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Pelino v. Gilmore

United States District Court, W.D. Pennsylvania

December 6, 2019

VITO A. PELINO, Plaintiff,
v.
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.

          David Stewart Cercone Judge.

          MEMORANDUM ORDER RE: ECF NO. 86

          MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Vito A. Pelino ("Plaintiff) brings this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 3. Plaintiff is incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), and he asserts claims against three SCI-Greene employees. Plaintiff i alleges that Defendants violated his Fourth Amendment right to bodily privacy through SCI- Greene's policy of video-recording strip searches.

         Presently before the Court is a Motion for Sanctions filed by Plaintiff and Defendants' Response. ECF Nos. 86, 91. For the reasons set forth below, this Motion is denied.

         I. RELEVANT PROCEDURAL HISTORY

         Plaintiffs Complaint was filed on September 21, 2018, and he later filed the operative Amended Complaint on January 7, 2019. ECF Nos. 3, 39. In his Amended Complaint, Plaintiff claims that Defendants violated his Fourth Amendment rights by "implement[ing] a policy of video-recording strip searches of inmates going to, and coming from contact visits, and while using the bathroom." ECF No. 39 ¶ 8. Plaintiff alleges that inmates are subjected to strip searches "with their genitals and private parts in full view of a 360 degree ceiling camera every time they wish to have contact visits, or use the bathroom during visits." Id. ¶ 12. These recordings are stored and "viewed at all times by SCI-Greene's security staff," which includes prison officials not present during the search and individuals if the opposite sex." Id. ¶ 13.

         On January 25, 2019, Defendants moved to dismiss Plaintiffs Amended Complaint. Defendants argued that Plaintiffs claims should be dismissed because the searches are reasonable under the standard set forth in Bell v. Wolfish, 441 U.S. 520, 558 (1979), and therefore do not violate Plaintiffs Fourth Amendment rights. ECF No. 41. In support of their Motion, Defendants relied in part on a declaration from Defendant Michael Zaken (the "Zaken Declaration"). Zaken identified various precautions that SCI-Greene officials purportedly have taken to ensure that inmates' private areas are not recorded during strip searches, including the use of a security cage with an opaque barrier to conceal inmates' private areas from the camera's view. Id. at 8; ECF No. 22-1 ¶ 11.

         On July 24, 2019, the Court issued a Report and Recommendation which recommended that the Motion to Dismiss be denied. The Court concluded that "Plaintiffs allegations that nude images of Plaintiff are recorded and stored for an unknown amount of time, are viewed by various prison officials, including officials of the opposite sex, and that this policy was imposed for retaliatory purposes, raise questions of fact at this early stage." ECF No. 56. United States District Judge David S. Cercone adopted the Report and Recommendation on July 29, 2019. ECF No. 58.

         On April 15, 2019, Plaintiff filed a Motion to Preserve Evidence, requesting that the Court order Defendants to preserve surveillance footage from the visiting strip-search room dated April 6, 2019. ECF No. 51. Plaintiff argued that precautions identified in Zaken's Declaration were not implemented on this date, and the video could be used to rebut Defendants' defenses in this case. In response, Defendants notified the Court that Defendants' counsel had requested the video be preserved on April 15, 2019. ECF No. 53. The Court granted this Motion on April 29, 2019. ECF No. 55.

         On August 26, 2019, the Court issued a case management order allowing a period for discovery until January 1, 2010. Plaintiff filed the instant Motion for Sanctions on November 6, 2019, requesting that the Court impose sanctions for Defendants' purported spoliation of electronically stored information. Defendants filed a Response opposing Plaintiffs Motion on November 15, 2019. ECF No. 91.

         The Motion for Sanctions is ripe for consideration.

         II. LEGAL STANDARD

         "Spoliation occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party." Bull v. United Parcel Serv. Inc., 665 F.3d 68, 73 (3d Cir. 2012). The United States Court of Appeals for the Third Circuit historically has held that "a finding of bad faith is pivotal to a spoliation determination." Id. at 79.

         Federal Rule of Civil Procedure 37(e) addresses sanctions available for a party's loss or destruction of electronically stored ...


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