Canady v. Hodges et al

Filing 135

OPINION AND ORDER denying 133 Motion for Spoliation Sanction. Signed by Judge Thomas T. Cullen on 2/23/2022. (Order mailed to Pro Se Party via US Mail)(aab)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
)
MARLON CANADY,
)
CASE NO. 7:17cv00464
Plaintiff,
)
v.
)
OPINION AND ORDER
)
J. BOSTIC, et al. ,
)
By: Hon. Thomas T. Cullen
Defendants.
)
United States District Judge
)
Plaintiff Marlon Canady argues that the defendants should be sanctioned for spoliation
of evidence because they and other prison officials did not preserve certain clips of video
footage that they should have foreseen would be relevant to this litigation. On Tuesday,
February 22, 2022, the court conducted a pretrial evidentiary hearing on the issue of spoliation.
For reasons stated on the record and herein, the court will deny Canady’s Motion for
Spoliation Sanction (ECF No. 133).
Canady contends that on June 25, 2015, in the B-2 pod housing area at Keen Mountain
Correctional Center (“KMCC”), another inmate attacked him and he was forced to defend
himself. According to Canady, after the altercation had ended and he was on the floor with
the other inmate, Defendant Bostic applied excessive force against him by using pepper spray
on him two times. Canady also alleges that Defendant Barbetto used excessive force against
him by engaging his canine on him after the fighting had ended. Canady also contends that,
after this incident, officers moved him to the C-2 segregation housing unit where Defendant
Whited, a nurse, failed to provide appropriate medical care for Canady’s injuries caused by the
various uses of force. Defendants Bostic and Barbetto deny that they used excessive force

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against Canady, and Defendant Whited denies that he was deliberately indifferent to any
serious medical need.
Canady has asked for production of certain video footage that he wanted to show the
jury. Specifically, Canady has argued that the defendants or other officials should have saved:
1. Clips of video footage from all the cameras placed in the B-2 pod where the June 25,
2015, use of force incident occurred, between 8:45 and 9:10 a.m. (prison officials have
produced footage from only two cameras in B-2 pod, but Canady contends that four
cameras were posted in B-2 pod at the time of this incident);
2. Any portable camcorder video footage filmed on June 25, 2015, in the C-2 segregation
housing unit at KMCC, between 8:50 a.m. to 12:00 noon, while Canady was
decontaminated from OC spray; and
3. Clips of surveillance camera video footage from the segregation unit on June 25, 2015,
between 8:50 a.m. and 12:00 noon, and on June 26, 2015, between 4:10 a.m. and 4:45
a.m.
In response to Canady’s requests, the defendants presented an affidavit from KMCC
Institutional Investigator Hodges (ECF No. 100-1), 1 who states that all of the footage filmed
of the inmate altercation on June 25, 2015, has been shown to Canady. This footage depicts
events from two cameras on opposite ends of the pod area; the footage from these two
cameras is part of the court’s record. Hodges states that the Rapid Eye video system operating
at KMCC in 2015 recorded over its prior footage approximately every 90 days. Thus, video
footage recorded on that system from June 2015 was recorded over and lost 90 days later

1

Hodges was also present in court to testify, if necessary.
2

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unless it was specifically downloaded to a separate file. Hodges indicates that during the
investigation of the use of force incident, an officer downloaded the video footage of that
incident from the cameras in B-2 pod and saved it to a separate file.
Hodges states that no similar incident triggered retrieval of video footage from cameras
in the C-2 segregation unit, and no one requested preservation of such footage. Thus, no video
footage from C-2 unit on June 25 and 26, 2015, was downloaded from the Rapid Eye system
to be preserved. It was lost through the normal operation of the video system approximately
90 days later.
Hodges also states that an officer used a camcorder to take still photographs of
Canady’s injuries, and those photographs are in the record. Hodges reports, however, that the
officer did not use that camcorder device to film any video footage that day, so no such footage
existed for the defendants to provide to Canady.
During the evidentiary hearing on February 2, former KMCC Investigator Craig Arms
testified that he conducted the investigation into the June 25, 2015, altercation involving
Canady. Arms stated that in June 2015, two Rapid Eye cameras were operating in B-2 pod.
Arms testified that no use of force incident occurred in the C-2 segregation unit, and no one
asked for Rapid Eye video footage from that area to be preserved, so Arms did not download
or save any footage from cameras in that area.
The court questioned Investigator Arms about a diagram Canady had submitted to the
court purporting to show four cameras positioned in B-2 pod. Arms testified that this
document does not accurately represent the number of cameras operating in B-2 pod as of
June 25, 2015. Arms stated that when he left KMCC in 2016, the pods there still had only two
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cameras, but in the course of later changes to the camera system, officials installed additional
cameras. Arms also testified that he did not recall viewing any video footage of Canady from
June 25, 2015. Canady did not request to call witnesses to testify on the number of cameras or
offer any admissible evidence to contradict Arms’ testimony.
Spoliation of evidence “refers to the destruction or material alteration of evidence or
to the failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). In
evaluating a spoliation claim, courts employ a two-part test. First, the party alleging spoliation
must show that the adverse party reasonably should have known that certain documents or
materials might be relevant to reasonably foreseeable or pending litigation. Turner v. Walmart
Stores E., LP, No. 4:20CV00041, 2021 WL 1783256, at *6 (W.D. Va. May 5, 2021).
A party that anticipates litigation is under a duty to preserve what
it knows, or reasonably should know, is relevant in the action, is
reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery,
and/or is the subject of a pending discovery request. If the court
finds that such a duty existed, it must then consider whether the
party breached this obligation, either by failing to preserve, or by
destroying or altering, relevant materials or documents with a
culpable state of mind. In the Fourth Circuit, any level of fault,
whether it is bad faith, willfulness, gross negligence, or ordinary
negligence, suffices to support a finding of spoliation.
Id. 2 In short, if the court determines that a party knew litigation was pending or likely such
that it had a duty to preserve evidence reasonably expected to be relevant to that litigation but
failed to fulfill that duty, the court must find that spoliation of evidence occurred. Id. Then,

The court has omitted alterations, internal quotation marks, and/or citations here and throughout
this Opinion and Order, unless otherwise noted.

2

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the court must look to Rule 37(e) of the Federal Rules of Civil Procedure, governing
electronically stored evidence, to determine an appropriate spoliation sanction.
The court concludes that the evidence presented does not establish any spoliation of
evidence related to a foreseeable, future lawsuit about the use of force incident on June 25,
2015 involving Canady, and therefore, that no spoliation occurred.
Contrary to Canady’s assertions, some of the video footage in his spoliation motion
does not (and did not) exist. The uncontroverted evidence is that KMCC had only two Rapid
Eye surveillance cameras positioned in B-2 Pod on June 25, 2015. The footage filmed by those
two cameras is available for Canady to use at trial. According to the evidence before the court,
the camcorder device was used that day to take still photographs of Canady’s injuries and was
not used to film any video footage of him. The photographs are available for Mr. Canady to
show to the jury. Video footage that was never filmed cannot support Canady’s motion
claiming that the defendants should be sanctioned for spoliation.
The segments of surveillance camera footage from C-2 segregation unit that Canady
wants likely did exist, but they are not now available. Because no one downloaded and saved
any such footage, it was recorded over and lost through the normal operation of the Rapid
Eye system 90 days after events and times at issue here. The mere fact that the video footage
was lost, however, is not sufficient to support a spoliation claim. No use of force incident is
alleged to have occurred on June 25 or 26, 2015, in the C-2 segregation unit. Canady did not
make a written request for preservation of video footage from that area. The court cannot find
from this evidence that prison officials reasonably should have foreseen footage from the C2 unit would be relevant to a future lawsuit about the use of force incident in B-2 pod on June
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25, 2015, or about any incident in C-2 unit. Therefore, officials did not have a duty to preserve
footage from the C-2 segregation unit, and their failure preserve it cannot qualify as spoliation.
Turner, 2021 WL 1783256, at *6.
For the reasons stated herein, and other reasons stated and explained at the hearing, it
is ORDERED that Canady’s Motion for Spoliation Sanction (ECF No. 133) is DENIED.
The Clerk is directed to forward a copy of this Opinion and Order to Canady and to
counsel of record for the defendants.
ENTERED this 23rd day of February, 2022.
/s/ Thomas T. Cullen_________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE

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