Bergeron Davila v. Kallie et al

Filing 31

ORDER signed by Judge J.P. Stadtmueller on 8/31/2018: DENYING 20 Plainitff's Motion for Preliminary Injunction and TRO; DENYING 25 Plaintiff's Motion for Spoliation Sanctions; and DENYING 30 Plaintiff's Motions for a Hearing and to Appoint Counsel. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
Plaintiff,
v.
MELISSA MORAN, STEVEN CLOPE,
ANTHONY BOSE, ROBERT
MASTRONARDI, DANIEL
ECKBLAD, and JOHN DOES,

Case No. 17-CV-1756-JPS

ORDER

Defendants.
The Court will address Plaintiff’s pending motions. The first motion,
filed on May 16, 2018, seeks an injunction against Defendants. (Docket #20).
Recall that Plaintiff’s claim in this case is that Defendants failed to intervene
to stop him from biting the inside of his mouth, which he characterizes as a
suicidal act. (Docket #7 at 4–5). Plaintiff says that he returns to the Racine
County Jail regularly and may bite himself again while there. He believes
that Defendants should be compelled to intervene more directly to stop this
behavior if it occurs. (Docket #20). Plaintiff wants the Court to order
Defendants to either give him a protective helmet or hold his head still. Id.
“A preliminary injunction ordering [a] defendant to take an affirmative act
rather than merely refrain from specific conduct,” as is the case here, “is
‘cautiously viewed and sparingly issued.’” Knox v. Shearing, 637 F. App’x
226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293,
295 (7th Cir. 1997)). A preliminary injunction is “an extraordinary remedy
and is never awarded as of right.” Id. (quoting Winter, 555 U.S. at 24).

Plaintiff filed a similar motion in a prior case which presented a
similar claim. Raymond J. Bergeron Davila v. Barbara A. Teeling et al., Case No.
17-CV-337-JPS (E.D. Wis.), (Docket #102). The Court must deny Plaintiff’s
instant request for an injunction for the same reasons it denied the previous
one. This Court is not an expert in mental health treatment or corrections.
It will not order Defendants to take, or refrain from taking, certain actions
in response to Plaintiff’s future behavior, the particulars of which are not
yet known. Further, despite Plaintiff’s belief otherwise, biting the inside of
one’s mouth does not seem to be a life-threatening behavior. Using the
helmet or forcibly holding Plaintiff’s jaw apart to prevent biting might raise
more constitutional issues than they abate. Finally, Plaintiff cites no
precedent for an injunction of this nature. In the absence of analogous
precedent, the Court finds that Plaintiff is not entitled to this extraordinary
remedy.1
Plaintiff’s second motion, filed on July 20, 2018, asks the Court to
sanction Defendants for spoliation of evidence. (Docket #25). Plaintiff
claims that footage of the self-harming incident underlying this action was
deliberately destroyed by Defendants after they had received notice from

Plaintiff’s motion for an injunction indicates that he intends to appeal the
denial of the motion immediately. (Docket #20 at 6–7). As the Court has informed
this Plaintiff repeatedly, denial of a non-final order is not appealable. Denying a
motion for an injunction is not a final order. An attempted appeal of such an order
is procedurally improper and thus fails to divest the Court of jurisdiction and
authority to dispose of the case. See JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper
Co., Ltd., 707 F.3d 853, 860 n.7 (7th Cir. 2013); Wis. Mut. Ins. Co. v. United States, 441
F.3d 502, 504–05 (7th Cir. 2006); Kaszuk v. Bakery & Confectionery Union & Indus.
Int’l Pension Fund, 791 F.2d 548, 558-59 (7th Cir. 1986). The Court notes that
whether or not Plaintiff attempts to appeal the instant order, the schedule and
deadlines previously set in this matter will remain in effect, and this action will be
dismissed if he does not comply with them.
1

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him to preserve the footage. Id. Plaintiff requests that the Court enter
default judgment against Defendants, require them to pay Plaintiff $32,500,
and permit him to argue spoliation to the jury. Id.
Assessing whether spoliation has occurred requires a two-step
analysis. First, a finding of spoliation lies “only where a party has a duty to
preserve evidence because it knew, or should have known, that litigation
was imminent.” Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681
(7th Cir. 2008). Second, once a party is under a duty to preserve evidence,
they may only be subject to spoliation sanctions when they intentionally
destroy that evidence in bad faith. Bracey v. Grondin, 712 F.3d 1012, 1018 (7th
Cir. 2013). Bad-faith destruction occurs when a party destroys evidence “for
the purpose of hiding adverse information.” Id. at 1019 (quotation omitted);
See Park v. City of Chi., 297 F.3d 606, 615 (7th Cir. 2002) (“[T]he crucial
element is not that evidence was destroyed but rather the reason for the
destruction.”). Plaintiff, as the movant, bears the burden of establishing
both required elements. Bracey, 712 F.3d at 1019.
Plaintiff has not carried his burden as to either element. Plaintiff
asserts that he sent a letter to Defendants’ attorney on December 7, 2017,
which stated that he intended to sue and demanded that Defendants
preserve all relevant camera footage. See Raymond J. Bergeron Davila v.
Barbara A. Teeling et al., Case No. 17-CV-337-JPS (E.D. Wis.), (Docket #77-16
at 1-2). The problem with the letter is that it was sent to Defendants’
attorney, not Defendants themselves or Racine County’s corporation
counsel. Defendants deny having received any correspondence about an
imminent lawsuit or the need to preserve footage. (Docket #27). Plaintiff
provides no support for the proposition that an evidence preservation letter

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to a private law firm can serve as adequate notice for the purposes of
spoliation sanctions.
Plaintiff has also failed to show that the video in question was
destroyed in bad faith. Plaintiff’s only “evidence” of bad faith stems from a
single inference. The self-harming incident was recorded by a number of
wall-mounted security cameras as well as body cameras. Defendants
produced all of this footage to Plaintiff. When they attempted to retrieve
the camcorder footage, they found that it had inadvertently not been
downloaded, and was thus lost forever. (Docket #25-1 at 2). Plaintiff
contends that the preservation of some but not all of the footage
demonstrates bad faith.
The Court disagrees. Inadvertent destruction is not a proper basis for
spoliation sanctions. It was Plaintiff’s burden to prove bad faith, and he has
at best raised an exceedingly weak inference of it. Moreover, Defendants
have supplied Plaintiff with hours of footage from different angles covering
the entire incident. The only loss occasioned by the failure to preserve the
camcorder footage was a small portion of audio. (Docket #26 at 3–5). It is
not believable that Defendants would destroy the camcorder footage “for
the purpose of hiding adverse information,” Bracey, 712 F.3d at 1019, while
simultaneously producing such a wealth of equivalent evidence to Plaintiff.
Plaintiff filed what appears to be a reply brief on August 28, 2018.
(Docket #30). The reply is untimely per this District’s Local Rules. Civ. L. R.
7(c). Thus, the Court could simply ignore the brief. In any event, the
arguments therein do not change the Court’s conclusion. Plaintiff says that
he did send an evidence preservation letter to the Jail itself, but that
Defendants are refusing to produce it to him in discovery. (Docket #30 at 6).
Plaintiff has the burdens of proof reversed; he filed the motion for
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spoliation sanctions, and so it is his duty to produce the necessary evidence.
He cannot shift his burden to Defendants. Plaintiff further states that
Defendants must have pressed “a delete button” to erase the camcorder
footage. Id. at 4. He provides no foundation for his supposed knowledge of
how the camcorder works. Finally, Plaintiff suggests that Defendants are
lying about how much the camcorder was used during the incident. Id. at
2–3. Again, no basis for this assertion is provided. Additionally, the Court
has already determined that the production of the security and body
camera footage demonstrates a lack of bad faith on Defendants’ part.
In sum, Plaintiff’s motions for an injunction, (Docket #20), and for
spoliation sanctions, (Docket #25), must be denied.
Plaintiff’s August 28 filing makes two additional requests. One is for
a hearing on the spoliation motion, and the other is for appointment of
counsel. No hearing is necessary for the Court to rule on the spoliation
motion, and so that request will be denied. Plaintiff ties his request for
appointed counsel to the other pending motions. Similarly, no counsel is
necessary for the Court to determine that the motions are meritless. With
those motions denied, it is not clear whether Plaintiff also desires counsel
generally for the continued litigation of this matter. If he does, he should
submit a separate motion for appointment of counsel.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for a preliminary injunction
and temporary restraining order (Docket #20) be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for spoliation
sanctions (Docket #25) be and the same is hereby DENIED; and

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IT IS FURTHER ORDERED that Plaintiff’s motions for a hearing
and for appointment of counsel (Docket #30) be and the same are hereby
DENIED.
Dated at Milwaukee, Wisconsin, this 31st day of August, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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