Blazer v. Gall

Decision Date01 August 2019
Docket Number1:16-CV-01046-KES
PartiesROBERT BLAZER, Plaintiff, v. KEITH GALL, CORSON COUNTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOSH BOLL, WALWORTH COUNTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEPUTY ALAN D DALE, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY JUSTIN TVEDT, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY MIKE VARILEK, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD KILEY FRANKLIN, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD KIMBERLY LONG KNIFE, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JUSTIN JUNGWIRTH, WALWORTH COUNTY JAIL SD, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD MARRISSA MICKELSON, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD HEATHER KROONJE, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD PATTY DUNWOODY, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD JEREMY JOHNSON, JAILER/GUARD AT WALWORTH COUNTY SD JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD LANCE SCHNAIBLE, JAILER/GUARD AT WALWORTH COUNTY JAIL SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY TRAVIS BENTZ, DEPUTY AT WALWORTH COUNTY JAIL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RONNIE DUCHENEAUX, JAILER/GUARD AT WALWORTH COUNTY JAIL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; GLENN BISSETT, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, IN HIS INDVIDUAL AND OFFICIAL CAPACITY; TAMMY RICHARDS, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CINDY STRONGHEART, GUARD/JAILER AT THE WALWORTH COUNTY JAIL SD, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; WALWORTH COUNTY, SOUTH DAKOTA; CORSON COUNTY, SOUTH DAKOTA, Defendants.
CourtU.S. District Court — District of South Dakota

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SPOLIATION SANCTIONS

Plaintiff, Robert Blazer, filed a second amended complaint against defendants for civil rights violations under 42 U.S.C. § 1983, following Blazer's stay as a pre-trial detainee at the Walworth County Jail. Docket 57. Blazer now moves for spoliation sanctions under Federal Rule of Civil Procedure 37(e) and this court's inherent power. Docket 64. For the following reasons, the court grants in part and denies in part Blazer's motion for spoliation sanctions.

FACTUAL BACKGROUND

Robert Blazer was a Corson County pre-trial detainee housed in the Walworth County Jail due to a lack of permanent jail facilities in Corson County. Docket 57 ¶ 3. Blazer was housed in the Walworth County Jail from October 15, 2015, until June 20, 2016. Id.

Blazer was seen by a medical professional on October 27, 2015, where he was prescribed several medications, including one for diabetes, that wererefilled in November 2015, December 2015, and January 2016. Docket 66-1 at 1-9. On February 17, 2016, Blazer visited Dr. Robert Marciano and was prescribed duloxetine (for depression), gabapentin (for pain), metformin (for diabetes), ranitidine (for epigastric discomfort), and lisinopril (for blood pressure). Id. at 13. While Dr. Marciano logged all five of the prescriptions on Blazer's chart, only the prescriptions for ranitidine and lisinopril were transmitted by the clinic to the pharmacy for pickup by Corson County deputies. Docket 69-1 at 1; Docket 72-6 at 1-2. Blazer went without the duloxetine, gabapentin, and metformin for the remainder of his detention at the Walworth County Jail. Docket 66-11 at 2.

Blazer alleges that he made several requests for the missing medications. Docket 57 ¶ 25. Defendants deny that Blazer made several requests for the medications. Docket 58 ¶ 25; Docket 59 ¶ 1. During Blazer's deposition, Blazer stated that despite several requests, written grievance forms were not provided until "one of the new guards had given me a form." Docket 66-3 at 6. On March 31, 2016, Blazer completed a Medical Request Form that stated, "No medical help at all. I need all my meds . . . ." Docket 66-4. While Walworth County's official policy is to keep such records, Blazer's medical file did not contain the Medical Request Form. Docket 66-10 at 2-3; Docket 66-12 ¶ 21. When Walworth County defendants were asked during discovery why the form was missing, they responded "It is unknown which deputy or jail personnel initially received the request or why the document was not maintained." Docket 66-12 ¶ 21. Instead, the form was retrieved from Corson County during discovery,because a copy had been faxed to Corson County from Walworth County and was preserved on April 1, 2016, as part of the Corson County official records. Docket 72-6 ¶ 13.

On April 5, 2016, an "agitated" Blazer covered his cell camera and said that he "was being tortured by not giving him his diabetic medications" and that Blazer would have the ACLU and EPA "sue this place so my son can be rich." Docket 66-5 at 1. Blazer was initially given a suicide blanket and when he covered the camera again with a shoe, Blazer was placed in a restraint chair. Id. Blazer continued to threaten to sue after being placed in the restraint chair. Id. at 2.

Shortly thereafter, on April 15, 2016, Blazer's criminal defense attorney, Brad Schreiber, sent an email to Sheriff Boll, Walworth County State's Attorney James Hare, and Corson County State's Attorney Eric Bogue. Docket 66-6. Schreiber, noting Blazer's multiple complaints about missing medications and mistreatment, asked to obtain copies of all of the jail's medical records pertaining to Blazer in order to provide Blazer with some assurances. Id. Schreiber also requested that he be given copies of any audio or video recordings from the jail, or "[a]t the very least, I would request that they be preserved." Id. The extended email chain shows that, on April 18, 2016, Schreiber followed up and asked whether he would be receiving the requested records. Docket 72-1 at 1. Sheriff Boll copied the message to Jail Administrator Justin Jungwirth and responded that he "forwarded the information on to the jail" but that "staff does not have time to chase their tales [sic] around on this."Id. Further, Sheriff Boll said that he would "check into it and find out and get you what you need." Id. Walworth County did not produce Sheriff Boll's reply email in response to Blazer's discovery request; instead, the emails were obtained from Schreiber. Docket 72 ¶ 2.

When Sheriff Boll was asked in his deposition whether he made any efforts to preserve video or audio recordings, Sheriff Boll answered, "nothing that I did." Docket 66-9 at 5. Further, during depositions Jail Administrator Justin Jungwirth was asked:

Q: Did you ever take any action to preserve any video or audio recordings as requested by Mr. Schreiber?
A: No.
Q: And was that ever asked of you?
A: Not that I remember.
Q: Had you been asked to take actions to preserve video and audio recordings, would you have done so?
A: Oh, sure.

Docket 66-10 at 4.

At the time, surveillance recordings from the jail were kept for thirty days before being overwritten. Docket 70-2 ¶ 2. Areas such as the medication pass room and hallway outside of the medication pass room record video but not audio. Id. ¶ 4. Surveillance in the cells records both audio and visual. Docket 66-8 at 2. Ultimately, no surveillance records were preserved. Docket 66-7 at 2.

Among other allegations, Blazer claims that while in his cell on April 20, 2016, Marissa Mickelson indicated Blazer was not receiving his medications because Blazer had not taken a plea deal. Docket 66-3 at 10; Docket 74 at 2. Blazer also alleges that Kylie Franklin told him he was not receiving his diabetes medication because he no longer had diabetes. Docket 66-3 at 12.Blazer further states that Sheriff Boll informed Blazer, in Blazer's cell, that Blazer was not receiving the medications because Corson County would not pay for Blazer's medication. Docket 74 at 2. Walworth County denies Blazer's allegations. Docket 59 ¶ 1.

Blazer filed suit pro se under 42 U.S.C. § 1983 on October 13, 2016. Docket 1 at 1. Appointed counsel filed a second amended complaint and brings the current motion for spoliation sanctions against Walworth County and Sheriff Boll. Docket 57; Docket 64.

DISCUSSION

Blazer moves to impose sanctions against Walworth County and Sheriff Boll for spoliation of evidence. Docket 64. Specifically, Blazer requests default judgment on the issue of liability against Walworth County and Sheriff Boll, or, in the alternative, Blazer requests that this court issue an adverse jury instruction that the destroyed video recordings were unfavorable to the Walworth County defendants. Docket 65 at 13. Additionally, Blazer requests $177,778 for the video recordings that were destroyed following the preservation request, attorneys' fees and costs for the preparation of the spoliation motion, and any further relief that this court deems equitable and just. Docket 71 at 14. Defendants oppose the motion. Docket 70.

Spoliation is "the intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document." Spoliation, Black's Law Dictionary (11th ed. 2019). The court's power to impose spoliation sanctions stems from either the Federal Rules of Civil Procedure, or when the Rules are inapplicable,the court's inherent authority under common law. E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 586 (D. Minn. 2005). Here, Rule 37(e) applies and thus "forecloses reliance on inherent authority." Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment. Rule 37(e), amended in 2015, states that:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT