Smith v. Nichols, 2013 U.S. App. LEXIS 16 (10th Cir. Jan. 2, 2013):

Plaintiff-Appellant Tommie Smith, an inmate in the custody of the Colorado Department of Corrections ("CDOC"), appeals a jury verdict denying his claims under 42 U.S.C. § 1983 against Defendant-Appellee Sergeant Virgil Nichols, a CDOC correctional officer. 1 The jury concluded after a four-day trial that Smith had not proved by a preponderance of the evidence that Sgt. Nichols violated Smith's Eighth Amendment rights by using excessive force against Smith. ***

Finally, Smith argues that two items of evidence--his bloody clothes and the chain used to restrain him--"should [have] be[en] save[d], and use[d] for court." Aplt. Br. at 2. We construe this liberally as a claim that the district court erred when it denied Smith's request, based on Nichols's inability to produce that evidence, for a jury instruction on spoliation. "[C]ourts require evidence of intentional destruction or bad faith before a litigant is entitled to a spoliation instruction." Henning v. Union Pac. R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008). We review a district court's finding on bad faith for clear error, Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1149-50 (10th Cir. 2009), and its decision to give or refuse an adverse-inference instruction for an abuse of discretion. Gilbert v. Cosco Inc., 989 F.2d 399, 406 (10th Cir. 1993).

We find no abuse of the court's discretion in its refusal to instruct the jury on spoliation. The district court ruled at the charge conference that "the evidence [was] insufficient to show bad faith" by Sgt. Nichols, Doc. 195 at 671, because it did not show that Nichols was aware that "there was going to be a lawsuit brought against him in his individual capacity as compared to a lawsuit brought against the [CDOC]." Doc. 195 at 671. Smith's counsel pointed to a single piece of evidence, that "Smith . . . specifically says that he had contacted the Logan County District Court Clerk to place and file a restraining order against Sergeant Nichols specifically," but the court responded that a restraining order, which is a "prospective request, not a retrospective claim," was insufficient to put Nichols on notice of a future § 1983 suit against him. Doc. 195 at 672-73. Smith points to no additional evidence in the record that would show Sgt. Nichols acted in bad faith, and though we construe his pro se brief liberally, we "cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Accordingly, we reject Smith's final claim.