Bryant v. Gallagher et al

Filing 167

ORDER Denying Plaintiff's 140 Motion for Court Order for Defendants and Non-Party CDCR to Preserve all Records of all Investigations into the 6/08/10 Assault of Plaintiff signed by Magistrate Judge Barbara A. McAuliffe on 11/07/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT

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Plaintiff,
v.
P. GALLAGHER, et al.,

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Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
COURT ORDER FOR DEFENDANTS AND NONPARTY CDCR TO PRESERVE ALL RECORDS
OF ALL INVESTIGATIONS INTO THE 6-8-10
ASSAULT OF PLAINTIFF
(ECF No. 140)

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I.

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Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Background

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s first amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants

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Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to

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protect in violation of the Eighth Amendment.

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On June 23, 2014, Plaintiff filed a motion requesting a court order directing defendants and
their non-party employer, the California Department of Corrections and Rehabilitation (“CDCR”), to

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preserve all records and evidence of internal investigations into an alleged June 8, 2010 assault. (ECF

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No. 140.)

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On July 28, 2014, the Court directed Defendants to file a response to Plaintiff’s motion
requesting an order for preservation of records and evidence. (ECF No. 142.)
On September 2, 2014, Defendants filed a response to Plaintiff’s motion, along with a

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supporting declaration. (ECF Nos. 148, 149.) According to Defendants’ response, the order requested

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by Plaintiff is unnecessary. Defense counsel declares under penalty of perjury that, in January 2012,

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he sent litigation hold letters to the Case Records Manager and the Litigation Coordinator at Kern

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Valley State Prison directing them to retain all materials related to this case. (ECF No. 150; Delgado

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Dec. ¶ 2.) These letters warned that “[n]othing should be removed, destroyed, or purged from [the

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prison’s] files without conferring with [counsel].” (ECF No. 150, Ex. A.) Defense counsel further

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declares there is no expiration date on these letters and all relevant documents are to be preserved

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“during the pendency of this litigation.” (ECF No. 150, Delgado Dec. ¶ 2 and Ex. A.)

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On September 12, 2014, Plaintiff filed a reply to Defendants’ response. In the reply, Plaintiff

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states that defense counsel failed to address that portion of his motion seeking preservation of recorded

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interviews with Inmates Vargas and McCloud. Plaintiff also contends that CDCR has a record of

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obstructing discovery in prisoner cases. Plaintiff believes that an order to preserve all records will not

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prejudice defendants and there is no reason not to issue such an order. Plaintiff further alleges that

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neither Defendants nor defense counsel have provided him with any investigation records of his

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alleged assault. (ECF No. 151.)

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II.

Discussion

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“[A]s soon as a potential claim is identified, a litigant is under a duty to preserve evidence

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which it knows or reasonably should know is relevant to the action.” AmeriPride Servs., Inc. v.

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Valley Indus. Serv., Inc., 2006 WL 2308442, at *4 (E.D. Cal. Aug. 9, 2006) (citing National Ass’n of

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Radiation Survivors v. Turnage, 115 F.R.D. 543, 566-67 (N.D. Cal. 1987)). The court has inherent

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power to sanction parties or their attorneys for improper conduct, Chambers v. NASCO, Inc., 501 U.S.

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32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d

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989, 991 (9th Cir. 2001), which includes spoliation of evidence, World Courier v. Barone, 2007 WL

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1119196, *1-2 (N.D. Cal. Apr. 16, 2007); AmeriPride Svcs., Inc., 2006 WL 2308442, at *4.

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A motion to preserve evidence requires the court to consider “1) the level of concern the court

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has for the continuing existence and maintenance of the integrity of the evidence in question in the

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absence of an order directing preservation of the evidence; 2) any irreparable harm likely to result to

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the party seeking the preservation of evidence absent an order directing preservation; and 3) the

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capability of an individual, entity, or party to maintain the evidence sought to be preserved, not only as

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to the evidence’s original form, condition or contents, but also the physical, spatial and financial

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burdens created by ordering evidence preservation.” Daniel v. Coleman Co., Inc., 2007 WL 1463102,

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*2 (W.D. Wash. May 17, 2007). Before the court orders additional measures to preserve evidence,

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there must be some showing that there is a reason to be concerned that potentially relevant evidence

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will not be preserved and that the opposing party may be harmed as a result. Jardin v. Datallegro, Inc.,

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2008 WL 4104473, *1 (S.D. Cal. Sept. 3, 2008).

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Given the duty to preserve evidence, defense counsel’s written admonition to CDCR personnel

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to preserve evidence and the absence of any showing by Plaintiff that there is reason for the Court to

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be concerned about the destruction of any evidence, Plaintiff’s motion shall be denied. The Court

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declines to presume that Defendants will destroy evidence and Plaintiff has provided no evidence that

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any records, included any recorded interviews, of an alleged assault on June 8, 2010, are in danger of

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being destroyed.

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III.

Conclusion and Order

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For the reasons stated, Plaintiff’s motion for court order for defendants and non-party CDCR to

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preserve all records of all investigations into the alleged 6-8-10 assault of Plaintiff is HEREBY

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DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

November 7, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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