United States District Court, N.D. Georgia, Atlanta Division
RENEE WILDER, Individually and as Surviving Spouse and Next Friend and Administrator of the Estate of Albert Wilder, deceased, Plaintiff,
ROCKDALE COUNTY, et al., Defendants.
RICHARD W. STORY, District Judge.
This case comes before the Court on Plaintiff's Motion to Strike Rockdale County's Answer ; Defendant Correcthealth Rockdale, LLC, Correcthealth, LLC, Helen Green, Phillip Nowlin, and Anne Marie Pierre's Motion for Partial Summary Judgment ; Plaintiff's Motion for Sanctions Against Correcthealth ; Plaintiff's Motion to Compel ; and Plaintiff's Amended Motion to Compel . After reviewing the record, the Court enters the following Order.
This action arises out of the death of Albert Wilder while in custody at the Rockdale County Jail on September 24, 2012. Renee Wilder, Mr. Wilder's surviving spouse, sues Rockdale County, several county officials, the Sheriff, and several deputies for their deliberate indifference to Mr. Wilder's serious medical needs. In addition, Plaintiff sues the medical providers at the jail, Correcthealth Rockdale, LLC and Correcthealth, LLC (collectively, "Correcthealth"), including employees Ann-Marie Pierre, LPN, Helen Green, LPN, and Phillip Nowlin, MD.
Correcthealth is a private company that provides healthcare services to inmates. (Defs.' SMF, Dkt. [142-5] ¶ 2.) Correcthealth "contracted with the Rockdale County Jail to provide administrative services, nursing and physician care, regularly-scheduled sick call services, medical records management, pharmacy supply and services management, and other related services." (Id. ¶ 5.)
Between the morning of September 23 and the early morning of September 24, 2012, Plaintiff alleges that Mr. Wilder complained of severe abdominal pain to jail guards while housed in a cell in the jail's medical unit. (Am. Compl., Dkt.  ¶ 13.) Mr. Wilder was in severe pain throughout the day and deputies heard him repeatedly cry out for help. (Id. ¶¶ 34-35.) By the evening, Mr. Wilder was vomiting blood. (Id. ¶ 55.) The nurses were aware of Mr. Wilder's complaints but took no action. (Id. ¶ 57.) Late that night, Mr. Wilder's condition deteriorated, but neither the guards nor medical staff helped him. (Id. ¶¶ 61-90.) In the early morning hours of September 24, 2012, Mr. Wilder lost consciousness and died. (Id. ¶¶ 117-18.)
Plaintiff brought numerous claims against Defendants under both state law and 42 U.S.C. § 1983. The Correcthealth Defendants move for partial summary judgment on the § 1983 claims. Plaintiff also moves for discovery sanctions against Defendants.
I. Spoliation of the Rockdale County Jail Surveillance Video
Plaintiff moves to strike Defendant Rockdale County and Defendant Correcthealth's Answers based on their alleged spoliation of surveillance video. Plaintiff asserts that she requested any video recordings of Mr. Wilder while he was in jail, including when he was in the medical area. Defendants provided some video footage of the unit from the evening of September 23 to the morning of September 24, 2012, but Plaintiff argues that Defendants failed to provide footage from the morning and afternoon of September 23. Plaintiff contends that this video is critical to showing that Defendants denied Mr. Wilder medical care in violation of his constitutional rights. Therefore, Plaintiff argues that it is necessary to sanction Defendants by striking their Answers. In her Motion for Sanctions Against Correcthealth, as an alternative to striking Defendants' Answers, Plaintiff asks the Court for a jury instruction that spoliation creates a rebuttable presumption that the evidence would have been harmful to Defendants. (Dkt.  at 9.)
"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." Graff v. Baja Marine Corp., 310 F.Appx. 298, 301 (11th Cir. 2009) (internal quotation marks omitted) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). A party seeking spoliation sanctions must prove that (1) the missing evidence existed at one time; (2) the defendant had a duty to preserve the evidence; and (3) the evidence was crucial to the plaintiff's prima facie case. See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F.Supp.2d 1299, 1305 (N.D.Ga. 2011). Furthermore, in considering particular spoliation sanctions to impose, "courts should consider the following factors: (1) prejudice to the non-spoiling party as a result of the destruction of evidence, (2) whether the prejudice can be cured, (3) practical importance of the evidence, (4) whether the spoiling party acted in good or bad faith, and (5) the potential for abuse of expert testimony about evidence not excluded." Id. (citing Flury v. Diamler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005)).
Even if the Court finds spoliation, however, a sanction of default or an instruction to the jury to draw an adverse inference from the party's failure to preserve evidence is allowed "only when the absence of that evidence is predicated on bad faith." Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). While malice is not required in order to find bad faith, mere negligence in destroying evidence is not sufficient to justify striking an answer. See Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). In analyzing whether sanctions for spoliation are warranted, "[t]he court should weigh the degree of the spoliator's culpability against the prejudice to the opposing party." Flury, 427 F.3d at 946.
After reviewing the record, the Court finds that there is insufficient evidence to support a finding of bad faith on the part of Defendants. After Mr. Wilder died, the Rockdale County Sheriff asked the Georgia Bureau of Investigation ("GBI") to commence an investigation to determine if Mr. Wilder's death was a homicide. (Bogardts Aff., Dkt. [122-1] ¶¶ 2, 4.) On September 26, 2012, Assistant Jail Commander Jim Bogardts downloaded video that the GBI requested of the jail's medical unit, where Mr. Wilder was housed. (Id. ¶ 3.) The GBI did not request specific time frames for the video, however. (Id.) So, Mr. Bogardts downloaded video of Mr. Wilder's cell and of the medical unit to see who was in the area around the time Mr. Wilder died. (Id. ¶ 4.)
One video shows Mr. Wilder in his cell from around 9:55 a.m. on September 23, 2012 (when he arrived in his cell), to about 9:07 a.m. on September 24, 2012 (after he died). (Defs.' Resp., Dkt.  at 2.) Another video shows two camera views in the medical area beginning around 10:00 p.m. on September 23, 2012, and running until about 6:00 a.m. on September 24, 2012. (Id.) That video thus covers several hours before Mr. Wilder's death, but it does not include footage of the medical unit throughout the day on September 23 when Plaintiff alleges Mr. Wilder was ignored by jail and medical personnel as he cried out for help.
Still, there is no evidence that either Rockdale County or Correcthealth destroyed that portion of the video in bad faith. To begin with, Correcthealth did not have control over the video, as only senior jail staff and the Sheriff had access to the video-downloading system. (Bogardts Aff., Dkt. [122-1] ¶ 9.) "It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party." Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga.Ct.App. 2012). It is not clear what Correcthealth could have done to get Rockdale County to preserve ...