United States District Court, S.D. Illinois
JIMMY W. LEACH, Plaintiff,
v.
CHET SHAFFER, REX ROBERTS, and RICHARD HARTGRAVES, Defendants.
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 ...