United States District Court, D. Arizona
[Copyrighted Material Omitted]
For Ron Zachary Pettit, Plaintiff: Christopher Stuart Coleman, Thomas Dean Ryerson, LEAD ATTORNEYS, Alexander Westbrook Samuels, Perkins Coie LLP - Phoenix, AZ, Phoenix, AZ; Daniel Clayton Barr, LEAD ATTORNEY, Perkins Coie LLP, Phoenix, AZ.
For Unknown Smith, Correctional Officer II, Unknown Morrow, Sergeant, Unknown Mueller, Correctional Officer II, Unknown Laque, Correctional Officer II, Defendants: Michael John Hrnicek, LEAD ATTORNEY, Office of the Attorney General - Phoenix - Liability Mgmt., Phoenix, AZ; Neil Singh, LEAD ATTORNEY, Office of the Attorney General - Phoenix, Phoenix, AZ.
David G. Campbell, United States District Judge.
Plaintiff Ron Zachary Pettit filed a motion for spoliation sanctions in January 2014. Doc. 163. The Court held a hearing on March 26, 2014, at which it heard oral argument on Plaintiff's motion. Doc. 195. Based on the argument, the Court allowed Plaintiff to conduct additional discovery and file a renewed motion for sanctions. Id. Plaintiff has now filed the renewed motion against Defendants Torrey Smith, Scott Mueller, Jose Luque, and Amy Morrow. Doc. 219. The motion is fully briefed and the Court heard oral argument on August 13, 2014. For the reasons that follow, the Court will grant the motion in part and deny it in part.
Plaintiff is a prisoner at the Arizona State Prison Complex -- Eyman, Special Management Unit I, in Florence, Arizona. The Eyman facility is operated by the Arizona Department of Corrections (" ADC" ). Defendants are correctional officers employed by ADC and assigned to Eyman. Plaintiff alleges that on April 16, 2011, Defendant Smith violated Plaintiff's Eighth Amendment rights by using excessive force during an escort of Plaintiff from the shower to his cell. In his renewed motion for sanctions, Plaintiff asserts that several items of evidence relevant to his claim are now missing.
At the time of the alleged unlawful use of force, Plaintiff had been returned by Defendants from the shower and was standing inside his cell " facing away from the closed door." Doc. 163 at 5. His arms were behind him and extended through the
" food trap" in order to be uncuffed by Defendants. Id. Plaintiff claims that Smith " pulled on the chain hard, snatching [his] wrist through the food trap[.]" Doc. 142-1 at 2. He states that after he pulled back on the chain, his " arm's (sic) were almost pulled out of socket," and that he had to turn " toward the door to relieve the amount of pressure on [his] shoulders and wrist." Id. He claims that Smith pressed down on his wrist and held it against the trap, then hit Plaintiff's arm with his closed hand and " administered strikes." Doc. 163 at 5. The sergeant in charge of the transfer, Defendant Morrow, allegedly intervened and told Smith to stop. Id.
Defendants allege that Plaintiff is " notorious for assaulting staff, disobeying orders, starting fires, and was designated 'high risk.'" Doc. 167 at 2. They argue that Plaintiff attempted to grab Smith's " stab vest" and repeatedly yanked his lead chain, and that Smith's conduct was necessary to " compel [Plaintiff] to be properly uncuffed." Id. at 5-6. Defendants do not dispute that Smith used " some modicum of force, up to and including pressing down on and/or striking [Plaintiff]'s hand/wrist/arm[.]" Id. at 6.
Defendants also do not dispute the following facts: (1) Defendant Mueller recorded the incident on a video camera and Sergeant Morrow immediately took the video recording to her supervisor, Lieutenant Littleton; (2) Morrow reported to Littleton that Smith had behaved unprofessionally, which caused Littleton to order her to write a personnel notation (" PACE report" ) for Smith; and (3) Plaintiff went to medical on April 20, 2011, where he was interviewed about the incident and his hand was photographed. Doc. 149 at 3-8.
At some point on the day of the alleged assault, Morrow, Mueller, and Sergeant Navarrete (Smith's supervisor) spoke to Plaintiff about the incident. Doc. 163 at 6. The accounts of this conversation vary, but it apparently caused Navarette to report to Littleton that the issue was resolved. Doc. 219-4 at 17 (" I had been notified by Sergeant Navarrette . . . . Everything was resolved. No issues." ). Plaintiff was also visited by a nurse on the day of the incident. The nurse noted injuries to his hands and gave him ibuprofen. Doc. 163 at 6.
Later that night, Plaintiff wrote an inmate letter to " CO III McClellan" which stated several times that he had been assaulted by Smith, that he " was repeatedly grilled by Sgt. Navarrette to resolve the issue," and that he " started to feel threatened by [Navarette's] words, so [he] just gave in" to make it back to his cell safely. Doc. 142-1 at 2.
Plaintiff was taken to medical on April 20, 2011 -- four days after the alleged assault -- where an investigative report was completed by Sergeant Reyes and a photograph was taken of Plaintiff's hand. Doc. 149 at 8. Reyes's report notes that on the date of the incident Navarette asked Plaintiff multiple times if he was going to " pursue" the incident and Plaintiff said he would not pursue anything as long as he was taken back to his cell. See Doc. 219-2 at 2.
At issue in this motion are several pieces of evidence that are missing. The first is the escort video. Littleton testified to several facts in his deposition: (1) he reviewed the video, (2) it showed Plaintiff acting belligerently, (3) it did not show Smith doing anything wrong, and (4) the camera's view at the moment where Smith is accused of using excessive force was obscured by other Defendants who were standing between the camera and Plaintiff's cell door. Doc. 219 at 8. Littleton testified that he ordered the video to be erased three to five days after the incident. Id. at 9; Doc. 219-4 at 21, 26.
Morrow's PACE report about Smith's unprofessional conduct is also missing. Defendants previously asserted that the report was discarded by Littleton, but Littleton testified that he forwarded it to ADC's central office. Doc. 219 at 10. Navarrette testified that two copies are usually made. Doc. 219-5 at 19. No explanation has been offered as to what happened to the PACE report or whether a second copy was made.
Plaintiff initially alleged that two investigative reports were missing: a report by the Criminal Investigation Unit (" CIU" ), and an internal investigation report based on the April 20, 2011 interview of Plaintiff by Reyes (" SSU report" ). Doc. 219 at 5. Following discovery, there is some uncertainty as to whether this incident was ever actually referred to the CIU. Plaintiff alleges that Deputy Warden Curran " asked the [CIU] to investigate the incident, which per ADC policy should have triggered the creation of a CIU report." Id. at 5. But no CIU report exists, and Curran stated in a declaration that his signature on the CIU referral form was " scribbled out" and he does not know whether it was ever actually submitted to CIU for action. Id. at 11.
As to the SSU report, during discovery Defendants produced a one-page SSU memorandum, written by Reyes, which had not been produced at the time of Plaintiff's initial spoliation motion. Doc. 219-2 at 2. At oral argument, Plaintiff's counsel argued that the final sentence of the memorandum, which states that " [a]ll information has been forwarded to administration for review and further action if needed," indicates that the report was accompanied by supporting documentation which has not been produced. It is unclear whether any such documentation exists, but defense counsel stated that if it does, it may be available for production.
The April 20, 2011 photograph of Plaintiff's hand is also missing. No new information was uncovered in discovery regarding the location of the photo. Defendants cannot explain its disappearance. Plaintiff asserts that Captain Ping took the photo, but she testified that she does not recall taking the photograph and does not know what happened to it. Doc. 219-6 at 10.
As a remedy for loss of the video, PACE report, photo, attachments to the SSU report, and possibly a CIU report, Plaintiff seeks case-dispositive sanctions. He asks the Court to " designate as established for purposes of the case, that Defendants used excessive force and [Plaintiff] was injured as a result." Doc. 219 at 21. He further asks the Court to " exclude evidence by Defendants regarding the amount of force used, to instruct the jury that Defendants have destroyed evidence that, if admitted at trial, would show that Defendants used excessive force against [Plaintiff] and that [Plaintiff] was injured as a result[.]" Id. Essentially, Plaintiff asks the Court for a directed verdict.
II. Legal Standard.
" The failure to preserve electronic or other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences." Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003). Spoliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another's use in litigation. See Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 799-800 (N.D. Tex. 2011).
" A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered;
(2) the destruction or loss was accompanied by a 'culpable state of mind; ' and (3) the evidence that was destroyed or altered was 'relevant' to the claims or defenses of the party that sought the discovery[.]" Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 509 (D. Md. 2009) (quoting Thompson, 219 F.R.D. at 101); see Victor Stanley, Inc. v. Creative Pipe, Inc. (" Victor Stanley II" ), 269 F.R.D. 497, 520-21 (D. Md. 2010); In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1070-78 (N.D. Cal. 2006).
" There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who 'fails to obey an order to provide or permit discovery.'" Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337-38 (9th Cir. 1985)). A district court exercising its inherent power may consider a number of sanctions, including (1) exclusion of evidence, (2) admitting evidence of the circumstances of the destruction or spoliation, (3) instructing the jury that it may infer that the lost evidence would have been unfavorable to the party accused of destroying it, or (4) entering ...