Goolsby v. Cate et al

Filing 38

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 THOMAS GOOLSBY, 11 Plaintiff, 12 13 vs. 1:13-cv-00119-GSA-PC ORDER DENYING PLAINTIFF‟S MOTION TO COMPEL DEFENDANTS TO PRESERVE RECORDS (Doc. 37.) MATTHEW CATE, et al., 14 Defendants. 15 16 17 18 I. BACKGROUND 19 Thomas Goolsby ("Plaintiff") is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 25, 2013, 21 Plaintiff and four co-plaintiffs filed the Complaint commencing this action. (Doc. 1.) 22 court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on May 2, 23 2013, severing the plaintiffs‟ claims, directing the Clerk to open new cases for each of the four 24 co-plaintiffs, and requiring each plaintiff to file an amended complaint in his own case. (Doc. 25 9.) Thomas Goolsby is now the sole plaintiff in this case. The 26 On February 11, 2013, Plaintiff consented to Magistrate Judge jurisdiction in this action 27 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 4.) 28 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 1 1 California, the undersigned shall conduct any and all proceedings in the case until such time as 2 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 3 On September 25, 2013, Plaintiff filed the First Amended Complaint. (Doc. 31.) The 4 court screened the First Amended Complaint and issued an order on May 21, 2014, requiring 5 Plaintiff to either file a Second Amended Complaint or notify the court of his willingness to 6 proceed with the claims found cognizable by the court. (Doc. 33.) 7 On June 6, 2014, Plaintiff filed the Second Amended Complaint. (Doc. 34.) On March 8 24, 2015, the court issued an order permitting Plaintiff to proceed with the cognizable claims 9 found by the court in the Second Amended Complaint, and sending Plaintiff service documents 10 to complete and return to the court within thirty days. (Doc. 36.) 11 On March 26, 2015, Plaintiff filed a motion to compel the defendants to preserve 12 records. (Doc. 37.) 13 II. SPOLIATION OF EVIDENCE 14 “Spoliation of evidence is the „destruction or significant alteration of evidence, or the 15 failure to preserve property for another‟s use as evidence, in pending or future litigation.‟” 16 Kearney v. Foldy & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (quoting Hernandez v. 17 Garcetti, 68 Cal.App.4th 675, 680, 80 Cal.Rptr.2d 443 (1998)). 18 uncompromising duty to preserve what they know or reasonably should know will be relevant 19 evidence in a pending lawsuit, or one in the offing . . . .” JUDGE WILLIAM W. SCHWARZER 20 AL., 21 citations omitted). Further, the destruction of evidence is sanctionable conduct. “Litigants owe an ET FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125 (2004) (internal quotations and 22 Plaintiff requests the court to compel the defendants to preserve all evidence relevant to 23 this action. Plaintiff expresses concern that the Second Amended Complaint, filed on June 3, 24 2014, has not yet been served on defendants.1 25 Given the duty to preserve evidence, Plaintiff‟s motion shall be denied. The Court 26 declines to presume that the defendants will destroy evidence. Moreover, because none of the 27 28 1 Plaintiff is advised to complete and return the service documents as soon as possible to initiate service of process. 2 1 defendants have appeared in this action, the court lacks jurisdiction to issue an order 2 compelling them to act. Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th 3 Cir. 1985). 4 III. 5 6 CONCLUSION Accordingly, IT IS HEREBY ORDERED that Plaintiff‟s motion to compel the defendants to preserve records, filed on March 26, 2015, is DENIED. 7 8 9 10 IT IS SO ORDERED. Dated: March 30, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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