Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

Countess Clemons v. Corrections Corporation of America, Report & Recommendations Grantings Sanctions against CCA for Spoilation of Evidence 2014

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.

Case No. 1:11-cv-339
OF AMERICA, et al.



Case No. 1:11-cv-340

I. Introduction
This matter comes before the undersigned for a report and recommendation concerning
the appropriate sanction against Corrections Corporation of America (CCA) for its loss of
important video evidence caused by CCA’s own grossly negligent conduct.
Plaintiffs have filed two identical motions for sanctions for spoliation of evidence in the
related cases: [Doc. 44] in Clemons v. Corrections Corporation of America, Inc., 1:11-cv-339
and [Doc. 61] in Luhowiak v. Smith, 1:11-cv-340. Both cases arise from a November 19, 2010
incident in which inmate Countess Clemons went into premature labor sometime in the late
afternoon or early evening at the Silverdale Detention Facility (SDF), a correctional facility
owned and managed by CCA. Ms. Clemons was eventually transported to Erlanger Hospital, but
her child did not survive. G. Michael Luhowiak is the administrator ad litem of the deceased
child’s estate. Among other claims, plaintiffs bring a claim under 42 U.S.C. § 1983 alleging
Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 1 of 21 PageID #: 2937

CCA was deliberately indifferent to her and her child’s serious medical needs by failing to act
promptly when Ms. Clemons complained of illness on November 19, 2010. Plaintiffs seek
various sanctions up to and including default judgment for spoliation of evidence.
II. Relevant Facts
A. February 5, 2014 Hearing Regarding the Loss of Video Evidence
The undersigned Magistrate Judge held an evidentiary hearing on the motion for
sanctions for spoliation of evidence on February 5, 2014 in which several CCA employees
Steve Groom is and was at all times relevant to this lawsuit the Executive Vice President
and General Counsel for CCA, a publically traded company which designs, builds, and manages
private prisons for state and federal governments. CCA’s legal department is located in
Nashville, Tennessee. Mr. Groom received two letters, both dated November 26, 2010, from
Lance T. Weber, General Counsel of the Human Rights Defense Center, stating that his office
had been retained to represent Ms. Clemons in connection with the death of her child and asking
that CCA preserve evidence. (See Plaintiff’s Exhibits 1 and 2.) In one letter in particular, Mr.
Weber specifically requested that CCA retain all video made by any cameras in the SDF that
depict Ms. Clemons anywhere on the property during the 24 hour period immediately preceding
her transport from the SDF to the hospital on November 19, 2010 and all video made by any
cameras in the SDF of any persons acting on Ms. Clemons’ behalf or discussing Ms. Clemons’
medical condition prior to her transport to the hospital. (Plaintiff’s Ex. 2). The letters were
forwarded to the CCA lawyer assigned to the SDF who, pursuant to normal CCA protocol,
would have notified the SDF to preserve the requested video. According to Mr. Groom, CCA
has a documents retention policy which requires all potential evidence to be preserved.

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 2 of 21 PageID #: 2938

Paul L. Jennings is and was at all relevant times the warden at SDF. He also testified that
there is a policy to preserve evidence at CCA and when any request for evidence is made, a file
is developed and the evidence is placed in it. Warden Jennings received an email with an
attachment, the letter from Lance T. Weber of the Human Rights Defense Center requesting that
the video evidence from November 19, 2010 be preserved. Very soon after receiving the email,
Jennings contacted Assistant Warden Quinn and assigned him the task to obtain and copy the
video evidence. Quinn assigned John Kerns, part-time maintenance worker and part-time IT
staff, to copy the requested video from November 19, 2010. It was Warden Jennings’
understanding that Kerns did copy the requested video from November 19, 2010.
SDF uses the Pelco camera system which does not provide any audio. All video is,
however, time stamped. At the time at issue, Clemons was housed in the Alpha section of SDF.
The Alpha section is comprised of four pods or separate dorms which branch off in four
symmetrical directions from a center post, called the Alpha post. The Alpha post is a large six
sided desk. On the night in question Nurse Badger was stationed as the Alpha post officer.
Clemons was housed in pod 3. There is a camera in Alpha pod three which provides a sweeping
view of the bunks and table area. It does not provide a direct view of the exit door; the
bathrooms and showers; or the pill call area, the station where the nurse dispenses medicine to
the inmates; but it would show whether someone walked toward or away from those areas.
Thus, if Clemons had been assisted from her bunk toward the bathroom or shower area, that
would be shown on the video. The video would also show a corrections officer moving from the
entrance door toward the bunk area or bathroom and shower area.
Another camera shows a view looking down a long hallway toward the large circular
Alpha post desk. If a person walked up to the Alpha post desk, that person would be seen on the

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 3 of 21 PageID #: 2939

video though it may be difficult to ascertain the person’s identity given the distance of the Alpha
post desk from the camera located down the hallway. Looking in the direction of the Alpha post
desk, about halfway down the hallway on the left side is the entrance to the Receiving and
Discharge (R&D) area. The camera view does not show inside the R&D area or the entrance
door. It would show someone coming down the hall and turning into the R&D area, however.
There is also a camera located in the R&D area which provides a broad view of the R&D:
the center reception and desk area, the entrance door, and the entrance to cells 1 and 2 are within
the view of this camera. The cell doors to cells 3, 4, and 5 are not on camera, but video would
show if someone left the reception area and walked toward those cell doors. When Ms. Clemons
was brought to R&D the evening of November 19, 2012, she was placed in cell 3.
Finally, there is a camera focused on the door of SDF through which ambulance
personnel would have entered and Clemons would have exited to reach the ambulance.
On November 23, 2010, Ms. Quinn filed a grievance alleging she did not receive timely
medical care thereby causing the death of her child. Warden Jennings assigned the grievance to
Assistant Warden Quinn who immediately viewed the Pelco video from November 19, 2010 as
part of his investigation. Quinn concluded that staff had not acted with malfeasance and denied
the grievance. Ms. Clemons appealed the finding to Jennings who denied her appeal without
further investigation because he felt that Quinn’s decision had adequately addressed Clemons’
On November 23, 2010, SDF conducted a morbidity case review of the November 19,
2010 incident and found “[t]he Medical Staff documented very poorly on this inmate” and “[t]he
Medical Transport should have been more timely.” (Plaintiff’s Ex. 9, p. 2)

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 4 of 21 PageID #: 2940

Michael T. Quinn was the Assistant Warden at SDF during all times relevant to this
lawsuit. On Friday, November 19, 2010, he worked a normal shift and left SDF about 6 pm.
While en route to his home, he received a call reporting that Ms. Clemons needed a
“nonemergency transport” to the hospital. As the events giving rise to this lawsuit unfolded on
November 19, 2010, Quinn remained in frequent contact with staff at SDF and spoke to a doctor
at Erlanger to keep informed. The following day, Quinn went back to SDF to review the video
tapes from the previous day and to take statements from staff regarding the incident. He also
made plans to allow Ms. Clemons a contact visit with her family and a furlough to attend her
child’s funeral. He also prepared the Notification to Administration of the incident occurring on
November 19, 2010. (Plaintiff’s Ex. 10). The Notification to Administration contains a
“Description of Incident” which was written by Quinn following his investigation. This
“Description of Incident” contains a timeline of events which Quinn testified he prepared based
entirely on his review of the video tapes within the facility. Quinn testified at the evidentiary
hearing before the undersigned that he reviewed the relevant video “a lot of times.”
Quinn participated in the morbidity review of the November 19, 2010 incident. He
testified that he signed the Morbidity Review solely to indicate that he was involved in the
review but that he did not agree with the assessment that “[t]he Medical Transport should have
been more timely.” He testified he thought Ms. Clemons’ situation had been handled properly
and he testified he based this conclusion in no small part on what he saw on the video tapes. In
particular, he mentioned at the February 5, 2014 evidentiary hearing that the video showed Ms.
Clemons being rolled in a wheelchair from the pill call area down the hallway to R&D and there
did not appear to be an emergency. Further, according to Quinn, other video did not show staff
responding as if there were an emergency.

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 5 of 21 PageID #: 2941

Quinn remembers receiving a letter from Clemons’ lawyer asking for the relevant video.
When he was asked to preserve the relevant video, he asked CCA employee Kerns to make a
copy. Kerns was a part-time maintenance worker and IT worker. Quinn wrote down on a piece
of paper the date and time frames for the video and which camera views he wanted copied.
Kerns had made video copies for him before, and he felt he had no reason not to trust Kerns to
copy the correct video. Later, Kerns told Quinn he had completed the copying. Quinn did not
check the copies to make sure it was the correct video. In June 2011, the CCA attorneys asked to
see the video of the incident, and Quinn discovered then for the first time that Kerns had copied
video from November 18, 2010, not the necessary video from November 19, 2010. The Pelco
video system overwrites all video every ninety days; therefore, the relevant video had been
overwritten. Nevertheless, Quinn contacted the Nashville central office to see if the video might
still be recovered, and he was told it could not be.
Quinn testified at the evidentiary hearing that the Pelco video system is fairly
complicated. Each camera, which records to a separate DVR, has to be logged into individually
and logged out of before going to the next camera. Quinn testified he walks through the facility
on a regular basis and it is not unusual for inmates to come up to him and complain or ask him

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 6 of 21 PageID #: 2942

B. The Events of November 18 and 19, 20101
On November 18, 2010, plaintiff Countess Clemons was nineteen weeks pregnant. Depo.
of Clemons pg. 67-68, Doc. 75-3. That day, she began experiencing pain in her lower stomach.
Id. at 71-73. She went to see defendant Nurse Smith at pill call, and she told Nurse Smith that
her stomach was hurting “real bad.” Id. Nurse Smith told her not to worry, her uterus was just
stretching. Id. The pain continued to worsen during the night and she did not sleep well. Id. at
79. The pain continued throughout the next day, November 19, 2010. The most comfortable
position for her was rolled into a ball. Depo. of Clemons, pg. 74. Early on November 19, 2010,
when the plaintiff used the bathroom, she noticed a small amount of blood when she wiped. Id. at
79. Sometime between 5 pm and 6 pm, plaintiff could tolerate the pain no longer, and she sent
inmate Christa Chubb to get Corrections Officer Brenda Badger. Id. at 74-75; Depo. of Badger,
pg. 62, line 23 – pg. 63, line 2; pg. 65, line 19 – line 22. Plaintiff was throwing up, and other
inmates were beating on the windows of the unit to try to get someone to come help her. Depo.
of Clemons, pg. 75, 78-79. Defendant Badger entered the dorm area and discovered that Ms.
Clemons was in the bathroom sitting on the toilet and suffering from stomach pain. Badger
Depo. pg. 65, line 19 – pg. 66, line 17. According to Badger’s testimony, within five minutes of
finding Ms. Clemons on the toilet and complaining of stomach pain, Badger informed Defendant
Teresa Smith, LPN (“Nurse Smith”), the nurse working at SDF in the Alpha Unit, that Ms.
Clemons had abdominal pain. Badger Depo., pg. 72, line 18 – line 23. See also, Depo. of


The recitation of facts in this section of the report and recommendation is not intended to be a
recommended finding of facts of the events on November 18 and 19, 2010. Rather, the purpose
is to focus on facts as alleged by the parties and on the important differences in the parties’
versions of events occurring on November 19, 2010 because the allegations themselves as well
as the differences are relevant to the importance of the lost video tapes. For each fact, the
undersigned provides a source. Each fact set forth in this section is the assertion of the source
from which it comes – it is not the undersigned’s finding.
Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 7 of 21 PageID #: 2943

Clemons, pg. 75, line 5 – line 10. Nurse Smith responded to this information by stating that Ms.
Clemons was “probably constipated.” Badger Depo. pg. 73, line 25 – pg. 74, line 9; pg. 74, line
22 – pg. 75, line 24. Badger testified that Nurse Smith did not leave pill call to evaluate Ms.
Clemons. Badger Depo. pg. 75, line 23 – pg. 76, line 6. When Badger returned from pill call,
inmates were beating on the windows asking her, “did you tell the nurse?” Depo. of Badger, pg.
Prior to leaving work at the end of Badger’s shift, inmates in the dorm with Ms. Clemons
informed Badger that Ms. Clemons was having more difficulties and was spotting (bleeding).
Depo. of Badger, pg. 82, line 3 – pg. 83, line 16. Badger testified at her deposition that she
informed Nurse Smith about Ms. Clemons bleeding on her way out at the end of her shift. Id.
Defendant Badger also testified that she informed Defendant Juanita Montgomery, a corrections
officer whose shift began immediately after Defendant Badger’s, about the complaints and
condition of Ms. Clemons. Depo. of Badger, pg. 82, line 3 – line 7.
Defendant Montgomery stated that upon coming on duty she was summoned by an inmate in
the same dorm as Ms. Clemons. Depo. of Montgomery pg. 51, line 1 – line 6. Defendant
Montgomery does not recall how much time elapsed from the time that her shift started until the time
that she was summoned by an inmate concerned about Ms. Clemons. Id. pg. 52, line 6 – line 9. After
entering the dorm and checking on Ms. Clemons, Defendant Montgomery and another inmate
assisted Ms. Clemons, who was crying a little and hurting “real bad,” in walking to the pill call area
to see Nurse Smith. Id. pg. 52; 53, line 23 – pg. 54, line 12.
Nurse Smith was working in the Alpha Unit of SDF on November 19, 2010, and has given
testimony that is directly contradictory to that of Defendant Badger regarding Ms. Clemons.
According to Nurse Smith, neither Defendant Badger nor anybody else, other than the plaintiff
herself, ever informed her about Ms. Clemons experiencing abdominal pain or bleeding on

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 8 of 21 PageID #: 2944

November 19, 2010. Depo. of Teresa Smith, pg. 89, line 8 – line 12; pg. 106, line 18 - line 22; pg.
108, line 10 – line 22. Nurse Smith further testified that she was first aware of any medical issues
with Ms. Clemons when Ms. Clemons herself came to the pill call area where she (Smith) was
working at approximately 7:30 p.m. Id. at pg. 108, line 16 – line 22. According to Smith, plaintiff
reported to Nurse Smith that she was experiencing a non-bloody discharge. Depo. of Smith at 113.
After talking to Ms. Clemons in pill call about her symptoms, Nurse Smith contacted the
CCA on-call provider, physician assistant Robert Stultz. Depo. of Smith, pg. 113, line 5 – line 8;
Declaration of Stultz, Ex. 17. Stultz ordered that Ms. Clemons be transported out of the facility. Id.
at 113, line 16 – line 18. Nurse Smith testified that she completed a Medical Transport Form at 7:43
p.m. with Ms. Clemons in pill call. Id. at 115, line 16 – pg. 116, line 1. Nurse Smith also testified that
she took Ms. Clemons to R&D in a wheelchair and that the paperwork was ready to get Ms. Clemons
transported. Id. at 115, line 20 – pg. 116, line 4; pg. 114, line 22-23; pg. 117, line 15 – line 25.
Nurse Smith’s testimony conflicts with testimony from corrections officer Daniel Garcia
(“Defendant Garcia”) regarding who brought Ms. Clemons to R&D. Defendant Garcia was the
officer working in the R&D unit on November 19, 2010. He testified that Ms. Clemons was brought
to R&D by Montgomery at 7:32 p.m. Depo. of Garcia, pg. 33, line 2 – line 18. Plaintiff also
testified Montgomery brought her to R&D in a wheelchair. Depo. of Clemons, pg. 77. Ms. Clemons
was placed in cell 3 in the R&D unit. Depo. of Garcia, pg. 30, line 21.

Ms. Clemons testified that before she arrived at R&D, her water had broken and that
while in the cell in R&D, she suffered from severe vaginal bleeding, abdominal pain and
contractions. Depo of Clemons. pg. 81, line 3 – pg. 82, line 14. According to Ms. Clemons, the
next time she noticed vaginal bleeding on November 19, 2010, after seeing some blood in the
bathroom that morning, was when she was in the cell in R&D. Depo. of Clemons pg. 82-83. She

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 9 of 21 PageID #: 2945

crawled to the cell door and beat on the bottom pleading for help. Id. at 82. Ms. Clemons also
testified that Garcia never came to help her while she was in R&D. Id.
Garcia has testified that he had a conversation with Ms. Clemons while she was standing
in the cell, about her requests to see the nurse after being brought to R&D. Depo. of Garcia, pg.
41, line 17 – pg. 43, line 20. Garcia did not recall when this conversation occurred in relation to
when Ms. Clemons arrived in R&D. Depo. of Garcia, pg. 44, line 3 – line 18. According to Ms.
Clemons, she pleaded with CCA staff member Garcia for help, who then advised Ms. Clemons
that the staff at Silverdale were conducting a “count” and responding to “codes,” and Garcia did
not take any action to provide Ms. Clemons with medical treatment. Depo. of Clemons, pg. 81,
line l9 – pg. 82, line 6.
After Ms. Clemons was placed in the cell in R&D, a code red (inmate attack on an
officer) was called at 8:03 p.m. in another part of SDF. Depo. of Montgomery, pg. 71, line 10 –
line 11. At some point while Ms. Clemons was in the R&D cell, her pants became wet and
soaked in blood, she was crying and moaning in pain, and Defendant Montgomery brought her a
new pair of pants. Depo. of Clemons, pg. 82, line 7 – 10. Defendant Montgomery testified that
she brought Ms. Clemons a change of pants, but is not sure what time that occurred. Depo. of
Montgomery, pg. 63, line 18 – pg. 67, line. 2. Defendant Montgomery also testified that the
video footage would be able to identify what time she entered the cell in R&D and provided Ms.
Clemons with a change of pants and when she exited the cell and disposed of the pants Ms.
Clemons had been wearing and were soaked with blood. Id.
After the code red at SDF, Ms. Clemons had yet to be transported to the hospital. Once
Defendant Montgomery was finished responding to the code red, she returned to R&D and found that
Ms. Clemons had yet to be transported to the hospital. Depo. of Montgomery, pg. 60, line 21 -pg. 61,
line 25. At that point, according to Nurse Smith, Defendant Montgomery called Nurse Smith, who

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 10 of 21 PageID #:

was back in the Alpha pill call room, and advised Nurse Smith that Ms. Clemons was bleeding.
Depo. of Smith, pg. 133, line 20 – pg. 135, line 4. Nurse Smith testified that she ran from the pill call
room to R&D. Depo. of Smith, pg. 138, line 11 – line 15. After arriving at R&D and opening Ms.
Clemons’ cell door, Nurse Smith noticed blood and saw Ms. Clemons lying on the bench in the cell.
Depo. of Smith, pg. 138, line 21 – pg. 139, line 6. At that point, Nurse Smith directed other CCA
staff to call 911. Depo. of Smith, pg. 139, line 17 – line 19. Nurse Smith does not recall what time
this occurred. Depo. of Smith, pg. 140, line 1 – line 8. However, Defendant Montgomery testified
that she and Nurse Smith went to R&D after the code at the same time. Depo. of Montgomery, pg.
62, line 9 – pg. 64, line 2. Defendant Montgomery does not recall what time this occurred, but has
testified that the video footage would indicate the time. Depo. of Montgomery, pg. 66, line 15 – pg.
67, line 2.
Hamilton County Emergency Medical Services providers arrived at SDF at approximately
9:46 pm, left for Erlanger Hospital with the plaintiff at approximately 10 pm, and arrived at Erlanger
Hospital with the plaintiff at approximately 10:26 pm. EMS 0001-5, Doc. 57-9. Sometime after
plaintiff’s arrival at Erlanger, she miscarried.
III. Analysis

A federal court applies federal law when determining whether sanctions should be
imposed for spoliation of evidence. Id. at 553 (citing Adkins v. Wolever, 554 F.3d 650, 652 (6th
Cir. 2009). A district court’s imposition of sanctions for spoliation will be reviewed by the court
of appeals for abuse of discretion. Id. The Sixth Circuit in Beaven v. United States Dep’t of
Justice, 622 F.3d 540 (6th Cir. 2010) set forth in comprehensive fashion the framework and
standards required to impose sanctions for spoliation. Before sanctions can be imposed, three
requirements must be established:
(1) that the party having control over the evidence had an obligation to preserve it at the
time it was destroyed; (2) that the records were destroyed “with a culpable state of mind”;
Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 11 of 21 PageID #:

and (3) that the destroyed evidence was “relevant” to the party's claim or defense such
that a reasonable trier of fact could find that it would support that claim or defense.

Beaven, 622 F.3d at 553 (quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d
99, 107 (2d Cir.2002)). The party seeking the imposition of sanctions bears the burden to prove
these three requirements. Bryd v. Alpha Ins. Corp., 518 F. App’x 380, 383-84 (6th Cir. 2013);
Pollard v. City of Columbus, 2013 WL 5334028 *5 (S.D. Ohio Sept. 23, 2013).
Duty To Preserve Evidence
An obligation to preserve evidence exists when the party should have known that the
evidence may be relevant to future litigation. Beaven, 622 F.3d at 553. Ms. Clemons’ counsel
specifically requested CCA to preserve this evidence within one week of the events giving rise to
this action. CCA concedes it had an obligation to preserve the video evidence at issue.
Culpable State of Mind
The culpable state of mind factor can be established by conduct ranging from negligent to
intentional conduct. Id. (“[T]he ‘culpable state of mind’ factor is satisfied by a showing that the
evidence was destroyed ‘knowingly, even if without intent to [breach a duty to preserve it], or
negligently.’ ”) (brackets original, emphasis original) (quoting Residential Funding Corp., 306
F.3d at 108)).
CCA states it “may have been negligent in its loss of the video.” CCA’s response to
motion for sanctions, Page ID # 1519. Plaintiffs assert the evidence establishes the loss of video
was intentional. Plaintiffs note that defendants had ample notice within a week’s time that the
video should be preserved and ninety days thereafter to check and ensure that the proper video
had been preserved. Plaintiffs also point to the fact that in November 2010, SDF conducted a
morbidity review in which Assistant Warden Quinn participated, and this morbidity review

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 12 of 21 PageID #:

found that SDF did not act in a timely manner regarding Clemons’ medical needs. Further, on
November 23, 2010, Clemons filed a grievance related to the events of November 19, 2010.
Quinn investigated and reviewed the grievance and relied heavily on the video to deny it.
According to plaintiffs,
the denial of Ms. Clemons’ grievance while finding a delay in transporting Ms. Clemons
to the emergency room during the Morbidity Review illustrates that that CCA
intentionally withheld evidence from Ms. Clemons about this incident during the
grievance process. Plaintiffs submit that these actions create a strong inference that CCA
intentionally failed to preserve the video evidence because it would be detrimental to
CCA as CCA acknowledged the delay in transporting Ms. Clemons during its own
Morbidity Review.
Plaintiffs’ reply brief, 1:11-cv-339, Page ID # 1566.
The undersigned accepts neither sides’ evaluation of CCA’s culpable state of mind
instead concluding that CCA’s state of mind lies closer to recklessness than mere negligence or
intentionality. There are several factors which lead the undersigned to this conclusion. In
finding that CCA’s conduct was not intentional, I accept Assistant Warden Quinn’s testimony
that he requested the video from November 19, 2010 be saved and that the failure to save the
correct day was unintentional.
In finding that CCA’s conduct was more than simply negligent, I rely on the following
factors: first, there was no delay in the request for the video tapes and the appropriate people
were notified it should be preserved. Clemons’ counsel sent two letters within one week of the
incident at issue to CCA’s General Counsel, Steve Groom, asking that the video be preserved.
Groom emailed SDF Warden Jennings shortly thereafter with a copy of the letters attached
informing Jennings to preserve the video. Jennings assigned the task of preserving the video to
Assistant Warden Quinn.

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 13 of 21 PageID #:

Second, Quinn knew how important the video was in determining what happened to
Clemons on November 19, 2010: he testified at the evidentiary hearing before the undersigned
that he viewed all the video himself multiple times, a difficult task given how the video was
stored in the Pelco system, and relied on it heavily to determine that Clemons’ grievance alleging
malfeasance in failing to provide her adequate and timely medical care should be denied. In fact,
at the February 5, 2013 evidentiary hearing before the undersigned, Quinn testified he
determined Clemons was not in an emergency situation when being wheeled from her pod to
R&D because the staff did not look upset or concerned—a conclusion based on what Quinn saw
on the video. Thus the undersigned concludes CCA knew the video was a key piece of evidence
in the case.
Third, the gravity of the event in question naturally demanded significantly more care and
attention to the preservation of the video evidence than was given. In the incident at issue, a
death occurred. It is an extremely serious matter deserving meticulous effort to insure the
relevant evidence is preserved. Instead, Quinn assigned the collection and preservation of the
video (after he himself had viewed the video repeatedly) to a part-time maintenance worker/IT
person. This does not inspire the undersigned’s confidence in the seriousness with which SDF
took the preservation request. Further and more importantly, even though Quinn, Jennings, and
their lawyers were aware that the video on the Pelco system was taped over every 90 days, they
made no efforts during the 90 day period to confirm that the correct video had been preserved.
CCA was cavalier in its efforts to preserve the video at issue.
Based on the three factors discussed above, the undersigned concludes CCA’s conduct
constitutes more than negligence but less than intentional conduct; it was gross negligence.
Gross negligence has been defined as, “[s]uch entire want of care as would raise a presumption

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 14 of 21 PageID #:

of conscious indifference to the consequences.” Livingston v. High Country Adventures, Inc.,
156 F.3d 1230, *3 (6th Cir. July 30, 1998) (quoting Craig v. Stagner, 159 Tenn. 511, 19 S.W.2d
234, 236 (Tenn.1929) (abrogated on other grounds by McIntyre v. Balentine, 833 S.W.2d 52
(Tenn.1992)). See also, Helton v. Reynolds, 640 S.W.2d 5, 10 (Tenn.Ct.App. 1982) (Gross
negligence is indicated by a conscious neglect of duty or a callous indifference to consequences.)
Assigning the preservation of the video to a maintenance worker with some IT duties and then
failing to take steps during an entire 90 day period following the death of Clemons’ child to
ensure that the proper video had been preserved constituted callous indifference to CCA’s duty
to preserve important evidence in this case.
Relevance of the Video Evidence
CCA has raised a number of arguments as to why it believes the video at issue is not
relevant to this case for purposes of spoliation sanctions. First, CCA argues, plaintiffs can call
inmates as witnesses to testify as to what happened and when it happened on November 19,
2010, and, therefore, the video is not necessary. Second, plaintiffs cannot prove that the video
would have been helpful to them. Third, plaintiffs have not been prejudiced by the loss of the
video because the video shows very little of the SDF. Fourth, because plaintiff cannot prove all
the elements of her claims, the video is irrelevant.
There is no doctrine within the Sixth Circuit holding that spoliated evidence is only
relevant if it was the only evidence a party could have used to prove her claim or defense. In
fact, at least one court within the Sixth Circuit has specifically rejected this argument. See
Pollard v. City of Columbus, 2013 WL 5334028 *5 (S.D. Ohio Sept. 23, 2013). In Pollard, the
plaintiff’s son was shot and killed by police while driving a vehicle, and the vehicle was riddled
with bullet holes. Plaintiff brought an action under 42 U.S.C. § 1983 for the death of her son.

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 15 of 21 PageID #:

Police impounded the vehicle in which the son was killed and, despite a request to hold the
vehicle, it was later destroyed. The Pollard court stated, “[a]lthough Defendants have
exhaustively listed alternative sources of evidence that the Plaintiff might employ in its case, that
is not the proper inquiry. Rather Circuit precedent requires only that the evidence be ‘relevant’
to a claim or defense.” Id. at *5 (citing Beaven, 622 F.3d at 553). Instead, the Pollard court
found “[a] reasonable trier of fact could find that an opportunity to further examine and inspect
the vehicle itself would support the claims asserted by the Plaintiff.” Id. The undersigned finds
Pollard to be persuasive; even though inmates and Clemons can testify as to the events in
question, the video is still very relevant to the issues in this case. Plaintiffs are correct that
inmate witnesses, because they are inmates convicted of crimes, will not carry the same
credibility that a corrections officer would. A video tape of events with a time stamp is a highly
useful tool in determining what happened and when it happened.
Nor is there a requirement within the Sixth Circuit that the party seeking sanctions show
the spoliated evidence would support her claim. Rather, the movant for sanctions need only
show that the spoliated evidence could have been useful to her claim. Jones v. Staubli Motor
Sports Division, 897 F.Supp.2d 599, 609 (S.D. Ohio 2012). In Jones, the plaintiff brought a
claim against the defendant manufacturer alleging a race car refueling device had a
manufacturing defect which caused his burn injuries. The manufacturer lost the refueling device;
thus, plaintiffs experts never had the chance to examine it and “assess whether there was a
specific defect present in the product that may have caused it to fail on the day of the accident.”
Id. at 609. The manufacturer argued Jones was not entitled to sanctions for spoliation because
Jones could not show the lost device would have been beneficial to his case. The Jones court
soundly rejected this argument:

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 16 of 21 PageID #:

Though Staübli argues that Jones has failed to show that the missing SAF [refueling
devices] would have been “favorable” to his case, this Court disagrees with the notion
that Jones necessarily has to show this to be entitled to an adverse inference instruction.
Staübli cites In re Nat'l Century for this proposition ( see 2009 WL 2169174 at *12), but
the Court notes that the Sixth Circuit in Beaven has since described the third prong
differently, requiring only that a party show that a reasonable trier of fact could find that
the missing evidence would support that party's claim. Beaven at 553. In a case like this,
where a defendant manufacturer has lost or destroyed the very product at issue in a
products liability case, a reasonable trier of fact could find that the missing evidence
could support the party's claim simply by virtue of the fact that the trier of fact could have
found the presence of a manufacturing defect had the product been preserved. The Court
rejects Staübli's approach, at least as it pertains to circumstances such as that present
here, for it has the real potential of giving a defendant manufacturer an inherent
advantage in litigation by having destroyed the very product alleged to have been
Id. at 609 (emphasis original). See also Byrd v. Alpha Alliance Ins., 518 Fed.Appx. 380,385 (6th
Cir. Mar. 26, 2013) (holding oven was “relevant” to Alpha Alliance’s claims or defenses where
“fire originated from the oven, and Bryd’s destruction of the glass top range impaired Alpha
Alliance’s determination of the fire’s precise cause.”); Wiseman v. Lipinski, 2012 WL 928739 *3
(M.D. Tenn. Mar. 19, 2012)(holding motor part destroyed by defendant was “relevant” for
purposes of spoliation sanctions based on allegation in plaintiff’s lawsuit that defendant had
improperly maintained the part thereby causing plaintiff to have an accident resulting in her
injuries); Coach, Inc. v. Dequindre Plaza, L.L.C., 2013 WL 2152038 *13 (E.D. Mich. May 16,
2013) (“relevance in [the context of sanctions for spoliation] includes evidence which would
naturally have been introduced into evidence.”) (internal citations omitted) (brackets added).
In the instant case, video on November 19, 2010 of the pod where Clemons was housed,
of the hallway from the pod to R&D, and inside R&D itself would be evidence “which would
naturally have been introduced into evidence” at trial. While the video from those areas did not
have audio and would not have shown everything that occurred in those areas, it would have
shown a number of important matters and given a time stamp for each of them. For example, it

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 17 of 21 PageID #:

would have shown whether and when Clemons was assisted through the pod’s main room toward
the bathroom, whether and when Badger went toward the bathroom in the pod, whether and
when inmates were beating on the pod windows trying to secure help for Clemons, whether and
when Badger went toward the pill call area where Nurse Smith was stationed, who wheeled
Clemons to R&D and when, the demeanor of staff and Clemons at the time Clemons was being
rolled down the hall to R&D, and whether Garcia ever approached that side of the cell area
where Clemons was being housed in R&D. All this information would have been helpful in
assessing the seriousness of Clemons’ distress, when staff was informed of Clemons’ distress,
and the timeliness of the SDF staff’s reactions to it -- issues which are key to the question of
whether SDF staff acted with deliberate indifference to a serious medical need. Moreover,
CCA’s insistence in its briefing that the video would not be useful to the plaintiff because it had
no audio and only a limited view of the facility is particularly unpersuasive given Assistant
Warden Quinn’s testimony that he viewed the video over and over and relied on it heavily in
determining that Clemons’ grievance should be denied.
CCA also argues that the video evidence cannot show that CCA had a custom, policy, or
pattern and practice of deliberate indifference to the serious medical needs of inmates, thus the
video is irrelevant. However, the Sixth Circuit has no requirement that evidence must be
relevant to every element of a particular claim before sanctions can be awarded for its spoliation.
See e.g., Wiseman v. Lipinski, 2012 WL 928739 *3 (M.D. Mar. 19, 2012) ( holding that because
the plaintiff could not prove one element of his claim due to spoliation of evidence, plaintiff was
entitled to an adverse inference against the defendant). As previously discussed, the video
evidence at issue could have provided valuable information regarding the seriousness of
plaintiff’s condition, when the defendants became aware of plaintiffs’ condition, and when

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 18 of 21 PageID #:

defendants took action regarding defendants’ condition.2 Based on all the reasons stated above,
the undersigned concludes the video evidence was relevant for purposes of spoliation sanctions.
The Purpose of Sanctions
Imposing sanctions for spoliation of evidence has two purposes: (1) “leveling the
evidentiary playing field” and (2) “sanctioning improper conduct.” Adkins v. Wolever, 554 F.3d
650 (6th Cir. 2009); see also Beaven, 622 F.3d at 544 (“a proper spoliation sanction should serve
both fairness and punitive functions.”) (quoting Welsh v. United States, 844 F.2d 1239, 1246,
(6th Cir.1988), overruled on other grounds by Adkins, 554 F.3d 650)). The sanction chosen
should be no more than is necessary to level the evidentiary playing field and correspond to the
spoliator’s degree of culpability after a “fact intensive inquiry into the party’s degree of fault
under the circumstances.” Beaven, 622 F.3d at 554; accord, Bryd, 518 Fed. Appx. at 385-86;
Freeman v. Collins, 2014 WL 325631 *6 (S.D. Ohio Jan. 29, 2014). Sanctions may range
anywhere from instructing a jury that it may infer a fact based on lost or destroyed evidence to
granting summary judgment. Beaven, 622 F.3d at 554; Bryd, 518 Fed. Appx. at 385-86.
The undersigned observes that, as a practical matter, imposing sanctions in this action
may be somewhat problematic because sanctions should not be imposed against the individual
defendants, only CCA. Plaintiff concedes that the individual defendants should not be
sanctioned for loss of the video because they did not have control over the video while CCA as
an institution did. However, there is precedent for imposing sanctions on one defendant while


CCA also makes a number of other arguments which are akin to a motion for summary
judgment to assert no sanction should be applied. Whether these actions will be able to
withstand actual motions for summary judgment is a matter for the district court to decide. It is
not an issue the undersigned need address since the undersigned is not going to recommend a
sanction which will, in effect, award judgment, full or partial, to the plaintiffs.

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 19 of 21 PageID #:

not imposing them on another. See Wiseman v. Lipinski, 2012 WL 928739 *2 (M.D. Tenn. Mar.
19, 2012) (imposing adverse inference jury instruction on defendant who had control over
spoliated evidence while declining to do so for defendant who did not control spoliated
In the instant case, the video evidence is particularly important to the plaintiffs’ case
because of its credibility value in establishing a timeline of events before Clemons was
transported to Erlanger on November 19, 2010. While the plaintiff and other inmates may be
able to testify as to the Clemons’ condition, what SDF staff was told and when, and the action
taken by SDF staff on November 19, 2010; if the inmates’ testimony diverges from the SDF
staff’s testimony, then the inmates will have greater credibility problems simply because they are
inmates. The video had no such limitations; indeed, the video would have been crucial to the
timeline of events. On the other hand, the video could not have established the cause of the
child’s death. According to CCA’s expert, the child would have died even if Clemons had been
transported hours earlier to the hospital because of the type of infection that Clemons had
contracted. The video in no way could have provided evidence to rebut this type of testimony.
In addition, while the video itself could have provided evidence regarding what SDF staff saw,
knew, and did and at what time, whether this information should be interpreted as deliberate
indifference to a serious medical need is within the province of the jury. On the other hand, an
adverse inference jury instruction is still needed to level the evidentiary playing field on matters
the video could have addressed, and CCA’s gross negligence justifies a mandatory adverse
inference. See Beaven, 622 F.3d at 553 (“an adverse inference for evidence spoliation is
appropriate if the Defendants knew the evidence was relevant to some issue at trial and their

Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 20 of 21 PageID #:

culpable conduct resulted in its loss or destruction” ) (internal citation omitted). Accordingly,
the undersigned RECOMMENDS3 the following:
(1) Instructing the jury that CCA was under a duty to preserve video evidence of the
events which unfolded at SDF on November 19, 2010, that CCA failed to do so, that such failure
constituted gross negligence, and that the jury should find the video evidence lost by CCA would
have been unfavorable to CCA,
(2) Prohibiting CCA from offering any evidence or testimony from witnesses who
viewed the now unavailable video footage, and
(3) Awarding plaintiffs’ reasonable attorney’s fees and costs to prosecute plaintiffs’
motion for sanctions for spoliation of evidence.

SBj|ÄÄ|tÅ UA `|àv{xÄÄ VtÜàxÜ


Any objections to this Report and Recommendation must be served and filed within fourteen
(14) days after service of a copy of this recommended disposition on the objecting party. Such
objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil
Procedure. Failure to file objections within the time specified waives the right to appeal the
District Court’s order. Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S. Ct. 466 (1985).
The district court need not provide de novo review where objections to this report and
recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.
1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of
Teachers, 829 F.2d 1370 (6th Cir. 1987).
Case 1:11-cv-00339-CLC-WBC Document 139 Filed 04/10/14 Page 21 of 21 PageID #:
Prisoner Education Guide side
Advertise Here 4th Ad
Federal Prison Handbook - Side
The Habeas Citebook: Prosecutorial Misconduct Footer