United States District Court, W.D. Virginia, Roanoke Division
TERRENCE A. HARVEY, Plaintiff,
J. HALL, et al., Defendants.
C. Hoppe United States Magistrate Judge.
Terrence Harvey, a Virginia prisoner appearing pro se, filed
this suit under 42 U.S.C. § 1983, asserting that
Defendants Sergeant Hall and Officer Blankenbeckler violated
Harvey's Eighth Amendment rights while he was housed at
Red Onion State Prison (“ROSP”). Specifically,
Harvey alleges that at around 3:30 a.m. on June 10, 2016,
Blankenbeckler repeatedly slammed Harvey's hand in the
tray slot on the door of his segregation cell when Harvey
asked a question about that morning's breakfast and that
Hall refused to send Harvey to the prison's Medical
Department even after seeing that his hand was bleeding.
Harvey also asserts state law assault and battery claims
against Blankenbeckler based on the same underlying facts.
matter is now before the Court on Harvey's “Motion
for Sanctions Under Fed.R.Civ.P. 37(e) for Spoliation of
Evidence, ” ECF No. 43, which is before me by referral
under 28 U.S.C. § 636 (b)(1)(A). Harvey seeks sanctions
against Defendants for failing to preserve rapid eye video
footage from his housing unit, which Harvey claims would have
shown Blankenbeckler “slamming [his] hand in the tray
slot repeatedly” and Hall “denying [him] medical
attention” when he came to Harvey's cell that
morning. Pl.'s Mot. 9. Defendants respond that a fixed
rapid eye camera was installed “in front of
[Harvey's] housing unit” on June 10, but that the
“video was recorded over” because ROSP's
Intelligence Unit was not asked to retain it for Harvey
within ninety days of the incident. Aff. of J. Fannin
¶¶ 5-6, ECF No. 37-1. Having considered the
parties' arguments and all pertinent materials, I
conclude that, although the video should have been retained
and was lost because prison officials failed to take
reasonable measures to preserve it, Harvey has not shown
prejudice from loss of the video, as necessary for the court
to impose sanctions or curative measures under Rule 37(e) of
the Federal Rules of Civil Procedure.
is “the destruction or material alteration of evidence
or . . . 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). A party seeking spoliation
sanctions must show that spoliation occurred and that the
requested sanctions are warranted under governing law.
Blue Sky Travel & Tours, LLC v. Al Tayyar, 606
Fed.Appx. 689, 698 (4th Cir. 2015); Sampson v. City of
Cambridge, 251 F.R.D. 172, 181 (D. Md. 2008) (citing
Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450-51
(4th Cir. 2004)). Rule 37(e) provides the legal framework for
evaluating spoliation claims involving otherwise discoverable
electronically stored information (“ESI”),
including recorded video or audio, not preserved for
litigation. See Jenkins v. Woody, No. 3:15cv355,
2017 WL 362475, at *12, *14 (E.D. Va. Jan. 21, 2017). Under
a movant must satisfy four threshold requirements before a
court decides if any spoliation sanction is appropriate: (1)
ESI should have been preserved; (2) ESI was lost; (3) the
loss was due to a party's failure to take reasonable
steps to preserve the ESI; and (4) the ESI cannot be restored
or replaced through additional discovery.
Steves & Sons, Inc. v. JELD-WEN, Inc., 327
F.R.D. 96, 104 (E.D. Va. 2018).
37(e)'s threshold elements mirror the traditional
three-part test for spoliation, which requires the moving to
party to show:
(1) [T]he 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
of the spoliated evidence, to the extent that a reasonable
factfinder could conclude that the lost evidence would have
supported the claims or defenses of the party that sought it.
Walker v. Owens, No. 7:13cv425, 2016 WL 320998, at
*2 n.3 (W.D. Va. Jan. 26, 2016) (quoting Goodman v.
Praxair Servs., Inc., 632 F.Supp.2d 494, 509 (D. Md.
2009)); see Steves & Sons, 327 F.R.D. at 104
(“This analysis is similar to the Rule 37(e) framework,
as it asks whether the responsible party had a duty to
preserve, and breached that duty by failing to take
reasonable steps to preserve.”). “[A]ny level of
fault, whether it is bad faith, willfulness, gross
negligence, or ordinary negligence” satisfies the
culpability element, E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 803 F.Supp.2d 469, 497 (E.D. Va.
2011), whereas “the nuanced, fact-specific differences
among these states of mind become significant in
determining” any appropriate remedy or sanction for
spoliation, Victor Stanley, 269 F.R.D. at 529.
See Vodusek v. Bayliner Marine Corp., 71
F.3d 148, 156 (4th Cir. 1995).
10, 2016, Blankenbeckler was serving Ramadan breakfast trays
in the C-2 segregation housing unit, where Harvey was housed
in cell C-215. See Aff. of B. Blankenbeckler ¶
4, ECF No. 16-1; Pl.'s Mot. Ex. A, ECF No. 43-1, at 2.
Inmates' meal trays were prepared in ROSP's food
services department, covered with a lid or “placed into
a feeding box, ” and loaded onto a cart to be
transported to the housing units. Pl.'s Mot. Ex. B, ECF
No. 43-1, at 3; see also Blankenbeckler Aff. ¶
4. When the officer arrived at the inmate's cell, he
“remove[d] the lid from the tray and place[d] it on the
tray slot or in the tray slot safety box.” Pl.'s
Mot. Ex. B, at 3.
Blankenbeckler opened the tray slot on Harvey's
segregation cell door, “set the uncovered tray inside
of the tray slot box, ” and “opened the sliding
door” so Harvey could take the tray. Blankenbeckler
Aff. ¶ 4; see Verified Compl. ¶ 9
(“Blankenbeckler served Plaintiff Harvey his Ramadan
breakfast tray through the secure tray slot box . . .
.”), ECF No. 1. Harvey attests that he saw “only
one boiled egg on his tray and that it was missing two”
eggs, Verified Compl. ¶ 9, while Blankenbeckler swears
that he “observed . . . Harvey's tray contained
three eggs, ” Blankenbeckler Aff. ¶ 4. Harvey
recalls that Blankenbeckler noticed the missing eggs and told
Harvey to “stop bitching and just take the food
tray.” Verified Compl. ¶ 10.
“attempted to close the sliding door” on the
safety box, but something was in the way. Blankenbeckler Aff.
¶ 4; see Verified Compl. ¶¶ 11-12.
Blankenbeckler claims it was a small paperback book.
Blankenbeckler Aff. ¶ 4. Harvey alleges that it was his
left hand, which he put “in the secure tray slot
opening to prevent the inmate access door from being
closed.” Verified Compl. ¶ 11. According to
Harvey, Blankenbeckler “immediately” started
“repeatedly slamming [Harvey's] left hand in the
inmate access door of the tray slot box over and over again,
” causing “a deep laceration to [his] outer left
palm.” Id. ¶¶ 14-15. Blankenbeckler
asserts that he “attempted several times to secure the
tray slot[, ] but was unable to close it due to the
book” blocking the track. Blankenbeckler Aff. ¶ 4.
Harvey attests that he showed the officer ...