United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion for Adverse Inference Sanction (Doc.
179) filed by pro se Plaintiff Marco Damon Duncan
(“Duncan”) (#37679-048). Duncan is an inmate in
the custody of the Federal Bureau of Prisons incarcerated at
the United States Penitentiary in Florence, Colorado.
Duncan fails to establish that there was destruction or
alteration of video surveillance footage, or bad faith, by
Defendants, Duncan's Motion for Adverse Inference
Sanction (Doc. 179) is DENIED.
initiated this litigation pursuant to Bivens v. Six
Unknown Agents of the Federal Bureau of
Narcotics (Docs. 1, 16, 20) alleging that he was
subjected to excessive force when he was incarcerated at the
United States Penitentiary in Pollock, Louisiana.
seeks sanctions under Fed.R.Civ.P. 37(e) and under the
Court's inherent authority to issue sanctions. (Docs.
179, 179-1). Duncan asserts Defendants failed to preserve
electronically stored information (“ESI”) or
video surveillance footage from January 13, 2017: (1) from
the receiving and discharge (“R&D”) area of
USP-Pollock; (2) from the B-2 housing unit; and (3) of
Duncan's escort from the transportation van to the
Special Housing Unit (“SHU”). (Doc. 179, p. 1).
Duncan contends FBI Agent Olivia Alley (“Agent
Alley”) advised USP Pollock on January 13, 2017 of the
need to preserve the footage of the R&D area.
Id. Duncan also asserts that the only version of the
video footage showing the incident in the B-2 housing unit
was deliberately altered by prison officials. Id.
Law and Analysis
37(e) provides sanctions against a party for the failure to
preserve ESI. See Fed.R.Civ.P. 37(e) The rule covers
circumstances in which ESI “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.” Fed.R.Civ.P. 37(e). If a party is
prejudiced by this loss, a court may order no greater
measures necessary to cure the prejudice, and if “the
party [responsible for the loss] acted with the intent to
deprive another party of the information's use, ” a
court may take adverse action against the party responsible
for the loss. Fed.R.Civ.P. 37(e)(1)-(2).
argues that the incident occurred inside the B-2 housing unit
at USP-Pollock, directly under a surveillance camera. (Doc.
179-1, p. 1). Duncan asserts he only received video footage
from a surveillance camera over 30 feet away that was altered
by prison officials. Id. Duncan contends Defendants
failed to preserve images of him from the January 13, 2017
incident from over 15 video surveillance cameras that were
functioning. Id. Duncan contends that the incident
in the B-2 housing unit resulted in him being criminally
charged and that Defendants had a duty to preserve the video
surveillance. (Doc. 179-2, p. 2). Duncan asserts Defendants
failed to preserve relevant video surveillance and altered
the only existing copy of video footage of the B-2 housing
contends that he was beaten and injured by Defendants next to
the officer desk in the R&D area of USP-Pollock. (Doc.
179-1, p. 1). Duncan asserts there were surveillance cameras
he personally observed in the R&D area that should have
captured all or part of the incident. Id. Duncan
argues that an hour after the beating Defendants were put on
notice when Duncan told Agent Alley, SIS Lieutenant Michael
Pierce, and Captain Barlett that he was beaten in the R&D
area. Id. Duncan alleges prison officials lied to
Agent Alley during her investigations and advised that no
cameras were in the R&D area. (Doc. 179-2, p. 2).
alleges his escort from the transportation van to the SHU
shower was recorded by handheld video camera. (Doc. 179-1, p.
2). Duncan asserts Defendant Morris personally witnessed that
escort and the camera operator recording it. (Doc. 179-2, p.
3). Duncan contends BOP Policy requires video recording when
the “Use of Force Team” is employed, and that the
escort videotapes be maintained for a minimum of two and
one-half years. (Doc. 179-2, p. 3). Duncan argues that the
escort videotapes were destroyed before that time. (Doc.
179-2, p. 4). In support, Duncan attached an excerpt of Agent
Alley's testimony at a hearing on Duncan's Motion to
Suppress in his criminal proceeding (1:17-cr-000106-02, Doc.
109) and an excerpt of BOP policy regarding
“Documentation of Use of Force and Application of
Restraints Incidents.” (Doc. 179-3, pp. 1-38).
Alley testified she spoke to Duncan and White on January 13,
2017 in the R&D holding cell. (Doc. 179-3, p. 2). Duncan
declined to speak to her, but before she left Duncan stated
he had been assaulted by BOP staff while in restraints.
Id. She advised him that if he wanted to talk, she
would have to advise him of his rights. (Doc. 179-3, p. 5).
Agent Alley testified that after Duncan told her about what
happened she inquired that day regarding any video that may
be available to confirm or refute his allegation and was told
there were none available. Id.
Alley inquired about four times about whether there were more
videos. Id. She testified that after the Assistant
U.S. Attorney informed her that Duncan's defense attorney
was asking about more videos, she immediately called BOP to
inquire, specifically with the Special Investigative Services
(“S.I.S.”) department and videos in R&D.
(Doc. 179-3, p. 6). She asked ...