Jacobs v. Sullivan et al

Filing 58

ORDER STAYING 1 Action as to Defendant Crotty Pursuant to 11 U.S.C. 362(a); ORDER DENYING Plaintiff's 55 Motion to Preserve Evidence signed by Magistrate Judge Sandra M. Snyder on 6/22/2011. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GEORGE E. JACOBS, IV, 10 Plaintiff, 11 12 v. W. J. SULLIVAN, et al., 13 Defendants. CASE NO. 1:05-cv-01625-LJO-SMS PC ORDER STAYING ACTION AS TO DEFENDANT CROTTY PURSUANT TO 11 U.S.C. § 362(a) (ECF No. 56) ORDER DENYING PLAINTIFF’S MOTION TO PRESERVE EVIDENCE 14 / (ECF No. 55) 15 16 I. Procedural History 17 Plaintiff George E. Jacobs, IV, is a state prisoner proceeding pro se and in forma pauperis, 18 in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the third 19 amended complaint, filed May 5, 2010, against Defendants Watson, Chan, McGregor, Blankenship, 20 Crotty, Granillo, Nelson, Carrasco, Johnson, Jobb, Adams, and Alexander for a violation of the 21 Eighth Amendment. On May 9, 2011, Plaintiff filed a motion to preserve evidence. (ECF No. 55.) 22 On June 15, 2011, a request was filed to stay the action as to Defendant Crotty pursuant to 11 U.S.C. 23 § 362(a). (ECF No. 56.) 24 II. Motion to Preserve Evidence 25 Plaintiff has filed a motion seeking a court order prohibiting Defendants from destroying 26 videotapes and photographs pertaining to the incident of excessive force set forth in the complaint 27 and requesting sanctions of $25,000 for each videotape that is lost or destroyed. 28 “Litigants owe an uncompromising duty to preserve what they know or reasonably should 1 1 know will be relevant evidence in a pending lawsuit, or one in the offing . . . .” JUDGE WILLIAM W. 2 SCHW ARZER 3 quotations and citations omitted); see also Leon v. Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). 4 This obligation, backed by the court’s power to impose sanctions for the destruction of such 5 evidence, Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991), is sufficient in most cases to secure 6 the preservation of relevant evidence. ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125 (2004) (internal 7 Before the court orders additional measures to preserve evidence, there must be some 8 showing that there is a reason to be concerned that potentially relevant evidence will not be 9 preserved and that the opposing party may be harmed as a result. Jardin v. Datallegro, Inc., No. 08- 10 cv-1462-IEG-RBB, 2008 WL 4104473, *1 (S.D.Cal. Sept. 3, 2008). Given the duty to preserve 11 evidence and the absence of any showing by Plaintiff that there is reason for the Court to be 12 concerned about the destruction of any evidence, Plaintiff’s motion shall be denied. The Court 13 declines to presume that Defendants will destroy evidence and Plaintiff has provided no evidence 14 that the videotapes or photographs are in danger of being destroyed. 15 III. Motion to Stay Proceeding 16 Defendant Crotty filed a bankruptcy petition on May 2, 2011. Pursuant to Section 362(a) all 17 actions against a defendant who has filed a bankruptcy petition are automatically stayed once the 18 petition is filed. Sternberg v. Johnston, 559 F.3d 937, 943 (9th Cir. 2010). Therefore, this action 19 has been stayed pending resolution of Defendant’s bankruptcy proceedings. 20 IV. Order 21 Accordingly, it is HEREBY ORDERED that: 22 1. This action is stayed as to Defendant Crotty pursuant to 11 U.S.C. § 362(a); and 23 2. Plaintiff’s motion to preserve evidence, filed May 9, 2011, is DENIED. 24 IT IS SO ORDERED. 25 Dated: cm411 June 22, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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