The opinion of the court was delivered by: Judge Rambo
Before the court is Plaintiff James A. Paluch's motion for summary judgment, or in the alternative, for a spoliation charge. (Doc. 291.) This case arises from an alleged assault on Plaintiff by his cell mate in their cell at the State Correctional Institution in Huntingdon, Pennsylvania ("SCI-Huntingdon"). Plaintiff alleges that Defendants, who are several employees at SCI-Huntingdon, are liable for damages resulting from that assault. For the reasons that follow, the motion will be denied.
The alleged assault underlying this action occurred on September 9, 2004.
(Doc. 1 at 7-8.) Plaintiff claims that his cell mate, Roger Smith, assaulted him in their cell in SCI-Huntingdon's Restricted Housing Unit ("RHU") on that date. (Id.) In connection with this assault, Plaintiff contends that Defendants failed to protect him from Smith, whom he contends had a history of assaultive and aggressive behavior. (Id.) Further, he contends that he complained to Defendants and feared for his safety prior to the assault. (Id. at 6-7.) Defendant Dawson was present at Plaintiff's cell door at the time of the assault. (See Doc. 292 at 2; Doc. 281-3, Boskie Dep., Nov. 8, 2007, 30-31.)
According to Plaintiff, video cameras constantly recorded the RHU cell block on September 9, 2004, including the area directly outside his cell. (Doc. 292 at 2.) As a result, there existed video footage of the events which took place at Plaintiff's cell door on that date. (Id.) In addition, other video cameras recorded activities occurring after the assault, including the taking of any photographs and any medical care given to Plaintiff. (Id.) In his initial request for administrative remedies filed with prison officials on September 10, 2004, the day after the assault, Plaintiff expressly stated that Defendant Dawson's actions related to assault were recorded on the RHU video camera. (Doc. 291-9 at 3, Ex. G.)
Further, Plaintiff claims that SCI-Huntingdon staff took seven photographs of Plaintiff, multiple photographs of Plaintiff's cell, and multiple photographs of inmate Smith following the assault. (Id.) He contends that Defendants have produced only two photographs of Plaintiff and two photographs of inmate Smith. (Id.) He now claims that the remaining photographs were either lost, destroyed, or withheld from Plaintiff. (Id.) In the alternative, he claims that if Defendants never took these photographs, they breached their duty to preserve evidence of the assault. (Id. at 2-3.) In his initial request for administrative remedies filed with prison officials on September 10, 2004, the day after the assault, Plaintiff states that Polaroid photographs were taken of his injuries, but does not state the number of photographs taken. (Doc. 291-9 at 3.)
On September 7, 2006, Plaintiff commenced a civil action against Defendants in this court by filing a complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) By order dated September 18, 2006, the court directed service of the complaint on all the defendants named therein.*fn2 (Doc. 7.) Defendants filed an answer to the complaint, (Doc. 38), and a period of discovery was completed on July 14, 2008, (see Doc. 163). Further, the deadline for dispositive motions was August 1, 2008. (See id.) On that date, Defendants filed a motion for summary judgment, statement of facts, and supporting brief. (Docs. 225, 226 & 227.) After the court granted Plaintiff five extensions of time in which to respond to the motion for summary judgment, (see Docs. 238, 248, 253, 264 & 269), Plaintiff filed his brief in opposition on April 9, 2009, (Doc. 281). By memorandum and order dated June 16, 2009, the court denied Defendants' motion for summary judgment. (Doc. 293.)
On June 9, 2009, Plaintiff filed the instant motion for a spoliation charge. (Doc. 291.) In that motion, Plaintiff initially requests summary judgment in his favor based on the spoliation of the video and photographic evidence. Because the deadline for filing dispositive motions had passed at the time Plaintiff filed the instant motion, the motion for summary judgment (Doc. 291) will be denied as untimely. However, the court will address Plaintiff's motion for a spoliation charge.
Plaintiff contends that Defendants' intentional discarding or destruction of the video and photographic evidence related to his claims against them prohibits him from corroborating his claims with such evidence, thereby entitling him to summary judgment or, in the alternative, an adverse inference instruction, as a sanction for spoliation of the evidence. As the court has already determined that summary judgment is not warranted in this case, the court will address whether the rule permitting an adverse inference instruction is applicable here.
As a general rule, "[a] party which reasonably anticipates litigation has an affirmative duty to preserve relevant evidence." Howell v. Maytag, 168 F.R.D. 502, 505 (M.D. Pa. 1996). Courts define "spoliation" as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Ogin v. Ahmed, 563 F. Supp. 2d 539, 542 (M.D. Pa. 2008). When a party has destroyed evidence, courts may appropriately impose sanctions, including dismissal of claims, the exclusion of countervailing evidence, or a jury instruction on the "spoliation inference," which permits the jury to presume that "the destroyed evidence would have been unfavorable to the position of the offending party." Id. (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994)). Courts must consider the facts and circumstances when fashioning an appropriate sanction, but ultimately the use and fashioning of sanctions appertain to "the inherent power of district courts... to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Baliotis v. McNeil, 870 F. Supp. 1285, 1289 (M.D. Pa. 1994) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotation marks omitted)).
As other courts within the Third Circuit have observed, relevant authority requires that four factors be satisfied for the rule permitting an adverse inference instruction to apply: (1) the evidence in question must be within the party's control; (2) it must appear that there has been actual suppression or withholding of the evidence; (3) the evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that the evidence would later be discoverable. Ogin, 563 F. Supp. 2d at 543 (citing Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004)). It has also been recognized that "[w]hile a litigant is under no duty to keep or retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation." Ogin, 563 F. Supp. 2d at 543 (citing Mosaid, 348 F. Supp. 2d at 336)).
Further, in determining whether a sanction is appropriate, courts contemplate the following factors: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is ...