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Timothy Dockery v. Captain Legget; Captain Riskus

December 19, 2011

TIMOTHY DOCKERY, PLAINTIFF,
v.
CAPTAIN LEGGET; CAPTAIN RISKUS; LIEUTENANT LESURE; SERGEANT BERTO; SERGEANT BITTNER; JOHNSON, CORRECTIONAL OFFICER;
GRIFFIN, CORRECTIONAL OFFICER; COLLINS, CORRECTIONAL OFFICER; DOBIS, CORRECTIONAL OFFICER; RICKET, CORRECTIONAL OFFICER; JENNINGS, CORRECTIONAL OFFICER; ANKRON, CORRECTIONAL OFFICER; VOJACEK, CORRECTIONAL OFFICER; CHRIS MYERS, PHYSICIAN ASSISTANT; NURSE TONY; D.P. BURNS, FORMER DEPUTY SUPERINTENDENT; POPOVICH, UNIT MANAGER; BUSH, SERGEANT, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

Judge Terrence F. McVerry

[ECF No. 133]

MEMORANDUM ORDER AND NOW, this 19th day of December, 2011, upon consideration of Plaintiff‟s "Application for Spoliation of Sanction" [ECF No. 133], IT IS HEREBY ORDERED that the motion is DENIED.

I. BACKGROUND

Plaintiff is an inmate currently confined at the State Corrections Institute at Frackville ("SCI-Frackville"), where he is serving a life sentence for a 1989 murder.*fn1 Plaintiff‟s motion seeks the imposition of sanctions as a result of the alleged destruction and/or alteration of three videos of events surrounding the search of Plaintiff‟s cell and two forced cell extractions, each necessitated by Plaintiff‟s refusal to comply with instructions to relinquish handcuffs after the completion of a cell search.

The first videotape at issue was recorded on August 3, 2007, from a camera mounted in the J--D Pod at the State Corrections Institute at Forest ("SCI Forest"), where Plaintiff was incarcerated at the time. Plaintiff alleges that the videotape would show that approximately one hour before a cell extraction, prison guards entered his cell to perform a search and confiscated a purportedly fabricated and forged misconduct report which Plaintiff claims relates to his "unlawful" confinement in a restrictive housing unit. ECF No. 133, p. 2, ¶¶ 9, 11. Plaintiff admits that his anger over the property confiscation led to his subsequent refusal to relinquish his handcuffs which, in turn, led to a planned use of force to extricate Plaintiff from his cell to recover the handcuffs. Id.

Defendants have responded to Plaintiff‟s discovery request, asserting that because the requested videotape was part of a routine cell search, unrelated to a planned use of force, it was not preserved. ECF Nos. 129, 136. Further, pursuant to the Department of Corrections policy, because the videotape recorded a routine event, given the "quantity of recordings and no requirement for preservation of routine searches," the tape at issue was "recorded over" when the memory card was full, and is no longer available. ECF Nos. 136, 136-2.

The second videotape at issue contains footage taken of the August 3, 2007, cell extraction. Plaintiff alleges that this video, filmed with a handheld camera, is altered because it omits his verbal explanation for his refusal to follow a direct instruction to safely relinquish handcuffs, and only shows footage of the extraction. ECF No. 133, p. 3. In response to this assertion, Defendants have filed the affidavit of Eric Tice, the Deputy Superintendent at SCI-Forest. Mr. Tice avers that the videotape has not been altered in any way and was stored pursuant to DOC policy in a "safe designated storage area." ECF No, 136-2 p. 2.

The third videotape, taken on November 7, 2008, is also evidence of the forced removal of handcuffs after Plaintiff‟s refusal to cooperate subsequent to a routine cell search. ECF No. 133, p. 7; Complaint, ECF No. 1-2, ¶ 52. Plaintiff has alleged that he was angry with the "reckless disregard the officer had for [his] personal property while conducting [a] cell search." Plaintiff alleges this video omits footage of the officers "brutally snatching and pulling plaintiff handcuffed hands attached to a tether though the pie slot on the cell door." ECF No. 133, p. 4. Defendants respond that this video has been produced in its entirety and has not been altered in any way. ECF Nos. 136, p. 2; 136-2, p. 2.

Plaintiff contends that the destruction and/or alteration of the videotape evidence entitles him to sanctions, specifically the entry of judgment in his favor, or in the alternative, a spoliation adverse inference instruction, presumably because Defendants should have anticipated litigation arising out of a subsequent cell extraction and preserved each video in its entirety.

II. DISCUSSION

"Spoliation is 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. Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348 F. Supp.2d 332, 335 (D.N.J. 2004)." Fortune v. Bitner, No. 01-111, 2006 WL 839346, *1 (M.D. Pa. March 29, 2006); see Ogin v. Ahmed, 563 F.Supp.2d. 539, 542 (M.D. Pa.2008). In assessing a spoliation claim:

[R]elevant authority requires that four (4) 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. Mosaid, 348 F.Supp.2d at 336 citing Brewer, 72 F.3d at 334; Scott v. IBM Corp., 196 F.R.D. 233, 248-50 (D.N.J. 2000); Veloso v. Western Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J. 2003). Additionally, the United States District Court for the District of New Jersey recognized: "While a litigant is under no duty to keep or retain every document in its possession, even in advance of ...


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