United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY SANCTIONS
SANDRA M. SNYDER, Magistrate Judge.
Plaintiff Barry Louis Lamon moves for terminating sanctions, claiming that "Defendants have engaged in pre-trial case evidence spoliation by intentionally destroying and for suppressing existing or previously existing evidence and deliberately omitting to create and/or develop non-existent evidence." Doc. 245 at 4. Plaintiff adds a claim for Rule 11 sanctions against Defendants' attorney for her knowledge of Defendants' spoliation of evidence. Defendants oppose the motion.
I. Spoliation of Evidence
Spoliation of evidence is defined as the "destruction or material alteration of evidence, or the failure to otherwise preserve evidence for another's use in litigation." Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997, 1005 (D.Ariz. 2011). Pursuant to its inherent power to control litigation, a district court may levy sanctions for a party's spoliation of evidence, including dismissing the action. Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) ( internal citation omitted ). "A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind;' and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence." Surowiec, 790 F.Supp.2d at 1005 ( citation omitted ).
Although Plaintiff does not specifically list the items alleged to have been spoiled, the Court's review of his motion indicates five items that Defendants allegedly "spoiled": (1) the videotape of the June 7, 2008 incident that gave rise to the lawsuit; (2) the Incident Commander's Review/Critique Use of Force Form (Form 3010) regarding the incident; (3) a videotaped interview conducted with Plaintiff after he filed an administrative action following the incident; (4) various attachments required to be attached to the Institutional Use of Force Committee Report; and (5) Sgt. Battles' report of an interview regarding the incident.
A. Videotape of Incident
The nonexistent videotape of the June 7, 2008 incident in which Plaintiff alleges he was subjected to excessive force has been addressed multiple times since the inception of this case. As early as his June 9, 2010 motion to compel (Doc. 39 at 11-12), Plaintiff sought production of the videotape that he maintained was required to be made as evidence of the extent of force used by institutional policies. Defendants consistently maintained that no video had been made. Doc. 41 at 12. On November 2, 2010, the Magistrate Judge refused to order Defendants to produce a videotape that did not exist, whether or not policy required the creation of such a videotape, but provided for imposition of sanctions if the videotape was later located. Doc. 55 at 9.
Despite this clear resolution of Defendants' failure to produce a videotape of the incident, Plaintiff has repeatedly revived this issue. Doc. 103; Doc. 123; Doc. 209. Since the Court has already addressed this issue and provided for the imposition of sanctions should a videotape later be located, this motion is duplicative, frivolous, and abusive of the Court and the Defendants. As this Court has repeatedly stated, Plaintiff's dissatisfaction with the Court's rulings is not grounds for reconsideration. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009); Harvest v. Castro, 531 F.3d 737, 748-49 (9th Cir. 2008). Plaintiff's motion for further sanctions against Defendants for their failure to produce a videotape of the June 7, 2008 incident is denied.
B. Incident Commander's Review/Critique Use of Force Form (Form 3010)
Whether Plaintiff intended to include this item within his motion for sanctions is unclear. The paragraph addressing it, which follows Plaintiff's discussion of administrative rules requiring supervisory personnel to file Forms 3010, reads:
In the instant case, Defendant Baer did not spoliate [ sic ] evidence collection prior to and during the actual use of force against me. He also spoliated [ sic ] evidence collection and maintenance during the creation of the actual incident report.
Doc. 245 at 7.
A copy of the Form 3010 prepared by Defendant Baer was provided to Plaintiff as part of the Institutional Use of Force Committee Report. See Doc. 245 at 20-21. Accordingly, to the extent that Plaintiff intended to move for sanctions against Defendants for ...