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Harvey v. Hall

United States District Court, W.D. Virginia, Roanoke Division

April 22, 2019

TERRENCE A. HARVEY, Plaintiff,
v.
J. HALL, et al., Defendants.

          MEMORANDUM OPINION

          Joel C. Hoppe United States Magistrate Judge.

         Plaintiff 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.

         The 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.

         I. The Legal Framework

         Spoliation 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 this Rule,

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).

         Rule 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”[1] 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).

         II. Background

         On June 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.

         Here, 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.

         Blankenbeckler “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 ...


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