United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity, Defendants.
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Recommendation of the
United States Magistrate Judge [Docket No. 427] filed on
January 10, 2019. The magistrate judge recommends that the
Court grant in part Plaintiff's Motion for Spoliation
Sanctions [Docket No. 387] and allow the parties “to
present evidence relating to the lost or destroyed Review
Board records and to argue whatever inferences they hope the
jury will draw from their absence.” Docket No. 427 at
15-16. Plaintiff filed a timely objection to the magistrate
judge's recommendation on January 17, 2019, Docket No.
434, to which defendants responded on January 23, 2019.
Docket No. 438.
case arises out of plaintiff's pretrial detention at the
Denver Detention Center (“DDC”) in 2013.
Plaintiff asserts that defendants violated his due process
rights under the Fourteenth Amendment by keeping him in
administrative segregation for a period of eight and one-half
months without a legitimate reason. Docket No. 300 at 2-3.
Plaintiff proceeded pro se throughout most of the
litigation, but was appointed pro bono counsel in August
2018. Docket No. 352. On September 28, 2018, plaintiff,
through pro bono counsel, moved to reopen discovery to seek
additional information regarding the DDC's policies and
procedures for placing inmates in administrative segregation.
Docket No. 364. As a result of defendants' subsequent
disclosure of unredacted policy documents, plaintiff learned
that defendants were required to keep written records of the
Administrative Review Board's weekly reviews of
plaintiff's housing placement. See Docket No.
376 at 4 n.1 (discussing new categories of documents sought
by plaintiff as a result of defendants' production of
unredacted Post Orders and DDC regulations); Docket No. 387
at 3 (discussing written records defendants were required to
keep regarding plaintiff's housing placement). On
November 9, 2018, the Court granted in part plaintiff's
request to modify the scheduling order and ordered defendants
to produce, within thirty days: “(1) any DDC
regulations governing the classification, housing, and/or
placement of inmates in Unit 4D during 2013; (2) any records
of weekly interviews conducted by an administrative review
board Classification officer between March 24, 2013 and
December 18, 2013; (3) any DDC weekly administrative board
reports dated between March 24, 2013 and December 18, 2013;
and (4) any classification review forms for plaintiff, dated
between March 24, 2013 and December 18, 2013.” Docket
No. 376 at 5. On December 17, 2018, plaintiff moved for
spoliation sanctions, arguing that defendants had lost or
destroyed “weekly interviews and reports” that
“they created . . . as part of their duties on the
Administrative Review Board (the ‘Review
Board').” Docket No. 387 at 1. On January 10, 2019,
the magistrate judge recommended that plaintiff's motion
be granted in part. Docket No. 427 at 1. The magistrate judge
found that, although plaintiff had demonstrated both
spoliation of relevant evidence and resulting prejudice, he
had not made an adequate showing of bad faith to warrant the
giving of an adverse inference instruction at trial.
Id. at 6-15.
STANDARD OF REVIEW
Court must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
“proper” if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
absence of a proper objection, the Court reviews the
magistrate judge's recommendation to satisfy itself that
there is “no clear error on the face of the
record.”Fed. R. Civ. P. 72(b), Advisory Committee
objects to the magistrate judge's report and
recommendation to the extent that the magistrate judge found
insufficient evidence of bad faith. Docket No. 434 at
Plaintiff argues that the “recommendation fails to
recognize the significant evidence of bad faith in the record
and, in effect, imposes such a high legal standard for
showing bad faith that litigants will have license to
‘lose' clearly relevant documents long after
litigation has commenced.” Id.
the issue of bad faith, the magistrate judge determined that,
although the evidence presented was “consistent with
bungled record-keeping, bungled records management, and
extreme carelessness, ” it did not show that defendants
were responsible for the loss or destruction of the weekly
Review Board records. Docket No. 427 at 14.
objection, plaintiff argues that four factors warrant a
finding of bad faith: (1) defendants' violation of
DDC's record-keeping requirements; (2) defendants'
failure to preserve the Review Board records after the case
was filed; (3) defendants' attempts to conceal the Review
Board records from plaintiff while he was proceeding pro
se; and (4) defendants' inability to explain the
loss of the Review Board records. Docket No. 434 at 4-9.
regard to the first factor, plaintiff argues that
defendants' failure to maintain electronic records of
administrative review board decisions in violation of DDC
policy is sufficient evidence, by itself, to warrant a
finding of bad faith. Docket No. 434 at 4. Plaintiff relies
on Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th
Cir. 1987), in which the Tenth Circuit held that a plaintiff
was entitled to a presumption that certain personnel records
would have supported her case because the defendant had
destroyed the records in violation of a federal regulation.
Id. at 1419. Plaintiff argues that Hicks
stands for the proposition “that a violation of
policies and procedures can be sufficient evidence alone to
show bad faith.” Docket No. 434 at 4-5. As defendants
point out, however, the court in Hicks held that
plaintiff was entitled to a presumption notwithstanding the
fact that the record did not demonstrate bad faith.
See 833 F.2d at 1419 n.5. Hicks therefore
does not support plaintiff's position. This case is also
distinguishable from Hicks because plaintiff has
presented no evidence that defendants themselves were
responsible for the loss or destruction of the Review Board
records. See Alvariza v. Home Depot, 241 F.R.D. 663,
668 (D. Colo. 2007) (distinguishing Hicks, where the
employer admitted to intentionally destroying documents in
violation of a federal regulation, from a situation in which
a defendant “agreed to provide certain documents,
looked for such documents, and was unable to find
also argues that defendants' failure to preserve the
Review Board records when litigation was already pending
constitutes evidence of bad faith. Docket No. 434 at 5, 8-9.
The Court disagrees. While the failure to preserve records
after a litigation hold is in place supports the imposition
of spoliation sanctions, see E.E.O.C. v. Jetstream Ground
Servs., 878 F.3d 960, 964 (10th Cir. 2017) (stating that
“spoliation sanctions are proper when (1) a party has a
duty to preserve evidence because it knew, or should have
known, that litigation was imminent, and (2) the adverse
party was prejudiced by the destruction of the
evidence” (internal quotation marks and brackets
omitted), it does not, standing alone, establish bad faith.
To hold otherwise would collapse the spoliation and bad faith
inquiries into one and mandate the giving of an adverse
inference instruction in every case where evidence is
improperly lost or destroyed. Such a result would be
inconsistent with Tenth Circuit law. See Turner v. Pub.
Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009)
(explaining that an adverse inference instruction requires
proof of bad faith in addition to evidence of
next contends that defendants' discovery conduct -
specifically, their efforts to conceal policy documents that
would have revealed the existence of the Review Board records
- is indicative of bad faith. Docket No. 434 at 6. Plaintiff
bases his argument on defendants' failure to produce
three categories of documents: (1) the Review Board records
themselves which, plaintiff asserts, were responsive to
plaintiff's 2016 request for “[a]ny and all
documents . . . created by any Denver Sheriff Staff member or
any Denver Sheriff Department or official concerning
‘Franky L. Session,' from January 22, 2013 to May
20, 2015”; (2) DDC policy documents that would have
revealed defendants' record-keeping obligation; and (3)
unredacted Post Orders discussing the Review Board records.
Id. at 6-7. Defendants respond that it was proper for
them to redact non-public portions of the DDC Post Orders
because plaintiff was a prisoner in the custody of the
Colorado Department of Corrections at the time those
documents were produced. Docket No. 418 at 13; Docket No. 438
at 12-13. They further contend that the production of the
redacted Post Orders in 2016 does not suggest an effort to
conceal spoliation, as the evidence indicates that the Review
Board records were not lost ...