United States District Court, E.D. Michigan, Northern Division
MICHELLE VAN BUREN, Personal Representative for the ESTATE OF WILLIAM REDDIE, deceased and WILLIAM REDDIE, Plaintiff,
CRAWFORD COUNTY, CITY OF GRAYLING, JOHN KLEPADLO, and ALAN SOMERO, in their individual and official capacities, Defendants.
ORDER DENYING SECOND MOTION TO FILE THIRD AMENDED
COMPLAINT AND HOLDING MOTION FOR RELIEF IN ABEYANCE
L. LUDINGTON United States District Judge.
Van Buren brought this suit on behalf of William Reddie, who
was fatally shot by a Crawford County Sheriff's
Department Deputy, John Klepadlo, on February 3, 2012. ECF
No. 1. On August 3, 2016, this Court issued an order which
concluded that, based on the evidence then presented, summary
judgment should be granted for the Defendants. ECF No. 84.
However, because Plaintiff was contending that the Defendants
had spoliated audio evidence of the shooting, summary
judgment was not entered. During the fall of 2016, the Court
held three days of evidentiary hearings on the spoliation
issue. On January 17, 2017, the Court issued an order
concluding that the City of Grayling and Officer Somero
spoliated evidence and sanctioning them, reasoning that the
“simplest explanation for the missing recordings,
taking all evidence into account, is deliberate
spoliation.” ECF No. 118 at 25.
Court also found that there was no evidence that the Crawford
County Sheriff's Department had possession of a recording
of the shooting and declined to sanction Crawford County or
Deputy Klepadlo. Id. at 29-32. Although Klepadlo had
not spoliated evidence and was not being sanctioned, the
questions raised by the destroyed audio recordings (in
combination with the sanctions imposed against Somero)
demonstrated a material issue of fact regarding whether
Klepadlo shot Mr. Reddie with excessive force and, further,
whether Somero should have prevented that use of force. The
City of Grayling and Crawford County were dismissed because
Plaintiff did not allege a policy and practice of permitting
the use of excessive force, meaning that there was no basis
for liability under Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658 (1978).
have filed an interlocutory appeal of the order sanctioning
Defendants. ECF No. 119. Simultaneously with the appeal,
Defendants filed a motion to stay the case during the
pendency of the appeal. ECF No. 121. On February 16, 2017,
Plaintiff filed a motion seeking leave to file a third
amended complaint which adds new parties and claims related
to the evidence spoliation. ECF No. 127. On April 13, 2017,
the Court denied Plaintiff's first motion to file a third
amended complaint and denied Defendants' motion to stay.
ECF No. 133. As regards the motion to file a third amended
complaint, the Court concluded that Plaintiff's proposed
civil conspiracy claim was noncognizable and so amendment
would be futile. That is because civil conspiracy claims are
derivative and thus depend on an underlying claim. Plaintiff
identified no evidence that the Defendants had conspired,
before the shooting, to use excessive force against Mr.
Reddie. And, under Michigan and federal law, there is no an
independent claim or cause of action for evidence spoliation.
Thus, Plaintiff's attempt to premise a civil conspiracy
claim on either of those two theories was futile.
Plaintiff has filed two more motions. On June 15, 2017,
Plaintiff filed a motion for relief from the Court's
January 17, 2017, opinion and order imposing sanctions on
Defendants. ECF No. 139. Plaintiff explains that Defendants
recently disclosed that they have discovered the S.D. card
which would have contained the audio recordings in question.
Because Defendants have repeatedly indicated that they did
not have the card, Plaintiff now argues that this new
disclosure justifies additional sanctions. On June 21, 2017,
Plaintiff filed a second motion for leave to file a third
amended complaint. ECF No. 140. Plaintiff seeks to add a
First Amendment claim for denial of access to courts. For the
following reasons, the motion for leave to amend will be
denied, and the motion for relief will be held in abeyance.
allegations surrounding Mr. Reddie's death and the
evidence spoliation were provided in the Court's January
17, 2017, Opinion and Order. ECF No. 118. Because the
evidence of spoliation bears considerable relevance to the
current motions, a portion of that summary will be reproduced
Because Mr. Reddie is deceased, all allegations regarding
what transpired in his apartment come solely from the
testimony of the officers and care workers who were present
at the time. On February 3, 2012, Defendants Somero and
Klepadlo responded to reports of a potential domestic
violence incident at Mr. Reddie's home. The officers
found no evidence of domestic violence, but, after
questioning Mr. Reddie and searching his apartment, the
officers discovered that Mr. Reddie had been using marijuana
in his home. Somero told Mr. Reddie that he would be reported
for using marijuana in front in his minor child, despite Mr.
Reddie's indication that his son was sleeping in another
room at the time he smoked the marijuana. Naturally enough,
Mr. Reddie was upset during his conversation with the
officers. Klepadlo Dep. at 45, ECF No. 68, Ex. A. Based on
that report, Child Protective Services visited Mr. Reddie,
who admitted to smoking marijuana but refused to consent to
removal of his son. Child Protective Services sought and
obtained a court order to remove Mr. Reddie's son.
Somero, Klepadlo, and two Child Protective Services care
workers went to Mr. Reddie's apartment to effectuate the
Upon seeing the officers, Mr. Reddie immediately picked up
his son and retreated into the apartment. He repeatedly told
the officers he would not allow them to take his son. The
officers and care workers followed Mr. Reddie into his
apartment, where the situation quickly escalated. The
officers testified that Mr. Reddie was five to ten feet away
from them, separated by a coffee table. They further
testified that Mr. Reddie was playing loud music and they
believed he was preparing himself to fight.
Defendant Klepadlo testified that he drew his Taser and
pointed it at Mr. Reddie. Around the same time, the care
workers removed Mr. Reddie's son from the apartment. Soon
after Klepadlo drew his Taser, one of the care workers
shouted that Mr. Reddie had a knife. In response, Klepadlo
holstered his Taser and drew his handgun. The officers
testified that they told Mr. Reddie to drop the knife, but he
did not do so. Mr. Reddie then came out from behind the
coffee table. The officers testify that they told Mr. Reddie
they would shoot if he did not comply with their orders.
According to the officers, Mr. Reddie raised his hands to
shoulder height and moved towards the officers (described as
a “lunge”). Klepadlo fired at Mr. Reddie, who
Jan. 17, 2017, Op. & Order at 2-3, ECF No. 118.
at the evidentiary hearing established that Defendants City
of Grayling and Officer Somero did not preserve any potential
audio recording of the incident:
Somero testified that, on the day of the Reddie shooting, he
activated his recording device prior to both visits with Mr.
Reddie. Evid. Hearing Tr. I at 12, 34. Somero also testified
that he believed the in-car video was working but not the
audio. Id. at 15. After Mr. Reddie was fatally shot,
Somero remained at the apartment. Id. at 36. Once
additional officers arrived, Somero was assigned to guard the
apartment door. Id. During the approximately
forty-five minutes Somero was securing the scene, he did not
return to his vehicle. Id. Eventually, Grayling
Police Chief Baum told Somero to report to the Grayling
Police Department and await questioning by the Michigan State
Police (MSP). Id. Somero drove his vehicle, by
himself, back to the department. Id. at 37. He
testified that he followed normal procedures for handling the
S.D. card: he removed the card from the system, gathered his
other equipment, and set everything down on his office desk.
Id. . . . Somero testified that he does not remember
whether he handed the card to the Chief or simply referred to
the presence of the card. Id. Regardless, Somero
testified that he physically furnished the card to Chief
Baum. Id. at 65. See also Somero Dep. at
157-59, ECF No. 85, Ex. B. According to Somero, he has not
seen the S.D. card since that evening. Evid. Hearing Tr. I at
65. He further testified that he never talked to any other
person about the S.D. card. Id. at 44-45.
Chief Baum's account of events is different. He testified
that he does not have “memory of exactly how” the
post-incident events occurred. Id. at 84. However,
he did assert that “I did not make a copy of it because
I did not have the knowledge to do that.” Id.
Chief Baum further stated that he did not know what happened
to the S.D. card and that he did not have a memory of ever
seeing it. Id. When asked if he ever handled it,
Chief Baum said, “Not that I remember.”
When asked if he had ever represented that the S.D. card had
been given directly to the MSP, Chief Baum denied any
knowledge of making that representation. Id. at
84-85. At the evidentiary hearing, Chief Baum was asked
whether the S.D. card should have been handled with a proper
chain of custody. Id. at 89. He admitted that it
should have been and that leaving the S.D. card lying on a
desk would violate chain of custody principles. Id.
He also admitted that, to the best of his recollection, the
S.D. card was in Grayling Police Department custody when
taken out of Somero's vehicle. Id. at 90.
Jan. 17, 2017, Op. & Order at 7-8.
Michigan State Police (MSP) investigated the shooting but did
not seize the S.D. card containing the original audio files
or pursue the possibility that the files had been
Detective Rick Sekely was the investigating MSP detective.
Id. at 125. He testified that he received a compact
disc which purportedly contained the recordings from
Somero's car on March 1, 2012, twenty-seven days after
the Reddie shooting occurred. Id. at 126. Detective
Sekely was never given the S.D. card and never discussed the
S.D. card during his investigation. Id. at 126-27.
Detective Sekely requested a copy of the recordings from
Chief Baum on the night of the shooting. Id. at 127.
He testified that, when questioned about the recordings, both
Chief Baum and Somero stated that there would be no audio,
but that “we'll see if there's video.”
Id. at 128. Detective Sekely also testified that
Chief Baum told him that the manufacturer helped the
department download the S.D. card to the compact disc. Evid.
Hearing Tr. II at 38. ProVision has no records of doing so
and Defendants have not provided any other substantiation for
According to Detective Sekely, he asked for a copy of the
recordings from Somero's vehicle during his initial
investigation of the shooting. Evid. Hearing Tr. I at 127.
Detective Sekely did not receive the recordings, in the form
of a compact disc, until March 1, 2012. According to
Detective Sekely, Chief Baum contacted him when the disc was
available. Id. at 138. Detective Sekely traveled to
the Grayling Police Department and picked up the compact disc
along with some paper reports. Id. Detective Sekely
is unsure if Chief Baum came out to greet him. Id.
Several days later, Detective Sekely tried for the first time
to play the files on the disc. Id. He was unable to
get the files to play, despite trying several different
computer programs. Id. at 139. Detective Sekely then
emailed Chief Baum and asked if a special program was needed
to view the files. Id. at 141. Chief Baum did not
respond, and Detective Sekely never followed up. Id.
The identity of the person who burned the compact disc
Jan. 17, 2017, Op. & Order at 9-10.
analysis of the disc provided to the MSP strongly suggested
that a recording existed at one point, that a member of the
Grayling Police Department listened to it, and that the
individual then created the disc which was given to the MSP
but did not transfer the actual audio recordings onto the
During the evidentiary hearing, witnesses testified about the
operation of the ProVision system and interpreted the
metadata found on the otherwise inoperable compact disc.
Plaintiff's expert, Edward Primeau, has worked in the
audio/video surveillance field for over thirty years. [Evid.
Hearing Tr. III] at 62. In that time, he provided audio/video
authentication and enhancement services, as well as evidence
recovery services. Id. at 63. At the evidentiary
hearing, Mr. Primeau explained that although the compact disc
provided to the MSP did not contain any audio/visual files,
it contained “metadata.” Id. at 65.
According to Mr. Primeau, metadata is “information
about the file such as when it was created, the system it was
created on, the date it was created, the size of the
file.” Id. at 66. This metadata can be found
using special software programs. Id.
The compact disc provided to the MSP contained fourteen
“.xspf files.” Id. at 69. These files
act as a kind of directory or playlist: they point towards
the location of the underlying audio/visual recordings.
Id. These .xspf files are generated by the VLC
Player software, a media player used by the Grayling Police
Department. Id. at 71. According to Mr. Primeau,
.xspf files are created through a multi-step process. First,
an audio/visual file must be accessed on a computer.
Id. at 72. Second, the file must be opened in the
VLC Player. Id. Third, a playlist file had to be
created via the VLC Player, named by the user, and then
saved. Id. Mr. Primeau was able to recover metadata
contained in the .xspf files which provided information about
the underlying but now missing audio/visual recording files.
Id. at 72. First, he explained that each of the 14
.xspf files were renamed by a user and contained
“Reddie” in the filename. Id. at 72-73.
He further testified that the metadata indicated that each
recording was exactly five minutes long and that all fourteen
recordings were created on February 3, 2012. Id. at
73. The metadata also revealed that the recordings were from
GPD02. In summary, Mr. Primeau testified that the metadata
showed that fourteen audio/visual recordings, which were each
five minutes long, were made on February 3, 2012.
Id. at 74. Those recordings were then opened in the
VLC Player and fourteen playlist files were created.
Id. Those playlist files, but not the actual
audio/visual files, were then saved to the compact disc that
was provided to the MSP. Id. When asked to confirm
that the metadata proved that audio/visual recordings existed
at some point in time, Mr. Primeau explained that VLC Player
would not be able to make or save the playlist files unless
there was an audio/visual file. Id. at 75-76. In
order to have functionality, VLC Player must open an actual
audio/visual file. Id. However, he admitted several
times that there was no way to know conclusively whether the
recordings made in this instance contained both video and
audio or only video. Id. at 116, 140.
Mr. Primeau further testified that, if a user was attempting
to burn audio/visual recordings from an S.D. card to a disc,
loading the files in VLC Player is both unnecessary and
“clunky.” Id. at 76. Instead, a user
could simply insert the S.D. card into the computer, insert a
blank disc, and directly copy the files from the S.D. card or
computer to ...