United States District Court, E.D. California
RANDY M. CORDERO, Plaintiff,
NICK GUZMAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding through counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. This action
is set for jury trial before the Honorable John A. Mendez on
July 24, 2017.
before the court is plaintiff's motion for sanctions due
to alleged evidence spoliation. (ECF No. 156.) On June 15,
2017, a hearing was held before the undersigned regarding
plaintiff's motion for sanctions. Meryn Grant and
Christopher Soper appeared on behalf of plaintiff. Deputy
Attorney General Diana Esquivel appeared on behalf of
defendant. For the reasons stated herein, and at the hearing,
the undersigned recommends that plaintiff's motion be
granted in part.
only remaining defendant in this action is N. Guzman.
Plaintiff alleges that on November 9, 2011, he and inmate
Haxton had an altercation. Plaintiff alleges that during the
altercation, defendant intentionally shot plaintiff in the
head with a round from his 40 mm launcher, causing plaintiff
to suffer great bodily injury. Defendant claims that he was
aiming for plaintiff's lower body when he fired the
round, but plaintiff fell as he fired, and the bullet
accidentally hit plaintiff in the head.
finding and recommendations addressing defendant's
summary judgment motion, the undersigned also observed that a
bent front bead sight was found on the launcher during an
inspection of the 40 mm launcher after the shooting:
The undersigned also notes another possible scenario
suggested by the evidence, which is that the bent front bead
sight caused the shot to hit plaintiff in the head, even
though defendant aimed for plaintiff's calf. This issue
has not been sufficiently addressed by the parties.
However, according to defendant Guzman, he inspected the
weapon before his shift and apparently did not notice the
bent front bead sight. Defendant Guzman also opines that the
bent front bead sight did not affect his aim for
plaintiff's left calf.
Whether the bent front bead sight affected the aim of the
weapon may require the opinion of an expert witness.
Fed.R.Evid. 701, 702. The undersigned also notes that the
prison official who took possession of the weapon after the
incident noticed that the front bead sight was slightly bent
during an inspection. (ECF No. 50-12 at 56.) If this official
noticed the bent front bead sight, then it is unclear why
defendant Guzman did not notice it during his inspection.
(ECF No. 65 at 21 n.3)
pending motion for sanctions, plaintiff alleges that on
February 22, 2017, his counsel learned that the 40 mm
launcher had not been preserved. (ECF No. 156 at 10.) It was
later determined that the launcher had been released from the
evidence locker on August 31, 2016, and repaired.
(Id.) For these reasons, plaintiff's forensic
expert, R. Wyant, could not inspect the launcher.
pending motion, plaintiff requests the following adverse
inference instruction as a sanction for the ...