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Caruso v. Solorio

United States District Court, E.D. California

December 18, 2019

GINA CARUSO, Plaintiff,
OFFICER G. SOLORIO, et al., Defendants.


         Gina 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.

         On July 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. 1).[1] 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).

         For the following reasons, the Court grants in part and denies in part Plaintiff's motion for sanctions.

         I. BACKGROUND

         Plaintiff's 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 case.

         A. Court First Orders Defendants To Provide All Incident Reports

         The 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 reports[.]

(ECF No. 44, at p. 2).

         B. Plaintiff Claims Defendants Withheld Earlier Versions of Incident Reports And Defense Counsel Denies This

         Soon 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).

         The 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).

         Defendants' opposition to the motion (ECF No. 63) did not address the issue of draft incident reports.

         The Court held a telephonic discovery and status conference on April 4, 2018.[2] (ECF No. 66; Hrg 4/4/18 at 3:21-3:26 p.m.).[3] 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 Plaintiff.

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 circumstance.
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 version.

(Id. at 3:50 to 3:53 p.m.).

         Before 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.).

         After 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).

         After 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 p. 10).

         C. Defense Counsel Again Represents To Court All Documents Regarding Investigative Material Has Been Produced

         The 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.).

         D. Discovery Dispute

         A 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).

         The 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 it.
. . .
. . . 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 it.

[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 ...

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