Leach v. Shaffer

          REPORT AND RECOMMENDATION

          HON. REONA J. DALY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jimmy W. Leach brings this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was detained at the Franklin County Jail (“the Jail”). Plaintiff is proceeding in this action on his Third Amended Complaint (Doc. 66). In his Third Amended Complaint, Plaintiff alleges that after he was booked into the Jail on March 18, 2016, medication and medical treatment for his post-traumatic stress disorder (“PTSD”) and seizure disorder were not provided despite his requests for the same. Plaintiff alleges he suffered hallucinations and seizures, and was made to lie in his urine for approximately forty-eight hours. Plaintiff claims that during this time, Jail Administrator Chet Shaffer checked on him and refused to call for medical treatment. Plaintiff also claims that Officers Rex Roberts and Richard Hartgraves intentionally failed to provide his medications from March 18 through 21, 2016, and upon his transfer from the Jail to Menard Correctional Center. Per his Third Amended Complaint, Plaintiff is proceeding in this action on the following claims:

Count One: Fourteenth Amendment and/or Eighth Amendment claim against Chet Shafffer for denying Plaintiff medical care from March 18 to March 21, 2016.

Count Two: Fourteenth Amendment and/or Eighth Amendment claim against Rex Roberts and Richard Hartgraves for refusing to provide his medications when he transferred to Menard.

Count Three: Spoliation of evidence claim under Illinois state law against Defendant Shaffer for negligently and/or recklessly failing to preserve material evidence related to this case.

Count Four: Intentional infliction of emotional distress claim under Illinois state law against Defendants Shaffer, Robert, and Hartgraves for engaging in extreme and outrageous conduct.

(See Doc. 66).

         Defendant Shaffer filed a Motion to Dismiss Count III of Plaintiff's Third Amended Complaint pursuant to FRCP 12(b)(6) on November 29, 2018 (Doc. 73). Plaintiff filed his response on December 21, 2018 (Doc. 78). Defendants filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 on January 18, 2019 (Doc. 81). Plaintiff filed his response on March 15, 2019 (Doc. 87), to which Defendants replied on April 15, 2019 (Doc. 98). Plaintiff also filed a Motion to Strike Affidavits and Exhibits, to Reopen Discovery and for Leave to File Amended Complaint and for Sanctions on March 15, 2019 (Doc. 88). Defendants filed their response to Plaintiff's motion on April 15, 2019 (Doc. 99).

         The above-mentioned motions have been referred to United States Magistrate Judge Reona J. Daly by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation. Based on the following, it is RECOMMENDED that Defendant Shaffer's Motion to Dismiss (Doc. 73) be DENIED; Plaintiff's Motion to Strike (Doc. 88) be GRANTED IN PART AND DENIED IN PART; and Defendants' Motion for Summary Judgment (Doc. 81) be GRANTED

         IN PART AND DENIED IN PART

         I. MOTION TO DISMISS COUNT III OF PLAINTIFF'S THIRD AMENDED COMPLAINT PURSUANT TO FRCP 12(B)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal if a complaint fails to state a claim upon which relief can be granted. In considering a motion to dismiss, the Court accepts as true all well-pleaded allegations in the complaint and draws all possible inferences in favor of the plaintiff. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotations omitted). A plaintiff need not set out all relevant facts or recite the law in his or her complaint; however, the plaintiff must provide a short and plain statement that shows that he or she is entitled to relief. See Fed.R.Civ.P. 8(a)(2). Thus, a complaint will not be dismissed if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         Defendant Shaffer asserts that Count III of Plaintiff's Third Amended Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). While spoliation of evidence is not an independent cause of action in Illinois, a plaintiff can state a claim for negligent spoliation of evidence under existing negligence law. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 269-70 (Ill. 1995). To state a claim for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages. Id. at 270.

         The Illinois Supreme Court has articulated a two-prong test for determining when a defendant has a duty to preserve evidence. Dardeen v. Kuehling, 821 N.E.2d 227, 231 (Ill. 2004). First, a duty may arise through an agreement, contract, statute, special circumstance, or the defendant's voluntary assumption of a duty by affirmative conduct. Id. If a duty arises, then the court must determine whether that duty extends to the evidence at issue; in other words, whether a reasonable person should have foreseen that the evidence was material to a potential civil action. Id. If the plaintiff fails to satisfy both prongs, the defendant has no duty to preserve the evidence at issue. Id.

         Although no firm rule dictates when special circumstances exist, courts generally consider whether the defendant was a potential litigant, whether the plaintiff requested that the defendant preserve the evidence, and whether the defendant had possession of the evidence. See Id. at 232-33 (finding no special circumstances where the plaintiff never asked the defendant to preserve the evidence, the defendant did not have possession of the evidence, and the defendant was not a potential litigant at the time the evidence was destroyed).

         Plaintiff alleges Defendant Shaffer was “aware of other situations where inmates in the care of Franklin County Jail initiated litigation after being denied medical treatment” and that “[d]ue to these previous incident [sic] … it was reasonably foreseeable that … litigation was likely.” Plaintiff posits that Defendant Shaffer's awareness of these previous situations, in addition to the reasonable foreseeability of litigation, created a special circumstance and he was under a legal obligation to preserve evidence material to this litigation. The Court agrees. The Court finds it likely that Plaintiff's grievances and medical complaints put Shaffer on notice of potential litigation regarding the events that occurred at the Jail in March 2016. Plaintiff also alleges that Shaffer failed to preserve surveillance video of the incident, consultation forms from crisis therapist Jill Flemming, incident reports, Plaintiff's hospital discharge paperwork, and other documents. This is the sort of evidence that would be material to potential civil litigation. Plaintiff, therefore, has sufficiently alleged a spoliation of evidence claim against Defendant Shaffer and it is recommended that Defendant's Motion to Dismiss be DENIED.

         II. MOTION TO STRIKE AFFIDAVITS AND EXHIBITS, TO REOPEN DISCOVERY AND FOR LEAVE TO FILE AMENDED COMPLAINT, AND FOR SANCTIONS

         Plaintiff asks the Court to strike Defendant Chet Shaffer's Affidavit (Doc. 81-6), Anthony Skobel's Affidavit (Doc. 81-8) and the “Jail Work Schedule” (Doc. 81-3) relied on by Defendants in support of their motion for summary judgment. Plaintiff also asks that the Court reopen discovery, allow him to take the deposition of Anthony Skobel, and award him sanctions.

         In support of his motion, Plaintiff explains that Defendants submitted the Affidavit of Anthony Skobel as an exhibit to their summary judgment motion in which Skobel avers he was present at the Jail during key events in this case. Plaintiff contends the content of Skobel's affidavit conflicts with Defendants' answer to Plaintiff's Interrogatory Number Three and initial disclosures. Specifically, Defendants' answer to Interrogatory Number Three indicated that only Chet Shaffer and Jail Nurse Ashley Crider witnessed the events set forth in the complaint that occurred on the dates of March 18-21, 2016, and April 1, 2016 (see Doc. 87-8 at 2). Defendants' initial disclosures also failed to identify Skobel as an individual likely to have discoverable information (see Doc. 87-19 at 1-2). Plaintiff contends he would have deposed Skobel and likely added him as a defendant if he had been properly disclosed.

         In light of the foregoing, Plaintiff asserts that Defendant Shaffer's affidavit contradicts his prior discovery answers and should be stricken. Further, Plaintiff posits that insofar as Shaffer's affidavit claims that Skobel was at the jail during the events at issue, Shaffer lacks personal knowledge and these attestations are hearsay and must therefore be stricken. Plaintiff also asserts Skobel's affidavit should be stricken as it conflicts with Defendants' discovery answers and disclosures.

         Defendants assert Plaintiff's motion should be denied because Plaintiff had timely notice that Anthony Skobel was present at the Jail during the times alleged and failed to depose or otherwise seek leave to amend his complaint to add Skobel as a defendant. In particular, Defendants explain that Plaintiff deposed Shaffer on September 27, 2017. During Shaffer's deposition, he testified that Lieutenant Skobel worked the overnight on Sunday, March 20, 2016 from “four to two in the morning” (Doc. 81-2 at 20). Defendants also assert counsel for Plaintiff was provided with a the “Jail Work Schedule” on May 10, 2017 (see Doc. 99-1). The “Jail Work Schedule” identifies Anthony Skobel as working March 19, March 20, March 21, March 28, and March 29, 2016 from 2 p.m. to 12 a.m.

         Throughout the course of the discovery process a party is required to supplement or correct any written discovery responses, as well as Rule 26(a) disclosures, “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, ” and the other party has not been made aware of the additional or corrective information. Fed.R.Civ.P. 26(e)(1)(A).

         Failure to supplement interrogatory responses or disclosures may result in the imposition of sanctions. More specifically, Rule 37(c) provides that a party who fails to provide information or identify a witness is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial unless the failure was substantially justified or harmless. In deciding whether a Rule 26(a) violation is justified or harmless, a court may consider: (1) the prejudice or surprise to the party against whom evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption ...