Andrich v. Dusek et al

Filing 422

ORDER granting 400 Motion in Limine re: Spoliation / Adverse Inference; denying 410 Sealed Motion:Request for Order to Show Cause; denying without prejudice 414 Motion Request for Judicial Notice of Arizona Department of Corrections Department Order 804-3. Signed by Judge Rosemary Marquez on 4/27/22. (See attached PDF for complete information.) (KAH)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Devin Andrich,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-00173-TUC-RM

Keith Dusek,

13

Defendant.

14
15

Pending before the Court are Defendant Keith Dusek’s Motion in Limine re:

16

Spoliation (Doc. 400), Plaintiff Devin Andrich’s Request for Order to Show Cause (Doc.

17

410), and Plaintiff’s Request for Judicial Notice (Doc. 414).

18

I.

Motion in Limine re: Spoliation

19

Defendant moves (1) to preclude Plaintiff from arguing or offering testimony or

20

evidence that Defendant or anyone at the Arizona Department of Corrections (“ADC”)

21

spoliated any evidence, and (2) to preclude Plaintiff from seeking to draw an adverse

22

influence from the absence of form 804-3 Individual Inmate Detention Records (a.k.a.

23

“pod sheets”) being offered at trial. (Doc. 400.) Plaintiff filed a Response in opposition

24

(Doc. 412) and later filed a supplemental Response (Doc. 415).

25

A.

Background

26

Plaintiff previously filed a Motion for Spoliation Sanctions, asserting that

27

Defendant Dusek and prior Defendants intentionally withheld and destroyed form 804-3

28

records of Plaintiff’s opportunities to shower and exercise while in the detention unit.

1

(Doc. 257.) Plaintiff cited to deposition testimony indicating the records are retained in

2

hard copy for approximately two years after an inmate is moved from the detention unit

3

to the general population, and he argued that Defendants had notice of his claims in this

4

lawsuit within two years of his transfer from the detention unit. (Id.) Plaintiff asked the

5

Court to sanction Defendants by striking Defendants’ Motion for Summary Judgment and

6

entering default against Defendants on certain counts, or alternatively instructing the jury

7

that Defendants had destroyed evidence that “would show that Defendants’ staff required

8

Plaintiff either to accept out-of-cell recreation time in freezing temperatures without a

9

sweater, jacket or stocking cap, or forfeit his out-of-cell recreation time.” (Id. at 20.)

10

Defendants’ Response to Plaintiff’s Motion for Spoliation Sanctions argued that

11

Plaintiff’s Motion was untimely and that the form 804-3 records are irrelevant and would

12

not have altered the Court’s summary judgment ruling. (Doc. 262.)

13

On January 21, 2021, the Court denied Plaintiff’s Motion for Spoliation Sanctions.

14

(Doc. 273.) The Court found that the form 804-3 records would not have changed its

15

summary judgment ruling, that Plaintiff had failed to explain his delay in moving for

16

spoliation sanctions, and that Plaintiff had failed to show that Defendants or defense

17

counsel had acted willfully or in bad faith. (Id. at 4-6.)

18

B.

19

Defendant argues that, based on the findings of the Court’s January 21, 2021

20

Order, Plaintiff should not be allowed to elicit testimony or offer evidence to suggest that

21

the form 804-3 records were improperly or culpably destroyed. (Doc. 400 at 1-2.)

22

Defendant further argues that Plaintiff should not be permitted to seek an adverse

23

inference instruction or to argue to the jury that ADC “employees and/or Defendant were

24

hiding information by not producing and/or by routinely destroying the pod sheets.” (Id.

25

at 2.) Defendant argues that an adverse inference is improper here because he had no

26

responsibility or authority to maintain the form 804-3 records. (Id. at 2-3.)

Discussion

27

In response, Plaintiff argues that there is no dispute that either Dusek or former

28

Defendants destroyed or otherwise failed to preserve Plaintiff’s form 804-3 records

-2-

1

despite actual knowledge of this lawsuit. (Doc. 412 at 4, 8.) Plaintiff further argues that

2

the Court should issue adverse inference instructions regarding the “adverse action” and

3

“chilling effect” elements of his First Amendment retaliation claim due to the suppression

4

or destruction of the form 804-3 records and Defendant’s failure to produce a November

5

24, 2015 email allegedly sent by Dusek to the prison mental health department.1 (Id. at

6

7-9.) Plaintiff avers that he will not seek to argue that Dusek destroyed Plaintiff’s form

7

804-3 records. (Id. at 9.) However, he argues that Dusek knew to preserve the records

8

when he was served with Plaintiff’s lawsuit, and he failed to ensure the records’

9

preservation. (Doc. 415.)

10

“A federal trial court has the inherent discretionary power to make appropriate

11

evidentiary rulings in response to the destruction or spoliation of relevant evidence,”

12

including instructing the “jury to draw an adverse inference from the destruction or

13

spoliation against the party or witness responsible for that behavior.” Glover v. BIC

14

Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). Adverse inference instructions are supported

15

by two rationales, one evidentiary and one prophylactic. Akiona v. United States, 938

16

F.2d 158, 161 (9th Cir. 1991). From an evidentiary perspective, “a party who has notice

17

that a document is relevant to litigation and who proceeds to destroy the document is

18

more likely to have been threatened by the document than is a party in the same position

19

who does not destroy the document.” Id. From a prophylactic perspective, “[a]llowing

20

the trier of fact to draw [an adverse] inference presumably deters parties from destroying

21

relevant evidence before it can be introduced at trial.” Id. “[A] finding of ‘bad faith’”

22

supports an adverse inference instruction but “is not a prerequisite.” Glover, 6 F.3d at

23

1329. However, if there is no showing of bad faith and no showing that the evidence was

24

destroyed in response to the litigation, an adverse inference instruction is improper. See

25

Akiona, 938 F.2d at 161.

26

The only claim remaining in this case is Plaintiff’s First Amendment retaliation

27

claim; Plaintiff’s Eighth Amendment claims relating to the conditions of confinement he

28

1

Defendant’s alleged failure to produce the November 24, 2015 email is the subject of
Plaintiff’s Request for Order to Show Cause (Doc. 410), discussed below.
-3-

1

faced in the detention unit were dismissed on summary judgment. (See Docs. 255, 275.)

2

The Court has found that the conditions of confinement that Plaintiff encountered in the

3

detention unit are relevant to the “adverse action” and “chilling effect” elements of

4

Plaintiff’s First Amendment retaliation claim. (Doc. 255 at 29, 31-32; Doc. 323 at 4.)

5

However, Plaintiff can testify to those conditions and can offer evidence regarding the

6

ADC policies that mandated those conditions.

7

The probative value of the form 804-3 records to elucidate the conditions of

8

confinement in the detention unit is limited—the records would show when Plaintiff was

9

offered out-of-cell recreation time, and Plaintiff asserts that the records could be cross-

10

referenced with some objective record of outdoor temperatures to show that Plaintiff was

11

offered out-of-cell recreation time during cold weather. (See Doc. 263 at 3-4; Doc. 273 at

12

5.) Absent any actual conflict at trial concerning the conditions of confinement in the

13

detention unit, such a convoluted, time-intensive method of introducing conditions-of-

14

confinement evidence would be inadmissible based on Federal Rule of Evidence 403

15

concerns, including undue delay, wasting time, and needlessly presenting cumulative

16

evidence. The probative value of evidence of the form 804-3 records would be higher if

17

Defendant presents testimony or evidence contradicting Plaintiff’s testimony and

18

evidence concerning a lack of access to warm clothing during out-of-cell recreation time

19

in cold weather. However, at this time, the Court has no reason to suspect that Defendant

20

will present such evidence.

21

Accordingly, Defendant’s Motion in Limine re: Spoliation will be granted to the

22

extent that Plaintiff will be precluded from arguing or offering testimony that anyone at

23

the ADC destroyed or failed to preserve Plaintiff’s form 804-3 records. Furthermore, the

24

Court is not inclined to give an adverse inference instruction based on the destruction of

25

Plaintiff’s form 804-3 records.2 However, the Court may revisit this ruling depending on

26

2

27
28

With respect to an adverse inference instruction, the Court notes that the evidence of
record indicates the ADC routinely destroyed form 804-3 records after a certain period.
The Court found in its January 21, 2021 Order that there is no evidence that Defendants
acted willfully or in bad faith in destroying the records. (Doc. 273 at 5-6.) However, it is
not clear whether ADC employees destroyed Plaintiff’s form 804-3 records after the
ADC had received notice of Plaintiff’s lawsuit in this case, and Defendant has offered
-4-

1

the nature of the testimony and evidence presented at trial.

2

II.

Request for Order to Show Cause

3

Plaintiff asks the Court to order Defendant Dusek and the Arizona Attorney

4

General’s Office to show cause why the Court should not hold them in civil contempt

5

based on Defendant’s failure to produce an email concerning Plaintiff that Dusek

6

allegedly sent to the prison mental health department on November 24, 2015. (Doc. 410.)

7

Plaintiff argues that Dusek indicated in a November 24, 2015 Information Report that he

8

had sent the email to the mental health department, but that Defendant has refused to

9

disclose the email to Plaintiff. (Id.) Plaintiff argues that Defendant’s failure to disclose

10

the email violates the Court’s Scheduling Order, which reminds the parties of their duty

11

under Federal Rule of Civil Procedure 26(e) to supplement all Rule 26(a) disclosures and

12

discovery responses. (Id. at 8-10.) Plaintiff further argues that Rule 26(a)(1)(A) requires

13

a party, “without awaiting a discovery request,” to provide to the other parties a copy or

14

description of all evidence “that the disclosing party has in its possession, custody, or

15

control and may use to support its claims or defenses unless the use would be solely for

16

impeachment.” (Id. at 9.)

17

Plaintiff’s Request for Order to Show Cause raises a discovery dispute. Discovery

18

closed nearly three years ago. (Doc. 133.) The Court’s Scheduling Order states: “Absent

19

extraordinary circumstances, the Court will not entertain discovery disputes after the

20

deadline for completion of discovery.” (Doc. 84 at 3.) Plaintiff does not explain why he

21

waited until days before a firm trial date to bring this discovery dispute to the Court’s

22

attention. He certainly has not presented any extraordinary circumstances showing why

23

the Court should entertain this discovery dispute at such a late juncture. Furthermore,

24

Plaintiff fails to identify any specific discovery request to which the November 24, 2015

25

email would be responsive.

26

awaiting a discovery request, but only with respect to evidence that the disclosing party

27

may use to support its claims or defenses. Fed. R. Civ. P. 26(a)(1)(A)(ii). There is no

Rule 26(a)(1)(A) requires certain disclosures without

28
little information regarding the ADC’s failure to preserve Plaintiff’s form 804-3 records.
-5-

1

indication that Defendant intends to use the November 24, 2015 email to support his

2

defenses, and therefore disclosure of the email was not required under Rule 26(a)(1)(A).

3

Plaintiff’s Request for Order to Show Cause will be denied.

4

III.

Request for Judicial Notice

5

Plaintiff requests that the Court take judicial notice of ADC Department Order

6

804-3. (Doc. 414.) In a previous Motion, Plaintiff also requested that the Court take

7

judicial notice of ADC Department Orders 704, 805, and 909. (Doc. 402.) At a pretrial

8

conference held on April 18, 2022, the Court found that ADC policies such as the

9

department orders at issue are an appropriate subject of judicial notice. See Fed. R. Evid.

10

201(b); Mangiaracina v. Penzone, 849 F.3d 1191, 1193 n.1 (9th Cir. 2017); United States

11

v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008). However, the Court noted that

12

Plaintiff would need to lay foundation for and establish the relevance of the ADC

13

Department Orders.

14

determined that Plaintiff should seek to introduce the ADC Department Orders into

15

evidence as exhibits at trial. To do so, Plaintiff must lay foundation and establish

16

relevance. If any issues arise regarding the introduction of the policies into evidence, the

17

Court may re-visit the issue of judicial notice.

Upon further reflection after the pretrial conference, the Court

18

IT IS ORDERED that Defendant’s Motion in Limine re: Spoliation (Doc. 400) is

19

granted. However, the Court may re-visit this ruling depending on the nature of the

20

evidence and testimony presented at trial.
IT IS FURTHER ORDERED that Plaintiff’s Request for Order to Show Cause

21
22

(Doc. 410) is denied.

23

....

24

....

25

....

26

....

27

....

28

....

-6-

1
2
3

IT IS FURTHER ORDERED that Plaintiff’s Request for Judicial Notice (Doc.
414) is denied without prejudice.
Dated this 27th day of April, 2022.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-