ORDER DENYING PLAINTIFF'S MOTION FOR A HEARING DUE TO DESTRUCTION
OF EVIDENCE AND GRANTING CURATIVE JURY INSTRUCTION
(ECF Nos. 103, 106, 107, 108, 109)
Plaintiff Ferdinand Reynolds is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following resolution of the parties cross-motions for summary judgment, this action is proceeding on Plaintiff's claim that Defendant Gerstel was deliberately indifferent to Plaintiff's dental needs in violation of the Eighth Amendment in extracting a tooth on August 18, 2008. (ECF No. 67.)
On April 23, 2012, an order issued vacating the trial in this action, and periodic status conferences have been held in the district court. On July 25, 2012, Plaintiff filed a motion for a hearing due to willful and intentional destruction of his evidence. (ECF No. 103.) On July 30, 2012, a telephonic hearing was conducted by the district court judge; and this action was referred to the magistrate judge for determination if any action needed to be taken due to Plaintiff's allegations regarding his missing property and evidence. (ECF No. 104.) Defendant filed an opposition to Plaintiff's motion on August 22, 2012. (ECF No. 106.) Plaintiff filed a reply on September 12, 2012, and a supplement to his reply on September 24, 2012. (ECF Nos. 107, 108.) On December 17, 2012, Plaintiff filed a declaration. (ECF No. 109.)
II. MOTION FOR HEARING ON DESTRUCTION OF PROPERTY
Plaintiff brings this motion alleging that prison officials willfully and intentionally destroyed evidence that he needs to prove his claims in this action and requests an evidentiary hearing. Plaintiff's claims regarding the destruction of his personal property are unrelated to the issues in this action. This matter has been referred to this court for the limited determination on Plaintiff's claim that evidence and legal documents in this action have been destroyed. Therefore, Plaintiff's allegations regarding retaliation and destruction of his personal property shall be disregarded. The Court has reviewed Plaintiff's moving papers, Defendant's opposition and Plaintiff's reply and finds that a hearing is not necessary. Accordingly, Plaintiff's request for a hearing is denied.
While housed at Salinas Valley State Prison ("SVSP"), Plaintiff was scheduled to be transferred to another institution. On May 4, 2012, Correctional Officer Cox told Plaintiff that he had no right to be present while his personal property was packed and allegedly threatened to harm the property if Plaintiff refused to allow Officer Cox to pack it. Plaintiff contacted the law office of defense counsel regarding the issue. (Mot. Requesting Fact Finding Hearing 1, ECF No. 103.) Later that same day, Plaintiff was informed that he would be allowed to be present to observe his property being inventoried and packed due to his transfer from SVSP. Receiving and Release ("R&R") was notified that Plaintiff's personal property was to be packed and inventoried by floor staff due to the threat made by Officer Cox. (Id. at 2.)
Plaintiff was allowed to observe his personal property being inventoried and packed prior to his transfer. (Id.) Plaintiff's property was packed in eleven boxes and his legal property was labeled "do not open." (Id. at 3-4.) The next morning, Plaintiff was escorted to be picked up by the transportation bus. Plaintiff states that prior to the arrival of the bus, Officer Cox noticed that Plaintiff's property had been packed by facility staff and became angry, telling Plaintiff his property was going to end up in the trash. Officer Cox allegedly went to Sgt. Jansen and insisted that Sgt. Jansen help Officer Cox with his plan of destroying Plaintiff's property. (Id. at 4.) Sgt. Jansen then came from his office to the shipping dock and began ripping apart the boxes and throwing Plaintiff's personal property and legal property on the ground.
Plaintiff claims that Sgt. Jansen came over to the holding cell while holding Plaintiff's two envelopes containing his legal materials, including evidence in this action. Plaintiff and Sgt. Jansen got into a verbal dispute regarding defense counsel interfering with the way Plaintiff's property was handled during the transfer. (Id. at 5.) When Plaintiff asked Sgt. Jansen what exactly was meant by his statements, Sgt. Jansen allegedly told Plaintiff he would see.
Sgt. Jansen and Officer Cox then took Plaintiff's property and packed it into eighteen separate boxes. (Id. at 6.) Plaintiff's boxes were loaded onto the bus and he and his property were transported to Corcoran State Prison where he spent one night. The following morning, Plaintiff was transported to LSP. (Id. at 7.) On June 13, 2012, Plaintiff was allowed to review the property that was transported to LSP and discovered that some of his property was missing. The property relevant to this motion includes the half drilled tooth filling and his jury trial statement that had been prepared in anticipation of this trial. (Id. at 8.)
Plaintiff contends that with his filling he intended to prove that 1) Defendant Gerstel did not follow mandatory CDCR Dental policies by failing to perform dental x-rays on August 18, 2008; 2) the failure to extract the tooth was willful, intentional, and deliberate, and Defendant Gerstel left half of the tooth deep in Plaintiff's jawbone without bothering to take x-rays causing Plaintiff to have to remove the tooth himself; 3) Defendant Gerstel lied to the supervising chief dentist by assuring him that he had followed CDCR policies and procedures by taking x-rays of Plaintiff's tooth on August 18, 2008; 4) Defendant Gerstel committed perjury when he stated in a sworn declaration that he did not take an x-ray of Plaintiff's tooth on August 18, 2008; and 5) x-rays taken after September 25, 2008, are totally irrelevant because the injury to Plaintiff had already occurred by showing the drill mark on the half filled tooth. (Id. at 10-12.)
Plaintiff alleges that defense counsel examined the half drilled tooth filling and agreed to have it submitted as a joint exhibit at trial and then changed her mind the next day. (Id. at 12.) Plaintiff claims that this proves that the half drilled tooth existed and was in his possession. (Id. at 13.) Plaintiff seeks default judgment for the destruction of his evidence.
Plaintiff opposes this motion on the grounds that the Court does not have jurisdiction to conduct a fact finding hearing on Plaintiff's claims against non-parties to this action; and there is no evidence that any of Plaintiff's legal property was destroyed or thrown away. (Def. Gerstel's Opp. to Pl.'s Mot. Requesting a Fact Finding Hearing 1, ECF No. 106.)
Upon an inmate's transfer between institutions, the sending institution is required to inventory the inmates property and document on CDC form 1083 all personal property and the disposition of any property not allowed at the receiving institution. Both the individual who inventories the property and the inmate sign the form to document that all property is accounted for. The officers in R&R have this responsibility; and Sgt. Jansen supervises the R&R officers to ensure that the procedures are followed and the inmate's property is properly inventoried and secured. (Id. at 2.)
Pursuant to CDCR guidelines, all containers used to transport inmate property may not exceed minimum dimensions, nor may they be in excess of thirty pounds each. Further, all containers to be transported must be x-rayed to ensure that no contraband materials are included. Anything which is not permitted, which is in excess of the maximum quantity permitted, or is obtained from an unauthorized source is considered to be contraband. (Id.) Unauthorized items are to be disposed of by mailing the item to an address provided by the inmate, donating it, or destroying it. (Id. at 2-3.)
When Plaintiff's personal property boxes were brought to R&R on May 10, 2012, the boxes were in excess of thirty pounds, in violation of the regulations, and none of the property had been x-rayed. Sgt. Reynolds contends that when he informed Plaintiff that his property was going to be x-rayed for contraband and placed into boxes that complied with the weight limit, Plaintiff informed the nurse that he needed to be seen by the psychiatrist due to mental health concerns. Plaintiff was taken by Correctional Officer Lopez and Sgt. Jansen to the Correctional Treatment Center for a mental health examination. (Id. at 3.)
Sgt. Jansen returned to R&R and Plaintiff's legal and personal property was x-rayed and it was discovered that Plaintiff had 99 compact discs, 3 watches, and 27 cassette tapes inappropriately concealed within his legal property. A folder of Plaintiff's material was also confiscated because it contained information that could jeopardize the safety and security of the institution if in the hands of an inmate. (Id.) Sgt. Jansen later discovered that Plaintiff was allowed to be in possession of the materials determined to be a safety risk as they were part of an on-going legal case. (Id. at 3-4.)
Plaintiff's property was x-rayed and re-boxed to comply with the thirty pound weight limit. No metal was seen while the boxes were re-packed or x-rayed. Plaintiff refused to choose an option on how the 99 compact discs were to be disposed of so they were packed and sent with Plaintiff to LSP. (Id. at 4.) When Plaintiff was received at LSP, he was not allowed to have his personal or legal property in his cell, so all his legal materials were stored in R&R. ...