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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

November 12, 2019

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          DRELL JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Because 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.

         I. Background

         Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] (Docs. 1, 16, 20) alleging that he was subjected to excessive force when he was incarcerated at the United States Penitentiary in Pollock, Louisiana.

         Duncan 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.

         II. Law and Analysis

         Rule 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).

         Duncan 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 unit. Id.

         Duncan 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).

         Duncan 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).

         Agent 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.

         Agent 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 ...


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