The Colorado Department of Corrections erased video footage of an alleged use-of-force incident that it, in fact, had a responsibility to retain, a federal court ruled on Tuesday in a lawsuit from an incarcerated man.

Well before surveillance footage was automatically deleted, Manuel J. McGee had filed a grievance with CDOC claiming excessive force against him. Citing numerous cases in which courts previously determined a grievance triggered the need to hold onto footage, U.S. Magistrate Judge Scott T. Varholak concluded that “Defendants had a duty to preserve video evidence of the incident.”

McGee alleged that he had an existing arm injury at the time he got into an argument with two prison personnel at Pueblo’s San Carlos Correctional Facility in October 2019. McGee threatened to harm himself and flooded his cell, demanding to meet with the shift commander. After the meeting, McGee needed to be restrained for a mental health evaluation because of his self-harm threats.

According to McGee’s complaint, Officer Jeremy Baca placed handcuffs tightly on McGee’s injured arm and handled him roughly on purpose. McGee further alleged he cried out in pain and told Baca about the steel plate and screws in his forearm, but Baca did not respond. McGee further accused a second officer, Gabriel Pacheco, of not responding to his requests, and that both personnel gave McGee a “hateful” look during the process.

McGee reported staying in the restraint for four to five hours. Subsequently, when nurse Pamela Jones came to check the restraints, McGee claimed she saw the handcuffs were too tight, but did not request that officers loosen them. He reportedly was not sent to see a nurse for pain medication for five days, although a later X-ray came back normal.

After submitting grievances to the CDOC within days, McGee initiated an excessive force lawsuit in February 2020 against the three prison employees. As part of the litigation, he requested security video of the alleged encounter.

“Video surveillance is the actual proof that the excessive force incident actually occurred,” McGee, who is representing himself, wrote to the court.

CDOC responded that the videos did not exist because they “were not retained in accordance with the Colorado Department of Corrections’ normal retention policy.”

The prison stores ceiling camera footage, which does not record audio, for 30 days. There was also video and audio from a handheld camera, which was deleted much more quickly. Normally, staff archive videos depicting significant use of force, crimes, major injuries or property damage in the prison. Officers who are involved in uses of force have to submit an incident report.

The administrative services manager at San Carlos testified that he reviewed the incident reports from the day of McGee’s alleged injury and found no use of force – because the officers did not believe their interaction with McGee rose to that level. Therefore, there was no rationale for archiving the video.

“Defendants did not view their actions in placing Mr. McGee in universal restraints a use of force at all,” the Colorado Attorney General’s Office argued to the court, “let alone concluded that Mr. McGee might claim in litigation that Defendants used excessive force.”

As such, the CDOC believed it was not on notice to archive the video until McGee filed his lawsuit. But the magistrate judge concluded otherwise.

“While the Court has some doubts as to whether the video footage would be able to detect the tightness of the restraints,” Varholak wrote in a May 25 order, “the video would show whether Defendant Baca was acting aggressively or yanking on the chains and may show Plaintiff’s reaction to those movements. Thus, the Court concludes that Plaintiff has been prejudiced by the destruction of the videos.”

Varholak found no evidence to suggest the prison destroyed the videos intentionally or in bad faith. However, he decided McGee may be allowed to reference at trial the CDOC’s failure to retain the footage. The district court judge presiding over the trial will have the final say.

A spokesperson for CDOC said the department could not comment on ongoing litigation. McGee is asking for $40,000 and for the CDOC to stop injuring his arm and denying him medical access.

The case is McGee v. Pacheco et al.