Jacobsen v. People of the State of California

Filing 120

ORDER DENYING 95 Plaintiff's Motion for Sanctions Due to Spoilation of Video Evidence signed by Magistrate Judge Jennifer L. Thurston on 6/20/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL NEIL JACOBSEN, Plaintiff, 12 13 14 v. PEOPLE OF THE STATE OF CALIFORNIA, et al., Case No. 1:14-cv-00108-JLT (PC) ORDER ON PLAINTIFF’S MOTION FOR SANCTIONS DUE TO SPOILATION OF VIDEO EVIDENCE (Doc. 95) 15 Defendants. 16 17 18 In this action, Plaintiff is proceeding on the Second Amended Complaint on claims of 19 excessive force and deliberate indifference to his serious medical needs based on two incidents 20 that occurred in the Fresno County Jail -- on December 25, 2013 and March 11, 2014. (Docs. 16, 21 17.) Pending before the Court is Plaintiff’s motion for sanctions against Defendants for spoliation 22 of surveillance video which Plaintiff asserts exists. (Doc. 95.) 23 24 LEGAL STANDARDS Spoliation of evidence is the “destruction or significant alteration of evidence, or the 25 failure to preserve property for another’s use as evidence, in pending or reasonably foreseeable 26 litigation.” Keamev v. Folev&Lardner. L.L.P.. 590 F.3d 638, 649 (9th Cir. 2009) (quoting 27 Hernandez v. Garcetti, 68 Cal.App.4th 675, 680 (1998)). The authority to impose sanctions for 28 spoliation arises from a court’s inherent power to control the judicial process. Medical 1 1 Laboratory Mgmt. Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 824 2 (9th Cir. 2002). The exercise of a court’s inherent powers must be applied with “restraint and 3 discretion” and only to the degree necessary to redress the abuse. Chambers v. NASCO, Inc., 501 4 U.S. 32, 45 (1991); see also Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3rd Cir. 5 1994) (courts should choose “the least onerous sanction corresponding to the willfulness of the 6 destructive act and the prejudice suffered by the victim”). 7 A party seeking an adverse inference instruction (or other sanctions) based on the 8 spoliation of evidence must establish the following three elements: (1) that the party having 9 control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the 10 records were destroyed with a “culpable state of mind” and (3) that the evidence was “relevant” 11 to the party’s claim or defense such that a reasonable trier of fact could find that it would support 12 that claim or defense. Zubulake v. USB Warburg LLC (“Zubulake IV”), 220 F.R.D. 212, 220 13 (S.D.N.Y. 2003) (citing Residential Funding Corp. v. DeGeorge Fin’l Corp., 306 F.3d 99, 108 14 (2d Cir. 2002)); see also Apple Inc. v. Samsung Electronics Co., Ltd. (“Apple II”), 888 F.Supp.2d 15 976, 989-90 (N.D.Cal. 2012); Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997, 1005 16 (D.Ariz. 2011); Lewis v. Ryan, 261 F.R.D. 513, 521 (S.D.Cal. 2009); Rev 973 LLC v. Mouren- 17 Laurens, 2009 WL 273205 at *3 (C.D.Cal. 2009); cf. Victor Stanley v. Creative Pipe, Inc., 269 18 F.R.D. 497, 520-21 & App’x (D.Md. 2010) (analyzing standards for spoliation sanctions by 19 circuit). “After considering these factors, a court must then consider all available sanctions and 20 determine the appropriate one.” Apple Inc. v. Samsung Electronics Co., Ltd. (“Apple I”), 881 21 F.Supp.2d 1132, 1138 (N.D.Cal. 2012). The party seeking spoliation sanctions has the burden of 22 establishing the elements of a spoliation claim. Centrifugal Force, Inc. v. Softnet 23 Communication, Inc., 783 F.Supp.2d 736, 740 (S.D.N.Y.2011). ANALYSIS 24 25 Before the elements of a spoliation claim can be evaluated, it is fundamental that the party 26 seeking sanctions establish that the evidence in question actually currently exists in an altered 27 form, or previously existed. This is an essential prerequisite to any spoliation claim and is where 28 Plaintiff’s motion is wanting. 2 1 In his motion, Plaintiff asserts that he “went to court on the new criminal charges and 2 twice the judge ordered the Plaintiff be provided a copy of the video,” but that “no video was ever 3 provided to the Plaintiff and the District Attorney dropped all charges.” (Doc. 95, p. 3.) This 4 does not establish that any surveillance video of the incidents exists or has ever existed. Rather, 5 this contention suggests that no such video has ever existed since -- if it did exist, it would have 6 been produced in the criminal proceeding against Plaintiff. The Court takes judicial notice of the 7 docket entries in The State of California v. Michael Neil Jacobsen, Fresno Superior Court Case 8 No. F14902385. Fed.R. Evid. 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 9 1131-32 (2012). Charges were filed against Plaintiff in that case on March 13, 2014 for battery 10 upon a custodial officer and resisting public of peace officer. On March 19, 2014, the parties 11 stipulated to discovery pursuant to California Penal Code § 1054. On March 28, 2014, Plaintiff 12 requested the items of discovery that were described in the March 19, 2014 hearing and the Court 13 found discovery was not provided to Plaintiff, and ordered it be provided to him by May 2, 2014. 14 On May 2, 2014, Plaintiff was released on all counts and the case was dismissed. 15 Plaintiff appears to point to the events in that criminal case against him to suggest that a 16 video existed which exonerated him in that action and would have proved his claims here. 17 However, no such definitive conclusion can be made since the docket entries in that action do not 18 show that a video was produced and played, let alone what any such video may have depicted; 19 nor is there a docket entry finding Plaintiff not guilty of the charges against him. The fact that no 20 video was produced in the criminal proceedings, despite the judge twice ordering it, may more 21 likely, but not definitively be construed to imply that no surveillance video exists or has ever 22 exited of the incidents in question here. 23 Plaintiff also asserts that the “sheriff detective (arresting officer) and the jail Sergeant who 24 heard the write up both told Plaintiff that there was a video and that it would be preserved due to 25 the criminal charges” which were filed against him from the incidents. (Doc. 95, p. 4.) However, 26 Plaintiff did not attach declarations from the detective or the sergeant to his motion to establish 27 that such video exists and his motion is not signed under penalty of perjury. 28 Furthermore, the discovery issues which have arisen in this action over the video all 3 1 support the conclusion that no such surveillance video has ever existed. (See Docs. 67, 104, 108.) 2 In their opposition, Defendants Barajas and Diaz present a declaration from Officer Juan M. 3 Gonzalez, who oversees the security cameras in the jail, and is familiar with the security camera 4 set up in the main jail which definitively states: “No video was recorded of the alleged incidents 5 on December 25, 2013 and March 11, 2014. Thus, video of the alleged incidents never existed.” 6 (Doc. 103, pp. 5-6.) In his reply, Plaintiff asserts that Officer Gonzalez’s declaration contradicts 7 a response that Defendants provided to his discovery request, but the discovery response Plaintiff 8 points to states that there was no security camera pointed to capture images of the incidents on the 9 dates at issue in this action. (Doc. 106, pp. 12-13.) That discovery response does not bolster 10 Plaintiff’s argument; rather it is consistent with Officer Gonzalez’s declaration -- the fact that no 11 security camera was set up that could capture the incidents at issue in this action logically leads to 12 the conclusion that video of the alleged incidents never existed. 13 Finally, in his reply Plaintiff submits his own declaration containing several statements of 14 FCJ employees as well as a declaration from Plaintiff’s cellmate that indicates he overheard 15 Plaintiff’s conversations with the FCJ employees and agrees that Plaintiff has truthfully 16 represented those statements. A statement made outside of court, which is offered for the truth of 17 the matter asserted in the statement is hearsay. Fed. R. Evid. 801. Hearsay is not admissible, 18 Fed.R.Evid. 802, unless it meets an exception, Fed. R. Evid. 803. Plaintiff offers the statements 19 of the FCJ employees in his declaration for the truth of the matter asserted in each statement -- 20 that a surveillance camera has been pointed at the legal research room for the 4+ years Officer M. 21 Rocha has worked at FCJ; that the camera has probably been there since before Officer M. Bejar 22 was born; that there has been a camera there for many, many years (Officers J. Valenzuela & J. 23 DeLaCruz); that a camera has been there for the 4 or 5 years Corporal D. Nichols has been 24 employed at FCJ; and that though a new system is being installed, that the old system was tied to 25 a company in Texas that recorded all of the video from all of the cameras within FCJ which held 26 the video for two years before recording over it (Corporal V. Soun). (Doc. 106, pp. 6-9.) 27 Plaintiff seeks to use each of these statements for the truth of the matter asserted therein, bolstered 28 by the declaration of his cellmate that those statements in Plaintiff’s declaration are true. 4 1 However, none of the statements by FCJ employees recited in Plaintiff’s declaration are 2 considered since none of the exceptions to the rule against hearsay apply. 3 Plaintiff does not provide any admissible evidence for the Court to find that surveillance 4 video was taken of the two incidents upon which he is proceeding in this action. Further, even if 5 Plaintiff provided admissible evidence, he fails to make any showing that Defendants Barajas, 6 Diaz, or Nurse Monica Choe had control over any asserted surveillance video, an obligation to 7 preserve it at the time it was destroyed, and that any destruction thereof was done with a 8 “culpable state of mind.” Zubulake IV. 9 This is not to say that Plaintiff is unable to present admissible evidence on the existence 10 and spoliation of the surveillance video which he seeks. He has simply not done so here and has 11 not overcome the Defendants’ evidence that no such video has ever existed. It is noted that, as of 12 the last notice of change of address which Plaintiff filed, he is out of custody. Thus, Plaintiff is 13 not prohibited from filing further motions on this issue if he is able to obtain admissible evidence 14 from a third party. However, Defendants need not respond to any further motions Plaintiff files 15 regarding surveillance videos on the incidents at issue in this action unless and until ordered to do 16 so by the Court. ORDER 17 18 19 Accordingly, Plaintiff’s motion for sanctions for spoliation of evidence, filed on December 21, 2016 (Doc. 95), is DENIED. 20 21 22 IT IS SO ORDERED. Dated: June 20, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 5

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