United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY
SANCTIONS AGAINST DEFENDANTS (ECF NO. 73.)
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
Harris (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff filed the Complaint commencing this action on
September 28, 2015. (ECF No. 1.) This case now proceeds with
the First Amended Complaint filed by Plaintiff on March 14,
2016, against defendants Correctional Officer (C/O) Humberto
German, C/O Philip Holguin, and C/O R. Burnitzki
(collectively, “Defendants”), for use of
excessive force in violation of the Eighth Amendment; and
against defendant C/O Philip Holguin for retaliation in
violation of the First Amendment. (ECF No. 8.)
August 30, 2019, Plaintiff filed a motion for the court to
sanction Defendants by entering default judgment against them
for spoliation of evidence. (ECF No. 73.) On September 19,
2019, Defendants filed an opposition to the motion. (ECF No.
74.) On October 3, 2019, Plaintiff filed a reply to the
opposition. (ECF No. 78.) Plaintiff's motion for
sanctions is now before the court. Local Rule
SPOLIATION OF EVIDENCE
is the destruction or significant alteration of evidence or
the failure to preserve property for another's use as
evidence in pending or reasonably foreseeable litigation.
United States v. Kitsap Physicians Svs., 314 F.3d
995, 1001 (9th Cir. 2002) (citing Akiona v. United
States, 938 F.2d 158, 161 (9th Cir. 1991)). For a
finding of spoliation, a party must show that “(1) the
party with control over the evidence had an obligation to
preserve it at the time of destruction; (2) the evidence was
destroyed with a ‘culpable state of mind'; and (3)
the evidence was relevant to the party's claim or
defense.” In re Hitachi Television Optical Block
Cases, 2011 WL 3563781, at *5 (S.D. Cal. Aug. 12, 2011)
(quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D.
212, 220 (S.D. N.Y. 2003); see also Kitsap
Physicians Serv., 314 F.3d at 1001 (willful spoliation
occurs when a party destroys evidence after being given
notice that documents were potentially relevant to the
litigation before they were destroyed)). Once spoliation is
shown, the guilty party has the burden of demonstrating that
no prejudice resulted from the spoliation. Id. at 6
(quoting Hynix Semiconductor Inc. v. Rambus, Inc.,
591 F.Supp.2d 1038, 1060 (N.D. Cal., 2006) (internal
citations omitted, overturned on other grounds).
“Prejudice is determined by looking at whether the
spoliating party's actions impaired the non-spoliating
party's ability to go to trial, threatened to interfere
with the rightful decision of the case, or forced the
non-spoiliating party to rely on incomplete and spotty
evidence.” Id. (citing Leon v. IDX Systems
Corp., 464 F.3d 951, 959 (9th Cir. 2006)).
who has engaged in spoliation of evidence may be sanctioned
under the inherent power of the federal courts to sanction
abusive litigation practices or under Fed.R.Civ.P. 37.
See Compass Bank v. Morris Cerullo World
Evangelism, 104 F.Supp.3d 1040, 1052-53 (S.D. Cal.
moves the Court to sanction Defendants for spoliation of
evidence because Defendants were unable to locate two
videotaped interviews taken of Plaintiff on February 25, 2011
and August 28, 2011, after excessive force incidents at issue
in this case. Plaintiff shows that he submitted a request to
Defendants to inspect the videotapes and Defendants responded
that after a reasonable search and diligent inquiry they were
unable to locate the videos. (ECF No. 73 at 11-13.) Plaintiff
seeks a court order sanctioning Defendants by entry of
default judgment against them on his excessive force claims.
In the alternative, Plaintiff requests that upon trial in
this case the jury be instructed to draw an adverse inference
that the videos disappeared to undermine the investigation
into Plaintiff's excessive force and retaliation claims.
opposition, Defendants argue that Plaintiff's request for
sanctions is unsupported and improper because Defendants did
not conduct themselves with willfulness, default, or bad
faith. Defendants contend that Plaintiff cannot establish
that Defendants were ever responsible for securing or
retaining the alleged videos, and sanctions are improper
because Plaintiff has not presented any evidence that the
videos were willfully destroyed because of litigation. In
addition, Defendants argue that Plaintiff cannot establish
that either videotape was destroyed - Defendants were simply
unable to locate either video after a reasonable search.
responds that lack of evidence of Defendants' personal
involvement in spoliation does not absolve them from the
imposition of sanctions because Defendants are agents of the
California Department of Corrections and Rehabilitation
(CDCR), and CDCR will indemnify them for any damages.
has not established that Defendants were responsible for
preserving the videotapes at issue, or that they personally
acted to cause the loss or destruction of the videotapes
after being given notice that the videotapes were potentially
relevant to Plaintiff's case. Plaintiff's argument
that there is no requirement that Defendants personally act
is without merit. Also, Plaintiff has not established, beyond
his own speculation, that either of the videotapes was
destroyed and not simply lost. Plaintiff admits in his motion
that “it is impossible to obtain direct evidence of
defendants' involvement in the disappearance of these
videos.” (ECF No. 73 at 6:7-10.)
these circumstances the court finds no evidence that any
Defendant destroyed video tapes knowing that they were
relevant to this case. Therefore, it would be ...