court GRANT IN
PART and DENY IN PART Buster’s motions.

Because Defendants jointly respond to Buster’s motions and align in their defenses, I do not differentiate between
their actions for purposes of this report and recommendation considering sanctions.
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I.

BACKGROUND 2

This case concerns Buster’s allegedly inhumane conditions of confinement while a pretrial
detainee in Lincoln County Detention Center. Buster alleges that she was kept in “solitary
confinement for 51 days in squalid conditions” with no recreation and few hygiene opportunities.
[Doc. 160, p. 2, 3]. She specifically alleges that the toilet in her cell “would back up and feces
would spill onto the floor.” [Doc. 158, 1, 2]. Buster claims that her mental and physical health
deteriorated precipitously under these conditions. [Doc. 160, p. 3]. She contends that individual
defendants knew of and were indifferent to these conditions. Id.
This case was filed in federal court on December 21, 2021. [Doc. 1]. Buster generally
claims that Defendants violated her civil rights by failing to provide her humane conditions and
medical care for a broken knee after she was arrested and taken into custody. See [Doc. 16]. Buster
makes four specific claims: (1) violation of procedural due process; (2) violation of the Fourteenth
Amendment through inhumane conditions of confinement and inadequate medical care; (3)
negligent provision of medical care; and (4) violation of the Fourteenth Amendment through a
custom and policy of violating constitutional rights. See id. Buster seeks compensatory and
punitive damages. Id. at 21.
Buster filed a motion on March 23, 2023, to compel Defendants to respond to several
discovery requests. [Doc. 69]. I granted that motion and, in relevant part, ordered Defendants to
answer requests for production of annual inspection reports and audits. [Doc. 90]. I gave
Defendants 30 days to “produce the requested documents or explain why they cannot produce
same” and ordered them to pay Buster’s attorney fees for the motion. Id. at 12. The parties engaged

2

Only the factual and procedural history relevant to these sanctions motions is recited here.

2

in discovery over the next several months and Buster filed these two motions for sanctions on
February 8 and 12, 2024, respectively. [Docs. 158, 160]. Several dispositive motion filings
followed. [Docs. 162-168].
A. Buster’s Motion for Sanctions #1
1. Motion
Buster’s first motion concerns the Facility Assessment Report. [Doc. 158]. I previously
ordered Defendants to produce this report within 30 days of my order to compel or explain why
production was not possible. Id. at 3; see [Doc. 90]. Defendants did not produce or explain in that
time frame but produced the report after discovery ended. Id. at 3. Buster contends that Defendants
violated my order, abused discovery, and thereby “blame [Buster] for the unsanitary conditions in
her own cell rather than accept the fact that the sewer system needed complete replacement as
outlined in the [facility assessment report].” Id. Buster requests a default judgment sanction for
intentional late disclosure. Id. at 8. She alternatively proposes a “factual finding in the form of a
jury instruction”:
Plaintiff’s toilet repetitively backed up at least two times a week through no fault of
her own, and that evidence of the malfunctioning plumbing system in the jail was
intentionally withheld from Plaintiff during the preparation of her case.
Id. at 7.
She frames this instruction as “a fair summary of the facts” while recognizing the phrase
“intentionally withheld” is “potentially controversial.” Id. at 7-8 (citing attachment Exhibit 3 in
support). Buster maintains intent to conceal is established by evidence that the county manager
received the report twice in April 2022. Id. at 8. The “inescapable conclusion,” she concludes, is
that the Defendants exhibited “deliberate interference” to inhumane conditions warranting serious
sanctions up to and including default judgment. Id. She also wants to bar Defendants from
proposing that Buster caused “any unsanitary conditions in her cell.” Id. at 7.
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2. Response
Defendants respond that Buster lacks prejudice from the late disclosure because other
evidence gives “ample information regarding the actual condition of the plumbing.” [Doc. 169, p.
2] (contending that the Ehrenhaus factors do not support default judgment). Id. at 2, 3. They decry
the proposed instruction as misleading and cite deposition testimony contradicting allegations that
the toilet frequently malfunctioned and overflowed. Id. at 3-4; see [Doc. 169-1]. They also list
other evidence documenting various repairs and reports on facility sewer lines and drains. Id. at 45. Defendants therefore contend that the “harmless” late disclosure does not cause “serious
inconvenience or prejudice” deserving serious sanctions. Id. at 5-6.
3. Reply
Buster says Defendants’ response “mak[es] no attempt to explain why the facility
Assessment Report was withheld or why the county manager failed to mention he had hired a
company to audit the jail’s plumbing system.” [Doc. 173, p. 2]. She posits that Defendants argue
lack of prejudice to avoid more sanctions after violating the order to compel. Id. at 3. Finally,
Buster disputes Defendants’ factual assertions with contrary statements and says their plumbing
invoices are unreliable Id. at 5.
B. Buster’s Motion for Sanctions #2
1. Motion
Buster’s second sanctions motion concerns allegedly spoliated evidence in the form of
various logs: (1) shift supervisor logs, or “pass down log” emails, documenting notable shift events
in the detention center from December 24, 2019 through February 24, 2020; (2) segregation logs
for December 24, 2019, January 6-12, 2020, and February 3-9, 2020; and (3) classification logs
“involving [] Defendants’ decision to place [] Buster in the holding area of the Lincoln County

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Detention Center.” [Doc. 160, p. 2]. Buster says this evidence is critical to discovering whether
individual defendants “acted with indifference to these inhumane conditions of confinement.” Id.
at 3. She alleges failure to preserve these logs violated Defendants’ own recordkeeping policy and
Buster’s tort claim and preservation notice. Id. She also bolsters her spoliation claim with a
timeline of relevant events: (1) her tort claim notice and preservation letter sent in March 2020;
(2) the public records requests sent to Defendant Lincoln County in July 2020 and June 2021; (3)
the lawsuit filed in December 2021; and (4) Defendant CSG’s supplemental production of three
pass-down log emails in October 2023. Id. at 3-4.
a. Pass-down log emails
Buster explains the importance of late disclosure of the pass down emails:
Up until this moment, [Buster] had been laboring under the impression that these
records had never been created and so was surprised by the production of three (3)
emails [attached hereto]. This response contradicted Defendants’ previous
discovery answers which stated that all responsive emails had been disclosed . . .
Defendants’ counsel indicated that a final search was performed [after Buster’s
Rule 37 letter] and confirmed that no further emails, including pass down logs, were
located. [] It was then revealed for the first time, during the deposition of the
warden, that a shift supervisor’s information log was created and maintained
electronically, in at twice daily “pass down log” email . . . The warden testified that
there were two emails created each day that met the description of a shift
supervisor’s log and that they were distributed to staff to alert them of the important
events of each shift.
Id. at 4-5. Assuming two such emails generated each day of Buster’s confinement, she extrapolates
that “Defendants have therefore lost or destroyed approximately ninety-seven emails.” Id.
Buster presents several reasons to impose sanctions, including even Defendants’ expert
Gary Christensen, Ph.D. who testified that “the pass down logs should capture if Ms. Buster’s cell
toilet backed up and sewage flooded her cell, if she was refusing food or was on a hunger strike,
and if she refused recreation for weeks at a time.” Id. at 6 (citing Exhibit 10). Buster says she
needs the remaining emails to resolve four important factual issues concerning deliberate
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indifference: (1) reasons for placing her in segregation; (2) the unsanitary conditions from
plumbing issues; (3) her refusal of meals; and (4) her persistent vomiting. Id. at 6-7 (also noting
potential records of medical rounds, recreation time, and general supervision). Buster believes the
emails’ disappearance “was not simply unfortunate” and contends that no other evidence can
replace their content. Id. In support she cites Dr. Christensen’s opinion that the “big [] lapse” in
preserving documents amounts to “negligence or incompetence” Id. at 8.
Buster proposes sanctions under Rule 37(e) for failure to preserve the pass down emails as
electronically stored information. Id. at 10. She argues that the pass down emails meet the initial
Rule 37(e) requirements: (1) they qualify as electronically stored information; (2) the information
therein is lost and cannot be replaced through discovery; (3) the information should have been
preserved in anticipation of litigation; and (4) Defendants failed to reasonably preserve the
information. Id. at 11-12 (citing Fed. R. Civ. P. 37(e)). Buster urges the Court to infer that
Defendants intentionally destroyed the emails, warranting an adverse inference or default
judgment sanction. Id. at 12, 13 (citing Fed. R. Civ. P. 37(e)(2)).
She also claims that the five guiding factors laid out in Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992) favor default judgment: (1) degree of actual prejudice; (2) the degree of
interference with the judicial process; (3) the party’s culpability; (4) whether the court previously
warned of a possible dismissal sanction; and (5) the utility of lesser sanctions. [Doc. 160, p. 14]
(internal citations omitted). She reasons:
[Defendants] have destroyed records that required preservation. It is inescapable
that this was done on purpose. The only logical conclusion to be drawn from this
pattern of disregard . . . is that Defendants deliberately concealed this evidence with
the hope of avoiding liability and otherwise minimizing [Buster’s] damages. By
doing so, Defendants could set a dangerous precedent . . . unless the Court imposes
a harsh penalty.

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Id. at 14-15. Buster alleges prejudice because the missing evidence “goes to a critical issue and
the evidence at hand is conflicting.” Id. at 15 (internal case citation omitted). She again cites Dr.
Christensen’s testimony that Defendants’ “negligence or incompetence” caused the lapse and
complicated the litigation. Id. She says she cannot fully prepare for trial absent the pass down
emails and will be “tip-toeing through the minefield of Defendants’ missing or questionable
evidence.” Id.
b. Segregation and Classification Logs
Buster also requests sanctions for missing classification and segregation records. She
contends the segregations records would show “Defendants knew of her squalid conditions of
confinement, that her toilet overflowed often, that she was not provided with recreation or exercise,
natural light, and only occasional showers, and blatantly disregarded these inhumane conditions.”
Id. at 7. While some segregation records were produced, Buster says the logs for the critical time
frame of January 6-12, 2020, remain missing. Id. at 8. She claims the information in the missing
segregation records “goes to the heart of Ms. Buster’s deliberate indifference claims” and no other
evidence can show whether Buster received the proper care in segregation. Id. (explaining that
Buster’s memory is unreliably because her mental health declined during segregation).
Buster alleges that classification records would have shown why she was “placed in a
booking area cell in isolation without justification.” Id. at 9. She argues that the complete lack of
any classification records implies she was intentionally isolated without justification and in
violation of her rights. Id. She also says conflicting testimony surrounding who placed Buster in
isolation and the reasons for that decision make the classification records even more crucial to her
case. Id. (citing testimony of Defendants Morales, Hittle, and Reynolds).

7

Buster concludes that failure to preserve these classification and segregation records
amounts to spoliation. Id. at 16. The test for spoliation, she says, assesses whether a party had a
duty to preserve evidence because of imminent litigation and whether the destruction of evidence
prejudiced the adverse party. Id. (internal citation omitted). A spoliation finding enables sanctions
such as striking witnesses, adverse inferences, or dismissing claims; Buster requests dismissal
because “three different groups of evidence were destroyed.” Id. at 17. She alternatively asks for
jury instructions directing adverse inferences from the missing evidence. Id. at 17-18.
2. Response
Defendants counter that a default judgment or jury instruction sanction is too severe and
not proportional to the dispute. [Doc. 171, p. 3]. Defendants maintain that they produced
documents, including some “pass-down log emails,” responsive to the preservation letter and
discovery obligations. Id. at 3, 4 (citing facility employee testimony). Nonetheless, Defendants say
they otherwise “cannot determine why [the records] are incomplete.” Id. at 5. They admit to not
being able to locate classification records and pivot to witness testimony stating that medical
observation informed Buster’s classification. Id.
Defendants urge that “gaps” in the records have not prejudiced Buster or impaired the
judicial process. Id. They propose she could cure any prejudice through deposition testimony and
proffer a litany of documents which purportedly contain the information she seeks. Id. at 6.
Defendants ultimately characterize Buster’s prejudice claim as “exaggerated” and her sanctions
request as “disproportionate to any real impact on the case.” Id. Defendants summarize that Buster
failed to show any intent to conceal or delay discovery and already received substantial evidence
on the disputed subject. Id. at 7. Thus, Buster’s requested sanctions would be “extremely unjust .
. . under any sense of proportionality.” Id.

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II.

LEGAL STANDARDS

The Federal Rules of Civil Procedure empower a court in its discretion to assess sanctions
for discovery abuse and misconduct. See generally Fed. R. Civ. P. 37. If a party disobeys a
discovery order, Rule 37 allows the court several options: instruct that certain matters or facts be
taken as established, prohibit the offending party from introducing certain claims, defenses, or
evidence, strike pleadings, stay the case, dismiss all or part of the case, enter a default judgment,
or treat the noncompliance as contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). The drastic
nature of a default judgment requires that the predicate violation be “the result of willfulness, bad
faith or some fault of the party rather than inability to comply.” Romero v. CoreCivic, Inc., No.
1:21-CV-0544 KG/DLM, 2023 WL 5844249, at *4 (D.N.M. Sept. 11, 2023) (citing M.E.N. Co. v.
Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir. 1987)) (internal quotation and subsequent
citation omitted). A dismissal or default judgment sanction should be used sparingly because the
judicial system strongly prefers to resolve cases on their merits. Ellis-Hall Consultants, LLC v.
Hofmann, No. 20-4040, 2022 WL 3972093, at *4 (10th Cir. Sept. 1, 2022) (internal citation
omitted).
III.

ANALYSIS

I first address the second of Buster’s motions. [Doc. 160]. I then include Buster’s first
Motion for Sanctions in my discussion of the Ehrenhaus factors.
A. Defendants failed to preserve the pass-down emails.
I propose to find that Defendants violated Rule 37(e) with respect to the pass down emails.
A court may sanction a party for failing to reasonably preserve irreplaceable electronically stored
information in anticipation of litigation. Fed R. Civ. P. 37(e). If there is prejudice to the other party,
the court may impose “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P.
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37(e)(1). If the court finds intent to deprive the other side of using the information in litigation, it
may instruct the jury to presume that the lost information is unfavorable to that party or end the
action through dismissal or default judgment. Fed. R. Civ. P. 37(e)(2)(A)-(C).
1. The pass down log emails meet the Rule 37(e) prerequisites.
I propose finding that the pass down log emails meet the prerequisites under Rule 37(e).
First, there is no dispute that these emails documenting shift activities (transports, transfers,
releases, etc.) are electronically stored. See [Doc. 160-7, p. 2]. Second, other than the three emails
produced, the emails are lost and cannot be replaced through additional discovery. See [171-1, p.
2]. Deposition testimony confirmed that “[a]ny electronic records, whether [] describe[d] as an
email or not” (including archives) had been searched for “electronic pass down logs” to no avail.
Id. Nor did change of management or ownership cause the loss. Id.
Third, the pass-down emails should have been preserved in anticipation of litigation. A
party is on notice of its duty to preserve “any time [it] receives notification that litigation is likely
to be commenced.” Marten Transp., Ltd. v. Plattform Advert., Inc., No. 14-CV-02464-JWL-TJJ,
2016 WL 492743, at *4–5 (D. Kan. Feb. 8, 2016) (internal citation omitted). The party must then
“suspend its routine document retention/destruction policy and put in place a litigation hold to
ensure the preservation of relevant evidence.” Id. (internal citation omitted). Buster’s preservation
letter specifically asked Defendants to “preserve all documentation associated with these incidents,
including but not limited to written documentation.” [Doc. 160, p. 1]. Pass-down emails describing
Buster’s detention are squarely “written documentation” “associated with [the underlying]
incidents.” See id.
Defendants should have, and failed to, take reasonable steps to preserve the pass down
emails. Reasonable steps include a “litigation hold” which requires more than simply alerting the

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relevant employees of impending litigation. Browder v. City of Albuquerque, 187 F. Supp. 3d
1288, 1295 (D.N.M. 2016). Counsel must “go beyond mere notification and take affirmative steps
to monitor compliance” because “[a]t the end of the day . . . the duty to preserve and produce
documents rests on the party.” Id. (internal quotation marks and citation omitted) (measures
include talking to “key employees in an effort to understand how evidence will be stored” to
“continually ensure that the party is preserving relevant evidence”). Defendants here failed to take
reasonable steps to preserve pass down emails to the detriment of the search for truth about
Buster’s treatment. Defendants offer no evidence that systems were in place to ensure retention of
relevant documents. Available evidence indicates the opposite. See [171-1, p. 2] (stating “all
documents would have been stored in the storage unit . . . “known as ‘the barn’” where staff went
to look for relevant documents). Thus, I find that all Rule 37(e) prerequisites have been met.
2. The failure to preserve pass down log emails prejudiced Buster.
I next propose finding that Defendants’ failure to preserve the pass down emails prejudiced
Buster. Prejudice generally exists where the destroyed evidence “goes to a critical issue and the
evidence at hand is conflicting.” Browder, 187 F. Supp. 3d at 1299 (internal citation and quotation
omitted); see In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No.
18-CV-319-WJ, 2022 WL 2230759, at *7 (D.N.M. June 21, 2022) (finding prejudice in part
because witness testimony “is not enough to replace the destroyed documents because it is unlikely
they will be able to remember the specific contents of each destroyed work order”) (internal
quotation omitted).
I propose finding that losing the pass down emails prejudiced Buster because neither she
(nor the Court) can ascertain how important the information contained in the emails would have
been to her case. See Browder, 187 F. Supp. 3d at 1299 (“That Plaintiffs brought a motion for

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summary judgment without relying on the information [in the missing cell phone] does not make
their request for the phone immaterial or irrelevant”). Here, available evidence conflicts on
important issues such as whether Buster refused meals during a “hunger strike” and whether
plumbing issues made Buster’s cell unsanitary. [Doc. 160, p. 7]; compare [Doc. 160-16, p. 2]
(Keesha Fielder testified that Buster refused to eat until she could go to general population) with
[Doc. 160-15, p. 2] (Buster denied a hunger strike). Pass down logs would presumably describe
whether Buster’s toilet backed up from structural problems or whether she clogged it herself,
whether she repeatedly refused meals, or whether she demonstrated other physical or behavioral
issues. See [Doc. 160-7, p. 2]; [Doc. 160-9, p. 2-3]. Without clarification from contemporaneous
documents, conflicting information rendered expert Dr. Christensen unable to opine on important
issues. [Doc. 160-10, p. 2]. These circumstances indicate prejudice to Buster.
3. There is insufficient evidence that Defendants intended to deprive Buster of the emails.
However, I propose finding the evidence insufficient to deduce that Defendants acted with
intent to deprive Buster of the pass down emails. Buster urges that Defendants’ “deeply disturbing”
behavior is “inescapable[y]” intentional. [Doc. 160, p. 14]. She proposes that Defendants acted
“with the hope of avoiding liability and otherwise minimizing [Buster’s] damages, thereby setting
“dangerous precedent.” Id. at 14, 15. Buster argues that the available evidence makes it “reasonable
to infer” purposeful destruction. Id. at 14. She relies on several key facts: two pass down emails
per day were generated during shift changes, Buster sent Defendants a preservation letter when
she filed suit, she received only three pass down log emails, the Court compelled production of
any remaining emails, and no additional emails were produced. See [Doc. 90] (compelling
production); [Doc. 160-7, p. 2, 3] (warden and individual defendant Morales testifying on twice
daily pass down email creation).

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I propose finding these facts do not support an inference that Defendant intended to deprive
Buster of the pass down emails. It is evident that informative documents are missing. It is also
clear that poor internal communication, chaotic management, and general apathy created
conditions adverse to preserving and producing key records and emails. Dr. Christensen identified
negligence and incompetence as catalysts for the worst “lapse” in documentation he had
confronted in his expert experience. [Doc. 160-10, p. 3, 6]. Dr. Christensen did not conclude that
Defendants most likely destroyed the documents on purpose; incompetence and negligence cabin
his opinion on Defendants’ intent.
Therefore, Dr. Christensen’s testimony does not bolster Buster’s intentional spoliation.
Nor does Buster’s citation to cases from outside the Tenth Circuit persuade me. [Doc. 160, p. 12,
13]. Absent more convincing evidence of intentional concealment, loss or destruction, I
recommend declining to find that Defendants intended to deprive Buster of the pass down emails.
A. Defendants’ failure to preserve the segregation and classification logs amounts to
spoliation.
1. Spoliation
Spoliation is “the intentional or negligent destruction or loss of tangible and relevant
evidence which impairs a party’s ability to prove or defend a claim.” Browder, 187 F. Supp. 3d at
1294; Lamb v. Cordero, No. 1:22-CV-00485-WJ-LF, 2024 WL 2890539, at *2 (D.N.M. June 10,
2024), report and recommendation adopted, No. 1:22-CV-00485-WJ-LF, 2024 WL 3226753
(D.N.M. June 27, 2024) (noting spoliated evidence “is presumed to be unfavorable to the party
responsible for its destruction”). When considering spoliation sanctions, courts assess 1) the
culpability of the party who lost or destroyed the evidence and 2) whether the loss or destruction
of the evidence actually prejudiced the opposing party. Browder, 187 F. Supp. 3d at 1297.

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Classification and segregation logs are not electronically stored information under Rule
37(e) but the appropriate analysis is similar. Defendants had a duty to preserve the segregation and
classification logs from the time they received Buster’s preservation letter. See [Doc. 160-1];
Browder, 187 F. Supp. 3d 1288, 1295. The segregation logs document the observations of
detention officers who checked on Buster. [Doc. 160, p. 8]. They presumably would show whether
she refused meals, took showers, had recreation time, etc. Id. Buster says the two weeks’ worth of
information in the missing logs is irreplaceable and directly relates to her deliberate indifference
claims. Id. at 8, 17.
The classification records document Buster’s housing assignment and the reasons “she was
placed in a booking area cell [] in isolation.” Id. at 9. She alleges Defendants violated her rights
by segregating her without a hearing or subsequent review. Id. Defendants generally counter that
her medical condition necessitated isolation. Id. However, testimony about the decision-making
process conflicts, particularly about who made the decision. Id. (citing deposition excerpts of
Morales, Hittle, Reynolds and Chavez).
Knowing what measures Defendants took to monitor Buster’s physical and mental
conditions and her cell environment is elemental to resolving her conditions of confinement
claims. Moreover, knowing what actions Defendants took in response to observations and
complaints of mental decompensation and unsanitary conditions is critical to her deliberate
indifference case. The lack of clarity from deposition testimony does not inspire confidence that
the records were either neutral or favorable to Defendants. Instead, the available evidence supports
a reasonable inference that the records were lost or destroyed through, at least, negligence.

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2. Culpability
Culpability measures the offending party’s “degree of fault” in losing or destroying the
evidence “along a continuum . . . ranging from innocence through the degrees of negligence to
intentionality.” Id. (internal citation omitted). Gross negligence in this context is denoted by “a
failure to exercise even that care which a careless person would use.” Browder, 187 F. Supp. at
1299, n. 4 (but declining to find that the absence of a litigation hold per se constitutes gross
negligence). The evidence allows a reasonable inference that Defendants disregarded Buster’s
preservation letter, failed to implement a workable litigation hold or ensure that employees
enforced it, failed to keep records in required by the facility’s own policies, and failed to timely
produce relevant evidence, leading to the conclusion that Defendants exercised no more than
minimal care in preserving Buster’s records. See id. Buster’s allegation that Defendants knowingly
and intentionally destroyed logs seems outstrip the available evidence, not identifying any discrete
event nor directive to exclude negligence as a cause. See Schmidt v. Shifflett, No. CV 18-0663
KBM/LF, 2019 WL 5550067, at *4 (D.N.M. Oct. 28, 2019).
I propose the Court find that Defendants did not exercise the care of even a careless person
when they failed to preserve any classification logs and critical segregation logs, thereby
demonstrating culpability akin to gross negligence. Even a careless person would have recognized
that documents explaining why Buster was put in segregation and what happened to her during
segregation should be kept for use during her lawsuit about the conditions of her segregation
confinement. As with the loss of up to 97% of the contemporary pass-down emails, the absence of
any accurate record of who made the classification decision, and why, may not be intentional but
is certainly more than careless.

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3. Prejudice
I also propose finding that the spoliation prejudiced Buster. Because Defendant did not
establish a litigation hold, divining what the missing records might reveal is a useless exercise. See
Browder, 187 F. Supp. 3d at 1299. The segregation logs and classification logs would be
persuasive checks on the conflicting memories eyewitnesses to relevant events. Reverse
engineering the content of required records through depositions has only generated more
conflicting information. See In re Gold King Mine, 2022 WL 2230759, at *7 (“[I]t is unlikely
[witnesses] will be able to remember the specific contents of each destroyed work order”).
At best, knowing what conversations and actions transpired over Buster’s segregation and
cell conditions would facilitate speedy resolution of the matter. At worst, it would entrench the
parties’ respective positions further and direct their efforts toward trial preparation. Either way, it
would reduce unnecessary confusion where greater certainty should exist. Therefore, I propose
finding that Buster suffered actual prejudice from Defendants’ grossly negligent failure to preserve
the segregation and classification logs.
B. Defendants’ misconduct warrants lesser sanctions than default judgment or an
adverse inference instruction.
1. The Ehrenhaus factors do not support default judgment as a sanction.
Rule 37 authorizes sanctioning a party for failure to “obey an order to provide or permit
discovery.” Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005); Fed. R. Civ. P.
37(b)(2). A wide range of sanctions up to dismissal or default judgment are available. Procter &
Gamble, 427 F.3d at 727. The five Ehrenhaus factors guide courts deciding whether to impose
dismissal or default judgment sanctions:
(1) the degree of actual prejudice to the other party; (2) the amount of interference
with the judicial process; (3) the litigant's culpability; (4) whether the court warned

16

the party in advance that dismissal would be a likely sanction for noncompliance;
and (5) the efficacy of lesser sanctions.
Ellis-Hall, 2022 WL 3972093, at *4 (citing Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497
F.3d 1135, 1143 (10th Cir. 2007)); see also Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992)). Dismissal sanctions should be used sparingly because the judicial system strongly prefers
to resolve cases on their merits. Ellis-Hall, 2022 WL 3972093, at *4 (internal citation omitted).
a. Prejudice to plaintiff
Earlier, I proposed finding that Defendants’ discovery misconduct prejudiced Buster.
Defendants have delayed resolution of this case, increased the time and money Buster spent on
discovery motions, and created confusion around Buster’s case strategy and valuation. See EllisHall, 2022 WL 3972093, at *4 (“[I]ncreased costs and delays are valid reasons to find actual
prejudice”). Buster’s conditions of confinement claims in large part depend upon showing that the
plumbing system needed serious repairs and affected her cell. Delaying disclosure of the Facility
Assessment Report from April 2022 until after discovery terminated prejudiced Buster’s
investigation. The missing pass-down emails, segregation logs, and classification logs hamstrung
her investigation into Defendants’ awareness of and actions in response to her cell environment
and medical conditions. See [Doc. 158-2]. The docket reflects that Court intervention has been
necessary to sort out prolonged litigation disputes. Defendants’ responses that Buster could have
obtained this information from other sources rings hollow because Defendants were predominantly
either the authors or intended recipients, and always the custodians, of the needed information.
b. Interference with the judicial process
I also propose finding that Defendants’ withholding and spoliation of evidence caused
delays which interfered with the judicial process. If a party’s actions cause a court “to expend
unnecessary resources [conduct] can establish interference with the judicial process.” Ellis-Hall,
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2022 WL 3972093 at *5 (collecting cases). Over the course of a year, Defendants’ failure to comply
with discovery led to several court interventions. Buster filed her Motion to Compel in March 2023
[Doc. 69]; I granted the motion in large part in June 2023 [Doc. 90]; I allowed an extension for
Defendants’ objections to the order and production of supplemental discovery [Doc. 99]; I held an
informal status conference to resolve a deposition issue [Doc. 108]; and the instant motions for
sanctions and several dispositive motions were filed in early 2024 [Docs. 158, 160, 162, 164, 165,
166, 167, 168] (not counting associated motions such as page extensions). While dispositive
motions would have been needed in any event, discovery disputes certainly delayed those filings.
Though not egregious, these events lead me to conclude that Defendants have sufficiently “forced
the court (and its staff) to handle their numerous extraneous filings, motions, and hearings.” EllisHall, 2022 WL 3972093 at *5 (citing Ehrenhaus, 965 F.2d at 921)).
c.

Culpability of the litigant

As previously discussed, I propose finding that Defendants are culpable for the loss of
documents which prejudiced Buster and interfered with the judicial process. I have proposed that
the culpability rises to the level of gross negligence. Defendants present no cogent argument that
the documents sought were outside their custody and control such that it is not their fault. Compare
XTO Energy, Inc. v. ATD, LLC, No. CIV 14-1021 JB/SCY, 2016 WL 1730171, at *24 (D.N.M.
Apr. 1, 2016) (“[I]f a person, corporation, or a person's attorney or agent can pick up a telephone
and secure the document, that individual or entity controls it”). At best, Defendants’ culpability
arises from incompetence to keep track of documents which even a careless person would better
monitor.
Defendants suggest that a change in facility operators shortly before Buster’s incarceration
may have contributed to record loss, but they provide no evidentiary support. [Doc. 171, p. 1, 2].

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Moreover, producing the Facility Assessment Report after discovery closed shows that they had
access to this document but withheld it during discovery when it would have proved most useful
to Buster’s case preparation. Buster’s preservation letter put Defendants on notice that a litigation
hold should immediately be instituted but all evidence points to a near-complete failure to heed
the letter. For these reasons and those described above, I recommend finding Defendants culpable.
d. Advanced warning and efficacy of lesser sanctions
The last two factors weigh in favor of Defendants and against default judgment. See
Romero, 2023 WL 5844249, at *8. First, Defendants were not previously warned that a default
judgment sanction was on the horizon for further violations. Although Defendants’ management
and communication may be “disorganized, inefficient, and costly” to themselves and court
resources, it has not been sufficiently established that Defendants “willfully conceal[ed] any
information[,] so a lack of warning cuts against default judgment.” Id. (citing Lee, 638 F.3d at
1323). However, Defendants are hereby warned that further misrepresentations or other culpable
discovery misconduct is likely to result in a default judgment recommendation.
In sum, the majority of the Ehrenhaus factors weigh against Defendants but not so heavily
that default judgment against them is appropriate. Lesser sanctions can compensate Buster and,
presumably, deter Defendants from future misconduct. Therefore, I propose the Court find that
default judgment is not warranted. Nonetheless, I recommend the Court sanction Defendants
through both monetary and non-monetary sanctions given that Defendants were already ordered
to pay attorneys’ fees in connection with Buster’s previous Motion to Compel. See [Doc. 159].
2. Sanctions are necessary to punish Defendants and compensate Buster.
I propose finding that sanctions are also warranted because Defendants spoliated evidence,
demonstrated culpability, and prejudiced Buster. Spoliation sanctions should promote factual

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accuracy, punish bad discovery behavior, and compensate the aggrieved party. Browder, 187 F.
Supp. 3d at 1299. The severity of sanctions “should correspond to the willfulness of the spoliator’s
destructive act” and the opposing party’s prejudice. Lamb, 2024 WL 2890539, at *3 (internal
citation omitted). Defendants’ extremely late disclosure of the Facility Assessment Report is also
sanctionable for violating my order to compel and scheduling order.
However, I propose finding that an adverse inference instruction is not an appropriate
sanction here. To warrant an adverse inference instruction, a party must show evidence of bad faith
or intentional destruction of a document unfavorable to the spoliating party. Browder, 187 F. Supp.
3d at 1296; see also Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) To find bad
faith, a party must show some evidence of willful destruction. Lamb, 2024 WL 2890539, at *3
(citing Browder, 187 F. Supp. 3d at 1300 n. 6). In other words, “mere negligence in losing or
destroying records” does not suffice because it “does not support an inference of consciousness of
a weak case.” Id. (citing Aramburu, 112 F.3d at 1407) (declining to impose an adverse inference
in part because any bad faith inference was “undermined by the other attendance records being
produced”).
Buster proposes several lesser sanctions, including adverse inference instructions,
in the alternative to default judgment:
(1) An instruction that informs the jury the evidence was destroyed despite notice
of a potential lawsuit.
(2) An instruction that the jury can infer the missing evidence would have been
unfavorable to the Defendants.
(3) Preclude any evidence or argument that the missing evidence would
corroborate[] the Defendants’ version of events.
(4) Preclude any evidence or argument that [Buster] did not complain about her
conditions of confinement.
(5) An instruction that informs the jury the activities (e.g. meals, showers,
recreation, cleaning supplies, telephone, laundry, hygiene, mail, commissary,
and library) that should have been captured on the missing segregation logs, did
not happen.
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[Doc. 160, p. 17, 18].
I propose finding that Buster has not shown sufficient evidence of bad faith or intentional
destruction to warrant an adverse inference sanction. While Buster contends that Defendants acted
in bad faith, a jury instruction allowing an adverse inference must be justified by some willfulness
evidence. See Lamb, 2024 WL 2890539, at *3. An adverse inference is a “powerful sanction”
which “brands one party as a bad actor . . . open[ing] the door to a certain degree of speculation
by the jury.” Henning v. Union Pac. R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008) (internal citation
and quotation omitted). The gravitas of adverse inference is not commensurate to the Defendants’
actions nor to Buster’s prejudice. See Lamb, 2024 WL 2890539, at *3.
However, I do find that Defendants’ carelessness and indifference toward preserving and
disclosing evidence, combined with the resulting prejudice to Buster, merits sanctions. Defendants
have given no legitimate excuse for the documents’ apparent disappearance; the chaos and quality
control issues associated with management of a small county detention center proffered as excuses
are unavailing. See Browder, 187 F. Supp. at 1299; [Doc. 171]. Proper care of inmates is fostered,
not inhibited, by competent record-making and -keeping.
3. Recommended Sanctions
For the foregoing reasons, I recommend the Court impose all or some of the following
sanctions:
1) I recommend the Court permit Buster at trial to present evidence at trial that: she asked
Defendants to preserve all relevant documentation shortly after the incident occurred;
relevant documentation would include, at a minimum, two pass-through emails for each
day that Buster was in custody, a classification log for Buster’s initial cell assignment and

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any subsequent classification change, and segregation logs as required by applicable state
regulations and institution policies; that Defendants failed to create, maintain, or disclose
any required pass-through emails or classification or segregation logs except those received
by Buster through discovery; and that Defendants thereby deprived the jury of the ability
to consider those required documents as part of their determination of the truth of the
parties’ claims or defenses or the witnesses’ testimony. See Browder at 1299.
2) I recommend that the Court preclude Defendants from presenting any evidence, through
witness testimony or exhibits or otherwise, that a record was created that corroborates any
factual assertion disputing Buster’s claims or supporting Defendants’ defenses, unless: that
specific record was timely disclosed to Buster, or; the Court finds that other considerations
require the evidence to be admitted notwithstanding lack of timely disclosure of the
document described.
3) I recommend that the Court instruct the jury that they may consider the Defendants’ failure
to create, maintain, or disclose required documents, along with all other evidence presented
to them, and they may draw reasonable inferences from the absence of those required
documents as they determine what actually happened in this case. I recommend the parties
draft a proposed instruction to that effect and that they Court adopt that proposed
instruction or its own instruction in its sound discretion.
4) I recommend that the Court reopen discovery for a limited period of time sufficient for
Buster to conduct further discovery, including depositions, relevant to the Facility
Assessment Report produced after discovery closed;
5) I recommend the Court award attorney fees and other expenses incurred by Buster in
connection with these motions. I further recommend the Court allow Buster to submit

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attorney’s fees affidavits and allow Defendants to lodge objections prior to the Court’s
determination of a specific amount to be awarded.
For the foregoing reasons, I further recommend the Court deny the following
sanctions:
6) I recommend that the Court deny Buster’s request for default judgment in both motions for
sanctions [Docs. 158, 160] as discussed above;
7) I recommend that the court deny Buster’s request for an adverse inference because she has
not shown evidence of bad faith as discussed above;
8) I recommend the Court deny Buster’s request to preclude Defendants from arguing or
presenting evidence that Buster did not complain about her conditions of confinement.
Buster will be given ample opportunity to cross examine on these subjects and thereby
elicit favorable evidence which the jury may consider in drawing its own inference from
the missing documents. See Lamb, 2024 WL 2890539, at *4 (“[C]ross-examination can
patch holes in the record”).
IV. CONCLUSION
For the foregoing reasons, I respectfully RECOMMEND the Court GRANT IN PART
and DENY IN PART Buster’s motions for sanctions [Docs. 158, 160].
With respect to Buster’s first motion for sanctions [Doc. 158] concerning the Facility
Assessment Report, I recommend the Court deny default judgment but reopen discovery to
allow additional discovery on that late-disclosed report.
With respect to Buster’s second motion for sanctions [Doc. 160] concerning the pass
down log emails, the classification logs, and segregation logs, I recommend the Court deny default
judgment and an adverse inference instruction but grant the opportunity to present evidence

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on the missing documents and instruct the jury to draw their own inferences on the lack of
same.
With respect to both motions, I recommend monetary sanctions for the time Buster spent
preparing her motions after submission of attorney’s fees affidavits and objections thereto.

_____________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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