UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MARY FOULKE

AS PERSONAL REPRESENTATIVE

FOR THE ESTATE OF JOHN C YOUNG, et al.,

Plaintiffs,

v. Case No. 3:20cv5506-MCR/EMT

DANIEL WELLER, et al.,

Defendants.

_________________________________/

ORDER

This civil rights suit stems from a fatal incident in which John C. Young was 

shot and killed at his apartment by deputies responding to Young’s 911 call. 

Plaintiffs, Personal Representatives of the Estate of John C. Young, brought suit

alleging constitutional and state law claims against the Sheriff of Escambia County

and several deputies of the Escambia County Sheriff’s Office (“ECSO”) involved in 

the shooting. Plaintiffs filed a motion in limine requesting an adverse inference as 

a sanction for the failure to timely preserve evidence consisting of a pair of pants, a 

cell phone, and a cell phone case, which now cannot be forensically examined.1 

1 Plaintiffs contend the evidence should have been preserved on the day of the incident, 

instead of months later, after the pants had been washed and the phone had been in continued use, 

and also question whether these items are in fact the same, based on a chain of custody question.

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 1 of 9
Page 2 of 9

Case No. 3:20cv5506-MCR/EMT

Pending is the magistrate judge’s Report and Recommendation, ECF No. 72, 

recommending that Plaintiffs’ motion for evidentiary sanctions be denied, ECF No. 

35. The parties have been given an opportunity to object. See ECF No. 73. Having 

fully considered the objections and the record, the Court adopts the Report and 

Recommendation.

The district court reviews the disputed portions of a magistrate judge’s report 

and recommendation de novo. 28 U.S.C. § 636(b)(1). The court “may accept, reject, 

or modify the recommended disposition; receive further evidence; or resubmit the 

matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Applying 

de novo review, the court examines the legal conclusions reached and independently 

considers factual issues based on the record. See Jeffrey S. ex rel. Ernest S. v. State 

Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).

As noted by the magistrate judge, the facts are largely undisputed but the 

parties disagree as to the inferences to be derived from the facts and the application 

of law to them. Undisputed evidence established that on December 1, 2018, John C. 

Young called 911 from his apartment and reported that he had “just murdered 

someone” with a meat cleaver and that he was thinking about killing himself or 

someone else too. ECF No. 42–2 at 5–6. He stated he also intended to kill one of 

the responding deputies and that he had a gun. Id. at 8–9. Several deputies 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 2 of 9
Page 3 of 9

Case No. 3:20cv5506-MCR/EMT

responded to the scene and within minutes, Young was dead, having been shot 

approximately 27 times. 

The deputies’ accounts are stated within the Report and Recommendation and 

will be summarized here only for context. When they arrived, Young stepped out 

of the apartment, holding a meat cleaver in one hand and a knife of some sort in the 

other.2

 Young failed to comply when the deputies ordered him to drop the weapons. 

As a result, the deputies fired five rounds of non-lethal bean bags and a Taser, none 

of which had any effect on Young. He raised the meat cleaver as if he intended to 

throw it, and the deputies fired their weapons. Deputy Daniel Weller recalled that

other deputies were firing at Young as the knife was in the air and said the knife hit 

his leg before he discharged his gun. See generally ECF No. 72 at 2–3; ECF No. 

35–1 at 109; ECF No. 42–4 at 4. 

Shortly after the incident, Weller noticed two holes in his pants and a red mark 

on his leg. He later noticed a two or three inch scrape on his cell phone case, which 

he said matched up with the hole in his pants. See ECF No. 72 at 4; ECF No. 35–1 

at 6–10. The pants and cell phone case were photographed but not immediately 

collected by either the Florida Department of Law Enforcement (“FDLE”) or the 

2 A meat cleaver and a box cutter were recovered from the scene. ECF No. 42–21.

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 3 of 9
Page 4 of 9

Case No. 3:20cv5506-MCR/EMT

ECSO. Weller continued to wear and wash the pants and continued to use the phone 

in the case. ECF No. 35–1 at 18–22. Despite Plaintiffs’ early general request for 

the preservation of evidence, Defendants did not collect these items from Weller 

until 26 or 27 months later when Plaintiffs’ counsel requested them expressly. ECF 

No. 42–34. 

Based on this evidence, the magistrate judge concluded (1) that the pants, cell 

phone, and case existed at the time of the incident, (2) that a duty to preserve arose 

when the FDLE investigation began, (3) that, while the evidence as it existed on 

December 1, 2018, is not crucial to the Plaintiffs’ case in chief, a comparison of the 

indentations with the meat cleaver could be helpful to defeat claims of self-defense, 

but (4) notwithstanding these conclusions in Plaintiffs favor and a strong case for 

carelessness, the circumstantial evidence does not support a finding of bad faith. The

magistrate judge thus recommended denying the request for sanctions but explained 

that Plaintiffs are not without a remedy because they will have broad latitude at trial

to challenge officer credibility and the authenticity of the evidence. 

Plaintiffs object, arguing the magistrate judge erred by accepting the

Defendants’ “self-serving assertions” that the physical items currently in the 

Escambia County Sheriff’s Office evidence room are the same items involved on 

December 1, 2018. But self-serving statements based on personal knowledge are 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 4 of 9
Page 5 of 9

Case No. 3:20cv5506-MCR/EMT

admissible and not inherently unworthy of credence. See United States v. Davis, 

809 F.2d 1509, 1512–13 (11th Cir. 1987) (explaining that “self-serving testimony, 

by itself” can create a genuine dispute of material fact, especially where it is not 

directly contradicted and not “so fantastic” that it “falls of its own weight”). Here, 

Plaintiffs point to nothing but speculation to assert that the pants and cell phone case 

in the evidence room are not the same items Deputy Weller had on his person on the 

day of the incident. There is some corroboration of Weller’s statements in that the 

items are documented in contemporaneous reports and photographs, despite the 

questionable chain of custody. Plaintiffs are free to challenge credibility and raise 

doubts based on the lack of evidence or gaps in evidence before the jury. 

Plaintiffs also argue that the magistrate judge erred by ignoring the

Defendants’ concessions that the items had been “physically and substantially 

altered.” ECF No. 73 at 9. The Court disagrees. The magistrate judge 

acknowledged that the pants had been worn and washed several times after the 

shooting and that Weller continued to use the phone case, but even so, concluded 

that this does not establish bad faith. Sanctions cannot be imposed based on 

spoliation of evidence “for negligently losing or destroying evidence,” and in the 

spoliation context, bad faith “generally means destruction for the purpose of hiding 

adverse evidence.” See Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 5 of 9
Page 6 of 9

Case No. 3:20cv5506-MCR/EMT

2020) (quoting Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)), cert. denied, 

141 S. Ct. 2516 (2021). Where a defendant is aware of the request to preserve a 

specific and crucial item and destroys it anyway, bad faith can be found. See Flury 

v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005) (finding evidence of 

bad faith where plaintiff knew the location and condition of the vehicle involved in 

the accident and was fully aware that defendant wished to examine the vehicle but

ignored the request and allowed the vehicle to be sold for salvage without notice to 

defendant). Here, Plaintiffs identify nothing in the record indicating that the 

Defendants photographed these items on the day of the incident and then sent them 

home with Weller to be purposefully destroyed or materially altered because they 

believed it to be adverse evidence. 

Plaintiffs also contend that the magistrate judge improperly discounted the 

expert opinion of Dr. Kris Sperry, who opined that it was now impossible to conduct 

a forensic comparison of the cleaver blade to the defects in the pants and cell phone 

case. ECF No. 35–1 at 115. Plaintiffs argue that Daubert findings are outside the 

scope of the magistrate judge’s role for purposes of this motion, but the magistrate 

judge did not make a Daubert ruling. While the magistrate judge commented that

the Defendants have challenged the expert’s opinion in a pending Daubert motion, 

he did not rule on that motion. The magistrate judge noted merely that, even taking 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 6 of 9
Page 7 of 9

Case No. 3:20cv5506-MCR/EMT

the opinion at face value, it does not explain why a few washings would render any 

comparison impossible or why testing of the hard items (the cell phone case and the

blade) would be totally futile. Importantly, although the magistrate judge was not 

convinced that a forensic analysis of the items as they existed on December 1, 2018, 

is crucial to the Plaintiffs’ case in chief, he nonetheless assumed for the sake of 

analysis that the evidence would have some practical importance and that this prong 

of the spoliation analysis was met. Thus, the magistrate judge’s comments 

questioning the expert opinion did not materially impact the analysis. 

Plaintiffs also argue that the magistrate judge held them to an unnecessarily

strict standard of proof, requiring them to show the importance of the evidence and 

prejudice, which, they contend, allows the Defendants to profit from their 

destruction of that evidence. The Court wholly disagrees. The party seeking 

sanctions does have the burden to prove prejudice and the practical importance of 

the evidence. See Tesoriero, 965 F.3d at 1184–85.

3

 The magistrate judge questioned 

why the knife blade and cell phone cut could not still be forensically examined, even 

3 The Eleventh Circuit has considered the following factors relevant: “(1) whether the party 

seeking sanctions was prejudiced as a result of the destruction of evidence and whether any 

prejudice could be cured, (2) the practical importance of the evidence, (3) whether the spoliating 

party acted in bad faith, and (4) the potential for abuse if sanctions are not imposed.” Tesoriero, 

965 F.3d at 1185 (quoting ML Healthcare Servs., LLC v. Publix Super Mkts, Inc., 881 F.3d 1293, 

1307 (11th Cir. 2018)). 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 7 of 9
Page 8 of 9

Case No. 3:20cv5506-MCR/EMT

if the pants could not be, but concluded the circumstantial evidence did not support 

a finding of bad faith. Instead, it demonstrated carelessness. See id. (emphasizing 

that bad faith must be shown to support spoliation sanctions). The undersigned 

agrees. In addition to the reasons stated by the magistrate judge, the Court notes that

Jennifer Wilkerson, FDLE Senior Crime Laboratory Analyst, stated she did not 

“think there was a lot of forensic purpose in collecting those items, especially the 

pants.” ECF No. 42–22. While careless, the Defendants’ conduct can be credibly 

explained as involving a judgment call about the forensic importance of preserving 

this evidence, which had already been photographed and documented. See Managed 

Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1323 (S.D. Fla. 

2010) (noting circumstantial evidence of bad faith requires, among other things, 

proof that the “affirmative act causing the loss cannot be credibly explained as not

involving bad faith by the reason proffered by the spoliator”) (internal marks 

omitted). The Court agrees that the evidence does not support a finding of bad faith.

The Court further concludes that sanctions for spoliation are not necessary in 

this case to prevent unfair prejudice, contrary to Plaintiffs’ objections. As noted by 

the magistrate judge, Plaintiffs will have broad latitude at trial to attack the 

credibility of the officers, to challenge the chain of custody, and to argue about the 

proper inferences to be drawn from the relevant facts. Counsel will be free to argue 

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 8 of 9
Page 9 of 9

Case No. 3:20cv5506-MCR/EMT

that the jury may draw adverse inferences from the FDLE and ECSO’s handling of 

items even in the absence of an instruction directing the jury to do so.

Accordingly, the Court ADOPTS the Report and Recommendation of the 

magistrate judge dated December 6, 2021, ECF No. 72; Plaintiffs’ objections are 

OVERRULED; and Plaintiffs’ Motion in Limine for Evidentiary Sanctions Due to 

Defendants’ Spoliation of Evidence, ECF No. 35, DENIED. 

DONE AND ORDERED this 14th day of March 2022.

M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case 3:20-cv-05506-MCR-EMT Document 75 Filed 03/14/22 Page 9 of 9