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Cordero v. Guzman

United States District Court, E.D. California

June 16, 2017

RANDY M. CORDERO, Plaintiff,
v.
NICK GUZMAN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff 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.

         Pending 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.

         II. Discussion

         A. Background

         The 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.

         In the 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)

         In the 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. (Id.)

         In the pending motion, plaintiff requests the following adverse inference instruction as a sanction for the ...


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