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Casias v. State, Department of Corrections

United States District Court, D. New Mexico

September 10, 2018

ISAHA CASIAS, Plaintiff,
v.
STATE OF NEW MEXICO DEPARTMENT OF CORRECTIONS; TARACINA MORGAN; and HERMAN GONZALES, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on the following motions: (i) Defendants' Motion in Limine to Exclude Photographic and/or Video Trial Exhibits (ECF No. 125); (ii) Defendants' Motion in Limine to Limit Needlessly Cumulative Testimony by Plaintiff's Witnesses (ECF No. 127); (iii) Plaintiff's Motion in Limine No. II: Allow Evidence of Destruction of Evidence by Defendants Including Jury Instruction on the Destroyed Evidence or in the Alternative a Renewal of Plaintiff's Motion for Sanctions Up To and Including Default (ECF No. 130); (iv) Plaintiff's Motion in Limine No. III: To Bar the Admission of Certain Deposition Testimony by Dr. Kimberly Birch (ECF No. 133); and (v) Plaintiff's Motion in Limine No. IV: To Exclude Evidence of Crimes and Other Bad Acts (ECF No. 134). The Court, having considered the motions, briefs, arguments, evidence, relevant law, and otherwise being fully advised, rules on the motions as described herein.

         I. BACKGROUND

         This case arises from the transportation by Defendants of inmates on July 11, 2013. Plaintiff alleges that while at the Penitentiary of New Mexico North (“PNM North”) State Department of Corrections (“DOC”) Officers Taracina Morgan and Herman Gonzales turned off the transport van, entered the facility, and left the inmates in the back of the windowless van without air conditioning for approximately 30 to 40 minutes. See Pretrial Order 7, ECF No. 121. Plaintiff contends that, as a result of the heat, he felt like he was going to die, he lost consciousness, and he had what appeared to be a seizure. Id. 7-8. Medical staff, including Dr. Kimberly Birch, who worked in the Health Care Unit responded and evaluated the inmates. See Id. 8-9. Defendants dispute many of these allegations, including the length of time the inmates were left unattended in the van and whether any inmates were seizing. See Id. 9-10.

         II. MOTIONS IN LIMINE

         A. Defendants' Motion in Limine to Exclude Photographic and/or Video Trial Exhibits (ECF No. 125)

         On October 17, 2016, counsel toured the sally port area at PNM North during which a photographer hired by Plaintiff took photographs and video. Defendants object to the introduction of the photographs on the basis that the security cameras depicted in the sally port area on the date the photographs were taken are not the same as what existed on July 11, 2013. Defendants argue that Plaintiff cannot meet the authentication requirements of Federal Rule of Evidence 901(a) because the photographed scene does not fairly and accurately depict the scene at the time of the incident. They also contend that the prejudicial effect outweighs their probative value under Rule 403.

         Plaintiff disputes that there were no video cameras in the sally port area on the date of the incident. Regardless of that fact issue, Plaintiff contends that the photos and video as a whole are a fair and accurate representation of the scene of the incident and will enable the jury to see and evaluate the conditions where the incident in the van occurred, such as the direct sunlight, lack of shade, and the pavement reflecting the heat.

         “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). “[E]ven if the conditions have changed, the photograph may still be admitted at the discretion of the court if the changes are explained and the jury will not be misled.” Newill v. Campbell Transp. Co. Inc., No. 2:12-cv-1344, 2015 WL 222438, at *4 (W.D. Penn. Jan. 14, 2015) (unpublished) (quoting 5 Federal Evidence § 9:23).

         The photographic evidence is relevant to the case to assist the jury in visualizing the scene of the incident. Defendants can probe through cross examination any differences between how the area looked at the time of the incident and how the area looks in the photographs. Those issues go to the weight and credibility of the evidence, rather than its admissibility. Moreover, as discussed infra, the Court will permit Plaintiff to question witnesses concerning the video camera evidence and the reasons why video evidence from inside the sally port area on the date in question may not be presented at trial. Subject to a proper foundation being laid at trial, the Court will not exclude the photographic evidence and will deny Defendants' motion in limine. This ruling does not preclude Defendants from raising any objections at trial to proper foundation and relevance.

         Defendants also raise an issue in their reply about the relevance of photographs of holding cells inside PNM North. Without the benefit of the evidence at trial or argument by Plaintiff, the Court is unable to determine the relevance of those photographs. The Court will reserve ruling on the admissibility of the holding cell photographs until trial.

         B. Defendants' Motion in Limine to Limit Needlessly Cumulative Testimony by Plaintiff's Witnesses (ECF No. 127)

         Relying on Rule 403, Defendants contend that the Court should exclude needlessly cumulative evidence, noting that Plaintiff has listed nine witnesses to discuss the incident in the van and six people to testify about Plaintiff's psychological and emotional distress damages. Plaintiff asserts that Defendants have contested most aspects of Plaintiff's account of the incident, so the numerous witnesses are critical to support Plaintiff's claims. Plaintiff asserts that his experts should be permitted to testify to his damages. He also listed three family members, each with unique testimony, about the emotional and psychological trauma Plaintiff has suffered from the incident, but whose combined testimony is no longer than one hour.

         Rule 403 allows a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of needlessly presenting cumulative evidence. At this stage, the Court will deny Defendants' motion, but cautions all parties to exercise diligence in the efficient presentation of the evidence to avoid the waste of judicial resources and in recognition of the jury's time. The Court will take up any specific objections to cumulative evidence at trial.

         C. Plaintiff's Motion in Limine No. II: Allow Evidence of Destruction of Evidence by Defendants Including a Jury Instruction on the Destroyed Evidence or in the Alternative a Renewal of Plaintiff's Motion for Sanctions up to and Including Dismissal (ECF No. 130)

         In a Memorandum Opinion and Order filed on February 7, 2017, the Honorable Steven C. Yarbrough found that Defendants committed a number of discovery violations during the litigation of this case, and he imposed sanctions. See Mem. Op. and Order 1, 22-25, ECF No. 86. As relevant here, an issue arose about whether a video camera was located inside the sally port area that would have captured the incident. Id. at 13. Judge Yarbrough found that a camera did exist in the location, but Defendants did not collect video footage from the camera, and he could not determine whether relevant video footage from the camera ever existed. Id. at 13-14. Judge Yarbrough noted that DOC knew at the time that litigation might ensue and should have immediately checked the cameras to preserve any evidence. Id. at 14. He stated that “[t]hese facts provide Plaintiff with an argument that the presiding judge should exercise her discretion to allow him to cross examine Defendant DOC witnesses about this failure.” Id. Judge Yarbrough left open the issue of trial sanctions in the form of latitude at trial to examine witnesses regarding the failure to check or preserve evidence from the video cameras and/or instructions to the jury for the presiding judge to determine. Id. at 23.

         Plaintiff's Motion in Limine No. II requests this Court to rule on the appropriate sanction to impose as a result of Defendants' failure to preserve the video camera evidence. Plaintiff asserts that following Judge Yarbrough's ruling, Deputy Warden Derek Williams, the author of the Office of Professional Standards (“OPS”) Report, revealed in his deposition that both the video evidence from inside the sally port and the contemporaneous medical records were preserved by DOC pursuant to the OPS investigation of the July 11, 2013 van incident, and the loss for which DOC, not a third party, is culpable. See Pl.'s Mot. in Limine No. II 3-5, ECF No. 130. Plaintiff renews his motion for default judgment against Defendant DOC on Count II of the Complaint as a sanction, arguing that the new evidence makes DOC's actions even more egregious. Alternatively, Plaintiff requests as a lesser sanction a jury instruction giving an adverse inference regarding the lost evidence.

         A district court has discretion to impose judgment as a sanction for failure to follow discovery orders. Fed.R.Civ.P. 37(b)(2)(A)(vi). Final disposition of a party's claim, however, “is a severe sanction reserved for the extreme case, and is only appropriate where a lesser sanction would not serve the ends of justice.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (quoting Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988)). A court must consider a number of factors before entering default judgment as a sanction: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the party; and (4) whether a lesser sanction would serve the ends of justice. See Id. Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits should a court enter judgment against a party as a sanction. Id.

         The evidence before this Court shows that a new camera system was put in place after this incident, but at the time of the incident, there was an “old-system” video camera in place that would have shown the sally port area. See Aff. of Daniel Salazar ¶¶ 7-8 & Ex. G-1, ECF No. 155-1. It remains unclear whether that video camera was operational and recorded the inside of the sally port on the day in question. Derek Williams avers in his Affidavit that he took the relevant video footage available, which was only from the pole-mounted camera outside the sally port, and secured it. Aff. of Derek Williams ¶ 6, ECF No. 155-3. In his deposition, however, he did not remember exactly which footage he preserved, and he explained that if he had seen video footage of the relevant incident, he would have included a reference to the video proof in his report. See Williams Dep. 52:13-19, 53:5-12, 59:10-16, ECF No. 155-5. He also testified that he generally would have downloaded the video by dragging a digital computer file and burning a CD. See Williams Dep. 64:22-66:10, ECF No. 130-1. He never testified to taking a hand-held video camera and recording a computer screen, yet the video evidence provided Plaintiff in discovery looks to have been created in this manner. See Pl.'s Ex. 3, ECF No. 131. Defendants have failed to offer an explanation of why the video provided does not fit Derek Williams's description of how he would have preserved a video and why the video looks as if it is from a hand-held camera filming a computer screen.

         Having reviewed the record, the Court is not convinced that Defendant DOC destroyed any relevant video footage from inside the sally port area in bad faith. There is not conclusive evidence establishing that a second sally port video camera was operational and recorded footage of the incident in question. Nor is this Court convinced by the record that DOC acted in bad faith with respect to the medical record evidence. The Court, having considered all the evidence submitted by the parties supporting or refuting Plaintiff's renewed motion for sanctions, finds that Judge Yarbrough's well-reasoned and thorough analysis continues to apply to the current record and adopts his conclusions that default judgment is too severe a sanction under the circumstances. See Mem. Op. and Order 17-23, ECF No. 86. For the same reasons, the Court will not issue an adverse inference instruction.

         Nevertheless, Defendants' discovery violations have been “serious.” Id. at 21-22. Their lack of diligence and explanation continue to create more questions than answers surrounding the evidence. For example, the lack of explanation for why the video evidence looks to be from a hand-held camera is concerning. The Court agrees with Plaintiff that the presence of video cameras is relevant to the case and to the jury's consideration of the factual issues, and will permit Plaintiff to question witnesses concerning the video camera evidence and the reasons why video evidence from inside the sally port area will not be presented at trial. The Court will also allow examination of witnesses concerning DOC's failure to preserve the original medical records. Accordingly, the Court will give an instruction that allows the jury to make any inference they believe appropriate in light of the evidence regarding the video cameras and the failure to preserve the original medical records. The parties should confer and craft a stipulated jury instruction, if possible, on this issue and submit it to the Court when the parties submit their draft jury instructions. If the parties cannot agree, they should submit separate instructions for the Court's consideration. Cf. Browder v. City of Albuquerque, 187 F.Supp.3d 1288, 1300 (D.N.M. 2016) (J. Brack) (“Because the Court has found gross negligence, rather than bad faith, on the part of the City, it finds ...


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