The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
Plaintiff Cesar Uribe filed this motion for sanctions for spoliation of evidence against defendants McKesson, Martinez, Tuzon and Zaragosa ("Defendants") for failing to comply with this Court's order to produce the confiscated property/contraband receipts written by McKesson on February 22, 2007 and the February 2007 housing unit cell/locker search log book. He seeks relief in the form of an adverse inference instruction to restore Plaintiff to a position he would have been in had the documents not been destroyed. Defendants oppose, asserting they did not destroy the cell search receipts or log book, and did not influence their destruction under the California Department of Corrections and Rehabilitation ("CDCR") document retention policy.
The Court has considered both parties' arguments, and for the following reasons, DENIES the motion for sanctions.
Plaintiff sues for violations of his: (1) federal constitutional right to be free from retaliation when engaged in a protected action, and (2) state tort right for personal injury. Compl. ¶¶ 25-26. He asserts these relevant facts in the complaint.
On February 22, 2007, while housed at California Substance Abuse Treatment Facility and State Prison ("SATF"), Plaintiff attempted to mail out his legal documents. Compl. ¶ 9. Following correctional officers McKesson's, Martinez's and Zaragosa's instructions, Plaintiff arrived at the floor office after the evening meal with his legal documents. Compl. ¶ 9. Upon arriving, McKesson, Martinez and Zaragosa told Plaintiff he should have delivered the documents before the evening meal, cursed at Plaintiff and refused to mail out Plaintiff's legal documents. Compl. ¶ 12. Martinez, following McKesson's orders, slammed the door and smashed Plaintiff's foot. Compl. ¶ 14. Plaintiff left the floor office to try and speak with the Sergeant, but instead, was stopped by correctional officer Tuzon, who ordered Plaintiff back to his cell. Compl. ¶¶ 15, 16. Soon after, Plaintiff was brought back to the floor office after again requesting that his legal documents be mailed out. Compl. ¶ 17. McKesson, Martinez and Zaragosa agreed to process Plaintiff's legal mail. Compl. ¶ 18. They then followed Plaintiff back to his cell, locked Plaintiff and his cell mate in a shower cage and ransacked Plaintiff's cell. Compl. ¶ 18. Plaintiff's personal belongings were either confiscated or destroyed. Compl. ¶ 21. McKesson and Martinez made separate statements to Plaintiff, implying that the actions taken against Plaintiff were in retaliation for Plaintiff's attempt to mail out his legal documents. Compl. ¶ 19.
Plaintiff filed a CDCR 602 grievance form concerning these events on February 24, 2007. Uribe Decl. Ex. A. He filed the complaint on August 29, 2008.
2. The Underlying Motion to Compel
On October 29, 2009, Plaintiff served on McKesson requests for production of documents. He requested McKesson's February 22, 2007 cell search receipts and the February 2007 cell/locker search log book for the SATF Facility E, Housing Unit #2. McKesson said he did not have possession, custody, or control of these documents. On January 25, 2010, Plaintiff filed a motion to compel further responses from McKesson, which this Court granted. First, the Court overruled McKesson's objections to the request for the receipts and ordered the production of "all confiscated property/contraband receipts written by McKesson on February 22, 2007 at SATF, Facility E. Housing Unit #2." If McKesson could not produce the receipts, he was to "provide to Plaintiff a declaration detailing the steps he went through to locate those receipts and explain the prison's document retention policy, if applicable." Second, the Court overruled the objections to producing the unit log book, which defense counsel believed had been destroyed, and ordered McKesson to provide a declaration regarding the retention policy and noted that "if that document was in fact not retained, the court must determine whether its disposal occurred before or after defendants were on notice of this lawsuit."
McKesson determined the receipts and log book had been destroyed. He provided a declaration to Plaintiff explaining the applicable document retention policy. Uribe Decl. Ex. D. According to the policy, log books and cell search receipts are retained for one year, and confiscated property receipts are retained for two years. Id. While Defendants could not identify a specific record for the date of destruction of these documents, they believe they were destroyed in February 2008 and February 2009, in accordance with the policy. Id.