United States District Court, E.D. California
AMENDED ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SANCTIONS (ECF NOS. 155 &
Caruso (“Plaintiff”) is a state prisoner
proceeding in forma pauperis in this civil rights
action filed pursuant to 42 U.S.C. § 1983. Plaintiff
filed her first complaint in this action on May 22, 2015.
(ECF No. 1). This case now proceeds against Defendants
Ingram, Martinez, Lopez and Solario for excessive force in
violation of the Eighth Amendment and an unreasonable search
in violation of the Fourth Amendment. (ECF Nos. 24 & 53).
These claims stem from a July 22, 2013 search of Plaintiff
and her cell while Plaintiff was incarcerated at CCWF.
12, 2019, Plaintiff filed an amended motion for sanctions
against Defendants “for failure to comply with this
Court's order, filed on May 1, 2018, compelling
Defendants to produce original copies of the incident reports
at issue in this case.” (ECF No. 160, at p.
Defendants filed an opposition to the motion for sanctions on
July 19, 2019. (ECF No. 166). Plaintiff filed a reply on July
24, 2019. (ECF No. 167). The Court held a hearing on the
motion on July 26, 2019. (ECF No. 168). Per the Court's
order following the hearing (ECF No. 169), on August 26,
2019, Defendants filed a supplement and a declaration from
Defendant Ingram (ECF Nos. 170 & 171).
following reasons, the Court grants in part and denies in
part Plaintiff's motion for sanctions.
lawsuit stems from a search done in her cell while Plaintiff
was incarcerated at Central California Women's Facility
(“CCWF”). Throughout the years of litigation
since this case was filed in 2015, Plaintiff has claimed that
Defendants have withheld earlier versions of an incident
report. As described below, this issue has been addressed
multiple times in several motions and hearings regarding this
Court First Orders Defendants To Provide All Incident
Court first ordered production of all documents regarding the
incident in its discovery order following the scheduling
conference, on November 30, 2017. (ECF No. 44). That order
provided in relevant part:
Each party has until December 26, 2017, to . . . [p]rovide
the opposing party with copies of all documents they have in
their possession, custody, or control, related to the Rules
Violation Report that was issued regarding the incidents
described in the complaint, including investigation
(ECF No. 44, at p. 2).
Plaintiff Claims Defendants Withheld Earlier Versions of
Incident Reports And Defense Counsel Denies
after, on February 9, 2018, Plaintiff raised issues regarding
the original incident report, and its potential destruction,
in connection with a Motion for Appointment of Counsel. (ECF
No. 57). In that motion, Plaintiff alleged her
“original copy of incident report issued to me was
removed from my property when placed into Ad-Seg/Lock-up unit
at CCWF Prison and then transfered [sic] to
SHU/Lock-down unit at C.I.W. All original copies of incident
report and written afadatives [sic] from witnessess
[sic] were missing from my property. When counselor
printed me out a copy of incident report that was now in
computer as a [sic] amended incident report it was
drastically different from original. . . .”
(Id. at p. 2).
Court considered this request, along with others, and ordered
that “the Court shall construe the Requests [ECF Nos.
57 & 58] as including motions to compel, and will direct
Defendants to respond to the motions to compel. . . .”
(ECF No. 61, at p. 1).
opposition to the motion (ECF No. 63) did not address the
issue of draft incident reports.
Court held a telephonic discovery and status conference on
April 4, 2018. (ECF No. 66; Hrg 4/4/18 at 3:21-3:26
p.m.). The Court raised the issue of earlier
drafts of the incident reports, and defense counsel
responded, “I am entirely unaware of multiple versions
or any confiscation of her legal property or
otherwise.” (Id. at 3:28 p.m.). Defense
counsel later reiterated that he could not find any other
report addressing the circumstances in the complaint other
than the allegedly amended document already provided to
Defense Counsel: . . . regarding the secondary report or one
that is supposed to be sent within 24 hours to director's
level, I have not found any other report addressing that
Court: And you've searched CDCR records then?
Defense Counsel: Yes, I have.
. . .
Court: Were you able to find whatever the first incident
report that got sent off?
Defense Counsel: No, Your Honor. I am only aware of this one
(Id. at 3:50 to 3:53 p.m.).
the close of the hearing, defense counsel reaffirmed an
earlier response to Plaintiff regarding the incident report.
“We went through this same issue regarding of reports
sent to the director within 24 hours and I responded saying
that no documents responsive to that request could be
found.” (Id. at 3:55 p.m.).
the conference on April 4, 2018, the Court issued an order
requiring the parties to meet and confer regarding the
alleged earlier version of the incident report. (ECF No. 67,
at pgs. 1-2).
further motions regarding discovery and disclosure of
documents, on May 1, 2018, the Court ordered Defendants to
“produce to Plaintiff original copies of the incident
reports at issue” within fourteen days. (ECF No. 75, at
Defense Counsel Again Represents To Court All Documents
Regarding Investigative Material Has Been
issue of producing material related to the investigation and
incident arose again during a hearing on August 10, 2018. The
Court reiterated its previous orders requiring production of
the documents, and attempted to confirm that Defendants
produced all the required documents.
Court: Did now through production, meaning that you provided
to me and then everything that I ordered you provided to
Plaintiff, did you provide any investigation that were done
from ISU regarding this incident?
Defense Counsel: Yes.
. . .
Court: I had a discovery order following initial scheduling
conference, it already required that Defendants provide all
documents they have in their possession, custody, or control
related to the 602 that was filed regarding the incident
described in the complaint including investigation reports
and also similarly all documents they have possession,
custody, and control related to rules violation report that
was issued regarding the incidents described in the complaint
including investigation reports . . . let me confirm, Mr.
Lee, you have now done so . . . ?
Defense Counsel: Yes, that is correct
(Hrg 8/10/18 at 10:20-10:23 a.m.).
discovery dispute later arose regarding production of the
original incident reports. In their statement of the
discovery dispute, parties described their positions as
follows on this issue:
A. Plaintiff's Contentions
On April 30, 2018, this Court ordered Defendants to produce
original copies of the incident reports at issue. (ECF No. 75
at p. 10.) In their initial disclosures, Defendants produced
the one and only version of the incident report that was
produced to Ms. Caruso (Plaintiff's Exh. 6.) As
repeatedly indicated at the top of each page of the Incident
Report, the report produced is an amended version of the
incident report. (Plaintiff's Exh. 6 at pp.2-10 (box
checked for “amended information”.) At his recent
deposition, Correctional Officer Martinez testified that the
notation of “amended information” suggests that
an earlier incident report was prepared. By letter dated
February 1, 2019, Ms. Caruso requested that Defendants
produce for inspection the original incident reports, as well
as any draft reports, within two weeks. (Plaintiff's Exh.
7.) To date, Defendants have not yet confirmed whether any
original or draft reports were withheld from Ms. Caruso
and/or whether they will be produced for inspection.
B. Defendants' Contentions
In response to Plaintiff's contention regarding original
incident reports, Defendants have repeatedly demonstrated
that no prior versions of the incident reports exist.
Defendants do not dispute that the reports have been marked
as “amended, ” but a diligent search still
demonstrates that after approximately six years, this is the
only version of the reports that has been discovered. (Lee
Decl., Ex. A at p. 2.) Defendants are unaware of any manner
in which Plaintiff's request can be met.
(ECF No. 111, at pgs. 9-10).
Court addressed the issue during a motion hearing on February
15, 2019, as follows:
The Court: . . . So throughout this case there has been a
contention by plaintiff -- this is not the first time -- that
the incident report that was given to her was not the initial
incident report and at least a suggestion that it had been
“doctored” in favor of defendants. . . . Defense
says they cannot find an earlier version.
I think that concludes the motion to compel. I suppose what I
do is I grant the motion to compel inso, without objection,
insofar as to the extent that defendants ever locate an
original report, they must produce it. But right now, they
are saying that they have searched it and they cannot find
. . .
. . . I will, again, grant the motion to compel without
objection. Because I don't think Mr. Lee is objecting
that it should be produced to the extent it exists, but he
has no more to produce.
(ECF No. 123, at pgs. 21-23). Plaintiff then claimed a
discrepancy in the language of Defendants concerning the
production order (ECF No. 75) and Defendants' Exhibit A
where defense counsel switches from stating originals could
not be located to original incident reports are unavailable.
(ECF No. 123, at p. 23). Defense counsel responded regarding
the allegedly missing incident reports and efforts to locate
[Defense Counsel]: To date, I've still never seen a,
quote unquote, original in this, in this particular matter as
far as the original 837. It's, it's my understanding
that through consultation with the ISU chain as well as
litigation staff that this is the only document that's
ever been in DIRS . . . DIRS being the incident reporting
system that was used back in 2013. I, I have no knowledge of
any other database or method in which the report would be
maintained, or an original report would be maintained. This
is all that's been made available to me.
. . .
. . . Just one clarification regarding any reports that would
have gone to the DA's office. It's my understanding
that it would have only been the amended report. I, I have no
information suggesting that a [sic] original was