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Blazer v. Gall

United States District Court, D. South Dakota, Northern Division

August 1, 2019

ROBERT BLAZER, Plaintiff,
v.
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 SPOLIATION SANCTIONS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         FACTUAL BACKGROUND

         Robert 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.

         Blazer 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.

         Blazer 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.

         On 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.

         Shortly 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.

         When 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?
A: No.
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, ...

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