Tejada v. Delbalso et al

Filing 209

MEMORANDUM (Order to follow as separate docket entry) re 185 MOTION for Sanctions filed by Ricky Tejada Signed by Magistrate Judge Joseph F. Saporito, Jr on 6/16/21. (ms)

pUNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RICKY TEJADA,
Plaintiff,

CIVIL ACTION NO. 3:18-cv-01096

v.

(JONES, C.J.)
(SAPORITO, M.J.)

SUPERINTENDENT DELBALSO,
et al.,
Defendants.

MEMORANDUM
This is a pro se prisoner civil rights action. At the time of filing, the
plaintiff, Ricky Tejada, was incarcerated at SCI Retreat, a now-shuttered
state prison located in Luzerne County, Pennsylvania. He is currently
incarcerated at SCI Rockview, a state prison located in Centre County,
Pennsylvania.
In his complaint, Tejada asserts federal civil rights claims arising
out of an incident that occurred on May 31, 2016. He alleges that, in
connection with a movement from a shower unit to his cell, several of the
defendants used excessive force against him, beating and restraining him
without justification. He further alleges that he was left in his excessively
air-conditioned cell for an extended period without clothes and while in

restraints, that he was denied prompt medical treatment for injuries he
suffered as a result of the excessive use of force, and that he was deprived
of his personal property without due process of law. Finally, he alleges
that these actions were undertaken by correctional officers in retaliation
for his previous filing of inmate grievances.
The parties have engaged in discovery and a motion for summary
judgment by the defendants is now pending. The instant motion,
however, arises out of an ongoing discovery dispute between the parties.
The plaintiff has sought the disclosure of various video recordings by the
defendants. Although not without some logistical difficulties along the
way, the defendants have produced digital video recordings of the
incident itself, including surveillance video recorded from cameras
located inside the plaintiff’s cell and in the hallway outside it, and a video
recording from a handheld camera made by a member of the use-of-force
team that subdued, restrained, and transported Tejada from the shower
to his nearby cell.
The plaintiff asserts that these videos are incomplete. The
defendants produced approximately 4½ minutes of surveillance video
from the hallway camera, approximately 8 minutes of surveillance video

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from Tejada’s cell, and approximately 11 minutes of handheld video
footage recorded by a use-of-force team camera operator. The entire
incident itself—from the moment the shower unit door was opened until
Tejada’s cell door was closed and secured with him alone inside it—
elapsed over a period of approximately 4 minutes, and each of the three
videos produced depicts the entire incident, plus some additional time
before and after it. In addition to the incident, the handheld camera
footage also included a short after-action debriefing by the members of
the use-of-force team. Tejada argues, however, that the defendants’
production of video footage is incomplete because he had expressly
requested the production of surveillance video covering a 3-hour period
between 11:30 a.m. and 2:30 p.m. that day. He appears to claim that this
additional video footage would have depicted conversations between
himself and correctional officers and the confiscation of personal property
from his cell.
The defendants have responded that they have produced all of the
video that was preserved—that is, all video related to the use of force
itself, which is all that is relevant to the plaintiff’s excessive force
claims—and any additional video footage requested by the plaintiff in

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discovery was no longer available because it had been deleted pursuant
to routine document retention policies prior to the filing of this action.
The plaintiff now seeks spoliation sanctions under Rule 37(e) of the
Federal Rules of Civil Procedure. Specifically, he requests that we strike
the video footage that was preserved and produced (that is, preclude the
defendants from relying on it as evidence), that we presume any lost or
destroyed video footage was unfavorable to the defendants and instruct
a jury that it must presume so as well (that is, give the jury an “adverse
inference” instruction), and that we direct the defendants to pay him
$3,500 for the cost of litigating this motion. 1
“Spoliation is the destruction or significant alteration of evidence,
or the failure to preserve property for another’s use as evidence in
pending or reasonably foreseeable litigation.” Paramount Pictures Corp.
v. Davis, 234 F.R.D. 102, 110 (E.D. Pa. 2005). Sanctions for the spoliation
of electronically stored information, such as the digital video recordings
at issue here, are governed by Rule 37(e) of the Federal Rules of Civil
Procedure. Bistrian v. Levi, 448 F. Supp. 3d 454, 467 (E.D. Pa. 2020).

We note that the plaintiff, who is proceeding pro se, has failed to
articulate any basis at all for this figure.
1

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“Where [Rule 37(e)] applies, it provides the exclusive remedy for
spoliation of electronically stored information (‘ESI’), foreclosing reliance
on the court’s inherent authority.” Id. at 464 (emphasis added).
Rule 37(e) provides that spoliation occurs where ESI “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, and it
cannot be restored or replaced through additional discovery.” Fed. R. Civ.
P. 37(e). The elements of spoliation under Rule 37(e) are:
First, the spoliating party was under a duty to preserve
when the loss occurred. Second, the lost ESI was within
the scope of the duty to preserve. Third, “the
information was lost because the party failed to take
reasonable steps to preserve” it. Fourth and finally,
because ESI “often exists in multiple locations,”
spoliation occurs only where the information is truly
lost and not recoverable elsewhere.
Bistrian, 448 F. Supp. 3d at 465 (footnotes omitted) (quoting Fed. R. Civ.
P. 37(e) advisory committee’s note (2015)).
If we find that spoliation occurred, we must then determine what
sanction to impose. Id. at 466. “If a party ‘acted with intent to deprive
another party of the information’s use in the litigation,’ the district court
may draw an adverse inference or even impose case-dispositive
sanctions.” Id. (quoting Fed. R. Civ. P. 37(e)(2)). In the absence of bad
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faith, however, “a court may impose a range of lesser sanctions if the loss
of the information prejudiced another party.” Id. (citing Fed. R. Civ. P.
37(e)(1)). In addition, the Third Circuit has set out three factors we must
consider in contemplating Rule 37(e) spoliation sanctions:
(1) the degree of fault of the party who altered or
destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) whether there
is a lesser sanction that will avoid substantial
unfairness to the opposing party, and, where the
offending party is seriously at fault, will serve to deter
such conduct by others in the future.
GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76 (3d Cir. 2019); see also
Bistrian, 448 F. Supp. 3d at 466 (noting that the GN Netcom factors are
still applicable to motions governed by a 2015 amendment to Rule 37(e)).
Here, the plaintiff’s motion founders at the first step. Rule 37(e)
“does not apply to information that was lost or destroyed before a duty to
preserve it arose.” Bistrian, 448 F. Supp. 3d at 467 (citing Fed. R. Civ. P.
37(e) advisory committee’s note (2015)). “The duty to preserve arises no
later than when a lawsuit is filed but may be triggered earlier than the
filing of the complaint depending on the particular circumstances.” Id.
This lawsuit commenced when the plaintiff filed his pro se complaint—
which included his property-related due process claims—on May 29,

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2018, nearly two years after the May 31, 2016, incident occurred. (Doc.
1.) The defendants contend that any additional responsive video
footage—if any ever existed—was automatically deleted from their
systems long before the complaint was filed.
“When a party argues that spoliation occurred before the complaint
was filed, the court must conduct a fact-sensitive inquiry to determine at
what point the spoliating party reasonably should have anticipated the
litigation.” Bistrian, 448 F. Supp. 3d at 468. Here, it is clear that the
defendants could have reasonably anticipated—and did anticipate—
litigation concerning the use-of-force incident on May 31, 2016. They
preserved cell and hallway surveillance video footage and handheld useof-force-team video footage of the entire use-of-force incident for
investigative use, and they preserved and produced that video footage for
the plaintiff’s inspection in this litigation.
But
[t]he duty to preserve encompasses only relevant
evidence. . . . A litigant is not required to keep “every
document in its possession”—rather, only those items
that are relevant, “reasonably calculated to lead to the
discovery of admissible evidence,” or “reasonably likely
to be requested during discovery” need to be
preserved.”

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Id. at 473 (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217
(S.D.N.Y. 2013) (footnotes omitted).
In addition to the use-of-force incident itself, Tejada argues in his
motion papers that the defendants had a duty to preserve cell and
hallway surveillance video footage for a substantially longer, 3-hour
block of time. He proffers that this additional footage would have depicted
the defendants removing personal property from his cell prior to the useof-force incident, and it would have depicted him conversing with certain
defendants.2 He appears to contend that this additional footage would
somehow bolster his claims that the defendants deprived him of his
personal property without due process of law, and that the defendants’
use of force was unjustified—it is altogether unclear, however, just how
the missing video footage would have done so. In any event, Tejada has
proffered no reason whatsoever why the additional video footage would
have been relevant to his claims concerning the use-of-force incident
itself.
Tejada appears to argue that the defendants had a duty to preserve
surveillance video footage for this additional 3-hour block of time simply

2

Notably, the surveillance video footage does not include any audio.
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because he requested it. On June 3, 2016—three days after the incident—
Tejada submitted an “Inmate’s Request to Staff Member” form to the
facility grievance coordinator concerning “the 5/31/16 incident,” in which
he requested that prison officials preserve surveillance video footage for
a 2½-hour period, from 12:00 noon to 2:30 p.m. Beyond reference to “the
5/31/16 incident,” the inmate request form did not describe the incident
or articulate any particular claims relating to it.
On June 6, 2016, Tejada submitted his “Official Inmate Grievance”
to the facility grievance coordinator. Upon its receipt on June 7, 2016, the
grievance coordinator assigned it Grievance No. 629472. In his grievance,
Tejada stated that he had been “attacked” on May 31, 2016, by
unidentified correctional officers because he had submitted an
unspecified

grievance

or

grievances.

Tejada’s

grievance

also

characterized this incident as an “assault” on him. He further stated that,
afterward, medical staff failed to adequately clean his wounds, resulting
in an infection, and failed to x-ray his injured wrist, and he complained
about the general conditions of his confinement after the incident, stating
that he was left in a cold cell without any clothing, bedding, personal
hygiene items, or other personal property. For relief, Tejada requested

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that prison officials preserve surveillance video footage for a 3-hour
period, from 11:30 a.m. to 2:30 p.m., and that they investigate his claims.
The grievance did not, however, articulate any claim that Tejada’s
personal property was taken without due process.
On January 17, 2017, following an investigation, the assigned
grievance officer denied Tejada’s grievance on its merits. The grievance
officer stated that video footage and interviews with staff revealed that,
contrary to Tejada’s characterization of the incident in his grievance
form, the use of force occurred because Tejada assaulted the escorting
officers while he was being escorted from the showers to his cell. The
grievance officer found that the contents of Tejada’s cell were confiscated
because of his assaultive behavior. The grievance officer further found
that Tejada was offered medical attention, but he refused it. Finally, the
grievance officer noted that “video footage of [the] incident on 5/31/16 was
preserved.”
Tejada argues that the defendants had a duty to preserve the entire
3-hour block of video footage simply because he requested it in his
original inmate grievance papers. But “[a]n inmate cannot trigger the
duty to preserve simply by requesting jail officials preserve a piece of

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evidence.” Laughlin v. Stuart, Case No. 19-cv-2547 (ECT/TNL), 2020 WL
4747665, at *2 (D. Minn. Aug. 17, 2020). “Rule 37(e) requires the
preserving party to maintain only relevant evidence, as viewed from that
party’s perspective.” Id. (emphasis added); see also Bistrian, 448 F. Supp.
3d at 473 (“The duty to preserve encompasses only relevant evidence.”).
Here, Tejada’s unilateral demand that prison officials preserve a 3-hour
block of surveillance video footage itself imposed no duty to preserve on
the defendants.
The defendants’ pre-complaint duty to preserve the particular
digital video footage at issue extended only so far as they could
reasonably foresee litigation and appreciate that the ESI at issue should
be preserved for possible use in that litigation. See Bistrian, 448 F. Supp.
3d at 468 (“A party ‘is under a duty to preserve what it knows, or
reasonably should know, will likely be requested in reasonably
foreseeable litigation.’”) (quoting Mosaid Techs. Inc. v. Samsung Elecs.
Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004)). See generally 8B Wright &
Miller, Federal Practice & Procedure § 2284.2 (3d ed. 2021) (noting that
“a determination when the duty to preserve was ‘triggered’ . . . normally
turns on whether the party should foresee litigation and also appreciate

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that the information should be preserved for possible use in that
litigation”). Upon the receipt of Tejada’s grievance by prison officials, it
was reasonably foreseeable that litigation regarding the May 31, 2016,
use-of-force incident might occur, and the defendants reasonably should
have known at that point that video footage of the use-of-force incident
itself would be relevant in that litigation. Indeed, they did preserve that
video, and ultimately they produced it to the plaintiff for inspection.
But based on Tejada’s grievance papers alone, the defendants’ duty
to preserve was not triggered with respect to any of the rest of the 3-hour
block of surveillance video footage he seeks here in discovery. The
grievance complained about the use of force itself, and that video footage
was preserved and produced. The grievance complained about the
conditions of Tejada’s confinement immediately thereafter—in his cell
with no clothing, bedding, or personal property—and cell-camera video
footage depicting that was preserved and produced. 3

The grievance

Indeed, the cell camera surveillance video footage continued for
several minutes after the incident, after Tejada had been secured in his
cell and prison officials had left. The footage ends only after Tejada had
smeared something on the lens, preventing the camera from recording
any further images of the interior of his cell. Any subsequent interactions
with correctional officers or medical staff could not have been recorded
by the surveillance camera in his cell in any event.
3

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complained about a purported conspiracy among the correctional officers,
their supervisors, and medical staff to retaliate against him for his filing
of prior grievances, but any video footage recorded on the surveillance
cameras, which did not record any audio to accompany the video footage,
could not have conceivably been probative of these allegations.
Finally, the grievance complained that Tejada’s personal property
had been confiscated—a fact that is entirely undisputed—but it did not
articulate a due process claim because it did not assert that this property
had been taken without affording him a post-deprivation administrative
remedy for its loss. A property-related due process claim requires an
inmate to establish not only the confiscation of property, but also that the
inmate was afforded no post-deprivation administrative remedy. See
Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008). The defendants could
not be reasonably expected to foresee that video footage of the undisputed
confiscation of personal property from an inmate’s cell would be relevant
to an unarticulated due process claim, particularly when that footage
could not possibly shed any light whatsoever on whether the inmate was

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afforded an adequate post-deprivation remedy. 4
To the extent a pre-litigation duty to preserve was triggered by
submission to prison officials of the plaintiff’s inmate grievance papers,
the scope of that duty to preserve was limited to the digital video footage
that was in fact preserved by the defendants and produced to the plaintiff
for inspection. No duty to preserve was triggered with respect to the
remainder of the digital surveillance video footage sought by the plaintiff.
Thus, we find the plaintiff’s Rule 37(e) motion for spoliation sanctions is
meritless.
The plaintiff’s motion will be denied.
An appropriate order follows.

Dated: June 16, 2021

s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

Notably, the Third Circuit has held that “[a]dequate postdeprivation remedies include prison grievance programs and state tort
law.” Brown v. Warden Pike Cty. Corr. Facility, 693 Fed. App’x 176, 177
(3d Cir. 2017) (per curiam) (citing Hudson v. Palmer, 468 U.S. 517, 533
(1984); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir.
2000); Reynolds v. Wagner, 128 F.3d 166, 179–81 (3d Cir. 1997)).
4

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