                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 12a0290p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 KENNETH RAY ADKINS,
                                                -
                             Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 11-1656
          v.
                                                ,
                                                 >
 BASIL WOLEVER,        Defendant-Appellee. N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
         No. 1:03-cv-797—Hugh W. Brenneman, Jr., Magistrate Judge.
                                 Argued: June 6, 2012
                         Decided and Filed: August 29, 2012
           Before: KEITH, McKEAGUE, and DONALD, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Joseph M. Infante, MILLER, CANFIELD, PADDOCK AND STONE, PLC,
Grand Rapids, Michigan, for Appellant. Michael R. Dean, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF:
Joseph M. Infante, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Grand
Rapids, Michigan, for Appellant. Michael R. Dean, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                 _________________

                                       OPINION
                                 _________________

       BERNICE B. DONALD, Circuit Judge. This appeal concerns whether Plaintiff-
Appellant Kenneth Adkins was entitled to an adverse inference instruction because video
and photographic evidence relating to his 42 U.S.C. § 1983 excessive force claim against
Defendant-Appellee Basil Wolever was lost by Ionia Maximum Correctional Facility
(“IMAX”), the prison where Adkins was housed and where Wolever was employed.
The district court initially denied Adkins’s request for an adverse inference instruction,


                                            1
No. 11-1656           Adkins v. Wolever                                                      Page 2


applying Michigan law as required by Sixth Circuit precedent at that time. The case
proceeded to trial, where a jury returned a verdict in favor of Wolever. Adkins appealed
the denial of the spoliation sanction, and a panel of this court affirmed. We reheard
Adkins’s appeal en banc to determine whether a spoliation sanction should be governed
by federal law or state law. The en banc court joined our sister circuits in holding that
federal courts are not constrained by state law when crafting proper spoliation sanctions,
and, accordingly, remanded the case back to the district court for reconsideration of
Adkins’s adverse inference instruction request and request for a new trial in light of
federal law on spoliation sanctions. After holding an evidentiary hearing, the district
court concluded that Adkins was not entitled to such an inference and denied his request
for a new trial. Adkins again timely appealed. For the following reasons, we AFFIRM.

                                                 I.

                Kenneth Ray Adkins, a state prisoner in Michigan, sued
        corrections officer Basil Wolever in federal court under 42 U.S.C.
        § 1983, alleging that Wolever assaulted Adkins in his cell by yanking his
        hands through a slot in the cell door before removing his handcuffs.
        Before Adkins filed his lawsuit, an inspector at the prison reviewed color
        Polaroid photographs of Adkins’s injuries and stationary video footage
        of the area where the alleged assault occurred. During discovery, Adkins
        asked Wolever to produce any photographs and video footage related to
        the assault. Prison officials could not locate this video footage or the
        color photographs, which had been lost or destroyed.1 Because Wolever
        produced only black and white copies of the original photographs and did
        not produce the video footage, Adkins asked the trial court to instruct the
        jury that it could presume that the missing video and color photographic
        evidence would be favorable to Adkins. The district court applied state
        law and denied the request because Michigan’s spoliation instruction
        required Adkins to demonstrate that the spoliated evidence was under
        Wolever’s control, which it undisputedly was not. The original panel
        affirmed that ruling. Adkins [v. Wolever], 520 F.3d [585,] 587 [(6th Cir.
        2008) (Adkins I)] (citing Beck [v. Haik], 377 F.3d [624,] 641 [(6th Cir.
        2004)]).

Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009) (en banc) (Adkins II).


        1
          The missing video evidence also included a videocassette containing post-incident narrative
interviews with IMAX employees.
No. 11-1656            Adkins v. Wolever                                                           Page 3


          The original panel urged the court to rehear the case en banc to reconsider
whether spoliation sanctions should be governed by federal law or state law, see Adkins
I, 520 F.3d at 588, and the full court obliged. The en banc court reversed the panel and
joined our sister circuits in concluding that federal law, rather than state law, governs
spoliation sanctions during litigation in federal courts. Adkins II, 554 F.3d at 652.
Accordingly, the court remanded the case to the district court for reconsideration of
Adkins’s request for a spoliation sanction, noting that “we leave to the district court the
exercise of its broad discretion to decide if Wolever should be subject to any form of
spoliation sanctions despite the fact that he was not the prison records custodian.” Id.
at 653.

          On remand, the district court allowed the parties to conduct more discovery and
held an evidentiary hearing. At the evidentiary hearing, the parties stipulated that a
surveillance video existed, was downloaded to a disc, and was viewed by at least one
person—former custody inspector Matt Macauley.2 Adkins then called four witnesses.
The first witness, Jamie Canfield, a housing unit officer at IMAX—a position similar to
Wolever’s—testified that he had no idea where IMAX retained evidence, records,
videos, etc. Adkins also called John Spurgis, the hearing officer who conducted
Adkins’s prisoner misconduct hearing. Spurgis testified that while Adkins requested the
surveillance video, Spurgis denied the request as irrelevant because the video was not
positioned to show the inside of the cell or whether Adkins destroyed the sprinkler head,
which was the misconduct in question.

          Much of the evidentiary hearing testimony came from two witnesses—Erica
Huss, an assistant deputy warden, and Macauley. Huss testified that the prison had a
retention policy for records like videos and photographs. The policy required IMAX to
keep these items for three years unless there was pending litigation, in which case they
should be kept until the conclusion of that litigation. According to Huss, while officers
like Wolever normally do not have access to a copy of the retention policy, they could

          2
           Most of the testimony at the evidentiary hearing and the bulk of the argument in the parties’
briefs focuses on the surveillance video. This recitation of facts, thus, focuses solely on the surveillance
video, which is the most relevant aspect of this appeal.
No. 11-1656         Adkins v. Wolever                                                Page 4


probably request it. The prison also had a litigation coordinator who helped with
discovery requests and acted as a liaison for employees at the prison. The litigation
coordinator had full access to records maintained by the prison and could make copies.

        The IMAX computers that record surveillance video only have enough memory
to record for ten days; after that, the computers record over the oldest footage, which is
then lost unless someone had downloaded it. To download a surveillance video, a
person would have to enter a separate room, which required special access codes, where
a special computer was set up to burn the video onto a disk. Operation of this equipment
required specific training that officers like Wolever lack. Moreover, a special program
is required in order to view the video once it is burned to the disk; the surveillance video
disk will not play on standard computer media player software.

        Huss testified that Adkins could have requested to view the surveillance video
but that his request would most likely have been denied because having a prisoner know
what areas the surveillance cameras cover would create a security concern. Wolever
would not have been allowed to download the surveillance video, Huss noted, and would
have no access to where the video was kept. If an investigation was pending, Wolever
would not have been able to get a copy of the video until the conclusion of the
investigation, in which case the video would be part of his disciplinary packet if he was
disciplined. No copies of the disk were made because Wolever was not disciplined for
the incident.

        Huss claimed to have no idea what happened to the surveillance video and could
not remember if she viewed it. Huss testified that Wolever had no practical control over
the video, that he would expect the retention policy to cover the items, and that the
preservation policy would have been beyond his control. Although Huss stated that
Wolever could not get a copy of the video because he was not disciplined, when asked
whether he could receive a copy instant to litigation she replied, “[N]ot sure, possibly.”



        The final witness at the evidentiary hearing was Macauley, the former custody
inspector at IMAX who investigated Adkins’s charges of assault and had custody of the
No. 11-1656        Adkins v. Wolever                                                Page 5


surveillance video. Macauley downloaded the surveillance video on a disk as part of his
investigation, which included interviewing Adkins and Wolever. He then stored the disk
on a shelf in his office for a year. Macauley’s office was in a high security area where
few people, of whom Wolever was not one, had access. After a year, the disk should
have been moved from Macauley’s office to the retention area nearby but still within the
secure area. Macauley testified that he did not know what happened to the disk with the
surveillance video because he left IMAX in 2003, but he thought it probably went
missing during the transition after his departure.

       According to Macauley, Wolever would not have had access to the video stored
in his office. Macauley testified that Wolever never had care, custody, or control of the
video and that Wolever could expect IMAX to maintain records per the retention policy.
Macauley even said that Wolever could not have received a copy of the video had he
asked because of litigation. Macauley was only authorized to release the video to the
litigation coordinator, meaning Wolever’s request would have to go through that person.

       Macauley testified that he and Huss viewed the surveillance video. When asked
what he viewed on the video, Macauley described the scene as follows:

                The view was partially blocked. It was of help to my decision in
       the investigation by watching the reaction of the other staff on the tape.
       There was a mass shakedown going on and there was no reaction by the
       staff in the area.
              But the direct view, because this is looking at a very large area
       over a wide scape so it’s not very— it’s not crystal clear, there were two
       female staff who had just exited a cell after they went down and they
       were standing at the rail talking I presume about what contraband they
       had discovered or what they were going to do as far as searching the cell
       they were in, so I could not directly see the removal of the restraint
       process.
               But I could see the other four or five staff on both rocks, upper
       and lower, who just were conducting business as normal so that’s how I
       came to my conclusion that I did not see anything out of the norm in my
       investigation.
No. 11-1656         Adkins v. Wolever                                                 Page 6


        For his part, Wolever testified that he had no role in maintaining the surveillance
video and that he had no control over it. Although Wolever admitted in a Rule 34
admission that he had the practical ability to obtain prison records for litigation purposes,
he also admitted that he assumed the retention policies would be followed by IMAX.

        Considering this evidence, the district court determined that a spoliation sanction
was not warranted and that Adkins was not entitled to a new trial or other form of relief.
Adkins again timely appealed.

                                             II.

        District courts have broad discretion to craft proper sanctions for the spoliation
of evidence. Adkins II, 554 F.3d at 652. Accordingly, we review the district court’s
decision not to impose a spoliation sanction under the abuse of discretion standard,
“[g]iving great deference to the district court’s credibility determinations and findings
of fact.” Beaven v. United States Dep’t of Justice, 622 F.3d 540, 553, 554 (6th Cir.
2010). “A court abuses its discretion when it commits a clear error of judgment, such
as applying the incorrect legal standard, misapplying the correct legal standard, or
relying upon clearly erroneous findings of fact.” Jones v. Ill. Cent. R. Co., 617 F.3d 843,
850 (6th Cir. 2010) (quoting In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623
(6th Cir. 2008)).

        In Beaven, we explained that the standard for determining whether a particular
spoliation sanction is appropriate is as follows:

        A party seeking an adverse inference instruction based on the destruction
        of evidence must establish (1) that the party having control over the
        evidence had an obligation to preserve it at the time it was destroyed;
        (2) that the records were destroyed with a culpable state of mind; and
        (3) that the destroyed evidence was relevant to the party’s claim or
        defense such that a reasonable trier of fact could find that it would
        support that claim or defense. Thus, an adverse inference for evidence
        spoliation is appropriate if the Defendants knew the evidence was
        relevant to some issue at trial and their culpable conduct resulted in its
        loss or destruction. This depends on the alleged spoliator’s mental state
        regarding any obligation to preserve evidence and the subsequent
        destruction.
No. 11-1656             Adkins v. Wolever                                                             Page 7


622 F.3d at 553-54 (quotation marks and citations omitted) (emphasis added). We also
described the purpose of a spoliation sanction:

         When appropriate, a proper spoliation sanction should serve both fairness
         and punitive functions, but its severity should correspond to the district
         court’s finding after a fact-intensive inquiry into a party’s degree of fault
         under the circumstances, including the recognition that a party’s degree
         of fault may range from innocence through the degrees of negligence to
         intentionality. Thus, a district court could impose many different kinds
         of sanctions for spoliated evidence, including dismissing a case, granting
         summary judgment, or instructing a jury that it may infer a fact based on
         lost or destroyed evidence.

Id. at 554 (quotation marks and citations omitted).

         The district court concluded that Adkins had not established the requirements for
a sanction because the preservation of the evidence “was entirely beyond Officer
Wolever’s control.” The test prescribed in Beaven is conjunctive; thus, so long as the
district court did not err in determining that Adkins had not satisfied at least one of the
prongs, its determination that a spoliation sanction was not warranted should not be
upset. As to the surveillance video, that prong is the second one—whether the records
were destroyed with a culpable state of mind.3

         To warrant a spoliation sanction, the party seeking the sanction must show that
the evidence was destroyed with a culpable state of mind. This factor is satisfied “by a
showing that the evidence was destroyed knowingly, even if without intent to breach a



         3
           This opinion, like the parties’ briefs, focuses predominantly on the destruction of the surveillance
video. We affirm the district court’s decision not to impose a spoliation sanction with regard to the witness
narrative video and the color photographs because the district court did not err in concluding that Adkins
had not satisfied the third prong of the Beaven test as to those items, i.e., whether they were relevant to his
claims. The district court found that Adkins had not developed the substance of the witness statements
video by introducing depositions or affidavits explaining its contents; thus, it found no evidentiary basis
that the video would support Adkins’s claim. As to the color photographs, the district court noted that the
black and white copies Wolever produced were of poor quality, but it rejected Adkins’s argument that the
originals or color copies would have made a difference in the trial. The district court concluded that color
copies would have been cumulative evidence that would have only provided a better depiction of the
discoloration on Adkins’s arms without aiding the jury in determining the cause of those injuries.
Moreover, during his testimony at trial, Adkins provided a vivid description of his injuries: “My arms were
cut up, scratched up and stuff, and I had a big old gash where there was just the inside of my arm, guts and
fat just in my arms, it was sticking out. It was swelled up about an inch high and was sticking out.”
Neither determination by the district court was clearly erroneous in light of the evidence presented; thus,
the district court did not abuse its discretion in denying Adkins a spoliation sanction as to these items.
No. 11-1656          Adkins v. Wolever                                             Page 8


duty to preserve it, or negligently.” Id. (emphasis omitted). The district court concluded
that “[i]n the absence of any evidence that Wolever had control or access over these
items, there is no basis to assert that Wolever had any culpability for the loss of the
items.” Because the record does not indicate that the district court clearly erred in
determining that Wolever had no culpability for the loss of the surveillance video, we
affirm.

          Adkins avers that the district court erred in not finding culpability because
Wolever had a duty to preserve the evidence and, thus, should have taken affirmative
steps to ensure that IMAX maintained the surveillance video. Conceding that negligence
is sufficient to find culpability, Wolever denies that his conduct constituted negligence.
Wolever insists that any burden he had was met because the prison’s retention policy
required it to maintain the records. Pointing to Huss’s testimony that Wolever could
expect the prison to preserve the evidence, Wolever claims that his reliance was
reasonable and, therefore, not negligent.

          Adkins insists that a sanction is proper even though Wolever was not personally
responsible for the destruction of the evidence, and he cites several cases from around
the country for this proposition. See Silvestri v. General Motors Corp., 271 F.3d 583,
591 (4th Cir. 2001); King v. Am. Power Conversion Corp., 181 F. App’x 373, 377
(4th Cir. 2006); Jain v. Memphis Shelby Co. Airport Auth., 2010 WL 711328, at *3
(W.D. Tenn. Feb. 25, 2010); Alexander v. Del Monte Corp., 2011 WL 134061, at *1
(E.D. Mich. Jan. 11, 2011); Erie Ins. Exch. v. Davenport Insulation, Inc., 659 F. Supp.
2d 701, 706, 708 (D. Md. 2009); Paul Revere Life Ins. Co. v. Jafari, 2002 WL
34367714, at *5-6 (D. Md. Sept. 19, 2002). Adkins also directs our attention to several
instances in which district courts granted adverse inference instructions in circumstances
similar to this one. See Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D. N.J. 2008)
(permitting an adverse inference instruction against a defendant because surveillance
video evidence of an alleged assault by prison guards was lost because it was never
downloaded and recorded onto a videotape); LaJoices v. City of North Las Vegas, 2011
WL 1630331 (D. Nev. April 28, 2011) (permitting adverse inference instruction against
No. 11-1656         Adkins v. Wolever                                                Page 9


defendants where surveillance video and photographs of alleged prison assault were
lost); Peschel v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009) (granting
spoliation sanction of default judgment against defendants because dashboard video of
the arrest at the core of the claim was lost after being uploaded to a police department
computer and viewed by several officers).

        Wolever responds that many of the cases Adkins cites are distinguishable from
this case because they involve situations where the sanctioned party had access or
control of the evidence before it was given to the third party that destroyed it, see
Alexander; Erie Ins. Exch.; Cyntegra, or situations where the lost item was integral to
the underlying claim, see King; Paul Revere. Distinguishable or not, the cases Adkins
cites are not binding precedent requiring the district court to impose a spoliation sanction
in this instance. Instead, they are relevant to why the district court could have granted
Adkins’s request for an adverse inference instruction only to the extent we find them
persuasive. While the district court could have followed other district courts and found
Wolever culpable even though the prison, not Wolever, lost the evidence, the case law
supporting such a finding does not require the court to find that level of negligence. The
ultimate determination of culpability is within the district court’s discretion so long as
it is not a clearly erroneous interpretation of the facts.

        The district court reviewed the evidence and concluded that Wolever was not
culpable because he had no control over the evidence. This conclusion was not clearly
erroneous. The evidentiary hearing produced testimony that evidence used in internal
investigations would be preserved and that Wolever could rely on IMAX to maintain the
evidence per its policy. Other testimony showed that Wolever could only access the
evidence through the litigation coordinator and that the surveillance video might already
have been lost when Wolever was served with Adkins’s complaint in January 2004.
Even if we were to disagree with the district court’s ultimate conclusion on culpability,
it does not necessarily follow that the district court’s determination should be upset.
Although the district court’s decision runs counter to the holdings of some other courts,
the evidence in the record provides a basis for the district court’s conclusion that
No. 11-1656         Adkins v. Wolever                                               Page 10


Wolever was not culpable. “[A] fact-intensive inquiry into [Wolever’s] degree of fault
under the circumstances” could reasonably generate the conclusion that Wolever was
innocent of any destruction or loss. Beaven, 622 F.3d at 554.

        Moreover, the nature of this case—an issue involving internal prison procedures
on evidence retention—cautions against stringently second-guessing the district court’s
determination. The Supreme Court has stated, albeit in a slightly different context, that
“courts . . . owe substantial deference to the professional judgment of prison
administrators.” Beard v. Banks, 548 U.S. 521, 522 (2006). A similar concern colors
our review of this case. Adkins avers that the “failure to impose a spoliation sanction
against Wolever opens the door for IMAX and other prisons to destroy evidence in all
prisoner rights cases” because the prison itself is not subject to suit under the Eleventh
Amendment, thus it would have an incentive to destroy evidence that is damaging to its
employee’s case. This is a justifiable concern.

        At the same time, to hold that all defendants in situations like Wolever’s must
take affirmative steps to ensure that their employing prison continues to maintain
evidentiary records for every incident with a prisoner would impose an added burden on
prison employees. As Adkins noted in his brief, “given prisoners’ penchant for
litigation, Wolever (and IMAX) should have foreseen future litigation.” To impose a
rule to cover every such situation would unnecessarily interrupt a prison administrators’
judgment as to how to operate their prisons and force prison employees to constantly
second-guess their employer’s ability to maintain potential evidence for possible
litigation. That is not a burden we are willing to impose.

        The more prudent path, and the one we adopt today, is to consider incidences
raising spoliation questions on a case-by-case basis, considering the purposes of a
spoliation sanction and the factors for determining whether one should be imposed. That
function rests within the broad discretion of the district courts, and to adopt a bright-line
rule like Adkins requests would infringe upon that discretion as well as the ability of
prison administrators to manage their institutions. That a spoliation sanction was not
imposed in this instance does not mean that prisons have carte blanche to destroy any
No. 11-1656        Adkins v. Wolever                                             Page 11


evidence that would be beneficial to prisoners’ civil rights complaints; a survey of the
jurisprudence of other district courts within this circuit and across the country
demonstrates as much. Instead, we leave the determination of the propriety of a
spoliation sanction to the discretion of the district court, considering the facts of each
case individually, and we will not upset a district court’s determination unless it
constitutes an abuse of discretion.

                                           III.

       The district court did not abuse its discretion in denying Adkins’s request for a
spoliation sanction. Therefore, we affirm.
