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Storey v. Effingham County

United States District Court, S.D. Georgia, Savannah Division

June 16, 2017

KEITH STOREY, as executor of the Estate of Valerie Storey and Executor of the Estate of Kenneth Cartee, Plaintiff,
v.
EFFINGHAM COUNTY, Defendants.

          ORDER

         Plaintiff Keith Storey, in his various executory capacities, moves the Court to sanction several of the defendants[1] by striking their respective answers and entering a default judgment against them, for spoliation of video evidence that he believes would prove his case. See doc. 172. Defendants oppose. See doc. 178 at 4.

         I. BACKGROUND

         Storey pursues this civil rights action to recover for injuries suffered by the decedent, Kenneth Cartee, while in the custody of Effingham County Jail. See doc. 172 at 2-7; doc. 178 at 2.[2] After threatening to harm himself and his daughter on the morning of September 9, 2012, Cartee was taken to Effingham County Hospital by a Sheriff's Department Officer for mental examination. Doc. 172 at 2. At the hospital, he was involved in an altercation with the Officer. Id. at 2-3. In order to subdue Cartee, the officer “placed his knee between Cartee's shoulder and neck.” Id. at 3.

         Cartee was then arrested for felony obstruction and transported to Effingham County Jail, where he was involved in a second altercation after refusing to comply with jail staff's instructions. Id. at 3-4. He was tased and strapped, naked, for several hours, in a “restraint chair.” Id. Again combative when released from the chair (to take him back to the hospital), Cartee was thrown to the ground, hogtied, and tased once more. Id. at 4-5. At the hospital, he was sedated and treated for several days before being transported to “Georgia Regional” for mental health treatment. Id. at 5. He complained for the first time of having difficulty walking when he was released, but was able to walk unassisted approximately 35-40 feet to get into the police transport cruiser. Id. at 6.

         After returning to the Jail, Cartee again complained he could not walk. Doc. 172 at 6. When officers couldn't cajole him into walking, once again the taser appeared and was used one to three times (the officer doesn't remember). Id. Cartee was put in a wheelchair at that point, and escorted to booking. Id. Two days later, after officers tired of helping Cartee go to the bathroom -- as he still could not walk -- he was taken back to Effingham Hospital and diagnosed with renal failure, as well as several broken ribs, a cervical spinal cord injury and a T11 vertebral facture, sepsis, severe dehydration, and several cuts, bruises, and sores. Id.; see also doc. 172, Exh. O at 66-67; doc. 72 at ¶ 54. Upon being informed of Cartee's renal failure (it is unclear whether the other various diagnoses were also communicated) Captain Brown released Cartee on his own recognizance. Doc. 172 at 7; see also doc. 172, Exh. O at 80-81.

         At the time of these events, Effingham County Jail had a surveillance system set up with cameras throughout the facility, including two video cameras in the sally port, cameras at the booking area, a camera in each holding cell, a camera from booking down the hallway, cameras in each of the big cell blocks, and a camera that captured at least part of one of the two isolation cells. Doc. 172 at 7; see doc. 172, Exh. P at 56-69. The video records are retained in a centralized storage for at least 14 and up to 30 days, id. at 66-69, and it was the policy of the Jail to retain a video when there were disciplinary issues, allegations of wrongdoing, a use of force by staff, or an investigation was started (for any reason) before the video had been routinely destroyed, id. at 71-73. Also, whenever the safety was flipped off of a taser, a video was automatically taken -- akin to a police body camera video. Doc. 172, Exh. E at 14-84.

         Here, no video taken during Cartee's time at Effingham County Jail -- from the first when he was (1) booked, tased, and strapped in a restraint chair, (2) cuffed, put in leg irons, and then tased a second time, (3) tased a third (to perhaps a fifth) time and wheeled to booking, to the end when (4) he was finally wheeled to the hospital for renal failure --was preserved, neither the jail's routine surveillance video nor the automatic taser footage. Apparently, defendants didn't know they should suspend their routine video-destruction policy to preserve that video footage, since they didn't know “that Cartee sustained any injury at the Jail, ” doc. 178 at 3 -- despite, it bears repeating, multiple physical altercations, tasings, Cartee's own declarations that he was going to “sue, ” and being discharged to the hospital for physical injury. Doc. 172 at 2-7; doc. 199 at 3; see also doc. 172, Exh. A at 226. Plaintiff asks that the Court strike defendants' Answers and enter default judgments against them or order an adverse jury instruction as a sanction for the destruction of the videos. Doc. 172.

         II. ANALYSIS

         “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.” Brown v. Chertoff, 563 F.Supp.2d 1372, 1377 (S.D. Ga. 2008). The Court has “broad discretion” to impose sanctions as part of its “inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Spoliation sanctions may include dismissal, exclusion of testimony, or an instruction to the jury to presume that the evidence would have been unfavorable to the spoliator. Fed.R.Civ.P. 37(e). The Court examines “the extent of the prejudice caused by the spoliation (based on the importance of the evidence to the case), whether that prejudice can be cured, and the culpability of the spoliator.” Oil Equip. Co. v. Modern Welding Co., 661 F. App'x 646, 652 (11th Cir. 2016).

         A. Defendants Without Possession, Custody, or Control of the Video Evidence

         As an initial matter, spoliation sanctions are only available against the party who had possession or control of the missing evidence. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (“it is essential that the evidence in question be within the party's control.”) (cite omitted), cited in Watson v. Edelen, 76 F.Supp.3d 1332, 1343 (N.D. Fla. 2015) (“For a spoliation sanction to apply, it is essential that the evidence in question be within the party's control, that is, the party actually destroyed or was privy to the destruction of the evidence.”).

         Storey has not articulated any connection between the majority of the defendants and the destruction of the evidence. See docs. 172 & 199. Defendants point out, and Storey cites nothing to contradict, that “there is no evidence that any Effingham Defendant other than the Sheriff and Defendant [Jail Captain Robert] Brown had the authority to preserve any of the video at issue.” Doc. 178 at 4 (italics added). In fact, nothing in plaintiff's motion even explains their inclusion in the motion for sanctions to begin with: none of the individuals is even specifically mentioned, much less directly accused of spoliation.

         Accordingly, regardless of whether spoliation occurred, Storey is not entitled to sanctions against the individual Effingham defendants, who could have done nothing to prevent or spur the destruction of these videos regardless of their own awareness of their importance. His motion (doc. 172) is thus DENIED in part, as to the individual Effingham defendants: Deputy Ashby Lee Zydonyk, Corporal Bryan Shearouse, Jailer Cora Mae Gains, Jailer Dorothy Hopf, Jailer Garett Buckles, Jailer Johnny Reinhart, Sergeant Layonya Cooper, Jailer Corporal Leslie Minor, Officer Paul Davis, Deputy Ryan Casey Williams, and Jail Officer Tiffany Tisby. C.f. Wilder v. Rockdale Cty., 2015 WL 1724596 at * 3 (N.D.Ga. April 15, 2015) (sanctions were not appropriate against a jail's health care provider for the destruction of a jail surveillance video because “[i]t is not clear what [the provider] could have done to get [the county] to preserve video[, and] there [was] no evidence that [the provider] played any role in deleting video footage.”); Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga.Ct.App. 2012) (“[i]t 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.”).[3]

         B. Defendants With Possession, Custody, or Control of ...


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