United States District Court, W.D. Pennsylvania
VITO A. PELINO, Plaintiff,
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.
Stewart Cercone Judge.
MEMORANDUM ORDER RE: ECF NO. 86
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE.
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.
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.
RELEVANT PROCEDURAL HISTORY
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.
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.
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.
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
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.
Motion for Sanctions is ripe for consideration.
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
Rule of Civil Procedure 37(e) addresses sanctions available
for a party's loss or destruction of electronically