DOCKERY v. BEARD et al
Filing
138
MEMORANDUM AND OPINION re 133 MOTION for spoliation of sanction filed by TIMOTHY DOCKERY, ORDER. Signed by Magistrate Judge Maureen P. Kelly on 12/19/2011. A copy of the Memorandum Order is being mailed to Plaintiff this day at his address of record. (ndf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIMOTHY DOCKERY,
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vs.
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CAPTAIN LEGGET; CAPTAIN RISKUS; )
LIEUTENANT LESURE; SERGEANT )
BERTO; SERGEANT BITTNER;
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JOHNSON, Correctional Officer;
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GRIFFIN, Correctional Officer;
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COLLINS, Correctional Officer; DOBIS, )
Correctional Officer; RICKET,
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Correctional Officer; JENNINGS,
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Correctional Officer; ANKRON,
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Correctional Officer; VOJACEK,
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Correctional Officer; CHRIS MYERS, )
Physician Assistant; NURSE TONY;
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D.P. BURNS, former Deputy
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Superintendent; POPOVICH, Unit
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Manager; BUSH, Sergeant,
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Defendants. )
Plaintiff,
Civil Action No. 09-732
Judge Terrence F. McVerry/
Magistrate Judge Maureen P. Kelly
[ECF No. 133]
MEMORANDUM ORDER
AND NOW, this 19th day of December, 2011, upon consideration of Plaintiff‟s
“Application for Spoliation of Sanction” [ECF No. 133], IT IS HEREBY ORDERED that the
motion is DENIED.
I. BACKGROUND
Plaintiff is an inmate currently confined at the State Corrections Institute at Frackville
(“SCI-Frackville”), where he is serving a life sentence for a 1989 murder.1
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Plaintiff‟s motion
See, http://ujsportal.pacourts.us/DocketSheets/CPReport.aspx?docketNumber=CP-51-CR-0742101-1989.
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seeks the imposition of sanctions as a result of the alleged destruction and/or alteration of three
videos of events surrounding the search of Plaintiff‟s cell and two forced cell extractions, each
necessitated by Plaintiff‟s refusal to comply with instructions to relinquish handcuffs after the
completion of a cell search.
The first videotape at issue was recorded on August 3, 2007, from a camera mounted in
the J–D Pod at the State Corrections Institute at Forest (“SCI Forest”), where Plaintiff was
incarcerated at the time. Plaintiff alleges that the videotape would show that approximately one
hour before a cell extraction, prison guards entered his cell to perform a search and confiscated a
purportedly fabricated and forged misconduct report which Plaintiff claims relates to his
“unlawful” confinement in a restrictive housing unit. ECF No. 133, p. 2, ¶¶ 9, 11. Plaintiff
admits that his anger over the property confiscation led to his subsequent refusal to relinquish his
handcuffs which, in turn, led to a planned use of force to extricate Plaintiff from his cell to
recover the handcuffs. Id.
Defendants have responded to Plaintiff‟s discovery request, asserting that because the
requested videotape was part of a routine cell search, unrelated to a planned use of force, it was
not preserved. ECF Nos. 129, 136. Further, pursuant to the Department of Corrections policy,
because the videotape recorded a routine event, given the “quantity of recordings and no
requirement for preservation of routine searches,” the tape at issue was “recorded over” when the
memory card was full, and is no longer available. ECF Nos. 136, 136-2.
The second videotape at issue contains footage taken of the August 3, 2007, cell
extraction. Plaintiff alleges that this video, filmed with a handheld camera, is altered because it
omits his verbal explanation for his refusal to follow a direct instruction to safely relinquish
handcuffs, and only shows footage of the extraction. ECF No. 133, p. 3. In response to this
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assertion, Defendants have filed the affidavit of Eric Tice, the Deputy Superintendent at SCIForest. Mr. Tice avers that the videotape has not been altered in any way and was stored
pursuant to DOC policy in a “safe designated storage area.” ECF No, 136-2 p. 2.
The third videotape, taken on November 7, 2008, is also evidence of the forced removal
of handcuffs after Plaintiff‟s refusal to cooperate subsequent to a routine cell search. ECF No.
133, p. 7; Complaint, ECF No. 1-2, ¶ 52. Plaintiff has alleged that he was angry with the
“reckless disregard the officer had for [his] personal property while conducting [a] cell search.”
Plaintiff alleges this video omits footage of the officers “brutally snatching and pulling plaintiff
handcuffed hands attached to a tether though the pie slot on the cell door.” ECF No. 133, p. 4.
Defendants respond that this video has been produced in its entirety and has not been altered in
any way. ECF Nos. 136, p. 2; 136-2, p. 2.
Plaintiff contends that the destruction and/or alteration of the videotape evidence entitles
him to sanctions, specifically the entry of judgment in his favor, or in the alternative, a spoliation
adverse inference instruction, presumably because Defendants should have anticipated litigation
arising out of a subsequent cell extraction and preserved each video in its entirety.
II. DISCUSSION
“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.
Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348 F. Supp.2d 332, 335 (D.N.J. 2004).”
Fortune v. Bitner, No. 01-111, 2006 WL 839346, *1 (M.D. Pa. March 29, 2006); see Ogin v.
Ahmed, 563 F.Supp.2d. 539, 542 (M.D. Pa.2008). 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 or withholding of the evidence; 3) the evidence destroyed or withheld
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was relevant to claims or defenses; and, 4) it was reasonably foreseeable that the
evidence would later be discoverable. Mosaid, 348 F.Supp.2d at 336 citing
Brewer, 72 F.3d at 334; Scott v. IBM Corp., 196 F.R.D. 233, 248-50 (D.N.J.
2000); Veloso v. Western Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J.
2003). Additionally, the United States District Court for the District of New
Jersey recognized: “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 (quoting Scott,
196 F.R.D. at 249).
Ogin, 563 F. Supp.2d at 543.
Thus, “[a] party which reasonably anticipates litigation has an affirmative duty to
preserve relevant evidence. Baliotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa.1994). Where
evidence is destroyed, sanctions may be appropriate, including the outright dismissal of claims,
the exclusion of countervailing evidence, or a jury instruction on the „spoliation inference.‟ This
inference permits the jury to assume that „the destroyed evidence would have been unfavorable
to the position of the offending party.‟ Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78
(3d Cir. 1994).” Howell v. Maytag, 168 F.R.D. 502, 505 (M.D. Pa.1996).
If the court finds that there is a culpable destruction or spoliation of evidence, the
question then becomes determining the appropriate sanction for this act of spoliation. In this
respect:
The United States Court of Appeals for the Third Circuit has applied three (3) key
considerations to determine whether a sanction for spoliation of evidence is
appropriate. Schmid, 13 F.3d at 79. The considerations are: 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. Id.
When appropriate, a court may impose any potential sanction including: 1)
dismissal of a claim or granting judgment in favor of a prejudiced party; 2)
suppression of evidence; 3) an adverse inference, referred to as the spoliation
inference; 4) fines; and, 5) attorneys' fees and costs. Mosaid, 348 F.Supp.2d at
335.
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Victor v. Lawler, 2010 WL 521118, 5 (M.D. Pa. 2010).
A. Video of Cell Extraction on August 3, 2007.
The Court finds that the August 3, 2007, video of Plaintiff‟s cell extraction has been
produced. Because a spoliation inference first requires that it appear that there has been actual
suppression or withholding of the evidence, the inference is plainly unwarranted. Ogin v.
Ahmed, 563 F. Supp.2d. 539, 542 (M.D. Pa.2008). Plaintiff asserts the video is not complete
because it does not contain footage of his verbal complaint prior to the extraction that his cell
was illegally searched. However, Defendant‟s failure to turn on the camera at a point in time
convenient for Plaintiff does not warrant a finding that evidence has been destroyed or altered
when, in fact, the evidence does not exist. As to this claim, Plaintiff‟s Motion for Spoliation is
denied.
B. Video of Cell Search on August 3, 2007.
Similarly, Plaintiff has not alleged the factual predicate for a spoliation inference with
regard to the alleged destruction of the video taken with the J-Pod mounted camera on August 3,
2007. As explained in Schmid v. Milwaukee Elec. Tool Corp, supra, a spoliation inference
requires a showing of prejudice, which cannot be met with regard to the J-Pod video. First,
Plaintiff claims the video will portray an illegal search and seizure of a forged misconduct report,
which purportedly formed the basis of his placement in a restricted housing unit. Plaintiff‟s
Complaint makes clear, however, that the allegedly illegally seized misconduct report (No.
641190) was not the basis of any punishment because the charge was dismissed based on the
issuing officer‟s failure to log the report. No. 1-2., p.6, ¶ 32. Second, in a substantial leap of
logic, Plaintiff alleges that because misconduct report No. 641190 was not properly logged, a
second misconduct report (No. 646820) issued the same day for a separate incident is also
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invalid, rendering the existence and analysis of misconduct report No. 641190 vital to establish
that Plaintiff was unlawfully placed in a restricted housing unit. Plaintiff‟s Complaint makes
clear, however, that prior to the cell search at issue, Captain Ireland, a shift commander, made a
copy of the allegedly seized misconduct report to investigate Plaintiff‟s claims. Id. at ¶ 34. Thus,
a copy of misconduct report does exist and was reviewed by prison authorities. Plaintiff
therefore has not suffered any prejudice as a result of the missing J-Pod video depicting the
routine search and a spoliation inference regarding the video is not warranted.
C. Video of Handcuff Removal on November 8. 2008.
Plaintiff also seeks a spoliation inference with regard to the November 8, 2008, JD-Pod
video depicting a required use of force necessitated by Plaintiff‟s admitted refusal to cooperate in
the removal of handcuffs. Nos. 133, p.4, ¶¶ 18-20; 1-2, p.11, ¶ 52. Plaintiff complains that the
video does not depict the entire incident, because the allegedly wrongful conduct of pulling
Plaintiff‟s hands through the “pie slot” on the cell door to remove his handcuffs is not portrayed.
Again, Plaintiff does not meet the threshold for a spoliation inference. First, there is no evidence
that the video was altered or destroyed. The fact that the angle of the mounted camera did not
permit a complete depiction of the events as Plaintiff alleges does not warrant a finding that the
video was altered. Second, in the absence of a serious injury, coupled with Plaintiff‟s key role in
instigating the forced removal of handcuffs, Plaintiff has not stated a claim arising out of the
incident and therefore has not suffered the prejudice required for a spoliation inference. See,
Freeman v. Department of Corrections, No. 11-1972, 2011 WL 46256712 (3d Cir. 2011)(no
claim as a matter of law where Plaintiff played a key role in scuffle resulting from refusal to
cooperate in handcuff removal and no serious injury resulted). In the absence of any evidence
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that the video was altered or that Plaintiff suffered any prejudice from its unavailability, Plaintiff
is not entitled to a spoliation inference.
III. CONCLUSION
For each of the foregoing reasons, Plaintiff is not entitled to sanctions in the nature of a
spoliation inference with regard to any of the videos at issue in Plaintiff‟s Motion. An
appropriate Order follows:
AND NOW, this 19th day of December, Plaintiff‟s “Application for Spoliation of
Sanction” is DENIED.
IT IS FURTHER ORDERED that the parties are allowed until January 3, 2012, to
appeal this Order to a District Judge pursuant to Rule 72.C.2 of the Local Rules. Failure to timely
appeal may constitute waiver of the right to appeal.
/s/ Maureen P. Kelly
United States Magistrate Judge
cc:
Timothy Dockery
BK-8487
SCI Frackville
Frackville, PA 17931
All counsel of record via CM/ECF
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