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Wilson v. Swiney

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

July 23, 2019

DUSTIN C. WILSON, Plaintiff,
SWINEY, et al., Defendants.


          Joel C. Hoppe United States Magistrate Judge

         Plaintiff 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.

         I. Background

         The 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.

         Wilson 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. ¶ 23.

         On July 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[1] issued an opinion denying Wilson's motion and granting Defendants' motion in part. See Mem. Op. of Sept. 5, 2017, ECF No. 53.

         In June 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.

         II. Discussion

         I will 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 Rule 37(e),

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”[2] 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 ...

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