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Jenkins v. Woody

United States District Court, E.D. Virginia, Richmond Division

January 21, 2017

VIRGINIA PAIGE JENKINS, Administratrix of Estate of Erin Jenkins, Plaintiff,
SHERIFF C.T. WOODY, et al., Defendants.


          M. Hannah Lauck United States Disrtict Judge

         This matter comes before the Court on Plaintiff Virginia Paige Jenkins's[1] Motion for Sanctions Relating to Sheriff Woody's Intentional Spoliation of Evidence and Failure to Adequately Respond to Discovery (the "Motion for Sanctions"). (ECF No. 112.) Sheriff C.T. Woody responded, (ECF No. 114), and Plaintiff replied to Sheriff Woody's Response, (ECF No. 116). Defendants Deputy Elizabeth Beaver, Corporal Vivian Hudson-Parham, and Lieutenant Johnny Scott (collectively, the "Jail Staff')[2] responded to Plaintiffs Motion for Sanctions, (ECF No. 115), and Plaintiff replied to Deputy Beaver's Response, (ECF No. 117). The Court heard oral argument on the Motion for Sanctions. Accordingly, the matter is ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331[3] and 1367.[4] For the reasons that follow, the Court will grant Plaintiffs Motion for Sanctions. The Court will impose sanctions for the reasons discussed below.

         I. Background

         On June 11, 2015, Plaintiff filed her Complaint. (ECF No. 1.) This action involves Ms. Jenkins's death while in custody as a pretrial detainee at the Richmond City Justice Center ("RCJC"). Ms. Jenkins entered the RCJC on July 25, 2014, three days before its formal opening. On August 1, 2014, four days into the RCJC's operations, Ms. Jenkins was found in her cell incoherent, incontinent, and not breathing. Ms. Jenkins was transported from the RCJC to VCU Medical Hospital, where she died on August 2, 2014.[5]

         Plaintiff alleges that Ms. Jenkins's death was caused by Sheriff Woody's and Deputy Beaver's deliberate indifference to Ms. Jenkins's serious medical needs in violation of her rights under the Fourteenth Amendment to the United States Constitution.[6] Plaintiff further claims that by failing to attend to Ms. Jenkins's serious medical needs, Sheriff Woody and Deputy Beaver breached the duty of care they owed Ms. Jenkins and were grossly negligent in monitoring Ms. Jenkins and meeting her medical needs.

         A. The Discovery Dispute

         In the spring of 2016, Plaintiff first raised the issue of a missing video that had recorded the last hours of Ms. Jenkins's detention, prior to her death. Plaintiff argued that Sheriff Woody had not "preserved or produced any video data, or data from the video server [in the RCJC] as requested." (Joint Stipulation of Disc. Dispute 2, ECF No. 69.) Plaintiff asserted that "cameras are positioned to view the area outside" the cell in which Ms. Jenkins was housed at the RCJC, that those cameras were capable of recording, and that those cameras did record when activated by movement. (Id. at 4.) Plaintiff sought access to the servers to attempt to recover relevant video footage because she believed that "recordings from these cameras and stored on this server ha[d] been reviewed by Defendant Woody's agents .... as early as August 8, 2014." (Id. at 8-9.) Plaintiff proposed to bear the cost of this inspection herself. Sheriff Woody opposed Plaintiff s proposed inspection, arguing that "[P]laintiff seeks to 'recover' data long purged and to impose a burden on Sheriff Woody which the Federal Rules and the law do not require." (Id. at 9.)

         On April 15, 2016, the Court held a hearing on the discovery dispute. While Plaintiff admitted that it was "highly unlikely" that any video data would be recovered, she asked permission to attempt a recovery because Sheriff Woody had made no effort to do so. Through counsel, Sheriff Woody declared that no evidence existed that any RCJC staff had ever viewed the video, and that the video data could not be retrieved. Despite asserting that no one had ever viewed the video, Sheriff Woody, through counsel, represented that he knew the footage would not have helped Ms. Jenkins: "All that they would have seen is Ms. Jenkins, who was in a medical observation cell because she was going through detox withdrawal, [7] was having strange behavior, and that's what was going on. So there would be no need to have preserved that." (Id. at 23.) Sheriff Woody contended that, although the video "would be relevant, clearly, [as] the best evidence of what happened, " (id. at 12), it would be futile to try to recover it because "[y]ou can't get blood from a stone, " (id. at 8).

         In ruling on various disputes, the Court noted that Sheriff Woody's initial response to Plaintiffs written discovery requests violated the Federal Rules of Civil Procedure. Specifically, Sheriff Woody failed to address the existence or non-existence of video evidence by ignoring that aspect of Plaintiff s discovery request, in violation of Rule 33(b)(3).[8] The Court echoed Sherriff Woody's irrefutable admission that no better evidence could exist as to what happened to Ms. Jenkins in her last hours at the RCJC. Thus, given the crucial nature of the evidence, and despite the parties' suggestion that it might be an uphill climb, the Court found that the benefit of attempting to recover the footage outweighed the burden. The Court therefore allowed Plaintiff to try to "obtain a mirror image of the server information at issue to [see] if any forensic video image exists of the events leading up to Erin Jenkins's death." (Order 2, ECF No. 82.)

         B. The Motion for Sanctions

         1. The Parties* Initial Briefing

         Plaintiff filed the Motion for Sanctions, alleging two sanctionable discovery violations.[9]First, Plaintiff claims that "Sheriff Woody[10] intentionally destroyed or failed to preserve [the video footage of the night of August 1, 2014, (the "Video Data")]." (PL's Mem. Supp. Mot. Sanctions 2, ECF No. 113.) Second, Plaintiff charges that Sheriff Woody "did not initially produce the complete [Internal Affairs Division ("IAD")] investigative file and audio recordings, " even though at least five of Plaintiff s Requests for Production should have required Sheriff Woody to provide Plaintiff with the complete file. (Id. at 8-9.) Instead, Sheriff Woody initially produced part of the IAD investigative file, but did not produce the audio recordings until more than six months after Plaintiff requested them. Even then, Sheriff Woody produced the audio recordings only after Plaintiff learned through deposition testimony that they existed.

         Throughout briefing, Plaintiff seeks default judgment or an adverse inference instruction for Sheriff Woody's intentional destruction of the video and his deliberate failure to respond to Plaintiffs discovery by waiting months to disclose the IAD file and the audio recordings associated with it, thereby prejudicing Plaintiff further. Plaintiff also consistently seeks attorneys' fees and other monetary damages incurred as a result of Sheriff Woody's spoliation.

         In response, Sheriff Woody just as consistently denies any wrongdoing. Sheriff Woody contends that an "automatic overwriting" of the video, and an "inadvertent delay" in producing the audio file-cured swiftly once counsel learned of the audio tapes-cannot amount to intentional, willful, or bad faith conduct. (Woody's Opp'n Pl.'s Mot. 1-2, ECF No. 114.) Sheriff Woody's initial briefing does not counter Plaintiffs arguments about attorneys' fees. Similarly, Deputy Beaver challenges the Motion for Sanctions, stressing that Sheriff Woody had no duty to preserve the Video Data when it was overwritten because "[l]itigation was not reasonably anticipated before the digital videos were automatically overwritten." (Beaver's Opp'n PL's Mot. 9, ECF No. 115.)

         2. The Parties' Supplemental Briefing After Oral Argument

         After oral argument on the Motion for Sanctions, the Court allowed the parties to submit additional briefing on the sanctions, suggesting they focus on the extent of prejudice Plaintiff suffered from the loss of the Video Data, and giving the parties an opportunity to clarify their legal arguments about all aspects of Federal Rule of Civil Procedure 37(e). In her supplemental submission, Plaintiff again seeks default judgment or an adverse inference instruction, suggesting that significant circumstantial evidence demonstrates Sheriff Woody's intent to deprive Plaintiff of use of the Video Data in this litigation when he destroyed or failed to preserve it. Plaintiff asserts that proving intent to deprive under Rule 37(e)(2), as with other legal matters requiring proof of intent (such as criminal or employment actions), absent an admission of culpability, often must be achieved with circumstantial evidence.

         When asking the Court, in the alternative, to exercise its broad power to fashion sanctions necessary to cure the prejudice, Plaintiff also emphasizes the significant prejudice she incurred. Noting that the Video Data contained the only neutral and unbiased depiction of what happened during the last five hours of Ms. Jenkins's imprisonment, Plaintiff contends that she now cannot use the best evidence to fully illustrate any serious medical need, any symptoms of pain or suffering, or any indifference Deputy Beaver demonstrated to Ms. Jenkins's serious medical needs. Concomitantly, Plaintiff adds, because the video is gone, "Deputy Beaver is free to provide a functionally unchecked version of events in which she did not perceive Ms. Jenkins'[s] serious medical need and therefore was not deliberately indifferent to the same." (Pl.'s Suppl. Memo 17, ECF No. 254.)

         Plaintiff suggests at least seven sanctions short of default or an adverse inference instruction to cure the prejudice she suffered:

(1) Issuing an instruction to the jury that a video had been captured depicting the events that occurred while Ms. Jenkins 8) Precluding any evidence or argument that Deputy Beaver was performing her duties during her shift on August 1, 2014 in accordancwas in Mental Health Segregation and that Sheriff Woody destroyed the video after he reviewed it despite having a legal duty not to and the jury is free to draw inferences from that fact about the contents of the video, but not required to;
(2) Precluding any evidence or contention at trial that the contents of the video corroborated the Defendants' version of events;
(3) Issuing an instruction to the effect that should Plaintiff prove by a preponderance of the evidence that Ms. Jenkins'[s] duodenum was perforated during the time she was in the Mental Health Segregation Unit, the jury should presume that Ms. Jenkins was exhibiting the symptoms of that medical condition which Plaintiff has also proven to a reasonable degree of medical certainty;
(4) Precluding any evidence or contention at trial that Ms. Jenkins'[s] duodenum was not perforated and that she was not exhibiting symptoms of a perforated duodenum during the time she was in the Mental Health Segregation Unit;
(5) Precluding any argument that medical or mental health staff could have seen Ms. Jenkins and not acted on their observations[;]
(6) Precluding any argument or evidence that on August 1, 2014, Ms. Jenkins was exhibiting "the same, " "identical, " or "similar" symptoms as those she demonstrated on July 31, 2014 when she was seen by Dr. Emran[;]
(7) Precluding any defense that Ms. Jenkins was moved from 2MED to 3A1 on August 1, 2014 consistent with RCJC policy[; and, ]
(8) Precluding any evidence or argument that Deputy Beaver was performing her duties during her shift on August 1, 2014 in accordance With he with her training or RCJC policy and procedure.

( 20-21.)

         In response, Sheriff Woody reiterates "that the duty to preserve in this case arose no earlier than when [P]laintiff s counsel submitted a FOIA request dated August 26, 2014." (Woody's Suppl. Mem. 1, ECF No. 253.) Should the Court find otherwise, Sheriff Woody suggests that "the appropriate sanction... is to permit both parties to present evidence and argument to the jury regarding the videotape." (Id. at 2.) Again functionally conceding the central importance of the Video Data, Sheriff Woody asserts that "[l]imiting Deputy Beaver's testimony is inappropriate [because] it would preclude Sheriff Woody from offering evidence central to his defense." (Id. at 3.) Sheriff Woody contends that "the fairer approach would be to permit Sheriff Woody and [P]laintiff to present evidence and argument regarding the Sheriffs failure to preserve the videotape and to allow the jury to weigh the witnesses' credibility on that issue." (Id.)

         Only Deputy Beaver claims that Plaintiff has experienced no prejudice from the absence of the Video Data. Ignoring any credibility determination that a jury need make, Deputy Beaver contends that her contemporaneous Logbook entries and her reports afterward have not, and presumably should not, be questioned because Plaintiff "has not cited any reason to suggest that [Deputy] Beaver has been forgetful about the events of August 1."[11](Beaver's Suppl. Mem. 2, ECF No. 255.) In the alternative, Deputy Beaver suggests that the jury simply be informed that the video existed and was not saved. Deputy Beaver opposes any additional sanctions against her because it would exceed those necessary to cure Ms. Jenkins's prejudice, especially given Plaintiffs decision not to seek sanctions against Deputy Beaver.

         C. The Alleged Spoliation: The Overwritten Video Data

         1. Underlying Facts

         The RCJC opened in late July 2014 equipped with a new video recording system that included more than 500 cameras covering the jail inside and out. Ms. Jenkins entered the RCJC in its first week of operation, three days before its official opening on July 28, 2014. On August 1, 2014, the night before Ms. Jenkins's death, and her last night in the RCJC, cameras were "working and operational" and recording properly in and around her cell.[12] (Witham Dep. 82, ECF No 113-2.)

         Sheriff Woody testified that video surveillance in the jail serves many purposes:

Well, live action that can be monitored on certain on-on-on the pods. I can come in here and, if an incident happened yesterday or two weeks from now, put the date, you put the time in and you can replay the whole thing. And you can use it for investigative purposes. You can use it for safety purposes. You can use it for people that's-the resident them self [sic] who lies oftenly [sic] about how something happened and what happened before.
And so it's a-sort of a truth serum. It's been very, very helpful to us employment-wise as well as safety-wise and for the residents when they file grievances and just a real live thing o/what's happening, what-what really happened.

         (Woody Dep. 27, ECF No. 113-4 (emphasis added).) In this case specifically, Sheriff Woody's counsel admitted during argument, as he must, that "If [the video] existed, ... it would be relevant, clearly. The video is the best evidence of what happened." (Tr. Disc. Dispute Hr'g 12.)

         2. The IAD Investigation

         The RCJC requires that, when an inmate dies, "somebody notify IAD and IAD conduct[] an investigation." (Woody Dep. 17.) Sheriff Woody testified that IAD investigates every death of someone in custody:

[t]o determine the cause. To determine whether there was any evidence of foul play. To determine whether there's any evidence of negligence. To determine any safety violation and things of that nature. To do a complete investigation, who, when, where, why and what, and the cause.

(Id.) Sheriff Woody confirmed that the IAD investigation of an inmate's death should begin "immediately." (Id. at 116.) Sheriff Woody also assured that the IAD review of any available video surveillance should occur soon after the IAD investigation begins.[13] Sheriff Woody expects that IAD investigators will pull video surveillance from the date, time, and location of the inmate's death as part of their investigation.

         Sheriff Woody has placed Lieutenant Colonel Lawson in charge of IAD investigations. Lawson testified that he expected an investigator-in this case Major Weaver-to review or access the video surveillance "within a couple days" or, at the "[e]arliest-I guess the earliest convenience [in the Ms. Jenkins case] would be that Monday [August 4, 2014 J or Tuesday [August 5, 2014]." (Lawson Dep. 49-50.) When testifying, Lawson also confirmed the obvious: the IAD investigator should review the video evidence because "[t]he investigator ... [was not] present during any incident so [IAD is] looking for video to get [its] perspective on things that happened." (Id. at 50.)

         Lawson also explained that, when investigating an inmate death, an IAD investigator "will create a disk of the video surveillance and include it with the [IAD] file."[14] (Id. at 54.) The process involves "put[ting] a disk in and push[ing] a button."[15] (Id.) According to Lawson, virtually without fail, an inmate's IAD investigative file contains CDs with video and audio recordings on them. Lawson could not "think of a time" when an IAD investigative file did not contain video and audio recordings. (Id. at 43.)

         Apparently, Ms. Jenkins's IAD investigative file is the exception to the rule. Not only does Ms. Jenkins's IAD investigative file lack a video recording, not a single member of Sheriff Woody's staff, including key players in the jail and in IAD investigations, can testify-despite the consistent witness verification of the vital nature of doing so-that he or she even saw the video before it was overwritten. First, without explanation for the failure to follow recognized and fundamental investigative procedures, IAD Investigator Major Weaver acknowledged that she never viewed the video of Ms. Jenkins's cell and that she could not recall whether anyone else had told her that they did:

Q: Did you see the video or did you not see the video around Ms. Jenkins' [s] cell?
A: I did not.
Q: Did anyone else tell you that they reviewed the video ... around this incident, around Ms. Jenkins's cell?
A: Not that I recall.

(Weaver Dep. 94.)

         Second, despite the crucial perspective it could offer into an inmate death that occurred during the first week of RCJC's operation, Lawson, who supervised Weaver, swore that he could not remember whether he viewed a video of Ms. Jenkins's cell when the IAD investigation began.[16] Lawson also did not "recall" whether he tried to look at the video of the incident at any point, (Lawson Dep. 78), and he could not "answer [the] question" as to why he would not have told someone to pull the video. (Id.) Third, Major Ken McRae, assigned to jail operations, could not recall anyone talking to him about pulling security camera footage from the area where Ms. Jenkins was housed. (Ken McRae Dep. 22.)

         Fourth, even though Ms. Jenkins died in the first week after the new RCJC facility opened, Sheriff Woody confirmed that he, too, never reviewed the video of Ms. Jenkins's jail cell. When asked if there was a reason he "did not look at-try to look at the video [himself] in this case, " Sheriff Woody flatly replied, "No." (Woody Dep. 32.) Sheriff Woody also testified that he did not know, at first, that the Video Data had been overwritten. He learned only after this case was filed that the video of Ms. Jenkins's cell had not been preserved because of "[t]echnology." (Woody Dep. 170.)

         Not surprisingly, Deputy Beaver, who was supervising Ms. Jenkins in 3A1 the night of the incident, did not personally review the video surveillance of Ms. Jenkins from that night. However, contrary to testimony of other RCJC staff, Deputy Beaver stated that she thought that, during an interview with Weaver approximately a week after Ms. Jenkins's death, Weaver had told her that someone from IAD "watched the tape, [and] everything was done correctly." (Beaver Dep. 124-25.) The August 8, 2014 audiotape of Weaver's interview of Deputy Beaver (which Sheriff Woody failed to produce for six months) concludes with Deputy Beaver saying, "You'all watched the tape. You saw I watched her, I talked to her, I did what I was supposed to do." (Transcript of Interview of Deputy Beaver 9-10, ECF No. 254-6.) Inscrutably, Weaver responds only by saying, "Okay, " and immediately concluding the six-minute interview. (Id. at 10.) Weaver did not "at all" recall telling Deputy Beaver that she had reviewed the video. (Weaver Dep. 94.)

         3. The IAD Investigator's Conclusion

         That said, Deputy Beaver testified correctly about the IAD investigator's conclusion. Despite not having viewed the "real live thing of... what really happened, " (Woody Dep. 27), Weaver concluded that "none of the [RCJC] staff did anything wrong." (Weaver Dep. 162.) Weaver did not, however, include that conclusion in her written IAD report, nor could she recall why she did not include that conclusion in the report.

         Finally, Sherriff Woody testified that Lawson's briefings patently established that Ms. Jenkins's death involved no foul play and flowed from natural causes. Despite the fact that Sheriff Woody had not seen the full IAD Report until the day of his March 15, 2016 deposition, he "remember[ed] specifically that it was not any foul play involved [and there was] no violation of SOP or policies. And that it was a natural death due to her illness." (Woody Dep. at 122-23.) Sheriff Woody stated repeatedly that "there was no signs of foul play" and "no violations whatsoever." (Id. at 123.)

         D. Sheriff Woody's Knowledge

         1. Lawson Briefed Sheriff Woody on the IAD Investigation

         Sheriff Woody makes evident that Lawson briefed him on the IAD investigation before the investigation was closed. Sheriff Woody testified that "[Lawson later] just verified that there was no signs of foul play, the cause of death was natural, whatever she died from. I don't-I don't really know. And always, additional stuff may come up in an investigation, but as far as was there any signs of foul play and the cause of death, it was over with." (Id. at 123.) Sheriff Woody relied on Lawson's briefings because "[i]t's impossible for me to read all of the reports. I was briefed on it on numerous occasions by Lieutenant Colonel Joel Lawson...." (Id. at 122.)

         2. Circumstances Indicating Foreseeability of Litigation

         Plaintiff suggests three reasons why this Court should find that Sheriff Woody reasonably anticipated litigation immediately after Ms. Jenkins's death. First, Plaintiff argues that Sheriff Woody was on notice because his own IAD procedure begins "immediately, " and at the "earliest" possible moment any time an inmate dies at the jail, or is transported from the jail to a hospital by EMS. Plaintiff posits that this commonsensical jail policy seeking to review and preserve the "real live thing of... what really happened, " (Woody Dep. 27), could equate to a reasonable anticipation of litigation. Second, Plaintiff contends that once a death occurs, Sheriff Woody in particular should anticipate litigation, given what Plaintiff characterizes as the high rate of inmate deaths in his facility relative to other jails.[17] More concretely, Plaintiff highlights a total of four cases filed in this Court, including this one, alleging violations of civil rights under 42 U.S.C. § 1983 after prisoners died in Sheriff Woody's custody.[18] Plaintiff also lists four cases filed in the Circuit Court for the City of Richmond.[19] In sum, Plaintiff argues that, by now, due to the large number of cases involving inmate deaths in jail brought against Sheriff Woody, (at least ten in ten years) Sheriff Woody personally, and not just any Sheriff, should reasonably anticipate litigation as soon as an inmate dies in his custody.[20] Finally, Plaintiff contends that Sheriff Woody himself acknowledged the obvious-that lawsuits are common when someone dies in jail-during his testimony:

Q: [W]hen people die in the jail, is it common for lawsuits to follow?
A: That's how you-all make your ...

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