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Gambino v. Hershberger

United States District Court, D. Maryland

June 8, 2017

DAVID A. GAMBINO, Plaintiff,


          THEODORE D. CHUANG United States District.

         Self-represented Plaintiff David A. Gambino is a federal inmate presently housed at the Federal Correctional Institution-Fott Dix ("FCI-Fort Dix") in New Jersey. Gambinoss allegations in this matter arise from the time during which he was housed at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"). On November 22, 2016, Gambino filed a "Motion for a Preliminary Temporary Restraining Order to End Spoliation of Evidence, Preserve Remaining Evidence Recently Deleted Pursuant to FRCP Rule 65, " which is pending before the Court. ECF NO.3 ("TRO Motion"). Also pending are Gambinoss "Motion to Amend [Dkt 1-1] and [Dkt 3] That Will Replace Original Filing on 11/16/2016" ("Motion to Amend"), ECF No.,, and his "Motion for Court Order for Recovery and Preservation of E-mails Being Stored at Advanced Technologies Groups LLC" ("Motion for a Court Order"), ECF NO.9.


         In February 2016, Gambino was incarcerated at FCI-Cumberland. On February 4, 206,, Gambino sent two emails to friends through a Bureau of Prisons ("BOP") monitored email service. Gambino alleges that on the same day he entertained suicidal thoughts and went to the Mental Health Department. Gambino was placed on suicide watch. Gambino alleges that at some point thereafter, Lt. Eirich sexually abused him and threatened to rape him.

         On February 16, 2016, Dr. Hershberger, Chief Psychologist, determined that Gambino could be removed from suicide watch and placed back in the general population. Gambino alleges that he made two suicide attempts that day and was then placed back on suicide watch. He further alleges that prison officials used excessive force against him that same day.

         On February 29, 2016, Gambino was again removed from suicide watch. On March 8, 2016, he was transferred to FCI-Fort Dix. According to Gambino, he has filed administrative claims by submitting a Standard Form 95 Claim for Damages, Injury, or Death, which is a prerequisite to filing a suit pursuant to the Federal Tort Claims Act ("FTCA".. The first claim, dated October 13, 2016, alleges "Attempted murder, providing material support for suicide to a suicidal patient, neck and shoulder injury, pain and suffering, abuse of mental health patient, intentional infliction of emotional distress that caused suicide attempts and further degenerated mental health." Mot. TRO Ex. 1 at 25, ECF NO.3-.. The second claim, dated October 15, 2016, states "Denied trial evidence, case studies, strategies and prepared trial strategies for multiple cases going to trial, including materials about the F.C.I. Cumberland included in suits." Id. at 24. A third, also dated October 15, 2016, alleges "[c]urrent denial of proper mental health care due to false mental health records, mental health injury while attempting mental health crisis intervention, suicide attempts caused by abuse and conditions, injury to neck and shoulder from suicide and guards abuse, denial of proper care today, intentional inflection of emotional distress that did end in suicide attempts that ended in injury." Id. at 26.

         Gambino filed the TRO Motion on November 22, 2016 with the intent to preserve evidence while he "waits for Federal Tort exhaustion at the Federal Bureau of Prisons Level." Mot. TRO at 1. On December 2, 2016, the Court ordered the Government to file an expedited Response to the TRO Motion. In addition, because the Complaint failed to identify what claims, if any, Gambino intended to assert, and because it appeared that portions of the Complaint were missing, the Court granted Gambino 28 days to state whether the Complaint was complete and, if not, to file the missing pages. On December 14, 2016, Gambino filed the Motion to Amend.

         On December 23, 2016, the Government filed a Response to the TRO Motion. After reviewing the Government's Response, the Court determined that additional information was necessary in order to assess whether a preservation order was warranted. Consequently, on January 24, 2017, the Court ordered the Government to file a supplemental response including (1) a copy of FCI-Cumberland's video recording retention policy and schedule, (2) a copy of FCI-Cumberland's email retention policy and schedule, and (3) an affidavit or declaration by an official with personal knowledge, accompanied by appropriate attachments such as sample litigation hold letters, listing the specific records or categories of records preserved and a list of all individuals or record custodians who had received a litigation hold letter. The Government filed a Supplemental Response, which included declarations executed by Todd Craig, the BOP Chief of the Office of Security Technology; Lindsey George, Chief of the Information Management Section; and the five named defendants, Chief Psychologist Frank Hershberger, Chief Psychologist Leon Bryan, Staff Psychologist Shane Sheetz, Staff Psychologist Brett Dodd, Jr., and Special Investigations Supervisor ("SIS") Steven Eirich. Gambino filed a Supplemental Reply.


         I. Motion to Amend

         In the Motion to Amend, Gambino asks to amend the TRO Motion by adding two additional pages. Attached to the Motion are a Table of Contents and an amended Statement of Claim and Relief that Gambino requests be added to the TRO Motion. The Motion to Amend clarifies that Gambinoss Complaint does not include claims separate and apart from Gambinoss request for a temporary restraining order. Rather, Gambinoss intent is to obtain injunctive relief to preserve evidence for anticipated future litigation.

         Amendments to complaints are to be freely allowed. Fed.R.Civ.P. 15(a). Leave to amend should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. See Johnson v. Oroweat Foods Co., 758 F.2d 503, 509 (4th Cir. 1986). Accordingly, the Motion to Amend is granted.

         II. TRO Motion

         Gambino seeks an Order from the Court directing the BOP to preserve video footage and other evidence while his administrative claims are pending. Specifically, the TRO Motion seeks to enjoin alleged "destruction of evidence known to be needed for a future lawsuit filed in this District Court while the Plaintiff waits for Federal Tort exhaustion at the Federal Bureau of Prisons level." TRO Mot. at 1, ECF NO.3. The TRO Motion lists the evidence to be preserved, which includes emails, copies of Gambinoss mental health records, a video recording taken of the Special Housing Unit ("SHU") on February 16, 2016, all video taken on February 16, 2016 of the inside and outside of Unit A-2 and the outside of the SHU, and all video of excessive force perpetrated against Gambino on February 16, 2016. Gambino does not describe why this information will be needed as evidence in future litigation or ...

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