Johns v. Gwinn

Full title: Lameek JOHNS, Plaintiff, v. GWINN, Correctional Officer, Defendant.

Court: United States District Court, W.D. Virginia, Roanoke Division.

Date published: Nov 30, 2020

503 F. Supp. 3d 452 (W.D. Va. 2020)

Opinion

Case No. 7:18-cv-00150

2020-11-30

Lameek JOHNS, Plaintiff, v. GWINN, Correctional Officer, Defendant.

Lameek Shalam Johns, Pound, VA, pro se. Margaret Hoehl O'Shea, Office of the Attorney General of Virginia, Richmond, VA, for Defendant.

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

Lameek Shalam Johns, Pound, VA, pro se.

Margaret Hoehl O'Shea, Office of the Attorney General of Virginia, Richmond, VA, for Defendant.

FINDINGS OF FACT & CONCLUSIONS OF LAW

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Lameek Johns sued Defendant Gwinn¹ for violating his Eighth Amendment right to be free from cruel and unusual punishment, alleging that Defendant used excessive force by firing OC spray at Plaintiff in Defendant's capacity as a correctional officer at Red Onion State Prison. The Court referred this matter to the magistrate judge, who conducted a bench trial and issued a Report & Recommendation that this Court rule in Defendant's favor and deny Plaintiff's spoliation motion.

1 The first names of Red Onion State Prison staff have been withheld.

This Court will sustain Plaintiff's objections to the R&R. Reviewing the trial testimony and other record evidence de novo , the Court finds that the weight of the evidence shows that Defendant assaulted Plaintiff with OC spray, without justification. Moreover, because the Virginia Department of Corrections did not preserve relevant evidence, Plaintiff established that he was entitled to sanctions—just not to the degree sought. This Court concludes that Defendant's actions violated Plaintiff's Eighth Amendment rights, and that Plaintiff is entitled to compensatory and punitive damages for a total award of $4,000.

I. Background

A. Plaintiff's complaint and pretrial procedural history

Plaintiff claims that on the morning of April 5, 2016, Defendant sprayed Plaintiff in the face and chest for three to four minutes with oleoresin capsicum ("OC") spray by sticking his arm through a hinged feeding box attached to a tray slot on Plaintiff's cell door at Red Onion State Prison ("Red Onion"). Dkt. 1 at 4. He sued Defendant under 42 U.S.C. § 1983 for violating his Eighth Amendment rights, seeking $18,000 in compensatory and punitive damages for physical and emotional injuries; a declaratory judgment that his Eighth Amendment rights were violated; and an injunction transferring him to general population at another prison. Dkt. 1 at 11.

Before trial, Plaintiff filed a spoliation motion challenging Red Onion officers’ failure to preserve video from Red Onion's internal surveillance system that, Plaintiff asserted, would have captured Defendant's alleged assault. Dkt. 44. Plaintiff sought judgment in his favor as a sanction for the failure to preserve evidence. Id.

B. Bench trial summary and the R&R

Following this Court's referral, the magistrate judge conducted a one-day bench trial on August 5, 2019. The parties presented live testimony and produced documentary evidence. Dkt. 77 (trial transcript). Plaintiff and Michael Watson, the inmate in a cell next to Plaintiff at the time of the incident, testified for Plaintiff. Id. at 8–28. Defendant and five Red Onion correctional officers and employees testified for Defendant. Id. at 56–133.

The magistrate judge's 29-page R&R provides a detailed account of the testimony and documentary evidence, which the Court will not fully recount here. Dkt. 70 ("R&R") at 5–17. The parties agreed that between 7:00 and 7:45 a.m. on April 5, 2016, Defendant escorted two nurses as they distributed medication through the D-3 unit, a segregation unit housing Plaintiff. The parties’ competing narratives share little else in common.

Plaintiff testified that, as the nurses and Defendant passed near Plaintiff's cell, Defendant and Plaintiff engaged in a verbal altercation, which sparked the alleged assault.² Dkt. 77 at 22–23. Plaintiff testified that Defendant unholstered his OC spray, stuck his arm through the tray slot in Plaintiff's cell door, and sprayed Plaintiff in the face intermittently for two to three minutes, causing him extreme pain, discomfort, and difficulty breathing. Id. at 22–23, 39–41. Watson testified to seeing Defendant walk over to Plaintiff's cell; hearing Plaintiff's tray slot open; hearing Plaintiff yell to the nurses that he had been pepper sprayed in the face; and smelling the pepper spray coming through the vent between his and Plaintiff's cells. Id. at 8–21. Watson testified that the smell was strong enough that it made him cough as well. Id. at 12.

2 Plaintiff testified that when the altercation began, he was just "standing at the cell door ... looking out [his] cell door window" when Defendant told one of the nurses, "you can leave that bitch right there that's standing by the door ... to me." Dkt. 77 at 22. Watson testified that as Defendant and the two nurses passed by Plaintiff's cell and reached Watson's, one of the nurses told Defendant that Plaintiff was masturbating in his cell, at which point Defendant walked back to Plaintiff's cell and sprayed him with OC spray. Id. at 10.

Plaintiff testified that after the assault, the two nurses and Defendant ignored his pleas for medical treatment. Id. at 23–25. He also testified that Defendant, Sergeant Fleming and Lewis, another corrections officer at Red Onion, passed by his cell after the incident, and they also either ignored his pleas or, in Fleming's case, threatened to use OC spray against Plaintiff. Id. at 24–25. A nurse finally examined Plaintiff about an hour after the incident when Plaintiff was transferred to another cell block as previously scheduled. See id. at 27, 51. The nurse ordered that Plaintiff be given a shower in order to be decontaminated. Id.

Plaintiff introduced into evidence a Red Onion logbook showing that on two occasions on the morning of the incident—at 7:25 a.m. and again at 8:10 a.m.—medical clearance was given to an unnamed guard working in Plaintiff's cell block to use OC spray on Plaintiff specifically. Dkt. 68-2. Sergeant Fleming accounted for one of the authorizations, who testified that he secured authorization before escorting Plaintiff from his cell that morning in the planned cell block transfer. Dkt. 77 at 80. Neither Defendant nor any other witness accounted for the other OC spray authorization.

Plaintiff also introduced into evidence a portion of his Red Onion medical record, which described his visit to the prison infirmary at 8:30 a.m. on the morning of the incident. Dkt. 68-3. Nurse Mullins examined Plaintiff. Id. ; Dkt. 77 at 27, 51. She wrote in his medical record, under "Complaint and Treatment": "OC spray utilized[.] Inmate was decontaminated no injuries noted." Dkt. 68-3.

Defendant offered contrary testimony and documentary evidence. Six Red Onion employees and correctional officers—including Defendant—testified that Defendant did not use OC spray on Plaintiff, and that if he had, this use of force would have been documented in several ways pursuant to Virginia Department of Corrections ("VDOC") and internal Red Onion procedures. Defendant also disputed several aspects of Plaintiff's narrative, including that a single OC cannister could be deployed continuously for several minutes without depleting. He also explained that a prison guard would be "foolish" to stick one's arm through an inmate's tray slot. Dkt. 77 at 69.

Unit Manager Swiney and Fleming testified that they reviewed the Rapid Eye³ surveillance video following the event—Swiney on the morning of the incident after Plaintiff complained to staff, and Fleming when Plaintiff submitted a written informal complaint about the incident six days later. Dkt. 77 at 89–90, 123, 127. Both testified that the video did not substantiate Plaintiff's allegations of assault by Defendant, and therefore, pursuant to VDOC policy, it was not marked for preservation and was automatically allowed to be recorded over. Id. at 126–28. Swiney testified that the video showed that Defendant approached Plaintiff's cell door alone at one unspecified time that morning, briefly unholstered and reholstered his OC cannister, but did not access the tray slot on Plaintiff's cell. Id. at 124, 127. Fleming similarly testified that at no point in his review of the video did he see Defendant access Plaintiff's tray slot. Id. at 90. Fleming also denied that Plaintiff informed him about being exposed to OC spray until Plaintiff's cell transfer took place. Id. at 88.

3 Rapid Eye is the manufacturer of Red Onion's internal video surveillance system.

After the bench trial, the magistrate judge determined that Plaintiff failed to prove by a preponderance of the evidence that the alleged use of force occurred, and Defendant should therefore prevail. R&R at 23–26. The magistrate judge also recommended that the Court deny Plaintiff's spoliation motion, because Plaintiff had not shown that the electronically-stored information ("ESI") at issue—the Rapid Eye video—contained evidence relevant to Plaintiff's claim, or that the video would have supported Plaintiff's version of the events. R&R at 26–28. Plaintiff timely filed objections to the R&R, both concerning the recommended disposition of the merits of his claim and his spoliation motion. Dkt. 73.

II. Legal Standard

Federal Rule of Civil Procedure 72 permits a party to submit objections to a magistrate judge's R&R within fourteen days. Fed. R. Civ. P. 72(b)(2) ; 28 U.S.C. § 636(b). The district court conducts a de novo review of those portions of a magistrate's R&R to which specific objections were made. Fed. R. Civ. P. 72(b)(3) ; Orpiano v. Johnson , 687 F.2d 44, 48 (4th Cir. 1982). The Court may give a magistrate judge's R&R "such weight as its merit commands and the sound discretion of the judge warrants," United States v. Raddatz , 447 U.S. 667, 682–83, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (internal quotations omitted), but the Court still must "consider[ ] the actual testimony" and evidence, and cannot merely rely upon "reviewing the magistrate's report and recommendations," Wimmer v. Cook , 774 F.2d 68, 76 (4th Cir. 1985) (citations omitted). The district court may accept, reject, or modify the recommended disposition based on its de novo review of the recommendation and the objections made. Fed. R. Civ. P. 72(b)(3).

"In a civil case, the plaintiff carries the burden of proving each of the elements of his claim by a preponderance of the evidence." Makdessi v. Fields , No. 7:11-cv-00262, 2017 WL 363014, at *2 (W.D. Va. Jan. 24, 2017) (Conrad, J.), aff'd , 716 F. App'x 148 (4th Cir. 2017) (citing In re Winship , 397 U.S. 358, 371, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). " ‘The burden of showing something by a preponderance of the evidence ... simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence.’ " United States v. Manigan , 592 F.3d 621, 631 (4th Cir. 2010) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal. , 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) ).

"In an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court." Fed. R. Civ. P. 52(a)(1). After a bench trial, a court must "make[ ] findings of fact by evaluating the persuasiveness of conflicting evidence and deciding which is more likely true." Stewart v. Bert Bell/Pete Rozelle NFL Player Ret. Plan , No. 09-cv-2612, 2012 WL 122362, at *4 (D. Md. Jan. 12, 2012).

III. Spoliation

The parties agree that Red Onion's internal Rapid Eye surveillance system would have captured the area in front of Plaintiff's cell where Plaintiff alleged Defendant stood as he reached through Plaintiff's tray slot and used OC spray on Plaintiff. Dkt. 77 at 131–32. Plaintiff claims that VDOC failed to preserve this relevant evidence in anticipation of this litigation.⁴ Dkt. 44. As a sanction for such spoliation, Plaintiff argues he is entitled to judgment in his favor under Fed. R. Civ. P. 37(e). Id. The magistrate judge recommended that the Court deny this motion because Plaintiff failed to "present[ ] any evidence that he asked [Red Onion] officials to preserve the footage ... or that [Red Onion] officials themselves reasonably should have known the footage could be relevant to anticipated litigation." R&R at 27 (internal citations omitted). The magistrate judge also concluded that the spoliation motion should be denied because, citing Unit Manager Swiney's and Sergeant Fleming's description of the video, Plaintiff had failed to show the video would corroborate his version of events. Id. at 27–28.

4 Plaintiff also claims that after Red Onion guards removed him from his cell, they took him to a separate room where they used a handheld camera to "record[ ] [Plaintiff's] body and stuff." R&R at 7. Although other courts have described Red Onion's use hand-held video cameras on occasion to record the aftermath of OC spray incidents, see, e.g., Gorham v. Barksdale , No. 7:15-cv-00437, 2018 WL 1595628, at *3 (W.D. Va. Mar. 31, 2018), Defendant's witnesses denied that they used a hand-held video camera, Dkt. 77 at 89, 130, creating an irreconcilable conflict in the record evidence. Because Plaintiff fails to prove by a preponderance of the evidence that this handheld video camera footage ever existed, he fails to demonstrate that it was lost. Steves & Sons, Inc. v. JELD-WEN, Inc. , 327 F.R.D. 96, 104 (E.D. Va. 2018).

Defendant claims Red Onion's Rapid Eye system has limited storage space in which video is eventually recorded over unless marked for preservation and removed from the Rapid Eye system. Dkt. 48-2 ¶¶ 4–6 (Second Swiney Affidavit). Swiney testified that he reviewed the video less than an hour after Plaintiff complained of Defendant using OC spray on him, Dkt. 77 at 122–23; R&R at 21, and Fleming reviewed the video and noted that fact in responding to Plaintiff's informal complaint about the incident, Dkt. 77 at 90; R&R at 14, 22. Both Swiney and Fleming testified that because it did not show a use-of-force incident, and because Plaintiff did not request that it be preserved, VDOC "retention policy for videos depicting a use of force was not implicated," and the video was automatically erased by the system. Dkt. 48–2 ¶ 4; R&R at 18; Dkt. 77 at 126, 135–36. See VDOC Operating Procedure 30.1 at 4 ("If a grievance is received that references a specific audio or video recording, a copy of the recording shall be saved in the digital storage folder.").⁵ For the reasons set forth below, the Court finds that spoliation has occurred on account of the loss of the Rapid Eye video of the incident on April 5, 2016, and further that Plaintiff suffered prejudice on account of the destruction of that evidence.

5 However, VDOC's operating procedures also provide that "[v]ideo recordings that document actual or threatened events outside the ordinary routine that involve the life, health, and safety of employees, volunteers, offenders, or visitors or disrupts/ threatens security, good order, and discipline of a DOC unit shall be stored as evidence in accordance with Operating Procedure 030.1, Evidence Collection and Preservation." OP 38.1 at 4. Operating Procedure 30.1 in turn provides that "[t]he digital evidence shall be retained for at least five years after the date of the incident." OP 30.1 at 4. The VDOC operating procedures define "Incident" as, inter alia , "an actual or threatened event or occurrence outside the ordinary routine that involves ... damage to state property ... [or] disruption or threats to security, good order, and discipline of a facility or organizational unit." Defendant stated that on the morning of the incident, Plaintiff was standing in his cell threatening or attempting to break the sprinkler head in his cell (presumably state property).

A. Legal standard

"Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v. General Motors Corp. , 271 F.3d 583, 590 (4th Cir. 2001). Spoliation is governed by both the Federal Rules of Civil Procedure as well as the inherent authority possessed by federal courts. Id.

Recognizing "the serious problems resulting from the continued exponential growth in the volume of [ESI]," the Supreme Court promulgated Rule 37(e) in 2015. Fed. R. Civ. P. 37(e), advisory committee's note to 2015 amendment. The rule "authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify those measures." Id. As such, it "forecloses reliance on inherent authority or state law to determine when certain measures should be used." Id.

Red Onion's Rapid Eye surveillance system records and saves video footage electronically; it therefore constitutes ESI governed by Rule 37(e). Dkt. 77 at 135 (Swiney testifying that Rapid Eye video is stored electronically); Steves & Sons, Inc. , 327 F.R.D. at 105 (documents stored on computer and deleted in accordance with security policy constitute ESI and implicate Rule 37(e) ).⁶ Rule 37(e) provides four elements to determine whether spoliation of ESI has occurred:

6 Jenkins v. Woody , No. 3:15-cv-355, 2017 WL 362475, at *14, *17 (E.D. Va. Jan. 21, 2017) (finding jailhouse security footage constituted ESI); Storey v. Effingham Cty. , No. CV415-149, 2017 WL 2623775, at *3 (S.D. Ga. June 16, 2017) (same); Wooden v. Barringer , No. 3:16-cv-446-MCR-GRJ, 2017 WL 5140518, at *4 (N.D. Fla. Nov. 6, 2017) (same).

1) ESI should have been preserved in the anticipation or conduct of litigation;

2) it was lost;

3) the loss occurred because a party failed to take reasonable steps to preserve it; and

4); it cannot be restored or replaced through additional discovery.

Fed. R. Civ. P. 37(e).

Rule 37(e) displaces reliance on inherent authority, but it is grounded in the common law "duty to preserve relevant information when litigation is reasonably foreseeable. ... [I]t does not attempt to create a new duty to preserve." Fed. R. Civ. P. 37(e), advisory committee's note to 2015 amendment. Thus, whether ESI should have been preserved in anticipation of litigation under Rule 37(e) turns chiefly on two questions underlying the duty to preserve: 1) whether the party should have reasonably anticipated litigation, and 2) whether the party reasonably should have known that the evidence at issue might be relevant to such litigation. Steves & Sons, Inc. , 327 F.R.D. at 105.

If spoliation has occurred, Rule 37(e)(1) provides that the Court, "upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice." A district court has "broad discretion in choosing an appropriate sanction for spoliation," but such sanction must be "molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine." Silvestri , 271 F.3d at 590.⁷

7 Rule 37(e)(2) provides for more severe sanctions, such as presuming the information lost would be unfavorable to the spoliators or entering judgment against them, but these heightened sanctions may only be imposed "upon finding that the party acted with the intent to deprive another party of the information's use in the litigation." "Negligent or even grossly negligent behavior does not" suffice to impose that limited set of more stringent of Rule 37(e)(2) sanctions. Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment.

B. Analysis

The parties agree that the second and fourth elements of Rule 37(e) ’s four requirements are met—the video was lost and cannot be restored or replaced through additional discovery, Dkt. 48 at 8–12—but Defendant disagrees that the Rapid Eye video should have been preserved, or that the loss was due to Defendant's failure to take reasonable steps to preserve it. Defendant also contends that any loss of ESI was not prejudicial to Plaintiff.

1. Imputing spoliation by VDOC to Defendant

As a threshold matter, there is no dispute that Correctional Officer Gwinn, the only defendant named by Plaintiff in this suit, had neither the ability nor the responsibility in his capacity at Red Onion to save the video at issue. Dkt. 48 at 2–3; Dkt. 77 at 124. Rule 37(e) provides for sanctions when "a party fail[s] to take reasonable steps to preserve [ESI]." (Emphasis added). From this, Gwinn argues that he "should not be sanctioned for an inadvertent loss caused by a non-party." Dkt. 48 at 4.

The duty to preserve does not generally apply to non-parties to the litigation unless "some special relationship or duty arising by reason of an agreement, contract, statute, or other special circumstance" counsels in favor of an exception. Wilson v. Beloit Corp. , 921 F.2d 765, 767 (8th Cir. 1990) (citing Koplin v. Rosel Well Perforators, Inc. , 241 Kan. 206, 734 P.2d 1177, 1179 (1987) ); Pettit v. Smith , 45 F. Supp. 3d 1099, 1106 (D. Ariz. 2014) ; Tassin v. Bob Barker Co., Inc. , No. 16-cv-0382, 2017 WL 9963365, at *1 (M.D. La. Sept. 28, 2017). Courts have applied that principle in a number of cases to hold that state correctional departments and municipalities "ultimately bear responsibility for preserving evidence and litigating cases filed by prisoners," and so their failure to preserve evidence may be imputed to individual officer defendants "in order to avoid unfair prejudice" to inmate litigants. Harvey v. Hall , No. 7:17-cv-00113, 2019 WL 1767568, at *6 (W.D. Va. Apr. 22, 2019) ; see also Muhammad v. Mathena , No. 7:14-cv-0529, 2016 WL 8116155, at *8 (W.D. Va. Dec. 12, 2016), adopted by 2017 WL 395225 (W.D. Va. Jan. 27, 2017) ; Pettit , 45 F. Supp. 3d at 1109 ; Woods v. Scissons , No. 17-cv-08038, 2019 WL 3816727, at *4 (D. Ariz. Aug. 14, 2019) (finding city had a duty to preserve police dash cam footage in suit against individual officer).

Federal courts have said little about what constitutes a "special relationship" sufficient to extend the duty to preserve to non-parties, but see Andra Grp., LP v. JDA Software Grp., Inc. , No. 3:15-MC-11-K-BN, 2015 WL 12731762, at *15 (N.D. Tex. Dec. 9, 2015) (holding that a "close working relationship" with a party was insufficient to constitute a "special relationship" triggering a non-party duty to preserve), but in this case VDOC has a uniquely intertwined relationship with Defendant. VDOC employs Defendant, it trains Defendant, and through the Attorney General's office, it represents Defendant in this suit. VDOC—not Defendant—appears to control all evidence introduced in his favor, and through the grievance process, VDOC was responsible for resolving Plaintiff's dispute against Defendant internally before Plaintiff filed the suit. See Dkt. 48 at 5 ("None of these complaints or grievances were directed to Defendant Gwynn. Defendant Gwynn is not named as a responding party to any of the grievances, and there is no indication that any individual spoke with Defendant Gwynn about the claims raised in those grievances.").⁸ The Assistant Attorney General herself admits that any judgment against Defendant—at least with respect to compensatory damages—will be paid by VDOC unless it determines Defendant willfully or maliciously violated the law. Dkt. 77 at 151. Any sanction against Defendant will be in many important respects a sanction felt most acutely by VDOC. In this regard, to not impute spoliation to Defendant here would lead to absurd results—as if a court would not impute to a defendant in a negligence case deliberate destruction of admissible evidence the insurance company gathered about an automobile accident.

8 As the warden relayed Defendant's account that Plaintiff threatened to tamper with his cell's sprinkler head, it appears possible the warden spoke with Defendant in rejecting Plaintiff's regular grievance. Dkt. 48-1 at 3.

A seminal Fourth Circuit case on spoliation illustrates the point. Silvestri was a products liability case arising out of a plaintiff's injuries from an automobile crash. The car he was driving (which he neither owned or controlled), was later resold and repaired after the plaintiff's consultants examined the car, but before General Motors could inspect the vehicle. The Fourth Circuit rejected the plaintiff's argument that he "had no duty to preserve the vehicle because he was not its owner," which reflected "too narrow an understanding of the duty" to preserve material evidence. Silvestri , 271 F.3d at 591. Rather, the court explained that "[i]f a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Id.

In Silvestri , the plaintiff undoubtedly did not control the later-destroyed evidence, but was given "access" to it "for inspection purposes," and was able to use the inspections to support his claims against General Motors, though General Motors had not yet had the chance to do so. In another products liability case, the Fourth Circuit similarly affirmed a spoliation finding where an expert for the plaintiff's insurer investigated a defective product (electrical power equipment) but disposed of the equipment before the defendant had access to it. King v. Am. Power Conversion Corp. , 181 F. App'x 373, 377–78 (4th Cir. 2006) (unpublished). The court reiterated, "[i]f a party cannot fulfill this duty to preserve evince because he does not own or control the evidence , he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction." Id. at 378 (emphasis in original). In this case, Defendant may not have had "authority to preserve, review, or otherwise retain Rapid Eye camera footage," Dkt. 48-3 at 1, Dkt. 77 at 124, but, as in Silvestri and King , the mere fact that Defendant did not himself own or control the material evidence did not preclude a finding of spoliation. Indeed, while Defendant didn't have access to it, his employer VDOC did. Indeed, it employed investigators whose job it was to review, and preserve, such evidence. Id. at 124, 146–47.

And, as in Silvestri and King , Defendant benefitted substantially from use of the evidence that was destroyed before Plaintiff received access to it. Red Onion rejected Plaintiff's complaints against Defendant citing the Rapid Eye video as disproving Plaintiff's claim. Indeed, by May 26—not yet two months after the incident—Red Onion rejected Plaintiff's Level 1 grievance because "[a] review of rapid eye footage confirmed" that "Officer Gwynn did not open the tray slot of [Plaintiff's] cell and spray [Plaintiff] with OC as [he] allege[d]." Dkt. 48-1 at 3. Plaintiff expressly contested that representation in his appeal of the Level 1 resolution just five days later, writing that a review of the Rapid Eye video on April 5, 2016 between 7:10 a.m. and 7:30 a.m. would confirm his account of the altercation. Id. The relevance of this evidence was clear and material to VDOC's resolving Plaintiff's complaints against Defendant, and Plaintiff expressly contended the Rapid Eye video would support his version of events. Nonetheless, neither VDOC nor Defendant took any steps to assure that Plaintiff had "equal access to the evidence," nor any steps to fulfill the "obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence." Silvestri , 271 F.3d at 592. These factors further support a conclusion that spoliation of the evidence in VDOC's control would be "imputable" to Defendant, as it was in Silvestri. 271 F.3d at 592.

Furthermore, refusal to recognize a special relationship would lead to the absurd result that a state-run correctional facility could wrongly destroy any piece of evidence in its control with near-zero risk of consequence in prisoner suits. VDOC may not be named in an inmate's § 1983 suit for damages, Coleman v. Jabe , No. 7:11-cv-00518, 2013 WL 1209014, at *3 (W.D. Va. Mar. 25, 2013), and VDOC may not be held vicariously liable for the acts of its correctional officers, Vinnedge v. Gibbs , 550 F.2d 926, 927–29 & n.5–6 (4th Cir. 1977). Plaintiff could plausibly have named Fleming and Swiney as defendants, as both denied him medical attention on the morning of the incident and both reviewed the video at issue, but even they disclaim any responsibility for flagging it for preservation. Dkt. 77 at 124. According to Swiney, only Red Onion's internal investigator held the ability to preserve the footage now lost. Id. at 124, 126. But as there is no standalone cause of action for destruction of evidence, Turner v. United States , 736 F.3d 274, n.5 (4th Cir. 2013), no apparent path exists for Plaintiff to name Red Onion's internal investigator as a defendant in his excessive force claim against a correctional officer. Accepting Defendant's argument would encourage barriers to accountability for failure to preserve material evidence and undermine "the integrity of the judicial process" that "depends on the adversarial presentation of evidence" in order to "uncover the truth." See Silvestri , 271 F.3d at 590. Neither the law nor the facts of this case support accepting such an argument ripe for abuse and absurd results.

Thus, to prevent injustice to Plaintiff, and in recognition of VDOC's special relationship with Defendant in this suit, the Court finds that VDOC had a duty to preserve for purposes of Rule 37(e) and that, if this duty was triggered and spoliation is found, sanctions may be imposed against Defendant to remedy harm to Plaintiff caused by any failings by VDOC.

2. Duty to Preserve

Whether the video should have been preserved in anticipation of litigation turns on whether the common law duty to preserve was triggered before its destruction. "Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence." Turner , 736 F.3d at 282. But this duty "arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation." Silvestri , 271 F.3d at 591. Thus, whether VDOC had a duty to preserve the video turns on 1) whether VDOC should have reasonably anticipated litigation and 2) whether it should have known that the video might be relevant to such litigation. Steves & Sons, Inc. , 327 F.R.D. at 105.

When litigation becomes reasonably foreseeable "is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation." Micron Tech., Inc. v. Rambus Inc. , 645 F.3d 1311, 1320 (Fed. Cir. 2011). This is a "flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry." Id. (citing Fujitsu Ltd. v. Fed. Express Corp. , 247 F.3d 423, 436 (2d Cir. 2001) ). "[T]he duty seems to begin somewhere between knowledge of the dispute and direct, specific threats of litigation." Steves & Sons, Inc. , 327 F.R.D. 96 at 106 (internal quotations omitted). "Thus, courts in the Fourth Circuit have found that the receipt of a demand letter, a request for evidence preservation, a threat of litigation, or a decision to pursue a claim will all trigger the duty to preserve evidence." Id.

Several courts have held that the mere filing of grievances about an issue may trigger the duty to preserve on the part of a correctional facility. Barnes v. Harling , 368 F. Supp. 3d 573, 607 (W.D.N.Y. 2019) ("A duty to preserve may attach when an inmate is in a fight or when an inmate files grievances about the incident."); Allen v. Richardson , No. 16-cv-410, 2019 WL 135683, at *2 (W.D. Wis. Jan. 8, 2019) ("In these circumstances, the court rejects the notion that Allen's grievance could not trigger a duty to preserve."); see also Bistrian v. Levi , 448 F. Supp. 3d 454, 471 (E.D. Pa. 2020) ("the United States reasonably should have anticipated litigation soon after the Taylor attack and certainly before the video was overwritten three to four weeks later"). The Court need not adopt such a blanket approach. Nonetheless, the Court finds that litigation was foreseeable, at the latest, when Plaintiff filed grievances relating to the incident on April 12 and May 5, 2016, Dkt. 48-1 at 1–2, and then Red Onion issued its Level 1 response to the grievances on May 26, 2016. Id. at 3; Harvey , 2019 WL 1767568, at *5 ("I find that ROSP officials’ duty preserve this potentially relevant video evidence arose, at the latest, when Assistant Warden Artip, who was a high-ranking official at ROSP, signed the Level I response on August 16, 2016.").

Before beginning the grievance process, Plaintiff had verbally complained of the incident directly to the Red Onion officers tasked in the first instance with investigating Plaintiff's complaint and marking it for preservation. In response, Unit Manger Swiney investigated this complaint by viewing the footage at issue and determined the allegations were unsubstantiated. Dkt. 77 at 123–24. Plaintiff again complained of the incident in his written, informal complaint a week later, after which Sergeant Fleming reviewed the footage and determined the complaint was not substantiated. Dkt. 48-1; Dkt. 77 at 79. After that, Plaintiff timely filed his Level 1 grievance, which received a response by the Warden or Superintendent. Dkt. 48-1 at 3. By this point, VDOC, through Red Onion staff and officials at the highest levels, had notice of Plaintiff's written and verbal complaints of what he saw as a wrongful injury, the footage connected to this alleged injury, and Plaintiff's actions pursuing a remedy for this injury by fully exhausting VDOC's grievance procedure. By the time Plaintiff exhausted VDOC's grievance procedure, and especially coupled with Swiney's and Fleming's familiarity with the video at issue, litigation was reasonably foreseeable. Steves & Sons, Inc. , 327 F.R.D. at 106 ("[C]ourts in the Fourth Circuit have found that ... a threat of litigation, or a decision to pursue a claim will all trigger the duty to preserve evidence."). Even if Plaintiff's statements and grievances were not "direct, specific threats of litigation," VDOC had much more than mere "knowledge of the dispute," by the time Plaintiff completed the grievance process. Id. at 106.

In analyzing whether the duty to preserve was triggered in prison litigation, courts often consider whether the inmate-plaintiff alerted prison officers to the footage and requested its preservation. Harvey , 2019 WL 1767568, at *3 ; Bistrian , 448 F. Supp. 3d at 479–80. First, Plaintiff specifically told VDOC that the Rapid Eye video supported his version of events when he appealed the Level 1 response to his regular grievance: "A review of Raid Eye footage confirms [the use of force occurred] on the date of April 05, 2016 between approximately 7:10 a.m. and 7:30 a.m."⁹ Dkt. 48-1 at 3. That fact supports the duty to preserve, even if "there are no records reflecting that, in 2016, Plaintiff ever made a request to save the video from his housing unit." Dkt. 48 at 3. Second, Red Onion was well aware of the footage even if Plaintiff failed to follow VDOC protocol in formally requesting its preservation. Swiney and Fleming both reviewed the video in connection to Plaintiff's complaints, and relied heavily on it in denying his grievances. Because of this, VDOC's policy requiring Plaintiff to formally request the preservation of video evidence has little bearing on whether VDOC had a duty to preserve the video in anticipation of reasonably foreseeable litigation. Jenkins , 2017 WL 362475, at *14 ; Thompson , 219 F.R.D. at 100.

9 Plaintiff also received little indication during this grievance process that more was required of him to preserve the footage prior to its deletion. In denying Plaintiff's motion, Red Onion explicitly referenced the footage in question, indicating to Plaintiff that it was in their possession and that they were aware of its relevance to his allegations against them. Neither the informal complaint nor any other direct correspondence with Plaintiff alerted him that this video would be deleted despite its use in evaluating his grievances. See Silvestri , 271 F.3d at 591 ("If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.").

Thus, the Court finds that the Red Onion officers tasked in the first instance with reviewing the Rapid Eye video and requesting that it be preserved should have reasonably foreseen litigation regarding Plaintiff's allegations prior to the destruction of the footage, and the duty to preserve evidence therefore was triggered.

The Court next asks whether VDOC should have known that the video might be relevant to this foreseeable litigation. Steves & Sons, Inc. , 327 F.R.D. at 105. "Relevance in the context of spoliation is somewhat more stringent than the standard provided by Federal Rule of Evidence 401,"¹⁰ E.I. Du Pont De Nemours and Co. v. Kolon Indus., Inc. , 2011 WL 1597528, at *12 (E.D. Va. Apr. 27, 2011). Rather, with regard to the duty to preserve, courts have held that "lost or destroyed evidence is relevant if ‘a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.’ " Id. (quoting Thompson v. U.S. Dep't Hous. & Urban Dev. , 219 F.R.D. 93, 101 (D. Md. 2003) ). This standard is met. Defendant's own witnesses testified that the video showed Defendant at Plaintiff's cell with OC spray in hand during the timeframe Plaintiff alleged Defendant approached Plaintiff's cell and sprayed OC spray through the tray slot on Plaintiff's cell door. Dkt. 77 at 123–24. This alone would allow "a reasonable factfinder [to] could conclude" that the footage would have partially supported Plaintiff's claims and contradicted Plaintiff's testimony. Kolon Indus., Inc. , 2011 WL 1597528, at *12. The discussion in Part III.B.4 of this opinion, in which the Court concludes Plaintiff was prejudiced by the video's destruction because it would have likely aided Plaintiff's case, further supports this conclusion.

10 Federal Rule of Evidence 401 provides in part that that "[e]vidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence."

The significance of such video evidence to Plaintiff's claims can hardly be overstated. To litigants like Plaintiff with diminished credibility given their past convictions for crimes involving lying, cheating, or stealing, evidence providing an "unbiased and dispassionate depiction of events" is uniquely valuable. Jenkins , 2017 WL 362475, at *18. What's more, the record demonstrates that Red Onion appreciated the relevance of this video to Plaintiff's allegations. When Fleming reviewed and rejected Plaintiff's informal complaint, he claims to have relied chiefly on the video footage in finding that the complaint was not substantiated. Dkt. 77 at 90. The morning the alleged incident occurred, Swiney reviewed the footage to confirm what actually took place outside Plaintiff's cell. Id. at 124. Regardless whether Plaintiff specifically alerted Red Onion to the fact that their internal surveillance may have captured the incident on video—and he did when he appealed from his Level 1 grievance—Defendant's own evidence demonstrates that Red Onion officials, including those at the highest levels at Red Onion, understood the video was materially relevant to Plaintiff's allegations against Defendant.

3. Whether Red Onion took reasonable steps to preserve the evidence

Defendant also argues that he took reasonable steps to preserve this evidence. Under this fourth prong of Rule 37(e), "the duty to preserve is not meant to impose an unreasonable burden on parties anticipating litigation; they need not ‘preserve every shred of paper, every e-mail or electronic document, and every backup tape.’ " Jenkins , 2017 WL 362475, at *15 (quoting Zubulake v. UBS Warburg LLC , 220 F.R.D. 212, 217 (S.D.N.Y. 2003) ). Still, a party generally "must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents." Zubulake , 220 F.R.D. at 218. "More or less might be required for preservation in unusual cases, but those principles reflect the standard reasonableness framework." Steves & Sons, Inc. , 327 F.R.D. at 108. Here, notwithstanding the fact that Swiney and Fleming reviewed the Rapid Eye video to investigate Plaintiff's complaints and purported to rely on that video to reject his complaints; and notwithstanding the fact that Plaintiff expressly rejected that description of the video and said that a review of the Rapid Eye video on April 5, 2016 between 7:10 and 7:30 a.m. would confirm his account of the altercation, no steps whatsoever were taken by Defendant nor VDOC to preserve the video—much less "reasonable steps" under Rule 37(e).

Defendant's position on this issue only further demonstrates the weakness of his case. VDOC's chief tactic in litigating this issue at trial was to deflect any knowledge of or responsibility for the video's contents not just away from Defendant, but even from the witnesses who claimed to have actually reviewed the footage. Dkt. 77 at 164, 124, 136; Dkt 48-2 at 1–2. In opposing Plaintiff's motion, the Assistant Attorney General submitted with her opposition brief three pieces of evidence: Plaintiff's grievances, submitted to show he never requested the video (ignoring that Plaintiff specifically cited the video by day and time within a 20 minute window, and contended it supported his version of events); an affidavit from Defendant, stating that he never handles Rapid Eye footage; and an affidavit from Swiney, in which he speaks to the preservation procedures at Red Onion. Dkts. 48-1, 48-2, 48-3. But Red Onion's position raises many more questions than it provides answers. There is no explanation why Swiney's perspective on Red Onion's preservation procedures is relevant. He had no authority to order its retention; only the prison investigator, Fannin, had that authority. Swiney reported to Fannin that he (Swiney) had reviewed the footage and witnessed no incident. Swiney's explanation as to why Fannin did not retain the footage is pure supposition.

It beggars belief that in this day and age there is not enough space within the VDOC to store a few minutes of video for a period of time required by its own policies. One would think that Defendant would have called the investigator to testify if in fact he did not retain the video and if not, why not. Certainly, Fannin's investigation should have included viewing the video, as well as interviewing principal witnesses identified by Johns, like Nurses Adams, Surratt, and Mullins. Fannin could have also testified as to Red Onion's retention policy, which, according to the Assistant Attorney General, was that if the video favors the plaintiff (by showing a use-of-force incident), they would keep it, but if it favors them (by showing no such incident), they would not keep it.¹¹ The absurdity of this policy, if it be the policy, is plain from the following colloquy the magistrate judge and the Assistant Attorney General:

11 For example, Swiney and Fleming both stated that they believed an investigation was opened, but VDOC operating procedures provide: "When an investigation is conducted, the digital evidence shall be made available to the investigative unit and shall become part of the investigation file." OP 30.1. The investigator may have clarified why this video was not made a part of such investigation file.

THE COURT: How would you ever get to -- how would there ever be -- say, the most egregious case where it was clear that the video had evidence or depicted a violation of an inmate's rights and the only defendants were line officers, who didn't have the ability to preserve the videos; how would you ever -- how would a pro se prisoner ever bring a successful spoliation motion in that case if there isn't some claim against a higher-up related to the excessive force or whatever claim you would have?

MS. O'SHEA: I can't speak to every circumstance. Perhaps in the discovery phase, if it were discovered that the officers themselves knew what was shown in the video, went to the investigator or the custodian and said, Please don't save that; delete that. If they got in their hand a request from the inmate that said, Please save the video -- inmates can make requests for videos to be saved in their record forms -- if the officer got that request, folded it up and threw it in the trash. I mean, there are ways for some culpability imputable to the actual defendants to come out in the course of the case. But that's not what we have here. That's not what happened in the Boone case, which was affirmed by the Fourth Circuit.

THE COURT: That's a structure that the Department of Corrections has set up, that it's only certain level investigators that can ask for videos to be saved. If the Department of Corrections wrote a policy, which is within their purview, to say every officer, every Virginia Department of Corrections personnel can ask that video be saved, then we'd be in a different boat; right? I mean, this is the Virginia Department of Corrections policy that is essentially insulating line officers and potentially squashing a viable spoliation motion. I think that it's just structured that the Department of Corrections would make a spoliation motion be attributable to the defendant because it really is the Department of Corrections itself as an entity that has the ability to preserve this video. I just think the way the policy is written, it potentially insulates people so that there can never be a spoliation motion, even in a case where it's plain that it should lie. I understand your argument. I really disagree with it.

MS. O'SHEA: Fair enough. Minds can differ. I just think it would be a gross expansion of the spoliation doctrine to take an employer's failure to save something and impute that down to the employee when the employee is the only person who is sitting before the Court. It's not his fault. So to hold him individually or potentially culpable, to expose his pockets for something that his employer has done, I think is unconscionable in the other direction.

THE COURT: Officer Gwinn is being defended by the Attorney General's Office and is being defended as an employee. He's not had to hire his own counsel. Division of risk management is funding his defense.

MS. O'SHEA: His defense, but not if an award of damages is rendered against

him. That's not covered. The state retains the discretion to decline to cover compensatory damages if it's determined that an officer acted willfully and maliciously, which is the case in excessive force situations. So even though the state provides the defense, they don't necessarily cover damages if damages were to be assessed and awarded in a given situation.

THE COURT: When is that decision made? Is it only after a verdict? It's usually made earlier so that an officer can retain counsel, isn't it? Right?

MS. O'SHEA: Not in terms of punitive damages. Those aren't made until after -- in terms of whether to cover a damages award, that's not made until after a verdict, ever. It's the decision whether or not to represent an individual that is done at the forefront, not in terms of what might happen ultimately in a damages situation.

THE COURT: All right.

Dkt. 77 at 148–51.

VDOC will not be rewarded for its policy of attempting to insulate responsibility for spoliation to a select few unreachable in the vast majority of suits by inmates. To prove spoliation, Plaintiff must demonstrate that the footage was lost because VDOC failed to take reasonable steps to preserve it. Fed. R. Civ. P. 37(e). At bottom, the evidence showing a failure to take any (much less reasonable) steps to preserve the video is clear and consistent. By contrast, Defendant's and VDOC's counter-narrative lacks coherence and is rife with speculation. On this record and in the complete absence of evidence as to what Fannin did or did not do to preserve the footage, the Court concludes that Plaintiff has met his burden here.

To be sure, Plaintiff's assertions and the record on this issue do not establish the degree to which VDOC was culpable in letting this evidence be destroyed. But, with respect to the preliminary issue whether there was spoliation in the first place,¹² "[i]n the Fourth Circuit, any level of fault, whether it is bad faith, willfulness, gross negligence, or ordinary negligence, suffices to support a finding of spoliation." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 803 F. Supp. 2d 469, 497 (E.D. Va. 2011). That standard has been met here.

12 This should be distinguished from whether or to what degree sanctions for spoliation are warranted, particularly the heightened sanctions under Rule 37(e)(2), for which "Negligent or even grossly negligent behavior does not" suffice. Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment.

4. Prejudice

Even after finding that spoliation occurred under Rule 37(e), a court may not impose sanctions remedying the spoliation without first finding that the moving party was actually prejudiced by the spoliation. Fed. R. Civ. P. 37(e)(1) ; Steves & Sons, Inc. , 327 F.R.D. at 109. "An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information's importance in the litigation." Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment. Although the moving party "cannot be expected to demonstrate with certainty the content" of the lost evidence, E.I. du Pont de Nemours , 803 F. Supp. 2d at 498–99, Steves & Sons, Inc. , 327 F.R.D. at 105, the moving party must demonstrate a likelihood that the lost evidence would have been favorable to the moving party's case. Thompson v. Clarke , No. 7:11-cv-00111, 2019 WL 4039634, at *6 (W.D. Va. Aug. 27, 2019). Cf. Harvey v. Hall , No. 7:17-cv-00113, 2019 WL 1767568, at *7 (W.D. Va. Apr. 22, 2019) (stating that the plaintiff was not prejudiced because evidence showed that even if the events occurred, the video evidence would not have captured them). While the magistrate judge determined, based on the testimony of Fleming and Swiney, that the Rapid Eye footage "could not possibly have shown Gwinn putting his arm through the slot and spraying Johns with OC spray during that timeframe," R&R at 28, the weight of the evidence produced at trial tells a different story.

First, the available documentary evidence supports that OC spray was deployed against Plaintiff. Nurse Mullins noted in Plaintiff's medical record upon inspecting him that morning under "Complaint and Treatment": "OC spray utilized[.] Inmate was decontaminated no injuries noted." Dkt. 68-3. While the Assistant Attorney General asks the Court to accept that it is "plausible" that Nurse Mullins was merely relaying Plaintiff's subjective complaint, Dkt. 77 at 158, the fact that Nurse Mullins then took action on Plaintiff's complaint ("Inmate was decontaminated") tends to show that Plaintiff was in fact contaminated before being decontaminated. Dkt. 68-3. The Court finds that is the case even if Nurse Mullins also wrote "no injuries noted." In any event, Nurse Mullins was not called as a witness, and the record does not reveal why. Vodusek v. Bayliner Marine Corp. , 71 F.3d 148, 156 (4th Cir. 1995) ("As a general proposition, the trial court has broad discretion to permit a jury to draw adverse inferences from a party's failure to present evidence, the loss of evidence, or the destruction of evidence."). The Court draws the inference from Nurse Mullin's note that "OC spray [was] utilized," that Plaintiff was contaminated, and that she ordered he be decontaminated. This document corroborates Plaintiff's testimony that he was in fact sprayed with OC on the morning of April 5, 2016.

Second, Plaintiff offered documentary evidence showing that on the morning of the alleged incident, two Red Onion officials requested confirmation from medical staff that Plaintiff would not have an adverse reaction to OC spray. One confirmation was at 7:25 a.m., during the window Plaintiff alleges the assault occurred; the other at 8:10 a.m., ten minutes before Plaintiff was scheduled to be transferred from D-3. Dkt. 68-2. To be sure, Defendant's evidence shows that typically only sergeants and above may seek such medical confirmation, and in any event corrections officers are not required to receive such confirmation before using OC spray against an inmate. Nonetheless, the fact remains that the Red Onion officers testifying at trial—which included the cell block's supervising officers—could account for only one of the two confirmations sought that morning. Dkt. 77 at 80. The presence of the unaccounted-for confirmation on the use of OC spray against Plaintiff that same morning supports the conclusion that more than one person seriously considered or anticipated the possibility of spraying Plaintiff with OC spray that morning.

Third, Plaintiff and Watson, the inmate in the cell next to him, testified consistently with Plaintiff's documentary evidence. Their testimony must be considered in light of the fact that both have been convicted of crimes involving lying, cheating or stealing. R&R at 6, 11. Nonetheless, Watson corroborated Plaintiff's testimony that Defendant passed Plaintiff's cell as he accompanied Nurse Adams and Nurse Surratt through the D-3 unit; Defendant stopped at Plaintiff's cell; and Defendant opened Plaintiff's tray slot and sprayed him with OC spray, which Watson smelled immediately thereafter. Plaintiff's and Watson's testimony were also consistent with the logbooks Defendant introduced at trial, and which were not provided to Plaintiff until the outset of trial. Dkt. 68-5 at 2 (providing that nurses began pill pass at 7:10 a.m. on April 5, 2016); Dkt. 77 at 2:16.

On the other hand, the testimony of several defense witnesses lacked credibility on the stand. For instance, Swiney, who oversaw Plaintiff's housing unit at the time of the incident, testified that he viewed the Rapid Eye security video shortly after the incident, and that it corroborated Defendant's testimony that force was not used. Dkt. 77 at 127. However, there are several reasons to question the strength of this testimony. First, Swiney's testimony conflicts with that of other defense witnesses in numerous respects. Defendant testified that he likely passed by Plaintiff's cell several times that morning before his transfer, Dkt. 77 at 59 ("I had been by his cell a couple different times that morning"), but Swiney testified that he only saw one instance on the video where Defendant passed in front of Plaintiff's cell. Swiney also could not say who else approached Plaintiff's cell that morning, Dkt. 77 at 133, but Defendant testified and documentary evidence showed that at least Fleming spoke with Plaintiff prior to his transfer, Dkt. 68-5; Dkt. 77 at 79. And Swiney testified that Defendant was alone on the only occasion he witnessed Defendant approach Plaintiff's cell—the occasion Swiney states that Defendant unholstered and reholstered his OC spray. Dkt. 77 at 127. But again, that conflicts with Defendant's own testimony that this encounter took place while escorting the two Red Onion nurses by Plaintiff's cell. Dkt. 77 at 73.

Second, beyond these contradictions, Swiney's testimony on the video was remarkably vague. He could not recall what time he saw Defendant approach Plaintiff's cell and remove his OC spray. Dkt. 77 at 127. Nor could he recall the timeframe he viewed on the security footage. Id. at 123. Indeed, from the contradictions between Swiney's and Defendant's testimony, it appears entirely possible if not probable Swiney was describing a wholly different encounter between Plaintiff and Defendant.

Finally, the Court must acknowledge Swiney's natural bias in favor of Defendant when considering his testimony, and the chance that this may color his interpretation and description of the events he witnessed on the Rapid Eye video. By the time of trial, if any of the prison guards testified differently, they would incriminate themselves for not having responded directly to the incident by providing medical attention or recording the use of force. In the same vein, Defendant's documentary evidence—Red Onion logbooks offered for the proposition that, had Defendant in fact deployed OC spray against Plaintiff without provocation, he and his fellow Red Onion officials would have documented it in several ways—are unpersuasive for the same reason. E.g. , Dkt. 77 at 64 ("Q. If you had used OC spray on Mr. Johns on April 5, 2016, is that something you would have documented? A. Yes, ma'am."). The fact that uses of force should be documented and likely are documented when lawfully or justifiably employed, is considerably less persuasive when the argument is stretched to contend that one who unlawfully uses OC spray would always have recorded his unlawful act.

Defendant's own testimony was also unpersuasive in several respects, further weighing in favor of Plaintiff's narrative. For instance, Defendant testified that he did not believe he ever removed his OC spray during any interaction with Plaintiff that day, Dkt. 77 at 62, but he walked this back after leading questions by the Assistant Attorney General, see Dkt. 77 at 75 ("Q. Officer Gwinn, is it possible that you went to remove your OC canister from its holster on that date and you just don't recall? Or is it your testimony that it didn't happen at all? A. It's possible that I could have. ...."). Indeed, Swiney relayed that on the day of the incident, Defendant stated that he removed his OC cannister during an interaction with Plaintiff, Dkt. 38-2 (First Swiney affidavit). Swiney later contradicted Defendant's testimony as well, stating that the Rapid Eye video showed Defendant unholster then reholster his OC cannister on the morning of the incident while standing at Plaintiff's cell door. Dkt. 77 at 124. And although Defendant was initially adamant that he never accessed Plaintiff's tray slot during this encounter, id. at 62, he admitted on cross examination that he "could have accessed it sometime during that day, or during pill pass. " Id. at 75 (emphasis added). While Nurse Adams and Nurse Surratt might have corroborated Defendant's testimony, the defense failed to call either to testify.

The Court finds Plaintiff's testimony fully reconcilable with Defendant's testimony about the implausibility of reaching through a tray slot to use OC spray on an inmate, and the impossibility of using a single cannister of OC spray for several minutes. R&R at 24. To be exact, Plaintiff testified not that the OC spray was deployed continuously for this extended period, but that "[Defendant] would press it and let it go and press it and let it go," deploying the OC spray in intermittent bursts. Dkt. 77 at 39; see also id. at 41 ("I don't remember him actually just holding the button down."). In any event, the inmate in the cell next to Plaintiff, Michael Watson, testified that only a few seconds passed between Defendant walking over to Plaintiff's cell and Plaintiff calling for medical attention. R&R at 25. The Court finds any discrepancy concerning the length of the incident does not discredit Plaintiff's (and the other evidence) that it happened in the first place. Indeed, it would be wholly unremarkable for Plaintiff to have felt and considered that such a painful event lasted longer than it actually did. That does not mean the event did not occur.

On the other hand, the Court finds little implausible about a correctional officer spraying an inmate with OC spray through the tray slot on an inmate's cell door.¹³ The Court need not discount the testimony of two Red Onion officers who testified they had never seen an officer do that before, or even Defendant's testimony that it would be "very dumb" and "pretty foolish" to put one's hand and arm through the tray slot. See R&R at 24. Even taking all that as true, nothing in the record indicates that Defendant would have necessarily exposed himself to such risk of injury by sticking his arm through the tray slot to use OC spray on Plaintiff, as he could have done so after seeing that Plaintiff was located at a safe distance. In any event, regardless whether Plaintiff exaggerated in recalling the duration of the attack—and if so, for what purpose—the Court finds his testimony, corroborated by other evidence, particularly Nurse Mullins's report as well as the logbook, more consistent and credible than that of Defendant and the other Red Onion officers called as witnesses at trial. See Dkts. 68-2; 68-3. All told, the Court finds that the weight of the evidence leads to the conclusion that Defendant did in fact use OC spray against Plaintiff on April 5, 2016, and as a result, the lost Rapid Eye video would have been favorable to Plaintiff's case. Plaintiff was prejudiced due to the loss of the video because the evidence would have likely corroborated Plaintiff's testimony. Jenkins , 2017 WL 362475, at *18.

13 Indeed, not probative to this particular case, but this is a curious contention for Red Onion officials to make, given the amount of litigation arising from Red Onion in which corrections officers admitted to engaging in this practice. See Gorham v. Barksdale , No. 7:15-cv-00437, 2018 WL 1595628, at *2 (W.D. Va. Mar. 31, 2018) (Dillon, J.); see also Thompson v. Clarke , No. 7:11-cv-00111, 2019 WL 4039634, at *5 (W.D. Va. Aug. 27, 2019) ("it is undisputed that OC spray was used on Thompson through the opening in Thompson's cell door tray slot"); Delk v. Moran , No. 7:16-cv-00554, 2019 WL 1370880, at *11 (W.D. Va. Mar. 26, 2019) ("Adams then used a half-to-one-second burst of spray through the tray slot at Delk's face."). Having robust procedures to preserve video-recordings of any such incidents within Red Onion, and, just as importantly, taking steps to ensure record-retention procedures are regularly followed, would stand to benefit the Court, VDOC, corrections officers and prisoner-plaintiffs alike—providing objective evidence of any meritless claims, and serving as a safeguard against any impropriety in the first instance.

5. Sanctions

The next question is what sanctions are appropriate to cure this prejudice. To impose the most stringent sanctions listed under Rule 37(e)(2), the Court must first find that the spoliator acted with an intent to deprive the moving party of the evidence for use in litigation. With insufficient evidence as to the intent of Red Onion officers, the Court will not go so far here. However, the Court "has broad discretion to choose the appropriate sanction for a party's spoliation" pursuant to Rule 37(e)(1). Jenkins , 2017 WL 362475, at *12. Such sanctions may include "forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies." Fed. R. Civ. P. 37(e), commentary to 2015 Amendments.

The Court will impose a limited sanction on Defendant under Rule 37(e)(1), not by excluding Fleming and Swiney's testimony altogether, but by giving it less weight, on account of diminished credibility, regarding what they observed on the Rapid Eye video. The fact that they failed to preserve the video when they should have, and their natural predisposition to be favorable to Defendant,¹⁴ persuades the Court that their testimony about what they observed on the video is less credible than if they had, for example, taken steps to preserve the video but it was later destroyed through no fault of their own. In any event, this sanction is not material to the Court's findings of fact, or its findings that Plaintiff has proven his case.

14 The Court again finds significant the failure by Defendant or his counsel to present any evidence from the one person who they claim had authority to order the retention of the Rapid Eye video, Investigator Fannin.

IV. Findings of Fact

Pursuant to the foregoing discussion, the Court makes the following Findings of Fact, in which the Court sustains Plaintiff's objections to the R&R and amends the R&R's proposed findings of fact as follows:

1. Plaintiff Johns was incarcerated within VDOC at Red Onion State Prison on April 5, 2016. He was housed in cell D-307 until 8:19 a.m. that day. Cell D-307 is a segregation cell located in D-3 pod.

2. Defendant Gwinn was a correctional officer employed by VDOC at Red Onion on April 5, 2016. Gwinn worked in D-3 pod from 6:00 a.m. to 6:00 p.m. that day.

3. Non-party Lewis was a correctional officer employed by VDOC at Red Onion on April 5, 2016. Lewis

worked with Gwinn in D-3 pod that day.

4. Non-party Fleming was a sergeant employed by VDOC at Red Onion on April 5, 2016. Fleming entered D-3 pod at 6:52 a.m. and 8:05 a.m. that day. He conducted rounds beginning at 7:10 a.m.

5. Non-party Swiney was a unit manager employed by VDOC at Red Onion on April 5, 2016. Swiney entered D-3 pod at 8:15 a.m. and 1:04 p.m. that day. He conducted rounds at 1:05 p.m.

6. Non-party Williams was a sergeant employed by VDOC at Red Onion on April 5, 2016. He worked in the D building's control booth that morning.

7. Non-party M. Mullins was a correctional officer employed by VDOC at Red Onion on April 5, 2016. He worked with Williams in the D building's control booth that morning.

8. Non-party Nurse L. Mullins was employed by VDOC at Red Onion on April 5, 2016. She was working in B-3 pod that morning.

9. Non-party Nurse Surratt was employed by VDOC at Red Onion on April 5, 2016. She was working in B-3 pod that morning.

10. Non-party Nurse Adams was employed by VDOC at Red Onion on April 5, 2016. She was working in B-3 pod that morning.

11. At 7:10 a.m. on April 5, 2016, Nurse Adams and Nurse Surratt entered D-3 pod for morning pill pass. Gwinn escorted them around the pod.

12. Between 7:10 and 7:45 a.m., Gwinn, Nurse Adams and Nurse Surratt passed by cell D-307, where Johns was being held.

13. At 7:25 a.m., an unidentified Red Onion officer requested medical clearance to use OC spray or electronics on Johns. Nurse Adams reviewed Johns's chart and noted no contraindications.

14. As Gwinn and Nurse Adams passed D-307 and reached D-308, Nurse Surratt informed Gwinn that Johns was masturbating in D-307. Thereafter, Johns and Gwinn engaged in a verbal altercation. Johns was not attempting to break or threatening to break the sprinkler head in his cell.

15. Gwinn unholstered the OC spray on his belt, opened the tray slot on cell D-307, stuck the OC far enough into the tray slot's opening to be able to spray the cannister into the cell, and then deployed the OC spray in Johns's direction in short repeated bursts, hitting Johns's face and chest.

16. During this altercation, Johns posed no threat to Gwinn or to any person, to state property, or to institutional safety or security at the time that Gwinn deployed the OC spray.

17. During this incident, Gwinn did not perceive Johns as a threat to the safety or security of the institution, state property, or to anyone at the time he deployed the OC spray.

18. The OC spray caused burning pain to Johns's eyes and skin, and Johns experienced emotional anguish and humiliation as a result of the incident and resulting injury.

19. After Johns's exposure to OC spray, he requested medical assistance from Nurse Adams and Nurse Surratt, from Red Onion staff passing by his cell, and through intercom device in his cell.

No medical assistance was given at that time.

20. At 8:10 a.m., an unidentified Red Onion officer requested medical approval to use OC spray or electronics on Johns. Nurse Adams reviewed Johns's chart and noted no contraindications.

21. Fleming sought medical clearance to use OC spray on Johns only once on April 5, 2016. He did not remember what time he contacted the medical department.

22. At 8:19 a.m., Fleming, Swiney, and an unidentified correctional officer escorted Johns out of the D building to the B-3 pod in the B building. Johns complied with Fleming's orders.

23. Upon arrival at the B-3 pod in the B building, Johns was taken to Captain Steele, Sergeant Farmer, and Correctional Officer Messer. Johns informed Captain Steele that Gwinn had sprayed him with OC spray but he had not been decontaminated. Captain Steele summoned Nurse Mullins to assess Johns.

24. At 8:30 a.m., Johns told Nurse Mullins that he had been exposed to OC spray. Nurse Mullin noted in Johns’ medical record upon inspecting him that morning under "Complaint and Treatment": "OC spray utilized. Inmate was decontaminated no injuries noted." That note reflected Nurse Mullin's conclusion OC spray was utilized on Johns. Nurse Mullins told the officers escorting Johns to give him a "decontaminat[ion] shower."

25. On April 11, 2016, Johns submitted an Informal Complaint describing Gwinn's alleged misconduct.

26. The cell where Johns was housed, D-307, had a solid metal door with a narrow window and a tray slot attached to the front.

27. The Rapid Eye video that Swiney and Fleming reviewed would have captured activity outside of Johns's cell. It would not have recorded activity inside the cell.

28. Swiney reviewed the relevant Rapid Eye video from D-3 pod on the day Johns alleged the incident occurred.

29. The video showed Gwinn at the tray slot with his OC cannister in his hand.

30. Fleming reviewed the relevant Rapid Eye surveillance footage from D-3 pod before responding to Johns's Informal Complaint on April 27, 2016.

V. Conclusions of Law

The Eighth Amendment "protects inmates from inhumane treatment and conditions while imprisoned." Iko v. Shreve , 535 F.3d 225, 238 (4th Cir. 2008). This includes using OC spray "in greater quantities than necessary" to maintain or restore discipline "or for the sole purpose" of inflicting pain on an inmate." Williams v. Benjamin , 77 F.3d 756, 763 (4th Cir. 1996). Prevailing of on such a claim requires proof of two elements: that a serious use of force occurred and that Defendant did so "maliciously and sadistically rather than as a part of a good-faith effort to maintain or restore discipline." Wilkins v. Gaddy , 559 U.S. 34, 40, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010). Because the magistrate judge concluded that Plaintiff failed to prove that the use of force alleged by Plaintiff occurred (the first prong of his Eighth Amendment claim), he did not reach the second prong. Id. at 20, 23–24; Wilkins , 559 U.S. at 40, 130 S.Ct. 1175. This Court has found by a preponderance of the evidence that Plaintiff was sprayed with OC spray on the morning of April 5, 2016, and that Defendant was the Red Onion officer who did so. Accordingly, this Court will address the two elements under Wilkins , in turn.

A. Occurrence of a "serious" use of force

A court evaluating an Eighth Amendment excessive force claim must first ask whether the use of force was "sufficiently serious to establish a cause of action." Brooks v. Johnson , 924 F.3d 104, 112 (4th Cir. 2019) ; Wilkins , 559 U.S. at 34, 130 S.Ct. 1175 (stating that courts must "decide excessive force claims based on the nature of the force rather than the extent of the injury"). "This is not a high bar, requiring only something more than ‘de minimis ’ force." Brooks , 924 F.3d at 112. Here, the use of force here—use of OC spray—constitutes a sufficiently serious use of force to meet this prong of the analysis. Shiheed v. Harding , 802 F. App'x 765, 767 (4th Cir. 2020) ("Shiheed satisfied the objective component when he alleged that Harding used pepper spray against him without justification."); Tedder v. Johnson , 527 F. App'x 269, 274 (4th Cir. 2013) (holding that an "adverse physical reaction to the pepper spray—gagging, breathing difficulty, and vomiting—establishes that the nature of the force [prison officials] used against [him] was nontrivial"); Gorham v. Barksdale , No. 7:15-cv-00437, 2018 WL 1595628, at *8 (W.D. Va. Mar. 31, 2018) (Dillon, J.) ("There is no question that Officer O'Quinn’s use of OC spray on Gorham's face constitutes more than a nontrivial use of force.").

B. Whether the assault occurred maliciously and sadistically

The second component of an Eighth Amendment excessive force claim "asks whether the officer[ ] acted with a sufficiently culpable state of mind." Brooks , 924 F.3d at 112 (internal citations omitted). "[T]his is a demanding standard; the state of mind required is wantonness in the infliction of pain." Id. Whether the officer acted with the requisite wantonness "ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers , 475 U.S. 312, 320–21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). "Corrections officers act in ‘good faith effort to maintain or restore discipline’ ... not only when they confront immediate risks to physical safety, but also when they attempt to ‘preserve internal order’ by compelling compliance with prison rules and procedures." Brooks , 924 F.3d at 113 (quoting Hudson v. McMillian , 503 U.S. 1, 3, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ). "But corrections officers cross the line into impermissible motive ... when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination." Id.

The Supreme Court has identified four non-exclusive factors to guide judicial analysis of whether an officer acted wantonly in the use of force: 1) the need for the application of force; 2) the relationship between the need and the amount of force that was used; 3) the extent of any reasonably perceived threat that the application of force was intended to quell; and 4) any efforts made to temper the severity of a forceful response. Whitley , 475 U.S. at 321, 106 S.Ct. 1078 ; Iko , 535 F.3d at 239. Defendant's position at trial was not that there was a justified use of force to curb Plaintiff's misconduct, but that there was no application of use of force at all. In fact, Defendant conceded that Plaintiff engaged in no misconduct that would justify any use of force or discipline. Dkt. 77 at 68 ("Q. What about a disciplinary charge? Did you write him a disciplinary charge for standing on the sink? A. No, ma'am. Q. Why not? A. He didn't do nothing ...."). Moreover, the Court has made findings of fact that when Defendant deployed his OC spray through Plaintiff's tray slot, hitting Plaintiff in the face and chest, Plaintiff posed no threat to Defendant, to any person, to state property, or to institutional safety or security, and that Defendant did not perceive Plaintiff to be such a threat at that time. See supra Findings 16, 17, 18. Defendant therefore acted wantonly in using OC spray against Plaintiff without reason. As a purported Eighth Amendment violation by excessive force should be analyzed "based on the nature of the force rather than the extent of the injury," the fact that Plaintiff did not suffer lasting injury from the assault does not change this conclusion. Wilkins , 559 U.S. at 34, 130 S.Ct. 1175.

Because the Court concludes that Defendant subjected Plaintiff to a serious use of force by spraying him with OC spray through the tray slot in his cell, and that Defendant did so "maliciously and sadistically rather than as a part of a good-faith effort to maintain or restore discipline," Wilkins , 559 U.S. at 40, 130 S.Ct. 1175, the Court finds that Defendant violated Plaintiff's Eighth Amendment rights and may be held liable under 42 U.S.C. § 1983.¹⁵

15 Defendant did not assert an entitlement to qualified immunity if the assault was found to occur. Regardless, qualified immunity would not shield the conduct at issue. Williams , 77 F.3d at 763 (holding that it was clearly established in the Fourth Circuit that prison officials violate the Eighth Amendment when they use "mace, tear gas or other chemical agents in quantities greater than necessary or for the sole purpose of infliction of pain").

VI. Remedies

Plaintiff requests four forms of relief: 1) A declaratory judgment stating that Defendant's actions violated the Eighth Amendment; 2) an injunction ordering Plaintiff released from punitive segregation and transferred to Sussex 1 or Sussex 2 State Prison and place him in general population, "with restoration of all rights and privileges"; 3) $10,000 in compensatory damages against Defendant for physical and emotional injuries sustained as a result of the Eighth Amendment violation; and 4) $8,000 in punitive damages.

A. Compensatory Damages

When liability is found under § 1983, courts may award compensatory damage to include "not only out-of-pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation ... personal humiliation, and mental anguish and suffering.’ " Memphis Cnty. Sch. Dist. v. Stachura , 477 U.S. 299, 306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ). Here, absent a showing of lasting physical or emotional injury, the Court finds $3,000 in compensatory damages to be a fair and reasonable award to Plaintiff for the physical pain, emotional anguish and humiliation caused by Defendant's use of OC spray against him.

B. Punitive damages

Punitive damages in civil rights actions are available where "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade , 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). While "there is no requirement that the standard for punitive damages be higher than the standard for determining liability" in a § 1983 action, "the mere existence of a civil rights violation is not a guarantee of eligibility for punitive damages because a defendant might not be aware of the federal law he violated or he might have honestly believed that the discrimination was permissible." Smith v. Pepersack , 194 F.3d 1305, 1305 (4th Cir. 1999) (table). "The focus [in awarding punitive damages] is on the character of the tortfeasor's conduct—whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards." Wade , 461 U.S. at 54, 103 S.Ct. 1625.

Defendant makes no assertion that he "honestly believed the [use of force] was permissible" under federal law. Id. To the contrary, using OC spray against an inmate who presents no threat or serious recalcitrance evinces at least reckless indifference to that inmate's Eighth Amendment rights, and Defendant cannot claim to be motivated by a mere "misunderstanding of the limits of his constitutional authority." Clark v. Coleman , 448 F.Supp.3d 559, 579 (W.D. Va. 2020). Because the evidence demonstrates that Defendant evinced reckless indifference to Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment, the Court will award Plaintiff $1,000 in punitive damages. The Court finds that, in view of Defendant's employment and position, this sum of punitive damages is appropriate and not in excess of his ability to pay.

C. Injunctive and declaratory relief

Plaintiff fails to show entitlement to injunctive relief in the form of a transfer to general population at another state prison. Especially where Plaintiff seeks redress for a past harm and alleges no future threat against him, the Court finds that an injunction ordering him transferred to another facility would extend "further than necessary to correct the violation of the federal right," and is not "the least intrusive means necessary to correct the violation of the federal right." 18 U.S.C. § 3626(a)(1)(A). The Court denies Plaintiff's request for declaratory relief as moot in light of its judgment in favor of Plaintiff.

D. Conclusion

The Court will sustain Plaintiff's objections to the R&R, grant Plaintiff's spoliation motion, and enter Judgment in favor of Plaintiff on his Eighth Amendment claim pursuant to the above Findings of Fact and Conclusions of Law. An appropriate order will issue.