MATTHEW JAMES GRIFFIN, Plaintiff, v. NADINE J. BRYANT, et al., Defendants No. 5:17-CT-3173-M United States District Court, E.D. North Carolina Filed February 14, 2025 Jones Jr., Robert B., United States Magistrate Judge ORDER *1 This matter comes before the court on pro se Plaintiff Matthew Griffin's (“Griffin”) motion to bar Defendants from filing a motion for summary judgment and appoint an expert medical witness. [DE-244]. Defendants filed a joint opposition to the motion, [DE-258], and the time for filing further responsive briefings has expired. For the following reasons, Griffin's motion is denied. I. Background Griffin, currently an inmate in the custody of the State of Illinois, filed this action pro se and in forma pauperis against Defendants Nadine Bryant, Patricia Mannion, Arlene Burgess Toodle, M.A. Khan, Matthew Bossie, Byron Carter, the North Carolina Department of Public Safety, and Unknown Does 1 and 2, alleging that, while incarcerated at North Carolina Central Prison, prison officials refused to accommodate his severe visual impairments.[1] [DE-1] at 9–10; [DE-8]. Griffin also asserts that on November 27, 2015, Defendants forcibly injected him with the benzodiazepine Ativan, which is a sedative, due to his frequent complaints about the lack of accommodations, and the drug's effects, when combined with his pre-existing visual impairments, caused him to stumble, fall, hit his head, and dislocate his left shoulder. [DE-1] at 20–23. According to Griffin, Defendants should have reasonably foreseen such an accident given medical records indicating he was a fall risk, and following the incident, Defendants ignored Griffin's complaints about his pain and failed to provide him with the necessary medical care. Id. at 20–25. Griffin continues to suffer severe shoulder pain related to the fall and seeks $991,200.00 in damages for his physical and emotional injuries. Id. at 26, 36–38. The case has a complex history, but as relevant here, on April 9, 2024, the court entered a scheduling order requiring Defendant M.A. Khan to respond to the complaint by no later than April 22, 2024, all discovery to be completed by no later than June 28, 2024, and all renewed motions for summary judgment to be filed by July 29, 2024. [DE-188]. Since then, all properly served Defendants have responded to the complaint, [DE-193, -229]; the court has granted several extensions to the discovery and dispositive motions deadlines, [DE-206, -213, -223, -267]; and Griffin has moved to amend the complaint to add additional claims for relief, [DE-250]. Griffin filed the instant motion to appoint an expert witness and bar Defendants from filing a motion for summary judgment on October 29, 2024, Defendants responded, and on December 9, 2024, the court, interpreting the motion as one for sanctions, issued an order holding the matter in abeyance until Griffin had the opportunity to file additional motions to compel and for sanctions, which he had requested leave to do. [DE-244, -258, -267]. Since then, Griffin has filed several discovery motions, which are not addressed in this order. [DE-270, -271, -274, -275, -277]. Given the previous amendments to the case schedule, the discovery completion deadline passed on December 23, 2024, and the dispositive motions deadline has been extended pending ruling on the instant motion. [DE-267]. II. Analysis *2 Liberally read, Griffin's motion, while titled as a motion “for an order to appoint an expert medical witness and to bar Defendants from filing a motion for summary judgment,” actually requests that the court sanction Defendants for allegedly spoliating evidence. See generally Pl.'s Mot. [DE-244]. This conclusion is cemented by the fact that, in the background section of his motion, Griffin alleges, inter alia, that in 2019, he sent an ESI preservation letter to Defendants' counsel and “[o]n remand, Defendant Mannion admitted that video of the [2015] incident [where prison staff administered Ativan to Griffin] existed,” but in their discovery responses, all Defendants except Khan stated that no such videos or photographs were located. See id. at 5–7.[2] Additionally, Griffin alleges that Defendants have produced nearly 2,000 pages of discovery but have not included “any shoulder x-rays of Plaintiff,” even though such scans were taken and are relevant to this case. Id. at 7–8. Based on the above allegations, Griffin argues that “Defendants, their agents[,] and attorneys have intentionally allowed the evidence in this case to spoil.” Id. at 10. To prevent Defendants from profiting from the alleged spoliation, Griffin contends that the court should give a missing evidence instruction at trial; bar Defendants from filing a motion for summary judgment; order Defendants to pay for Griffin's Rule 35 examination or, alternatively, enter an order appointing the orthopedic specialist who previously examined Griffin as an expert witness in this action; enter a “cost and fee shifting order”; “default the Defendants as to liability”; strike Defendants' responses to discovery; deem specific facts of the amended complaint admitted; and/or grant such other relief as the court finds just and equitable. Id. at 10–18. Griffin also requests an evidentiary hearing on this matter. Id. at 12, 16. Defendants respond that the court should deny Griffin's requests to appoint an expert and bar Defendants from filing a motion for summary judgment but do not address any of Griffin's other requests for relief. Defs.' Resp. [DE-258] at 4–7. “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001); Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 WL 2483800, at *4 (E.D.N.C. June 7, 2017). “The imposition of a sanction (e.g., an adverse inference) for spoliation of evidence is an inherent power of federal courts—though one limited to that action necessary to redress conduct which abuses the judicial process.” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004). However, a sanction for spoliation “cannot be drawn merely from [a party's] negligent loss or destruction of evidence.” Id. at 450. “[T]he conduct must be intentional,” and “the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction.” Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013). “Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence.” Id. However, one's responsibility to “preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri, 271 F.3d at 591 (citation omitted); Turner, 736 F.3d at 282 (“[t]he duty to preserve material evidence arises ... during litigation” and it “extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”). “Once a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a litigation hold to ensure the preservation of relevant documents.” Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009) (internal quotation marks and citation omitted); Eshelman, 2017 WL 2483800, at *4.. *3 Here, Griffin bears the burden of proving that sanctions are warranted by clear and convincing evidence. See Mack v. Food Lion, LLC, No. 5:23-CV-327-M, 2024 WL 4023782, at *3 (E.D.N.C. Aug. 24, 2024); Atanassova v. Gen. Motors LLC, No. 2:20-CV-01728-RMG, 2023 WL 2734233, at *3 (D.S.C. Mar. 30, 2023); Paul v. W. Express, Inc., No. 6:20cv00051, 2022 WL 838121, at *3 (W.D. Va. Mar. 21, 2022); GMS Indus. Supply, Inc. v. G&S Supply, LLC, No. 2:19-CV-324 (RCY), 2022 WL 853626, at *3 (E.D. Va. Mar. 22, 2022) (explaining that while the burden of proof on a motion for spoliation sanctions is unsettled, “the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought”) (quoting Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018) (explaining that some courts apply a “preponderance of the evidence standard”)).[3] To support his spoliation claims, Griffin attached several documents to the instant motion, including Defendant Bryant's responses to Griffin's request for production of documents, as well as medical reports based off of the allegedly unproduced x-ray films of Griffin's shoulder. Pl.'s Exs. 3, 5, & 6 [DE-244-1] at 9–11,16–21.[4] After reviewing the record and Griffin's claims, the court finds that Griffin has failed to meet his burden. Turning first to the video evidence, Griffin's assertion that Defendants have spoliated footage taken from cameras placed in the Central Prison Hospital Mental Health Unit is largely based on the following statement from Defendant Mannion in her answer to Griffin's complaint: “The nursing department is on camera the entire shift that it works. No documentation is exactly what it infers. If patient was restrain[ed,] it'll be shown on camera as well as documented.” [DE-190] at 3 ¶ 43; see Pl.'s Mot. [DE-244] at 5–7, However, taken at face value, Mannion's statement does not affirm that footage from the night of the alleged incident definitively exists, and more importantly, after acquiring counsel, Mannion amended her answer, rendering her first answer inoperative. [DE-190]; [DE-229]. Mannion's amended answer makes no mention of any video footage. [DE-229]. Thus, it is not inconsistent with the discovery responses Griffin has deemed problematic for stating that no such video could be located. See [DE-224-1] at 19. Moreover, even if videos of the incident once existed, the fact that they are no longer available does not necessarily mean that they were spoliated. For similar reasons, Griffin's claim that Defendants spoliated evidence related to his shoulder x-ray also fails. By Griffin's own admission, Defendants have produced close to 2,000 documents of medical records in discovery, including other x-ray films, as well as medical reports that interpret (i.e., state the results of) the x-rays Griffin contends are missing. Def.'s Mot. [DE-244] at 8. On this record, there is simply no indication that Defendants have intentionally destroyed, obfuscated, or failed to preserve evidence under circumstances that would warrant sanctions, and Griffin has failed to show otherwise, much less under a clear and convincing standard. See Mack, 2024 WL 4023782, at *4 (declining to award sanctions for spoliation where the plaintiff failed to show any evidence that Defendants willfully destroyed video footage evidence) (citing Tyson v. Gay, No. 5:19-CT-3315-M, 2022 WL 1097345, at *3 (E.D.N.C. Apr. 7, 2022)); see Eshelman, 2017 WL 2483800, at *5 (“Eshelman makes no argument as to how Puma ‘acted with the intent to deprive another party of the information's use in the litigation.’ ”). *4 Finally, to the extent that Griffin's requests for the court to order his mental and physical examinations under Fed. R. Civ. P. 35 and/or appoint Dr. Dax T. Varkey, M.D. as his medical expert may be interpreted independently from his spoliation claims, the court finds that they are unfounded. Beginning with Griffin's request for a Rule 35 examination at Defendants' expense, Rule 35 provides that “[t]he court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). “However, Rule 35 ‘does not vest the court with authority to appoint an expert to examine a party wishing an examination of himself,” ’ and “is not intended for a situation where a prisoner-plaintiff wishes an examination of himself.” Hunt v. Shirley, No. 5:22-CT-3430-D, 2023 WL 8798126, at *1 (E.D.N.C. Dec. 20, 2023) (quoting Lindsay v. Lewis, No. 1:11-CV-67, 2012 WL 1155744, at *1 (M.D.N.C. Apr. 6, 2012)). Further, Griffin has not indicated that he will bear the cost of such examinations—and has in fact, as explained supra, baselessly requested the opposite—and the fact that a plaintiff is indigent and proceeding under 28 U.S.C. § 1915 does not entitle him to obtain an expert at the Government's expense. Id. (citing same at *2). Turning to Griffin's request for the court to appoint Dr. Varkey as his medical expert, Griffin notes that Fed. R. Evid. 706 allows courts to appoint expert witnesses and argues that “because [Dr. Varkey] examined Plaintiff when the [allegedly spoliated x-ray] evidence was available to him and in proximity to the injury[,] he should be allowed to offer opinion evidence on the ultimate issue (causation and damages) in this case.” Def.'s Mot. [DE-244] at 14–15. However, Rule 706 allows the court to appoint an expert to aid the court at the expense of the parties, not to aid a particular party by helping him prove his case, and § 1915 “does not authorize federal courts to finance or subsidize a civil action or appeal by paying expert fees or other costs.” Claudio v. GEO Group, No. 5:10-CT-3042-F, 2012 WL 3114560, at *3–4 (E.D.N.C. July 25, 2013) (internal quotation marks and citation omitted). “[A] Rule 706 expert is an independent expert, and not a member of any party's litigation team.” Kerwin v. Varner, No. 1:CV-03-2253, 2006 WL 3742738, at *2 (M.D. Pa. Dec. 15, 2006). Further, the “ ‘discretionary’ authority to appoint an expert pursuant to Rule 706 ‘is to be exercised only under compelling circumstances.’ ” Claudio, 2012 WL 3114560, at *4 (quoting U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1059 (8th Cir. 1984)). Griffin's request that the court appoint Dr. Varkey as a medical expert (at Defendants' expense or otherwise) is, like the rest of the instant motion, based on his assertion that without this relief, his case will be prejudiced by Defendants' alleged spoliation of evidence. See Def.'s Mot. [DE-244] at 10–18. As explained supra, Griffin's spoliation claim is baseless, but additionally, his request for an expert is plainly to help him in the presentation of his case, not to “aid the court in its resolution of any issues.” Claudio, 2012 WL 3114560, at *5. Thus, it violates the underlying policy of Rule 706 by requesting appointment of an expert simply to benefit an individual party. See id. While the court may determine as the case unfolds further that an expert witness is needed to assist the court in resolving “legitimate, material issues of fact turning on ... complex medical, scientific, and technical evidence,” at this time such an appointment is not only unnecessary, but impermissible under the applicable rules. See id. III. Conclusion Accordingly, for the reasons stated herein, Griffin's motion to bar Defendants from filing a motion for summary judgment and appoint an expert medical witness, [DE-244], and all relief requested therein, is denied. The court will reset the dispositive motions deadline after ruling on Griffin's motions to compel. SO ORDERED, this the 14th day of February, 2025. Footnotes [1] The North Carolina Department of Public Safety has since been dismissed, and the court has previously noted that Unknown Does 1 and 2 will be dismissed if they are not identified prior to the close of discovery. [DE-23, -186]. [2] In the instant motion, Defendant states that Defendant Bryant responded that “no such videos or photographs were located” in discovery. Def.'s Mot. [DE-244] at 6-7. However, the court has supplemented the allegations above with information taken from Griffin's second motion to compel, in which he raises largely identical claims for spoliation but does not request the same relief. See Def.'s Mot. [DE-270] at 11; Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the “most frequent use of judicial notice of ascertainable facts is in noticing the content of court records”) (citation omitted). [3] Even under the less burdensome standard, the instant motion still fails. [4] Griffin also attached several similar documents to his second motion to compel, which, inter alia, raises largely identical spoliation claims. Def.'s Mot. Exs. 3, 4, 6 & 7 [DE-270-1] at 16–23, 31–40. To fully consider the instant request for sanctions, the court has considered these documents in its analysis as well. See Colonial Penn Ins. Co., 887 F.2d at 1239.