United States District Court, W.D. Virginia, Roanoke Division
DUSTIN C. WILSON, Plaintiff,
SWINEY, et al., Defendants.
C. Hoppe United States Magistrate Judge
Dustin Wilson, appearing pro se, filed this suit under 42
U.S.C. § 1983, asserting that Defendants Unit Manager
(“UM”) Swiney and Lieutenant (“Lt.”)
Kiser (collectively “Defendants”) violated
Wilson's Eighth Amendment rights while he was
incarcerated at Red Onion State Prison (“ROSP”).
This matter is before the Court on Wilson's motion for
sanctions, ECF No. 95, in which he alleges that Defendants
spoliated evidence by failing to preserve video footage from
July 20, 2015, the day of the alleged incident in question.
Having considered the parties' arguments and all
pertinent material, I find that Wilson has not satisfied his
burden of showing that Defendants wrongfully lost the video
footage, nor has he established prejudice from the loss of
the footage. Accordingly, his motion will be denied.
facts alleged come from the Complaint. On July 20, 2015,
Wilson was being housed in a cell inside a segregation unit
at ROSP. Compl. ¶ 7, ECF No. 1. Sometime between 10:00
a.m. and 3:00 p.m., UM Swiney and Lt. Kiser were passing
through the unit when Wilson asked Swiney if he could be put
in protective custody because he “felt his life was
constantly being placed in harm's way” and because
he was “not suppose[d] to be housed in General
Population.” Id. ¶ 9. Swiney denied
Wilson's request, and Wilson asked Swiney for an informal
complaint form “so that he could grieve the
issue.” Id. ¶ 11. Swiney “suddenly
became angered” and instructed Kiser to put Wilson in
handcuffs. Id. ¶¶ 11-12. As Kiser was
placing Wilson in handcuffs through the cell tray slot, he
“grabbed Wilson's right hand, ” which made a
“loud popping noise” and caused Wilson to
experience “immediate pain.” Id. ¶
14. Wilson then turned around to face Swiney and Kiser, at
which time Defendants sprayed Oleoresin Capsicum
(“OC”) gas “directly into his face for a
prolonged period of time causing [him] to immediately not be
able to breathe or see.” Id. ¶ 15.
Thereafter, Defendants closed Wilson's tray slot and
refused to assist Wilson in finding medical assistance.
Id. ¶ 20.
alleges that on the day of the incident, and for
approximately three weeks afterwards, he tried unsuccessfully
to obtain medical treatment for his injuries. See
id. ¶ 22. He also alleges that he tried on several
occasions to obtain an informal complaint form, but was
“continuously denied, thus making it impossible to file
necessary administrative remedies.” Id. ¶
11, 2016, Wilson filed suit in this Court seeking relief
under 42 U.S.C. § 1983. He claims that Kiser and Swiney
violated his rights under the Eighth Amendment by subjecting
him to excessive force, failing to protect him from excessive
force, and denying him access to medical treatment.
Defendants denied that Wilson suffered any injuries or
damages. See Defs.' Answer, ECF No. 17. The
parties thereafter filed cross-motions for summary judgment.
See ECF Nos. 21, 23. In September 2017, District
Judge Norman K. Moon issued an opinion denying Wilson's
motion and granting Defendants' motion in part.
See Mem. Op. of Sept. 5, 2017, ECF No. 53.
2019, less than three months before the scheduled trial date,
Wilson filed a “Motion for Spoliation of
Evidence” in which he asserted that Defendants failed
to preserve video footage of the incident on July 20, 2015.
He argued that under Virginia Department of Corrections
(“VDOC”) policy, Defendants had a duty to
preserve the recording for at least two years if it is needed
“as evidence [in an] investigation or court
proceedings.” Pl.'s Mot. for Sanctions 1. He asked
the Court to stay the “case until Defendants can
explain why evidence wasn't preserved.”
Id. at 2. As discussed below, I find that Wilson has
not shown that Defendants improperly failed to preserve the
video footage; thus, Wilson's requested relief, including
a stay, is not warranted.
construe Wilson's pro se “Motion for Spoliation of
Evidence” as a motion for sanctions under Rule 37(e) of
the Federal Rules of Civil Procedure. Cf. Castro v.
United States, 540 U.S. 375, 381-82 (2003)
(“Federal courts sometimes will ignore the legal label
that a pro se litigant attaches to a motion and
recharacterize the motion . . . . to create a better
correspondence between the substance of a pro se
motion's claim and its underlying legal basis.”).
Rule 37(e) provides the legal framework for evaluating
spoliation claims involving otherwise discoverable
electronically stored information (“ESI”),
including recorded video or audio, that was 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). In any event, Wilson bears the burden of