Victor v. Wetzel et al

Filing 81

MEMORANDUM OPINION AND ORDER - IT IS ORDERED THAT the plaintiffs motion to compel (Doc. 73 ) is GRANTED in part, DENIED in part, and discovery proceedings will be STAYED pending completion of the parallel state criminal investigation. The defendants shall file a status report updating the court on the status of this investigation on or before September 3, 2021. Signed by Magistrate Judge Martin C. Carlson on June 4, 2021. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM VICTOR,

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Plaintiff,
v.
LT. MOSS, et al.,
Defendants.

Civil No. 1:20-CV-425
(Judge Mannion)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of Facts and of the Case
This is a civil rights action brought by William Victor, a state inmate. In his

complaint Victor, who is proceeding pro se, named multiple individual defendants
at two facilities, SCI Dallas and SCI Frackville. According to Victor, on September
17, 2019, staff at SCI Dallas violated his rights under the Eighth Amendment to be
free from cruel and unusual punishment when they used excessive force and engaged
in an “unprovoked attack” upon him. (Doc. 1). Victor then alleges that he was
transferred to a nearby prison, SCI Frackville, for medical treatment following his
injuries but suffered another violation of his Eighth Amendment right to be free from
cruel and unusual punishment when medical staff were deliberately indifferent to his
medical needs.

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In the wake of these incidents, Victor alleged in prison grievances that he had
been assaulted by staff, and in accordance with prison policy these assault
allegations were referred to the Pennsylvania State Police for investigation.
Moreover, consistent with corrections policies, it is reported that all investigative
materials and videos depicting this incident are also now in the possession of the
State Police. In the meanwhile, Victor has filed this civil action and the parties are
now embroiled in discovery disputes relating to this lawsuit, with Victor having filed
a motion to compel certain discovery. (Doc. 73).
As we understand it, Victor’s motion seeks several forms of relief. First, he
requests that we order the defendants to provide him with documentary discovery
printed in a one-side format instead of the two-sided copies that have been provided
to the plaintiff. In addition, Victor requests color copies of certain photographs
depicting his injuries in lieu of the black and white photos produced in discovery.
Victor also requests the production of videos relating to this September 17 incident,
along with videos of other instances in which he was moved within the prison. In
addition, Victor seeks a hearing on spoliation sanctions to the extent that videos of
other inmate movements unrelated to the September 17 incident that forms the
gravamen of this lawsuit were not preserved. Finally, Victor requests copies of
various grievances which he may have filed, including both grievances related to the
incidents described in this lawsuit, as well as other unrelated grievances.
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The defendants have responded to this motion by explaining that much of
what Victor seeks is currently in the possession of the State Police and unavailable
at this time. The defendants have also objected to a number of Victor’s specific
requests, particularly as they relate to the format and scope of the requested
discovery.
This motion is fully briefed and is, therefore, ripe for resolution. For the
reasons set forth below, the motion will be GRANTED in part, DENIED in part, and
discovery proceedings will be STAYED pending completion of the parallel state
criminal investigation.
II.

Discussion
A. Guiding Principles
Several basic guiding principles inform our resolution of the instant discovery

dispute. At the outset, the scope of what type of discovery may be compelled is
defined by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides as
follows:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional
to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to be
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discoverable.
Fed. R. Civ. P. 26(b)(1).
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding motions to compel
are “committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus, a
court’s decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse
of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This
far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J. 1997). When a magistrate judge’s decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United
States, 943 F. Supp. 501, 502 (E.D. Pa. 1996)). Under that standard, a
magistrate judge’s discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
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Commc’ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a
magistrate judge’s resolution of discovery disputes deserves substantial
deference and should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26’s broad definition of that which can be obtained through
discovery reaches only “any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26. Therefore,
valid claims of relevance, privilege, and proportionality cabin and restrict the court’s
discretion in ruling on discovery issues. A party seeking discovery bears the initial
burden of proving the relevance of the requested information. Morrison v.
Philadelphia Housing Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). Once that initial
burden is met, “the party resisting the discovery has the burden to establish the lack
of relevance by demonstrating that the requested discovery (1) does not come within
the broad scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of
such marginal relevance that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad disclosure.” In re Urethane
Antitrust Litigation, 261 F.R.D. 570, 573 (D. Kan. 2009).
One other immutable rule defines the court’s discretion when ruling on
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discovery matters. It is clear that the court cannot compel the production of things
that do not exist. Nor can the court compel the creation of evidence by parties who
attest that they do not possess the materials sought by an adversary in litigation. See,
e.g., AFSCME District Council 47 Health and Welfare Fund v. Ortho-McNeilJanssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL 5186088 (E.D. Pa. Dec. 21,
2010); Knauss v. Shannon, No. 08-1698, 2009 WL 975251 (M.D. Pa. April 9, 2009).
Further in a case such as this where the inmate’s civil litigation pertains to
matters that are under investigation criminally other considerations come into play.
As part of the district court’s power to control the disposition of civil matters that
come before it, the court has the power to stay proceedings when judicial economy
or other interests may require. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see
also CTF Hotel Holdings, Inc. v. Marriott Int’l, Inc., 381 F.3d 131, 136 (3d Cir.
2004); Barker v. Kane, 149 F. Supp. 3d 521, 525 & n.42 (M.D. Pa. 2016). Although
a decision to grant a stay is an extraordinary measure that should not be taken as a
matter of course, the decision to impose a stay is committed to the discretion of the
district court. Barker, 149 F. Supp. 3d at 525 (citing In re Adelphia Commcn’s Secs.
Litig., No. 02-1781, 2003 WL 22358819, at *2 (E.D. Pa. May 13, 2003); see also
Landis, 299 U.S. at 254-56. When determining whether to stay a civil case pending
resolution of a related criminal proceeding, courts consider the following factors:
(1) the extent to which the issues in the civil and criminal cases overlap;
(2) the status of the criminal proceedings, including whether any
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defendants have been indicted; (3) the plaintiff’s interests in expeditious
civil proceedings weighed against the prejudice to the plaintiff caused
by the delay; (4) the burden on the defendants; (5) the interests of the
court; and (6) the public interest.
Barker, 149 F. Supp. 3d at 525-26 (citations omitted).
B. The Motion to Compel is Granted in part Denied in Part, and
Discovery is Stayed Pending Completion of the Parallel Criminal
Investigation.
Applying these general principles in the instant case, at the outset we note that
in a number of instances the defendants have responded to specific discovery requests
propounded by Victor by stating that the requested investigative materials and videos
are in the possession of the State Police, which is conducting a parallel criminal
investigation into the matters alleged by the plaintiff. To the extent that Victor seeks
these materials, we conclude that further discovery of these matters should be stayed
pending completion of the related criminal proceedings.
In reaching this conclusion, we begin with the premise that “[t]he degree of
overlap between pending civil and criminal cases is considered by many courts to be
‘the most important threshold issue’ in determining whether or not to stay the civil
action.” Garanin v. City of Scranton-Dep't of Licensing, Inspections & Permits, No.
3:14-CV-2129, 2018 WL 8514053, at *2 (M.D. Pa. Apr. 20, 2018). Here, the pending
criminal investigation directly arises out of Victor’s allegations that form the basis
for his civil lawsuit. Therefore, the overlap between these two proceedings is
significant and substantial. Further, delaying discovery briefly pending resolution of
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this criminal inquiry in our view advances the public’s interest and the interests of
the court by ensuring that these two matters do not interfere with one another and
promoting transparency by allowing the criminal inquiry to run its course before
indulging in civil discovery. Choosing this path also avoids imposing impossible
burdens upon the defense, which cannot readily product materials that it has turned
over to law enforcement for their review. As for weighing the plaintiff’s interests in
expeditious civil proceedings against the prejudice to the plaintiff caused by the
delay, while we appreciate that a stay will delay discovery for Victor in this case, the
delay is a product of the gravity of Victor’s allegations that assert criminal conduct
by correctional staff. Given Victor’s assertions that crimes have occurred here, we
believe that the plaintiff cannot be heard to complain if civil discovery is briefly
delayed while his allegations of criminal misconduct are investigated. Therefore, in
our view the discretionary factors we must consider weigh in favor of staying
discovery as it relates to information that has been turned over to the State Police in
connection with its criminal investigation of this alleged assault.
As for Victor’s complaints regarding the two-sided copies of the documents he
received and his demand for color copies of the black-and-white photos produced by
the defense, we agree that the Federal Rules of Civil Procedure simply require the
production of this information “in a reasonably usable form.” Fed. R. Civ. P.
34(b)(1)(E)(ii). For discovery purposes, we find that the format used by the defense
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to produce these documents and photos is adequate. We also note that the defendants
stand ready to produce these materials in the format requested by Victor, provided
Victor agree to pay the costs of copying these materials. Finally, with respect to the
photographs depicting Victor’s injuries, while we agree that black and white photos
are sufficient for discovery purposes, to the extent that color photos exist they must
be preserved and made available for use by the plaintiff should this case proceed to
trial.
Turning next to the parties’ dispute regarding production of inmate grievances
filed by Victor, as we understand it the gravamen of this dispute is the temporal and
topical scope of this document production. The defendants are prepared to produce
copies of grievances relating to the matters set forth in Victor’s complaint, but object
to what they understand to be a demand for all grievances filed by Victor over a
period of time, including unrelated grievances concerning other matters. While we
agree that Victor is entitled to copies of grievance paperwork relating to the matters
set forth in his complaint, to the extent that Victor is making more sweeping,
generalized and overly broad discovery requests for unrelated grievances, absent a
more compelling offer of proof and consistent with settled case law this request will
be denied.1

See, e.g., Montanez v. Tritt, Civ. No. 3:14-CV-1362, 2016 WL 3035310, at *4
(M.D. Pa. May 26, 2016) (denying motion to compel production of incident reports,
grievances and other documents involving other inmates where they were found to
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Victor’s final request in this motion to compel relates to alleged spoliation of
inmate transport videos. As we understand it, the issue is framed in the following
fashion: At the time of the events described in the complaint, prison staff were under
instructions to videotape any inmate transfers involving Victor. The September 17
inmate movement in which Victor alleges he was assaulted was video recorded, but
Victor has also requested copies of other videos of inmate movements unrelated to

be “overly broad, irrelevant, confidential, [and to] bear no sufficient connection to
this case, and raise obvious privacy and security issues”) (Mariani, J.); Lofton v.
Wetzel, Civ. No. 1:12-CV-1133, 2015 WL 5761918, at *2 (M.D. Pa. Sept. 9, 2015)
(Conner, C.J.) (“It is apparent that [the plaintiff’s] requests for ‘any and all’ records
of inspection, and ‘all’ incident reports and grievances are a grossly overstated fishing
expedition. [His] request for incident reports and grievances regarding other inmates
raises obvious privacy and security issues, and the relevance of such information is
questionable at best”); Sloan v. Murray, No. 3:11-CV-994, 2013 WL 5551162, at *4
(M.D. Pa. Oct. 8, 2013) (Caputo, J.) (denying motion to compel grievance responses
that concerned other inmates, citing DOC policy prohibiting inmates from receiving
information about one another); Torres v. Clark, Civ. No. 1:10-CV-1323, 2011 WL
4898168, at *2-3 (M.D. Pa. Oct. 13, 2011) (Caldwell, J.) (denying motion to compel
inmate request for discovery of 27-months of grievances about a specific cell block,
finding it to be overly broad, burdensome, and potentially implicating privacy
interests of other inmates); McDowell v. Litz, Civ. No. 1:CV-08-1453, 2009 WL
2058712, at *3 (M.D. Pa. July 10, 2009) (Rambo, J.) (finding requests for discovery
of grievances filed by non-party inmates to be “overbroad and overly burdensome”
and agreeing with the defendants’ “concerns about accessing private information
with respect to other inmates’ grievances”); Callaham v. Mataloni, Civ. No. 4:CV06-1109, 2009 WL 1363368, at *3-4 (M.D. Pa. May 14, 2009) (Jones, J.) (denying
motion to compel, inter alia, grievances relating to medical treatment of other
inmates, citing privacy concerns); cf. Banks v. Beard, Civ. No. 3:CV-10-1480, 2013
WL 3773837, at *5 (M.D. Pa. July 17, 2013) (Munley, J.) (denying motion to compel
account statements for other inmates despite plaintiff’s claim of relevance).
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the September 17 incident that forms the gravamen of this lawsuit, which he claims
were not preserved. Indeed, it appears that Victor seeks videos reaching back more
than two months prior to this episode, in July of 2019. According to the defendants,
when there is nothing remarkable about an inmate movement, the videotape of that
movement is not retained, and a search has disclosed that copies of these other
transfers, which are unrelated to the September 17 movement, are no longer in the
possession of the Department of Corrections. Notably, these other videos, which
would date from July 2019 to the date of the alleged assaulted on September 17, 2019,
are not alleged to have involved any assaultive violence. Therefore, the relevance of
these other tapes, which apparently no longer exist, is unclear. Nonetheless, citing the
failure to preserve these other videos, Victor seeks a hearing regarding spoliation
sanctions.
In making this request, however, the plaintiff must be mindful of the precise
and exacting standards that govern spoliation claims. “Spoliation occurs where: the
evidence was in the party's control; the evidence is relevant to the claims or defenses
in the case; there has been actual suppression or withholding of evidence; and, the
duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United
Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (emphasis added). On this score,
In assessing a spoliation claim: “[R]elevant authority requires that four
(4) factors be satisfied for the rule permitting an adverse inference
instruction to apply: 1) the evidence in question must be within the
party's control; 2) it must appear that there has been actual suppression
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or withholding of the evidence; 3) the evidence destroyed or withheld
was relevant to claims or defenses; and 4) it was reasonably foreseeable
that the evidence would later be discoverable.”
Victor v. Lawler, No. 3:08-CV-1374, 2011 WL 1884616, at *2–3 (M.D. Pa. May 18,
2011), on reconsideration, No. 3:08-CV-1374, 2011 WL 4753527 (M.D. Pa. Oct. 7,
2011).
In practice, spoliation litigation rarely turns on issues relating to the first two
aspects of this four-part test. In most instances, it is self-evident that: “[1] the
evidence was in the party's control; [and] [2] the evidence is relevant to the claims or
defenses in the case.” Bull, 665 F.3d at 73. Rather, the critical issues in assessing
whether spoliation inferences are proper typically revolve around the latter two
aspects of this four-part test; namely, whether: “[3] there has been actual suppression
or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably
foreseeable to the party.” Id.
Turning first to the duty to preserve, the applicable benchmark in this regard is
whether that duty was “reasonably foreseeable to the party.” Id. “[T]he question of
reasonable foreseeability is a ‘flexible fact-specific standard that allows a district
court to exercise the discretion necessary to confront the myriad factual situations
inherent in the spoliation inquiry.’” Bull, 665 F.3d at 77-78 (quoting Micron
Technology, Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011)). Thus, a
party that reasonably anticipates litigation has an affirmative duty to preserve relevant
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evidence. Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D. Pa. 1994). As one court
has observed in this regard:
Whether a duty to preserve evidence is reasonably foreseeable is
evaluated objectively. Bull, 665 F.3d at 78. “[T]he question of
reasonable foreseeability is a ‘flexible fact-specific standard that allows
a district court to exercise the discretion necessary to confront the
myriad factual situations inherent in the spoliation inquiry.’ ” Id. at 77–
78 (internal quotation omitted). “While a litigant is under no duty to keep
or retain every document in its possession, even in advance of litigation,
it is under a duty to preserve what it knows, or reasonably should know,
will likely be requested in reasonably foreseeable litigation.” Mosaid,
348 F.Supp.2d at 336 (internal quotation omitted).
Bozic v. City of Washington, Pa., 912 F. Supp. 2d 257, 267 (W.D. Pa. 2012). This
foreseeability requirement is expressly incorporated into Rule 37 of the Federal Rules
of Civil Procedure, which provides that a spoliation inference is only warranted “[i]f
electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to
preserve it.” Fed. R. Civ. P. 37(e) (emphasis added).
However, a finding that a party had a duty to preserve evidence that was lost
will not, by itself, warrant a finding of spoliation. The party seeking a spoliation
finding must also prove a culpable state of mind. In this respect:
For the [spoliation] rule to apply ... it must appear that there has been an
actual suppression or withholding of the evidence. No unfavorable
inference arises when the circumstances indicate that the document or
article in question has been lost or accidentally destroyed, or where the
failure to produce it is otherwise properly accounted for. See generally
31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 (“Such a
presumption or inference arises, however, only when the spoliation or
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destruction [of evidence] was intentional, and indicates fraud and a desire
to suppress the truth, and it does not arise where the destruction was a
matter of routine with no fraudulent intent.”). Brewer, 72 F.3d at 334
(emphasis added). Therefore, a finding of bad faith is pivotal to a
spoliation determination. This only makes sense, since spoliation of
documents that are merely withheld, but not destroyed, requires evidence
that the documents are actually withheld, rather than—for instance—
misplaced. Withholding requires intent.
Bull, 665 F.3d at 79 (emphasis added and in original).
Judged against these settled legal benchmarks, we find at this time that Victor
simply has not made out a sufficient threshold showing to justify a spoliation hearing.
In particular, we find that there was no foreseeable need to preserve videos of inmate
transports relating to Victor that took place prior to the episode alleged in his
complaint and occurred without incident. In the absence of a foreseeable need to
preserve these videos of what were apparently unremarkable interactions between
Victor and staff, we cannot draw any inference of intentional withholding of evidence
from the fact that more than a year after these events, prison officials are unable to
locate recordings which they had no foreseeable need to preserve. Therefore, this
request will be denied.
An appropriate order follows.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
June 4, 2021

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM VICTOR,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
LT. MOSS, et al.,
Defendants.

Civil No. 1:20-CV-425
(Judge Mannion)
(Magistrate Judge Carlson)

ORDER
AND NOW this 4th day of June, 2021, in accordance with the accompanying
Memorandum Opinion, IT IS ORDERED THAT the plaintiff’s motion to compel
(Doc. 73) is GRANTED in part, DENIED in part, and discovery proceedings will be
STAYED pending completion of the parallel state criminal investigation, as follows:
1. The plaintiff’s request for a spoliation hearing is DENIED.
2. The plaintiff’s request for inmate grievances relating to the matters set forth
in the complaint is GRANTED, but the plaintiff’s request for other
temporally and topically unrelated grievances is DENIED.
3. The plaintiff’s request for production of documents in a one-sided format
and color photos is DENIED, but IT IS ORDERED THAT the defendants
stand ready to produce these materials in the format requested by Victor,
provided Victor agree to pay the costs of copying these materials and, with
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respect to the photographs depicting Victor’s injuries, the extent that color
photos exist they must be preserved and made available for use by the
plaintiff should this case proceed to trial.
4. Discovery as it relates to information that has been turned over to the State
Police in connection with its criminal investigation of this alleged assault is
STAYED pending the completion of that investigation. The defendants
shall file a status report updating the court on the status of this investigation
on or before September 3, 2021.

s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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