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Thompson v. Clarke

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

August 27, 2019

PAUL C. THOMPSON, JR., Plaintiff,
v.
H.W. CLARKE, et al., Defendants.

          MEMORANDUM OPINION

          Norman K. Moon Senior United States District Judge

         This matter is before me on plaintiff Paul C. Thompson, Jr.'s motion for sanctions. (Dkt. No. 132.) Defendants Younce, Swiney, Lt. Adams, Sgt. Large, Sgt. Fleming, and C/O Crabtree (“Defendants”) have filed a response in opposition (Dkt. No. 137), and the motion is ripe for disposition. Thompson seeks sanctions against defendants for their alleged failure to preserve video clips that he asserts are relevant to his claims in this matter.[1] In particular, he requests that the court give a spoliation instruction at the trial in this matter.

         Having considered the parties' arguments and all pertinent material, I conclude that Thompson has not satisfied his burden of showing that the lost video footage was likely to contain relevant evidence and thus has failed to establish any prejudice from the loss of the footage. For these reasons, discussed in more detail below, his motion will be denied.

         I. BACKGROUND

         This case is set for trial on September 9-12, 2019. After prior rulings on motions, there are three claims remaining in the case, all of which are based on alleged events at Red Onion State Prison (“ROSP”), where Thompson is incarcerated:

1. An Eighth Amendment failure-to-protect claim against Swiney, in which Thompson alleges that Swiney failed to protect him from violence by another offender, V. Ball, and consequently, that Thompson was injured in a fight with Ball on June 17, 2015.
2. An Eight Amendment excessive-force claim against Crabtree, in which Thompson alleges that, on April 6, 2015, Crabtree sprayed him with Oleoresin Capsicum (“OC”) spray[2] through his cell door's tray slot while Thompson was in his cell simply doing legal work.
3. A First Amendment retaliation claim against all six defendants arising from various events during the period of March 27, 2015 to June 9, 2015. The events alleged by Thompson include that these staff members sprayed him with OC spray, deprived him of grievance forms and legal materials, moved him into a cell with OC spray on the toilet, caused the assault by Ball, searched his cell, encouraged another offender to hurt Thompson, and charged him with a false disciplinary charge, all in retaliation for Thompson's writing letters to the warden, using the grievance process, or accessing the courts.

         The facts related to Thompson's claims have been set forth in prior opinions, (e.g., Dkt. Nos. 45, 47), and I will not repeat that background here. Instead, I focus on the allegations concerning the videos. Specifically, Thompson's request for sanctions is premised on defendants' non-disclosure of three videos sought in his discovery requests. They are:

1. March 27, 2015 Rapid Eye footage from A-Building, Pod 4, which Thompson believes would show an officer entering his cell-Cell 403-and spraying the toilet seat with OC spray. (Pl.'s Decl. ¶ 1, Dkt. No. 132-1.)
2. April 6, 2015 Rapid Eye footage from A-Building, Pod 4 from 8:00 a.m. through 11:59 a.m., which Thompson believes would show Defendant Crabtree using OC spray on him “behind a locked cell door.” (Id. ¶¶ 2, 3.)
3. June 17, 2015 Rapid Eye footage from the B-Building dining hall, Pod #6, which Thompson believes would contain “conversations between offender V. Ball and defendants Swiney and Sgt. Fleming.” (Id. ¶ 4.)

         Thompson also asserts that he sent requests to Warden Barksdale and others in the same and/or following month in which each incident occurred, asking that the Rapid Eye footage be preserved. (See, e.g., id. ¶¶ 1-5.)

         Previously, counsel had represented that none of the requested footage existed. (Order at 4, Dkt. No. 125.) According to sworn testimony of Lt. Gilbert, an Institutional Investigator, during that time period, Rapid Eye footage was routinely recorded over in the course of operating the Rapid Eye surveillance system.[3] It does not appear that the absent footage Thompson requests was downloaded and saved, and then destroyed. Instead, it appears the clips of video were not downloaded from the surveillance system and saved at any point; they were simply recorded over. As Gilbert explains, if a ...


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