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Blazer v. Gall
United States District Court, D. South Dakota, Northern Division
August 1, 2019
ROBERT BLAZER, Plaintiff,
KEITH GALL, CORSON COUNTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOSH BOLL, WALWORTH COUNTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEPUTY ALAN D DALE, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY JUSTIN TVEDT, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY MIKE VARILEK, DEPUTY AT CORSON COUNTY SD, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD KILEY FRANKLIN, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD KIMBERLY LONG KNIFE, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JUSTIN JUNGWIRTH, WALWORTH COUNTY JAIL SD, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD MARRISSA MICKELSON, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD HEATHER KROONJE, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD PATTY DUNWOODY, JAILER/GUARD AT WALWORTH COUNTY JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD JEREMY JOHNSON, JAILER/GUARD AT WALWORTH COUNTY S.D. JAIL, INDIVIDUALLY AND OFFICIAL CAPACITY; JAILER/GUARD LANCE SCHNAIBLE, JAILER/GUARD AT WALWORTH COUNTY JAIL SD, INDIVIDUALLY AND OFFICIAL CAPACITY; DEPUTY TRAVIS BENTZ, DEPUTY AT WALWORTH COUNTY JAIL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RONNIE DUCHENEAUX, JAILER/GUARD AT WALWORTH COUNTY JAIL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; GLENN BISSETT, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, IN HIS INDVIDUAL AND OFFICIAL CAPACITY; TAMMY RICHARDS, JAILER/GUARD AT THE WALWORTH COUNTY JAIL, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CINDY STRONGHEART, GUARD/JAILER AT THE WALWORTH COUNTY JAIL SD, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; WALWORTH COUNTY, SOUTH DAKOTA; CORSON COUNTY, SOUTH DAKOTA, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Robert Blazer, filed a second amended complaint against
defendants for civil rights violations under 42 U.S.C. §
1983, following Blazer's stay as a pre-trial detainee at
the Walworth County Jail. Docket 57. Blazer now moves for
spoliation sanctions under Federal Rule of Civil Procedure
37(e) and this court's inherent power. Docket 64. For the
following reasons, the court grants in part and denies in
part Blazer's motion for spoliation sanctions.
Blazer was a Corson County pre-trial detainee housed in the
Walworth County Jail due to a lack of permanent jail
facilities in Corson County. Docket 57 ¶ 3. Blazer was
housed in the Walworth County Jail from October 15, 2015,
until June 20, 2016. Id.
was seen by a medical professional on October 27, 2015, where
he was prescribed several medications, including one for
diabetes, that were refilled in November 2015, December 2015,
and January 2016. Docket 66-1 at 1-9. On February 17, 2016,
Blazer visited Dr. Robert Marciano and was prescribed
duloxetine (for depression), gabapentin (for pain), metformin
(for diabetes), ranitidine (for epigastric discomfort), and
lisinopril (for blood pressure). Id. at 13. While
Dr. Marciano logged all five of the prescriptions on
Blazer's chart, only the prescriptions for ranitidine and
lisinopril were transmitted by the clinic to the pharmacy for
pickup by Corson County deputies. Docket 69-1 at 1; Docket
72-6 at 1-2. Blazer went without the duloxetine, gabapentin,
and metformin for the remainder of his detention at the
Walworth County Jail. Docket 66-11 at 2.
alleges that he made several requests for the missing
medications. Docket 57 ¶ 25. Defendants deny that Blazer
made several requests for the medications. Docket 58 ¶
25; Docket 59 ¶ 1. During Blazer's deposition,
Blazer stated that despite several requests, written
grievance forms were not provided until “one of the new
guards had given me a form.” Docket 66-3 at 6. On March
31, 2016, Blazer completed a Medical Request Form that
stated, “No medical help at all. I need all my meds . .
. .” Docket 66-4. While Walworth County's official
policy is to keep such records, Blazer's medical file did
not contain the Medical Request Form. Docket 66-10 at 2-3;
Docket 66-12 ¶ 21. When Walworth County defendants were
asked during discovery why the form was missing, they
responded “It is unknown which deputy or jail personnel
initially received the request or why the document was not
maintained.” Docket 66-12 ¶ 21. Instead, the form
was retrieved from Corson County during discovery, because a
copy had been faxed to Corson County from Walworth County and
was preserved on April 1, 2016, as part of the Corson County
official records. Docket 72-6 ¶ 13.
April 5, 2016, an “agitated” Blazer covered his
cell camera and said that he “was being tortured by not
giving him his diabetic medications” and that Blazer
would have the ACLU and EPA “sue this place so my son
can be rich.” Docket 66-5 at 1. Blazer was initially
given a suicide blanket and when he covered the camera again
with a shoe, Blazer was placed in a restraint chair.
Id. Blazer continued to threaten to sue after being
placed in the restraint chair. Id. at 2.
thereafter, on April 15, 2016, Blazer's criminal defense
attorney, Brad Schreiber, sent an email to Sheriff Boll,
Walworth County State's Attorney James Hare, and Corson
County State's Attorney Eric Bogue. Docket 66-6.
Schreiber, noting Blazer's multiple complaints about
missing medications and mistreatment, asked to obtain copies
of all of the jail's medical records pertaining to Blazer
in order to provide Blazer with some assurances. Id.
Schreiber also requested that he be given copies of any audio
or video recordings from the jail, or “[a]t the very
least, I would request that they be preserved.”
Id. The extended email chain shows that, on April
18, 2016, Schreiber followed up and asked whether he would be
receiving the requested records. Docket 72-1 at 1. Sheriff
Boll copied the message to Jail Administrator Justin
Jungwirth and responded that he “forwarded the
information on to the jail” but that “staff does
not have time to chase their tales [sic] around on
this.” Id. Further, Sheriff Boll said that he
would “check into it and find out and get you what you
need.” Id. Walworth County did not produce
Sheriff Boll's reply email in response to Blazer's
discovery request; instead, the emails were obtained from
Schreiber. Docket 72 ¶ 2.
Sheriff Boll was asked in his deposition whether he made any
efforts to preserve video or audio recordings, Sheriff Boll
answered, “nothing that I did.” Docket 66-9 at 5.
Further, during depositions Jail Administrator Justin
Jungwirth was asked:
Q: Did you ever take any action to preserve any video or
audio recordings as requested by Mr. Schreiber?
Q: And was that ever asked of you?
A: Not that I remember.
Q: Had you been asked to take actions to preserve video and
audio recordings, ...