Goolsby v. Cate et al
Filing
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ORDER DENYING 37 Motion to Compel Defendants to Preserve Records, signed by Magistrate Judge Gary S. Austin on 03/30/2015. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS GOOLSBY,
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Plaintiff,
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vs.
1:13-cv-00119-GSA-PC
ORDER DENYING PLAINTIFF‟S MOTION
TO COMPEL DEFENDANTS TO PRESERVE
RECORDS
(Doc. 37.)
MATTHEW CATE, et al.,
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Defendants.
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I.
BACKGROUND
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Thomas Goolsby ("Plaintiff") is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 25, 2013,
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Plaintiff and four co-plaintiffs filed the Complaint commencing this action. (Doc. 1.)
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court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on May 2,
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2013, severing the plaintiffs‟ claims, directing the Clerk to open new cases for each of the four
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co-plaintiffs, and requiring each plaintiff to file an amended complaint in his own case. (Doc.
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9.) Thomas Goolsby is now the sole plaintiff in this case.
The
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On February 11, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action
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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 4.)
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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of
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California, the undersigned shall conduct any and all proceedings in the case until such time as
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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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On September 25, 2013, Plaintiff filed the First Amended Complaint. (Doc. 31.) The
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court screened the First Amended Complaint and issued an order on May 21, 2014, requiring
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Plaintiff to either file a Second Amended Complaint or notify the court of his willingness to
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proceed with the claims found cognizable by the court. (Doc. 33.)
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On June 6, 2014, Plaintiff filed the Second Amended Complaint. (Doc. 34.) On March
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24, 2015, the court issued an order permitting Plaintiff to proceed with the cognizable claims
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found by the court in the Second Amended Complaint, and sending Plaintiff service documents
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to complete and return to the court within thirty days. (Doc. 36.)
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On March 26, 2015, Plaintiff filed a motion to compel the defendants to preserve
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records. (Doc. 37.)
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II.
SPOLIATION OF EVIDENCE
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“Spoliation of evidence is the „destruction or significant alteration of evidence, or the
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failure to preserve property for another‟s use as evidence, in pending or future litigation.‟”
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Kearney v. Foldy & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (quoting Hernandez v.
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Garcetti, 68 Cal.App.4th 675, 680, 80 Cal.Rptr.2d 443 (1998)).
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uncompromising duty to preserve what they know or reasonably should know will be relevant
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evidence in a pending lawsuit, or one in the offing . . . .” JUDGE WILLIAM W. SCHWARZER
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AL.,
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citations omitted). Further, the destruction of evidence is sanctionable conduct.
“Litigants owe an
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FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125 (2004) (internal quotations and
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Plaintiff requests the court to compel the defendants to preserve all evidence relevant to
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this action. Plaintiff expresses concern that the Second Amended Complaint, filed on June 3,
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2014, has not yet been served on defendants.1
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Given the duty to preserve evidence, Plaintiff‟s motion shall be denied. The Court
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declines to presume that the defendants will destroy evidence. Moreover, because none of the
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Plaintiff is advised to complete and return the service documents as soon as possible to initiate
service of process.
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defendants have appeared in this action, the court lacks jurisdiction to issue an order
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compelling them to act. Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th
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Cir. 1985).
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III.
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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff‟s motion to compel the
defendants to preserve records, filed on March 26, 2015, is DENIED.
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IT IS SO ORDERED.
Dated:
March 30, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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