United States District Court, D. Connecticut
RULING RE: PLAINTIFF’S MOTION FOR SANCTIONS (DOC. NO. 97)
JANET C. HALL, UNITED STATES DISTRICT JUDGE.
On May 23, 2013, plaintiff Tye Thomas (“Thomas”), acting pro se, filed this civil rights action against the defendants, all of whom are employees or former employees of the Connecticut Department of Correction (“DOC”), for failing to protect him from assault by other inmates. See Compl. (Doc. No. 1). After several rounds of preliminary review and rulings on dispositive motions, on January 20, 2015, the court appointed counsel to represent Thomas at trial. See Order Appointing Pro Bono Counsel (Doc. No. 58). Throughout 2015, Thomas, acting through appointed counsel, conducted additional discovery related to this lawsuit. See Joint Mot. to Extend Time for Completing Discovery (Doc. No. 68). The discovery period in this case closed on September 11, 2015. See Order (Doc. No. 69).
On February 11, 2016, Thomas filed the pending Motion for Sanctions, which seeks to remedy the defendants’ alleged spoliation of key video evidence. See Pl.’s Mot. for Sanctions at 1 (Doc. No. 97). Specifically, Thomas seeks an adverse inference instruction related to the fact that security surveillance footage that recorded assaults on Thomas by other inmates at various times in 2012 was not preserved. See id. The defendants opposed Thomas’s Motion for Sanctions, see Defs.’ Suppl. Mem. in Opp. to Pl.’s Mot. for Sanctions and in Supp. of Mot. for Evidentiary Hr’g (“Defs.’ Opp.”) (Doc. No. 116), and also moved for an evidentiary hearing to address the issues raised in Thomas’s Motion, see Defs.’ Mot. for Evidentiary Hr’g (Doc. No. 105). Thomas timely replied to the defendants’ Opposition and argued that an evidentiary hearing on his Motion for Sanctions was unnecessary. See Reply Mem. in Supp. of Pl.’s Mot. for Sanctions (“Pl.’s Reply”) at 10 n.5 (Doc. No. 118).
The court granted the defendants’ Motion, over objection, and held an evidentiary hearing on Thomas’s Motion for Sanctions on April 12, 2016. See Minute Entry (Doc. No. 124). Having carefully reviewed and considered the arguments and evidence submitted by the parties, for the reasons that follow the court GRANTS IN PART and DENIES IN PART Thomas’s Motion for Sanctions (Doc. No. 97).
II. FACTUAL BACKGROUND
As noted above, this civil rights lawsuit stems from Thomas’s contention that the defendants, David Butkiewicus (“Butkiewicus”), Scott Gorman (“Gorman”), John Aldi (“Aldi”), and Edward Maldonado (“Maldonado”) (collectively, “the defendants”), all employees or former employees of the Connecticut DOC, were deliberately indifferent to threats to his safety and failed to protect him from assault by other inmates. In particular, Thomas alleges that the defendants forced Thomas to remain in the Security Risk Group Unit (“SRG Unit”) for inmates affiliated with the Bloods gang notwithstanding the fact that the defendants were aware that Thomas had switched his allegiance to the rival Crips gang. See Compl. at 12 ¶¶ 1-10 (Doc. No. 1); see also Mem. in Supp. of Pl.’s Mot. for Sanctions at 1 (Doc. No. 97-1). During the course of 2012, Thomas was assaulted six different times by members of the Bloods, on January 18, April 16, July 3, July 20, September 18, and October 11. See Compl. at 12 ¶¶ 2, 5, 7, 9 (Doc. No. 1); DOC Incident Report dated 1/18/2012 (“1/18/2012 Incident Report”) (Doc. No. 97-2, Ex. F); DOC Incident Report dated 4/16/2012 (“4/16/2012 Incident Report”) (Doc. No. 97-2, Ex. G); DOC Incident Report dated 7/3/2012 (“7/3/2012 Incident Report”) (Doc. No. 97-2, Ex. I); DOC Incident Report dated 7/20/2012 (“7/20/2012 Incident Report”) (Doc. No. 97-2, Ex. J); DOC Incident Report dated 9/18/2012 (“9/18/2012 Incident Report”) (Doc. No. 97-2, Ex. K); DOC Incident Report dated 10/11/2012 (“10/11/2012 Incident Report”) (Doc. No. 97-2, Ex. L).
Of the six assaults on Thomas by other inmates, three took place in a recreation (“rec”) yard during the hour of each day allotted to inmates for recreation. See 1/18/2012 Incident Report (Doc. No. 97-2, Ex. F); 9/18/2012 Incident Report (Doc. No. 97-2, Ex. K); 10/11/2012 Incident Report (Doc. No. 97-2, Ex. L); see also Compl. at 12 ¶¶ 2, 7, 9 (Doc. No. 1). The other three incidents took place in housing unit cells. See 4/16/2012 Incident Report (Doc. No. 97-2, Ex. G); 7/3/2012 Incident Report (Doc. No. 97-2, Ex. I); 7/20/2012 Incident Report (Doc. No. 97-2, Ex. J); see also Compl. at 12 ¶ 5 (Doc. No. 1). The court will briefly describe each assault in turn.
The January 18, 2012, incident took place in the North recreation yard of the 2 East housing unit. See 1/18/2012 Incident Report (Doc. No. 97-2, Ex. F); Compl. at 12 ¶ 2 (Doc. No. 1). Thomas alleges that, immediately after he joined the Crips, two inmates affiliated with the Bloods assaulted him and another inmate, Mitchell Ellerbe (“Ellerbe”), who was associated with a gang called 20 Love. See Compl. at 12 ¶ 2 (Doc. No. 1). Thomas states that people affiliated with the Crips and 20 Love are compatible, and that both groups have issues with the Bloods. Id. at 12 ¶ 3. The Incident Report for this altercation indicates that another inmate kicked Thomas, at which point Ellerbe attempted to come to Thomas’s aid. See 1/18/2012 Incident Report (Doc. No. 97-2, Ex. F). During the altercation, Ellerbe managed to free one of his hands from the handcuffs that restrained his hands behind his back; he also admitted later to having had possession of a “makeshift weapon” that was found in the recreation yard following the incident. Id. at 1, 2. Ellerbe told Butkiewicus, who investigated the incident, that “he was friendly with inmate Thomas and acted out in an attempt to help him.” Id. at 2. There does not appear to be any question that this incident would have been captured by the stationary video surveillance system at Northern, see id. at 1 (noting that Butkiewicus reviewed the “facility camera system” as part of his investigation”). Thomas alleges that immediately after this altercation, he told Maldonado, then the Warden of Northern, that “he was no longer a Blood and wanted his affiliation changed to Crip.” Compl. at 12 ¶ 4 (Doc. No. 1).
The incident on April 16, 2012 took place in a cell in a housing unit. See 4/16/2012 Incident Report (Doc. No. 97-2, Ex. G); Compl. at 12 ¶ 5 (Doc. No. 1). Thomas alleges that his cellmate assaulted him for “dropping his flag and joining the Crip affiliation.” Compl. at 12 ¶ 5 (Doc. No. 1). Although the door of the cell in which this altercation took place was very likely within range of a stationary surveillance video camera, see Dep. of David Butkiewicus at 154 (Doc. No. 97-2, Ex. B) (stating that most cells are within range of a surveillance camera), at the hearing on the pending Motion Butkiewicus testified that the surveillance cameras do not capture what is going on inside a cell at a given time, as the cell doors are made of steel and the surveillance system does not allow staff members to see through the steel door to the interior of the cell. Thomas alleges that, two days after this altercation took place, he wrote to Maldonado “and informed the Warden of his no longer being a Blood, but that he was a Crip formally and requested a[n] affiliation and rec change because he feared for his safety.” Compl. at 12 ¶ 6 (Doc. No. 1).
The incidents on July 3 and July 20 also took place in cells in a housing unit at Northern. See 7/3/2012 Incident Report (Doc. No. 97-2, Ex. I); 7/20/2012 Incident Report (Doc. No. 97-2, Ex. J); Compl. at 15 ¶ 17 (Doc. No. 1). Both incidents involved an altercation between Thomas and his cellmate and, according to the Incident Reports related to these altercations, both of Thomas’s cellmates were affiliated with the Bloods. See 7/3/2012 Incident Report (Doc. No. 97-2, Ex. I) (noting that the inmate who fought with Thomas was “Otero, Elliot . . . SRG Blood Threat”); 7/20/2012 Incident Report (Doc. No. 97-2, Ex. J) (stating that the inmate who fought with Thomas was Jonathan King, an inmate “affiliated with the Bloods Security Risk Group”). As with the April 16 incident, because these altercations took place inside housing cells, the stationary surveillance cameras at Northern would not have captured footage of either of these fights.
The incident on September 18, 2012, took place in the South recreation yard of the 2 East housing unit. See 9/18/2012 Incident Report (Doc. No. 97-2, Ex. K); Compl. at 13 ¶ 7 (Doc. No. 1). The parties agree that, during an hour-long recreation period on that day, five inmates affiliated with the Bloods attacked Thomas. See 9/18/2012 Incident Report (Doc. No. 97-2, Ex. K); Compl. at 13 ¶ 7 (Doc. No. 1). Two of the inmates who attacked Thomas were able to remove their handcuffs prior to the assault and, following the altercation, one of these inmates, Luis Pagan (“Pagan”), was found to have a “makeshift weapon . . . on his person.” 9/18/2012 Incident Report (Doc. No. 97-2, Ex. K).
In a subsequent deposition, Pagan testified that he was able to remove his handcuffs because the correctional officer who had restrained him prior to the recreation period, defendant Gorman, had intentionally placed the restraints on loosely. See Dep. of Luis Pagan at 42 (Doc. No. 97-2, Ex. A). Pagan also testified that the other inmate who was able to slip out of his restraints, Teejay Johnson (“Johnson”), was able to do so because he had an Ace bandage wrapped around his wrist, which increased the circumference of his wrist and necessitated the restraints being applied more loosely. See id. at 42-43. Once Johnson was in the recreation yard, he was able to remove the Ace bandage and then slip out of the restraints. See id. Pagan alleged that Gorman was not supposed to place Johnson’s restraints over the Ace bandage, because Johnson did not have medical clearance to possess the bandage and there had been prior incidents of inmates using bandages to help them slip out of their restraints. See id. at 43-44. Pagan alleged that Gorman allowed Johnson to possess the bandage and applied Pagan’s restraints more loosely than normal because he knew that Pagan and Johnson were planning to assault Thomas. See id. at 41-43.
Finally, and perhaps most crucially for the pending Motion, Pagan testified that, early in the recreation period, he showed Thomas his hands to let Thomas know that Pagan had slipped his restraints. See id. at 27-28. Pagan testified that he showed Thomas his hands in order to instill a false sense of security in Thomas; in Pagan’s words, he wanted to show Thomas that “I could fuck you up right now, but I’m not going to do that, we’re out here to talk. We were trying to rock him to sleep, make them feel comfortable.” See id. Although Pagan asserts that he was in the middle of the recreation yard when he showed Thomas his hands-in full view of both the correctional officer monitoring the recreation period and the stationary surveillance camera capturing events in the recreation yard-no correctional officers intervened or otherwise attempted to re-restrain Pagan. See id. at 27-28, 50. Pagan estimates that he was unrestrained for approximately 40 minutes prior to the assault on Thomas. See id. at 50.
The parties agree that the September 18 incident in the South recreation yard would have been captured by the surveillance camera trained on the yard and, in fact, some of the footage captured by that camera was preserved. Thomas alleges that, after this altercation, he “verbally requested a[n] affiliation change to Captain Butkiewicus during a routine tour.” Compl. at 13 ¶ 8 (Doc. No. 1). Thomas states that Butkiewicus denied his request, but did permit Thomas to stop recreating with the Bloods. See id.
The final altercation at issue in the pending Motion took place on October 11, 2012. See 10/11/2012 Incident Report (Doc. No. 97-2, Ex. L). Although Thomas was no longer recreating with the Bloods, he states that he was forced to recreate with an inmate who wanted to gain membership in the Bloods. See Compl. at 13 ¶ 9 (Doc. No. 1). At his deposition, Pagan confirmed that the inmate who assaulted Thomas on October 11 wanted to join the Bloods, and that Pagan and others exploited this fact to orchestrate an attack on Thomas. See Dep. of Luis Pagan at 52-53 (Doc. No. 97-2, Ex. A). The inmate who attacked Thomas on October 11 was also able to free himself from his restraints, at which point the inmate “str[uck] Thomas repeatedly on the head, face and upper torso.” 10/11/2012 Incident Report (Doc. No. 97-2, Ex. L). This altercation took place in the same recreation yard as the altercation on September 18, which means the parties agree that at least one, and possibly two, surveillance cameras would have captured footage of the assault. It is not disputed that the surveillance footage of this assault was not preserved. Shortly after the incident on October 11, 2012, Thomas filed grievances related to the fact that inmates who assaulted him on both September 18 and October 11 had managed to slip out of their restraints during the altercations. See DOC Inmate Administrative Remedy Forms (Doc. No. 97-2, Ex. Q) (dated 10/17/2012 and advising Maldonado that during the altercations on 9/18/2012 and 10/11/2012 “other inmates had manage[d] to get out of there [sic] cuffs”).
With this overview of the altercations at issue in this case as background, the court now turns to a summary of the evidence that has been presented by the parties regarding the policies and practices of the DOC and various DOC employees with respect to reviewing and preserving surveillance footage of inmate altercations. Both parties tend to use the incident on September 18, 2012, as a concrete example of an altercation around which they can frame their inquiries into DOC policies and the routine practices of DOC employees. This is likely due to the fact that, as noted above, the September 18 altercation is the only incident for which any surveillance footage was produced. Thus, an overview of the video footage related to the incident on September 18 that was-and was not-preserved is an appropriate place for the court to begin its summary of the evidence provided by the parties on these issues.
The surveillance video of the altercation between Thomas and five other inmates on September 18, 2012, that was preserved and produced is one hour in length, but it does not capture the entire hour of recreation in the South recreation yard on that day. Rather, the video begins with inmates already in the yard, as the hour of recreation is drawing to a close, approximately eight minutes prior to the assault on Thomas. The preserved video captures all of the actual assault, as well as the efforts of correctional officers to subdue the inmates and clear the yard. After these efforts are complete, there is an additional 30 minutes of footage of the empty yard in which virtually nothing happens. Approximately 30 minutes of the recreation period that took place prior to the assault was not preserved. See Decl. of Paul Germond (“Germond Decl.”) at 2 ¶ 5 (Doc. No. 116-2) (stating that he did not download and preserve the first 30-40 minutes of the recreation period). In addition, video captured by a different camera that had a partial view of events in the recreation yard,  as well as video from cameras trained on housing unit cells that would have captured correctional officers searching the clothing of, and restraining, the inmates who attacked Thomas prior to the recreation period, was not preserved. See Mem. in Supp. of Pl.’s Mot. for Sanctions at 8 & n.2 (Doc. No. 97-1).
Although only a few minutes of the recreation period prior to the assault on September 18, 2012, as captured by the camera trained on the South recreation yard were preserved and produced, at the hearing on the pending Motion multiple defendants and a non-defendant DOC employee testified that they either could have or routinely would have reviewed all of the video relevant to an incident and would have had the capacity to preserve that footage. For example, Paul Germond, then a correctional lieutenant at Northern who supervised the institutional response to the September 18 altercation, was the DOC employee who initially “review[ed] the stationary video camera recording of the incident and identif[ied] those parts of it that contain[ed] evidentiary value.” Germond Decl. at 2 ¶ 5 (Doc. No. 116-2). Germond testified that his routine practice in responding to an incident would have been to review the video of the entire recreation period prior to downloading and preserving the portions of the video footage he deemed to be relevant. See id. at 2 ¶¶ 5-6. Germond and Butkiewicus testified that Germond completed his supervisory duties with respect to Northern’s response to the altercation of September 18, 2012, on that same day, at which point he tendered the investigation to Butkiewicus.
Butkiewicus testified that, after the investigation was turned over to him on September 18, 2012, he also had the capacity to preserve additional video footage if he deemed it necessary. In fact, at his Deposition Butkiewicus attested that it was his routine practice to review any video footage that may have been relevant to an incident he was investigating, and that adherence to his routine practice in this case would have allowed him to conclude, as he does in the Incident Report for the September 18 altercation, that all “staff acted professional [sic] and in accordance with all governing directives, policies, and procedures.” 9/18/2012 Incident Report (Doc. No. 97-2, Ex. K); Dep. of David Butkiewicus at 152-53, 201-04 (Doc. No. 97-2, Ex. B). At the hearing on the pending Motion, Butkiewicus testified that the interior surveillance camera that provided a partial view of the recreation yard would have had a clear view of the guard or guards monitoring the recreation period. Thus, this angle would have allowed Butkiewicus to ascertain how many guards were monitoring the recreation period, what each guard’s demeanor was, and how quickly the guards responded to the altercation- all information that could have been relevant to his investigation. In sum, Butkiewicus’s testimony at his Deposition and at the hearing on the pending Motion establishes that, had Butkiewicus adhered to his routine practice with respect to investigating the September 18, 2012, altercation,  Butkiewicus would have reviewed the video footage of the altercation captured by the interior camera, as well as reviewed the surveillance footage of correctional staff strip searching and restraining the inmates involved in the altercation prior to the recreation period. Although Butkiewicus testified that he had the ability to ensure that any relevant portion of the video that he reviewed would be preserved, and in fact has done so in other cases, the only surveillance video that was preserved in relation to the incident on September 18, 2012, was the hour-long video described above.
Defendant Maldonado testified that he also would have had the authority to order that additional video footage be preserved, if he deemed it necessary. At the hearing on the pending Motion, Maldonado testified that, during his tenure as the Warden of Northern, he would have a meeting every weekday morning in which staff would provide brief overviews of every incident that had transpired in the facility in the previous 24 hours. Thus, Maldonado would have heard about the September 18 altercation within 24 hours of that incident taking place. Maldonado testified that he could have requested the video of the September 18 incident as soon as he was aware that it had occurred, and he could have ensured the preservation of any relevant video footage. Maldonado also testified that, in his capacity as Warden, he would have reviewed the incident package prepared by his staff and could have requested further investigation or the preservation of additional video footage after his review, if he so chose. In fact, Maldonado testified that he has directed staff to save additional video footage related to a particular incident on other occasions. Maldonado testified that each staff member who reviewed the incident package for an altercation like the one on September 18, 2012, would have had the capacity to review and preserve additional video footage.
In addition to the testimony of specific DOC employees involved in the decisions surrounding the preservation (and non-preservation) of surveillance footage of the altercations at issue in this lawsuit, at the hearing on the pending Motion the defendants called Christine Whidden (“Whidden”), a longtime DOC employee they deemed qualified to speak to the records retention policies of the DOC (a Rule 30(b)(6) witness). Whidden testified that preservation of surveillance footage of non-routine incidents, such as the altercation on September 18, 2012, are covered by the DOC’s Records Retention Schedule Form RC-050. In 2012, the relevant paragraph of that schedule provided that “audio/video security surveillance recordings at DOC facilities, regardless of format” would be retained for “4 years from date of recording, or until any pending action has been resolved, whichever is later.” DOC Form RC-050, series 21 (revised 02/2012). However, Whidden testified that the DOC does not interpret this policy to require them to preserve all video footage of an incident for four years; rather, the DOC interprets this policy to mean that any video footage that is deemed to be relevant by an investigating officer, and therefore downloaded and saved, must be retained for at least four years. See also Decl. of Deputy Commissioner Monica Rinaldi (“Rinaldi Decl.”) at 3 ¶ 10 (Doc. No. 116-3). Whidden testified that she was not aware of a written policy that instructs investigating officers on what evidence is relevant and should be preserved; instead, the determination of what video footage should be preserved is left to the discretion of the investigating ...