United States District Court, D. Maryland
DAVID A. GAMBINO, Plaintiff,
FRANK HERSHBERGER, SHANE SHEETZ, MR.EIRICH, BRETT DODD, LEON BRYAN and 7 UNKNOWN OFFICERS AND 3 UNKNOWN NURSES, Defendants.
THEODORE D. CHUANG United States District.
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.
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.
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.
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.
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.
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.
Motion to Amend
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
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.
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 ...