Vogt v. MEnD Corr. Care

1

Molly Vogt, as Trustee for the Heirs and Next-of-Kin of Joshua Vogt, deceased, Plaintiff, v. MEnD Correctional Care, PLLC; Crow Wing County, Minnesota; Heath Fosteson, individually and in his capacity as Crow Wing County Jail Administrator; CO Robert Anderson; CO Raynor Blum; CO Cherokee DeLeon; CO Christine Ghinter; CO Ronald J. Imgrund; and CO Lukasz Organista, Defendants.

No. 21-cv-1055 (WMW/TNL)

United States District Court, D. Minnesota

March 8, 2023

Nicholas Sweeney, Brazil Law Group, and

Jessica Schwie, Kennedy & Graven, Chartered, for Defendant COs Robert Anderson, CO Raynor Blum, and CO Ronald J. Imgrund).

REPORT & RECOMMENDATION

TONY N. LEUNG, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

This matter comes before the Court on Plaintiff Molly Vogt's Rule 37(e) Motion for Default Judgment and Other Sanctions, ECF No. 57. A hearing was held. ECF No. 66. Nicholas Sweeney appeared on behalf of Plaintiff. Jessica E. Schwie appeared on behalf of Defendants CO Robert Anderson, CO Raynor Blum, and CO Ronald J. Imgrund (collectively, “CO Defendants”).^[1] In light of the Court's conclusion on the disposition of Plaintiff's motion, the Court has issued its decision in the form of a report and recommendation to the district court, the Honorable Wilhelmina M. Wright, District Judge for the United States District Court for the District of Minnesota.

Based upon the record, memoranda, and proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's motion be GRANTED IN PART and DENIED IN PART.

II. BACKGROUND

A. Death of Joshua Vogt on January 3, 2022

As alleged in the First Amended Complaint, Joshua Vogt^[2] was arrested on January 2, 2020, and transported to the County's jail. First Am. Compl. ¶¶ 19-20. Joshua Vogt arrived at the jail close to midnight. First Am. Compl. ¶ 20. Upon his arrival, he was transported to the booking area where an officer removed his “handcuffs and performed a pat down search.” First Am. Compl. at 20. After this pat-down search, Joshua Vogt “enter[ed] a bathroom by himself from 11:53 PM to 12:03 AM,” during which time Plaintiff alleges that Joshua Vogt “ingested two baggies of [m]ethamphetaine that eventually led to his death.” First. Am. Compl. ¶ 20. After he was done in the bathroom, Joshua Vogt “showered and changed into orange jail clothing.” First Am. Compl. ¶ 21.

Around 12:12 AM, Joshua Vogt “was booked into the” jail by Defendant CO Robert Anderson. First Am. Compl. ¶ 22. During the booking process, Defendant CO Anderson noted on a form that Joshua Vogt “was exhibiting ‘tremors, sweating profusely.'” First Am. Compl. ¶ 22. There was a question that asked: “When was the last time you consumed any drugs? What type?” First Am. Compl. ¶ 22. Defendant CO Anderson reported that Joshua Vogt was “[o]n something right now, but he's unsure what he took. He's sweating heavily.” First Am. Compl. ¶ 22.

Joshua Vogt remained in the booking area for approximately 20 minutes. See First Am. Compl. ¶¶ 22-23. During this time, he “was shaking, sweating heavily and pacing around the room.” First Am. Compl. ¶ 23. Shortly after 12:30 AM, Joshua Vogt lost his balance and fell over as he turned to the side for a profile picture. First Am. Compl. ¶ 23. Three County deputies “rush[ed] to assist him.” First Am. Compl. ¶ 23.

At some point, Defendant CO Raynor Blum “informed” Defendant CO Ronald J. Imgrund that Joshua Vogt “was on drugs and was shaking violently.” First Am. Compl. ¶ 24. Around 12:45 AM, Defendant COs Anderson and Imgrund “carried [Joshua] Vogt into Court Holding Cell 2.” First Am. Compl. ¶ 24. Joshua Vogt was “shaking and not able to walk on his own.” First Am. Compl. ¶ 24.

Joshua Vogt was “left alone in the holding cell,” where he remained until approximately 1:30 AM, when Defendant CO Imgrund entered the holding cell and noticed he “was incoherent” and “shaking worse than he was earlier.” First Am. Compl. ¶ 26. Defendant CO Imgrund “instructed staff to call for an ambulance” and also telephoned an on-call nurse. First Am. Compl. ¶ 27. A few minutes later, Joshua Vogt stopped breathing. First Am. Compl. ¶ 27. Defendant COs Blum and Imgrund began life-saving measures. First Am. Compl. ¶ 27. Emergency medical services arrived approximately six minutes later and took over. First Am. Compl. ¶ 28. Less than an hour later, Joshua Vogt was pronounced dead. First Am. Compl. ¶ 28.

B. January 3, 2020 Meeting with the County & Autopsy of Joshua Vogt

Later in the morning on January 3, the same day that Joshua Vogt died, members of his family met with a County investigator. Pl.'s Mem. in Supp. at 4; see Ex. 39 at 13,^[3]ECF No. 53-6. “Portions of this conversation were recorded” and a transcript of this meeting was made by defense counsel. Pl.'s Mem. in Supp. at 4; see generally Ex. 39; see also generally Exs. 38-1, 38-2 (audio recordings on DVD). During this conversation, the County investigator told Joshua Vogt's family that part of the investigation process involved watching video and that, with respect to the jail, “there's obviously the jail there's not an inch of that facility that's not under constant surveillance.” Ex. 39 at 3; see also Ex. 39 at 4 (“[B]ut the guys who are on the ground doing the talking, analyzing, looking, watching the videos and things like that.”). Joshua Vogt's family asked whether they would be able to watch the videos as well and were told by the County investigator that they “eventually” would. Ex. 39 at 3.

Throughout this conversation, members of Joshua Vogt's family discussed consulting with counsel about the events that happened. At one point, someone stated: “I think we need to get a hold of somebody.” Ex. 39 at 3; see also Ex. 39 at 8 (“I think we need to talk to somebody about that.”). At another point, someone asked the County investigator whether he “would recommend us getting an attorney right now?” Ex. 39 at 9. The County investigator responded that he “can't provide legal advice.” Ex. 39 at 9. Later in the meeting, someone commented: “I think we need to get an attorney and I think we need to talk to some people from not around this county because I believe that things happened and they're trying to cover it up, that's what I think.” Ex. 39 at 10; see also Ex. 39 at 11 (“I think we need to go to an attorney”).

C. Second Meeting with County

“A few weeks later,” members of Joshua Vogt's family met with another County investigator, which was also recorded. Pl.'s Mem. in Supp. at 6. This meeting was likewise transcribed by defense counsel. Pl.'s Mem. in Supp. at 6; see generally Exs. 40, 41.

During this meeting, the County investigator “played portions of the surveillance video.” Pl.'s Mem. in Supp. at 6. Members of Joshua Vogt's family asked questions about the availability of other video, including the cell “that they took [Joshua Vogt] out of.” Ex. 41 at 3. The County investigator responded: “The core holding, or the one yeah, the group holding the first one that they went in. Not that I'm aware of, I wasn't provided any cameras [inaudible] and I'm sure they would have gave us that one since he was in there.” Ex. 41 at 3.

Joshua Vogt's family continued to press about cameras in the holding cells. See Ex. 41 at 3-4. The County investigator told them that “[t]here's cameras in our pods, this is the booking area”; the “pods are different from the booking area”; and “there aren't cameras in any cell in the pods even, just in the common area.” Ex. 41 at 3. The County investigator further explained that he was not aware of any cameras covering the area in question, but would “double[]check.” Ex. 41 at 4. The County investigator reiterated, “But I am positive that I would have that footage had there been a camera in there.” Ex. 41 at 4. The County investigator added, “I mean they've given me footage of everything, you saw how I have them step by step by step by every camera angle so they're not going leave that one out. And I do know, that nowhere in any of our cells do we have cameras.” Ex. 41 at 4.

D. Pre-Litigation Events

In a letter dated June 17, 2020, Plaintiff's counsel sent the County a request under the Minnesota Government Data Practices Act (“MGDPA”), Minn. Stat. § 13.01 et al., seeking, among other things, “[a]ny and all video surveillance [between 11:00 PM on January 2, 2020 through 4:00 AM on January 3, 2020], where [Joshua] Vogt is visible.” Ex. A at 1 to Decl. of Nicholas S. Sweeney, ECF No. 60-1. Approximately 30 days later, the County's county attorney responded to Plaintiff's counsel, enclosing, among other things “5 [d]ifferent discs containing video from the [jail].” Ex. B at 2 to Sweeney Decl., ECF No. 60-2. Included among the footage was video from the jail's Cameras 17 and 19, but not Camera 18. Pl.'s Mem. in Supp. at 8. Plaintiff's counsel followed up with the County, specifically requesting “[a]ll video footage from Camera 18.” Ex. C at 1 to Sweeney Decl., ECF No. 60-3. Defense counsel responded on behalf of the County. See generally Ex. D to Sweeney Decl., ECF No. 60-4. After discussing the matter with the County, defense counsel stated that the County “confirmed the fact[] that . . . there is no video camera in the jail holding cell.” Ex. D at 1 to Sweeney Decl.

Plaintiff subsequently filed this suit in April 2021. See generally ECF No. 1. Plaintiff noted in her pleading that there appeared to be missing video footage. See, e.g., ECF No. 1 ¶¶ 18, 23, 25.

E. Litigation

Throughout this litigation, Plaintiff continued to pursue what she believed to be the missing footage.

1. Motion to Dismiss

The issue was discussed at the hearing on Defendants' prior motion to dismiss, at which another attorney with defense counsel's office explained that it was his understanding that “the video that the County offered to...