Pirl v. Ringling
Pirl v. Ringling
2022 WL 22887071 (W.D. Pa. 2022)
August 12, 2022
Gibson, Kim R., United States District Judge
Summary
Plaintiff Demetrius Pirl filed a Motion for Sanctions against Defendants Gary Ringling and Eric Tice for spoliation of ESI. Pirl alleged that the Defendants failed to preserve video footage of two incidents, but the Court denied the Motion, stating that there was no evidence that the Defendants were involved in the preservation of the footage.
DEMETRIUS PIRL, Plaintiff,
v.
SERGEANT, MAJOR RINGLING, and FACILITY MANAGER ERIC TICE, Defendants
v.
SERGEANT, MAJOR RINGLING, and FACILITY MANAGER ERIC TICE, Defendants
CIVIL ACTION NO. 3:19-cv-208
United States District Court, W.D. Pennsylvania
Filed August 12, 2022
Gibson, Kim R., United States District Judge
MEMORANDUM ORDER
I. Introduction
*1 Pending before the Court is Plaintiff Demetrius Pirl's (“Pirl” or “Plaintiff”) Motion for Sanctions Under Rule 37(e) for Defendants’ Spoliation of Electronically Stored Information. (ECF No. 135). Plaintiff filed a Brief in Support and Sur-Reply in Support of his Motion. (ECF Nos. 136, 145). Defendants Gary Ringling (“Ringling”) and Eric Tice (“Tice”) (collectively “Defendants”) have opposed the motion. (ECF Nos. 141, 146). For the reasons that follow, the Court DENIES Pirl's Motion.
II. Factual Background[1]
At the outset, the Court notes that as of 2019, Pirl was an inmate at the State Correctional Institution at Somerset (“SCI Somerset”). (ECF No. 51 at 2). For Defendants’ part, Ringling was employed as the Sergeant of the Guards at SCI Somerset, and Tice was the Facility Manager at SCI Somerset. (Id.).[2]
There are four specific situations that are especially relevant to the disposition of Pirl's Motion: (1) the July 4th incident involving Ringling; (2) the events of October 9, 2019, and October 11, 2019; (3) Lieutenant Killinger's Investigation; and (4) Lieutenant Turner's Investigation. The Court briefly overviews these situations in turn.
A. The July 4th Incident
Pirl alleges that on July 4, 2019, Ringling branded him a “snitch” in front of other inmates at SCI Somerset. (ECF No. 51 at 2). On July 4, 2019, Pirl filed a grievance regarding this incident, in which he claimed that Ringling asked him “what type of cheese [he] want[ed]” because he had “ratted to get out of the hole.” (Id. at 4) (internal quotation marks and citation omitted).
On July 11, 2019, Grievance Officer Lopresti issued a response upholding Pirl's grievance. (Id.). Specifically, Officer Lopresti stated that Ringling “did admit to making the comments [that Pirl] stated in [his] grievance[.]” (Id.) (internal citation omitted). As a result of Officer Lopresti's investigation, Ringling was “counseled on staff conduct and being professional on the housing units[.]” (Id.) (internal citation omitted). On August 4, 2019, Pirl appealed this holding to Tice. (Id.). On August 29, 2019, Tice denied Pirl's appeal. (Id. at 5).
B. The Events of October 9, 2019, and October 11, 2019
Pirl further alleges that on October 9, 2019, he was involved in two separate incidents. (ECF No. 136 at 3). Specifically, Pirl contends that on October 9th, an inmate sneaked up behind him, sliced his face, told Pirl to stop snitching, and ran away. (ECF No. 51 at 6). Pirl contends that after this incident, he was jumped by other inmates, and one of the inmates said: “this is for Ringling.” (Id.) (internal quotation marks and citation omitted). Finally, according to Pirl, on October 11th, 2019, Ringling came to Pirl's cell door and said: “I told you I was going to get you rat.” (Id.) (internal quotation marks and citation omitted).
*2 On October 11, 2019, Pirl filed a grievance regarding these events. (Id. at 5). In that grievance, Pirl wrote the following:
On 10/9/19 I was approach[ed] by several inmates telling me that [Sergeant] Ringling was still telling inmates that I'm a “Big Rat” [and] whoever was to handle me he [was] going to look out for them. I then went to a couple inmates telling them that Ringling is lying [and] mad because he got kick[ed] off B-block because of my [first] grievance I put in [because] of him calling me a rat in front of my entire block ... [Sergeant] Ringling admitted to doing so. I then went to afternoon yard [and] not [too] long after [an] inmate snuck up behind me and sliced open[ ] my face. [A]t the same time he said “Stop snitchen[’]” [and] ran off. Then I went to the top of the yard to stop the bleeding. And when they called halftime in [the] yard I was surrounded [and] jump[ed] by inmates. One of the inmates said “[t]his is for Ringling.” Then on 10/11/19 in the RHU during dinner trays Sergeant Ringling came to my cell [and] said “I told you I was going to get you rat.”
(ECF No. 135-3).
In short, Pirl alleges that three distinct events occurred on October 9, 2019, and October 11, 2019: (1) on October 9, he was slashed by an inmate who told him to stop snitching (“Situation 1”); (2) on October 9, he was jumped by multiple inmates, one of whom said that his actions were “for Ringling” (“Situation 2”); and (3) on October 11, Ringling came to his cell and reiterated that he had told Pirl he was going to get him (“Situation 3”).
C. Lieutenant Killinger's Investigation
On December 17, 2019, Lieutenant Killinger filed a report regarding a “Slashing/Fight in the East Yard[.]” (ECF No. 135-4 at 2). In his report, he stated that he had reviewed “DIVAR” footage of the incident. (Id.). Killinger's review of the DIVAR showed:
Pirl and a group of inmates standing in the center field area of the East Yard at the beginning of yard. You can see an unknown inmate ... [run] up to the group with Pirl in it and slash him on the face. The inmate immediately runs off. Later, at half time in the yard, you see inmate Pirl and [another inmate] square up with one another and start fighting. In the middle of the fight another unidentified inmate ... jumps in the fight to help[.]
(Id.) (emphasis added).
D. Lieutenant Turner's Investigation
Lieutenant Turner also conducted an investigation in response to Pirl's grievance. (ECF Nos. 135-7, 135-9, 135-10). On October 21, 2019, Lieutenant Turner obtained a written statement from Pirl, in which Pirl indicated the following:
I was assaulted on [October 9, 2019,] in the east yard in afternoon yard [and] as I was getting jump[ed] the guy said “[t]his is for Ringling” [and] when I was brought up to the RHU approx[imately two] days after the fight [Sergeant] Ringling came to my cell during dinner trays [and] said to me ... “I told you I was going to get you Rat[,]” referring to me putting a grievance on him prior to this incident[.]
(ECF No. 135-9 at 2).
Further, Lieutenant Turner obtained written statements from two individuals who were working in the RHU on October 11, 2021. (ECF No. 135-10 at 2–3). Both staff members stated that they had not heard Ringling make any threats or say anything about putting a hit on Pirl. (Id.).
*3 Finally, the Court notes that at the bottom of the written statements provided by Pirl and the two staff members at SCI Somerset, the following phrase is listed: “DC-ADM 001, Inmate Abuse Procedures Manual.” (ECF Nos. 135-9, 135-10). Beneath that phrase is the following: “Section 1—General Procedures.” (ECF Nos. 135-9, 135-10).
Pirl has provided the Court with a copy of the 2014 Procedures Manual regarding Inmate Abuse. (ECF No. 135-6 at 2). Specifically, the document is (at least a portion of) Section 1—General Procedures of the “DC-ADM 001, Inmate Abuse Procedures Manual[,]” indicating that it governed Lieutenant Turner's investigation relative to Pirl's grievance. (Id. at 3). Section 1 of the Manual provides that an “allegation of abuse shall be investigated and an investigative report shall be compiled. The Security Office/BCC shall: (5) review all applicable video footage and save the video footage to a DVD to submit with the investigative report[.]” (Id.).
III. Legal Standard
Generally speaking, “[s]poliation is the destruction or significant alteration of evidence, or the failure to preserve the property for another's use as evidence in pending or reasonably foreseeable litigation.” Bistrian v. Levi, 448 F. Supp. 3d 454, 464 (E.D. Pa. 2020) (quoting Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 110 (E.D. Pa. 2005)). “Until recently, district courts in the Third Circuit relied on both the Federal Rules of Civil Procedure and the inherent authority of the court in imposing sanctions for spoliation of any kind of evidence.” Id. However, in 2015, Federal Rule of Civil Procedure 37 “was amended to provide a uniform standard governing spoliation sanctions for the loss of electronically stored information.” Id. (citing Fed. R. Civ. P. 37). In full, Rule 37(e) states:
(e) Failure to Preserve Electronically Stored Information. 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 measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).
“Where the amended rule applies, it provides the exclusive remedy for spoliation of electronically stored information (“ESI”), foreclosing reliance on the court's inherent authority.” Bistrian, 448 F. Supp. at 464 (internal quotation marks and citation omitted).
Turning to what is required in order to succeed on a claim for spoliation sanctions, as an initial matter, a “party may only ‘lose’ documents or ESI within that party's ‘possession, custody, or control.’ ” Eisenband v. Pine Belt Auto., Inc., No. 17-CV-8549 (FLW) (LHG), 2020 WL 1486045, at *8 (D.N.J. Mar. 27, 2020). Indeed, the Third Circuit has explained that in order for spoliation sanctions to be imposed upon a party, “it is essential that the evidence in question be within the party's control.” Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Bull v. United Parcel Service, Inc., 665 F.3d 68, 73 (3d Cir. 2012) (stating, in the context of non-ESI spoliation, that “spoliation occurs where: the evidence was in the party's control ...”).[3]
*4 Finally, the elements of spoliation of ESI are the following: (1) the spoliating party was under a duty to preserve when the loss occurred; (2) the lost ESI was within the scope of the duty to preserve; (3) the information was lost because the party failed to take reasonable steps to preserve it; and (4) the information is truly lost and not recoverable elsewhere. Bistrian, 448 F. Supp. 3d at 465 (internal quotation marks and citations omitted).
IV. Discussion
A. The Parties’ Arguments
Pirl states that Defendants have provided him with the video footage of Situation 2 (i.e., him being part of a fight with multiple inmates on October 9, 2019). (ECF No. 136 at 4). However, Pirl states that Defendants have not provided him with the video footage of Situation 1 (i.e., an inmate allegedly slashing him on October 9, 2019) or the video footage of Situation 3 (i.e., Ringling allegedly coming to Pirl's RHU cell on October 11, 2019, and reiterating that he had told Pirl he was going to get him). (Id. at 5). Pirl argues that Defendants should be sanctioned for failing to preserve these videos. (See ECF No. 135).
In response, Defendants argue that spoliation only occurs when the evidence was in the party's control, and there has been no evidence that Ringling or Tice “were in any way connected to the different investigations that occurred or played any role in the preservation of video footage” at SCI Somerset. (ECF No. 146 at 2).
B. There is No Evidence that Ringling Had Control Over the Video Footage at SCI Somerset
Here, as Defendants note, Plaintiff has offered no evidence that Ringling, in his role as Sergeant of the Guards at SCI Somerset, had any control or authority over the video footage at that facility. (ECF Nos. 135, 136, 145).[4] Indeed, Pirl has articulated no connection whatsoever between Ringling and the video footage regarding which he now seeks spoliation sanctions. (ECF Nos. 135, 136, 145). Accordingly, “regardless of whether spoliation occurred, [Pirl] is not entitled to sanctions against [Ringling], who could have done nothing to prevent or spur the destruction of [the video footage of Situation 1 or Situation 3] regardless of [his] own awareness of [the] importance [of that footage].” Storey v. Effingham Cty., 415-CV-149, 2017 WL 2623775, at *3 (S.D. Ga. June 16, 2017) (holding, in the context of ESI evidence, that plaintiff was not entitled to spoliation sanctions against individual defendants who worked at the jail but who had nothing to do with the preservation of video footage at the jail). Therefore, insofar as Pirl seeks sanctions as against Ringling, his Motion is denied.
Turning to Tice, Pirl has likewise offered no connection between Tice[5] and the video footage regarding which he now seeks spoliation sanctions. (ECF Nos. 135, 136, 145). Therefore, the Court is inclined to deny Pirl's Motion as against Tice for the same reason it denied Pirl's Motion as against Ringling. However, because Tice was the facility manager at SCI Somerset, (ECF No. 51 at 2), which indicates Tice may possibly have had more supervisory authority with respect to the prison as a whole, the Court will assume without deciding that Pirl has shown that Tice had control over the relevant video footage. With that assumption in place, the Court turns to whether Tice had a duty to preserve the video footage of Situation 1 or Situation 3 at any point when that video footage still existed.
C. Pirl Has Failed to Show That Tice Had a Duty to Preserve the Video Footage of Situation 1 or Situation 3 at Any Point While That Footage Still Existed
*5 The Court finds that Pirl has failed to show that Tice had a duty to preserve the video footage of Situation 1 or Situation 3 at any point when that video footage still existed. In order to explain this conclusion, the Court now outlines the first element of a claim for spoliation.
1. Legal Standard
With respect to the first element, Rule 37(e) “does not define the duty to preserve; rather, it incorporates the common-law ‘duty to preserve relevant information when litigation is reasonably foreseeable.’ ” Bistrian, 448 F. Supp. 3d at 467–68 (quoting Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment). In terms of the common-law duty to preserve:
A party is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation. This common-law standard is an objective one, asking not whether a party actually anticipated litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation. The reasonably foreseeable test is a flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry. It requires something more than the distant possibility of litigation, but it does not require that litigation be imminent, or probable without significant contingencies.
Id. at 468 (internal quotation marks and citations omitted).
Further, “[w]hen a party argues that spoliation occurred before the complaint was filed, the court must conduct a fact-sensitive inquiry to determine at what point the spoliating party reasonably should have anticipated the litigation.” Id. In certain contexts, “courts have found that a party reasonably should have anticipated litigation from the time it learned of the events giving rise to litigation, not merely from the time a lawsuit was filed, threatened, or planned.” Id. at 469. Specifically, a number of “courts have found that government defendants reasonably should have anticipated litigation from the time an inmate was seriously injured or died in custody.” Id. (collecting cases) (emphasis added). Even more specifically, “courts have held that ‘in the correctional context, a duty to preserve may attach when an inmate is in a fight or when an inmate files grievances about [such an] incident.’ ” Id. (quoting Barnes v. Hurling, 368 F. Supp. 3d 573, 607 (W.D.N.Y. 2019)).
Moreover, the advisory committee notes to the 2015 amendments “also allow for courts to ‘consider whether there was an independent requirement that the lost information be preserved’ arising from ‘statutes, administrative regulations, an order in another case, or a party's own information-retention protocols,’ among other possible sources.” Id. at 468 (quoting Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment). Such an “independent duty to preserve does not necessarily prove that a party also had a duty to preserve for purposes of the litigation, but it may be relevant.” Id.
Finally, Rule 37(e) does “not apply to information that was lost or destroyed before a duty to preserve it arose.” Id. at 467 (quoting Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment).
2. Analysis
The Court begins by noting that Tice waived service of Pirl's Complaint in February 2020. (ECF No. 10). Certainly, at that point in time, Tice had a duty to preserve evidence in his control that was relevant to Pirl's Complaint. However, the Court finds that Pirl has failed to show that Tice had a duty to preserve evidence at any point prior to Pirl filing his lawsuit and making Tice aware of his claims against him.
*6 Indeed, Pirl has offered no indication of what Tice's role as facility manager at SCI Somerset entailed. (ECF Nos. 135, 136, 145). Further, Pirl has offered no evidence that Tice was personally aware of the events that transpired on October 9, 2019, (or those that allegedly transpired on October 11th) at any point in time prior to Pirl filing this lawsuit. (ECF Nos. 135, 136, 145). Finally, outside of Pirl's grievance regarding the events of July 4, 2019,[6] Pirl has offered no indication that Tice was aware of any of Pirl's allegations regarding Ringling prior to Pirl filing this lawsuit. (ECF No. 51 at 4). Therefore, the Court finds that Pirl has failed to show that a reasonable person in Tice's position would have reasonably anticipated litigation relative to the events of October 2019 at any point before Pirl filed suit. Accordingly, the Court finds that Pirl has failed to show that Tice had a common-law duty to preserve the video footage of Situation 1 or Situation 3 prior to Pirl filing his lawsuit.
Pirl has likewise failed to show that any independent source imposed a duty to preserve upon Tice. Indeed, with respect to the provisions of Section 1 of DC-ADM 001, Pirl has offered no indication that Tice was involved in any fashion with Lieutenant Killinger or Lieutenant Turner's investigation of Pirl's grievance, or any other investigation that might have taken place in response to Pirl's allegations. (ECF Nos. 135, 136, 145). Therefore, Pirl has failed to show that the requirements of Section 1 of DC-ADM 001 applied to Tice.
Accordingly, Pirl has failed to prove that Tice was bound by an independent requirement that he preserve the video footage of Situation 1 or Situation 3.
In sum, Pirl has only shown that Tice had a duty to preserve beginning at the time when Tice became aware of Purl's lawsuit.
This reality is critical because according to representations by Defendants’ counsel, the video footage of Situations 1 and 3 at SCI Somerset was likely not in existence by the end of October 2019. Indeed, the Court held a pretrial conference on August 4, 2022, at which time counsel for the parties discussed Pirl's Motion. (ECF No. 142 at 2). During that hearing, counsel for Defendants represented to the Court that the video footage of Situations 1 and 3 may well have been automatically overwritten by SCI Somerset's system—potentially within two weeks of October 9th and 11th. Counsel for Plaintiff offered no evidence, allegation, or indication to the contrary.[7]
Therefore, because the Court is without any indication that the video footage of Situation 1 or Situation 3 was still in existence after the end of October 2019 (rather, the averments before the Court indicate it was likely overwritten by that time), and because Pirl has failed to show that Tice had a duty to preserve evidence at any point prior to Pirl filing his lawsuit, the Court holds that Pirl has failed to show that Rule 37(e) applied to Tice. Bistriani, 448 F. Supp. 3d at 467.
Accordingly, the Court will deny Pirl's Motion as against Tice.[8]
V. Order
Therefore, this 12th day of August, 2022, upon consideration of Plaintiff Demetrius Pirl's “Motion for Sanctions Under Rule 37(e) for Defendants’ Spoliation of Electronically Stored Information[,]” (ECF No. 135), it is HEREBY ORDERED that the Motion is DENIED.
Footnotes
A detailed description of the factual background of this case can be found in United States Magistrate Judge Maureen P. Kelly's Report and Recommendation. (ECF No. 51). On September 15, 2021, the Court issued an Order accepting “in whole the findings and recommendations of Judge Kelly in this matter.” (ECF No. 64 at 2).
The Court notes that Pirl filed his initial Complaint against Ringling, Tice, and the Department of Corrections. (ECF No. 6). However, in his Amended Complaint, Pirl only advanced claims against Ringling and Tice. (ECF No. 19 at 1–2; ECF No. 25 at 1–2).
The Court recognizes that control is not expressly listed as an element of a claim for spoliation of ESI pursuant to Rule 37(e). Bistrian v. Levi, 448 F. Supp. 3d 454, 465 (E.D. Pa. 2020). However, the first element of a claim for spoliation of ESI is that the party against whom sanctions are sought was under a duty to preserve when the loss occurred. Id. It is unclear how a party could ever be under a duty to preserve evidence that it does not control. Therefore, it appears to the Court that control over evidence is an essential part of a spoliation claim—whether the lost evidence is ESI evidence or non-ESI evidence.
The Court also notes that at summary judgment, it dismissed Pirl's claims against Ringling in Ringling's official capacity—it is only Pirl's claims against Ringling in his personal capacity that are still operative. (ECF No. 51 at 27).
Pirl has only ever advanced claims against Tice in Tice's personal capacity. (ECF No. 51 at 3).
And of course, Pirl's July 4, 2019, grievance, which he appealed to Tice on August 4, 2019, (ECF No. 51 at 4), did nothing to make Tice aware of the events of October 2019.
Given this reality, it is unsurprising that Pirl has not offered any evidence demonstrating that the video footage of Situation 1 or Situation 3 still existed when Tice became aware of Pirl's lawsuit. (ECF Nos. 135, 136, 145).
The Court finds that it would be appropriate to deny Pirl's Motion as against Ringling for the same reasons.