United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE.
Madlock is a pro se plaintiff and an inmate at Wisconsin
Secure Program Facility. He alleges that defendant Cody T.
Saylor, a correctional officer, intentionally ignored the
risk posed by Madlock's threats of self-harm, in
violation of the Eighth Amendment to the United States
Constitution. Madlock moves for sanctions under Federal Rule
of Civil Procedure 37(e), saying that prison officials failed
to preserve video footage of Saylor's actions during
Madlock's suicide attempt. Dkt. 31. But because the
factual disputes between the parties are unclear at this
early stage of Madlock's case, I will deny his motion as
parties agree that around 4:00 p.m. on March 30, 2018,
Madlock pressed the emergency call button in his cell and
told Saylor that he was going to take pills that were in his
cell. Dkt. 1, ¶ 16 and Dkt. 20, ¶ 16. Saylor went
to Madlock's cell front and, seeing that Madlock appeared
to be taking pills, sprayed him with incapacitating spray
through the trap in the cell door. Dkt. 1, ¶ 18 and Dkt.
20, ¶ 18. Saylor then left Madlock's cell front.
Dkt. 1, ¶ 19 and Dkt. 20, ¶ 19. Madlock says that
he was left alone for “[m]inutes, ” Dkt. 1,
¶ 20, and Saylor says that he returned to Madlock's
cell “immediately” after leaving to avoid the
spray's effects and to check on other inmates'
safety, Dkt. 20, ¶ 19. Saylor estimates this
“couldn't have taken more than a few
minutes.” Dkt. 28-4, at 5. Madlock alleges that
Saylor's departure from the cell area allowed him to
consume more pills. Dkt. 31, at 2. So the length of time that
Saylor was away could be a material fact.
made four requests to the prison to preserve hallway security
camera video footage of his suicide attempt. Dkts. 38-1-38-4.
One of those requests, Dkt. 38-1, asked the prison to
preserve footage from 2:00 p.m. to 4:00 p.m. The other
requests simply asked for footage of his suicide attempt. In
response, prison officials told Madlock that the requested
footage had been preserved. Dkts. 38-1-38-3. But when Madlock
viewed the preserved footage, it did not record Saylor's
actions during Madlock's suicide attempt. Dkt. 31, at 1.
provided a copy of the preserved footage to the court. Dkt.
37. The footage has a date stamp of March 30, 2018, and has
time stamps beginning a few seconds after 2:00 p.m. and
ending a few seconds after 4:00 p.m. It does not show any of
Saylor's actions during Madlock's suicide attempt,
which happened after 4:00 p.m. according to Madlock's
complaint. Prison officials apparently responded to
Madlock's preservation requests by preserving footage for
the time range he specified in one of his requests rather
than ensuring that the preserved footage satisfied his more
general requests for video of his suicide attempt. Madlock
believes video of the incident would have supported his
claims by showing exactly how long Saylor was gone from
Madlock's cell after spraying him. Dkt. 31, at 2. He says
that prison officials have tampered with the video to remove
incriminating evidence of the length of Saylor's absence
and has requested spoliation sanctions. Dkt. 31, at 2.
37(e) provides two levels of penalties against parties who
don't preserve electronically stored information that
they should have saved. First, if the party seeking sanctions
shows that it has been prejudiced by the lost information,
the court can “order measures no greater than necessary
to cure the prejudice.” Fed.R.Civ.P. 37(e)(1). Second,
if the party seeking sanctions shows that the other party
destroyed the information intending to prevent its use in the
lawsuit, much stiffer penalties become available.
early stage in Madlock's case, sanctions wouldn't be
appropriate since it's not clear whether the missing
footage prejudices Madlock at all. Madlock's description
of the time that Saylor was gone as “[m]inutes”
isn't very different from Saylor's statement that it
was not “more than a few minutes.” Whether this
is a material factual dispute will become clearer during the
summary judgment stage, when the parties will submit proposed
findings of fact. If Madlock can show then that the missing
footage prejudices him, I will reconsider his motion for
sanctions. At this time, though, I will dismiss his
motion as premature.
ORDERED that plaintiff Ladell Madlock's motion for
sanctions, Dkt. 31, is DENIED as premature.
 Madlock also requests $10, 000 in
“reasonable expenses.” Dkt. 31, at 2. Although
payment of actual expenses incurred in a motion for
spoliation sanctions may be appropriate under Rule 37,
Madlock has not shown that he actually incurred any expenses
in bringing this motion. If Madlock wants to renew this
motion during summary ...