Harris v. German et al

Filing 84

ORDER DENYING Plaintiff's 73 Motion for Discovery Sanctions Against Defendants, signed by Magistrate Judge Gary S. Austin on 12/5/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE HARRIS,

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Plaintiff,

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vs.
HUMBERTO GERMAN, et al.,

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1:15-cv-01462-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR DISCOVERY SANCTIONS AGAINST
DEFENDANTS
(ECF No. 73.)

Defendants.

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I.

BACKGROUND

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Devonte Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on September 28, 2015. (ECF No. 1.) This case now proceeds with the

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First Amended Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional

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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Burnitzki (collectively,

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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and against

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defendant C/O Philip Holguin for retaliation in violation of the First Amendment. (ECF No. 8.)

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On August 30, 2019, Plaintiff filed a motion for the court to sanction Defendants by

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entering default judgment against them for spoliation of evidence. (ECF No. 73.) On September

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19, 2019, Defendants filed an opposition to the motion. (ECF No. 74.) On October 3, 2019,

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Plaintiff filed a reply to the opposition. (ECF No. 78.) Plaintiff’s motion for sanctions is now

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before the court. Local Rule 230(l).
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II.

SPOLIATION OF EVIDENCE

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Spoliation is the destruction or significant alteration of evidence or the failure to preserve

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property for another’s use as evidence in pending or reasonably foreseeable litigation. United

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States v. Kitsap Physicians Svs., 314 F.3d 995, 1001 (9th Cir. 2002) (citing Akiona v. United

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States, 938 F.2d 158, 161 (9th Cir. 1991)). For a finding of spoliation, a party must show that

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“(1) the party with control over the evidence had an obligation to preserve it at the time of

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destruction; (2) the evidence was destroyed with a ‘culpable state of mind’; and (3) the evidence

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was relevant to the party’s claim or defense.” In re Hitachi Television Optical Block Cases, 2011

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WL 3563781, at *5 (S.D. Cal. Aug. 12, 2011) (quoting Zubulake v. UBS Warburg, LLC, 220

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F.R.D. 212, 220 (S.D. N.Y. 2003); see also Kitsap Physicians Serv., 314 F.3d at 1001 (willful

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spoliation occurs when a party destroys evidence after being given notice that documents were

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potentially relevant to the litigation before they were destroyed)). Once spoliation is shown, the

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guilty party has the burden of demonstrating that no prejudice resulted from the spoliation. Id.

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at 6 (quoting Hynix Semiconductor Inc. v. Rambus, Inc., 591 F.Supp.2d 1038, 1060 (N.D. Cal.,

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2006) (internal citations omitted, overturned on other grounds). “Prejudice is determined by

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looking at whether the spoliating party’s actions impaired the non-spoliating party’s ability to go

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to trial, threatened to interfere with the rightful decision of the case, or forced the non-spoiliating

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party to rely on incomplete and spotty evidence.” Id. (citing Leon v. IDX Systems Corp., 464

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F.3d 951, 959 (9th Cir. 2006)).

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A party who has engaged in spoliation of evidence may be sanctioned under the inherent

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power of the federal courts to sanction abusive litigation practices or under Fed. R. Civ. P. 37.

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See Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1052–53 (S.D.

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Cal. 2015).

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III.

PLAINTIFF’S MOTION

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Plaintiff moves the Court to sanction Defendants for spoliation of evidence because

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Defendants were unable to locate two videotaped interviews taken of Plaintiff on February 25,

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2011 and August 28, 2011, after excessive force incidents at issue in this case. Plaintiff shows

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that he submitted a request to Defendants to inspect the videotapes and Defendants responded
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that after a reasonable search and diligent inquiry they were unable to locate the videos. (ECF

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No. 73 at 11-13.) Plaintiff seeks a court order sanctioning Defendants by entry of default

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judgment against them on his excessive force claims. In the alternative, Plaintiff requests that

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upon trial in this case the jury be instructed to draw an adverse inference that the videos

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disappeared to undermine the investigation into Plaintiff’s excessive force and retaliation claims.

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In opposition, Defendants argue that Plaintiff’s request for sanctions is unsupported and

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improper because Defendants did not conduct themselves with willfulness, default, or bad faith.

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Defendants contend that Plaintiff cannot establish that Defendants were ever responsible for

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securing or retaining the alleged videos, and sanctions are improper because Plaintiff has not

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presented any evidence that the videos were willfully destroyed because of litigation. In addition,

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Defendants argue that Plaintiff cannot establish that either videotape was destroyed – Defendants

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were simply unable to locate either video after a reasonable search.

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Plaintiff responds that lack of evidence of Defendants’ personal involvement in spoliation

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does not absolve them from the imposition of sanctions because Defendants are agents of the

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California Department of Corrections and Rehabilitation (CDCR), and CDCR will indemnify

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them for any damages.

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IV.

DISCUSSION

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Plaintiff has not established that Defendants were responsible for preserving the

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videotapes at issue, or that they personally acted to cause the loss or destruction of the videotapes

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after being given notice that the videotapes were potentially relevant to Plaintiff’s case.

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Plaintiff’s argument that there is no requirement that Defendants personally act is without merit.

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Also, Plaintiff has not established, beyond his own speculation, that either of the videotapes was

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destroyed and not simply lost. Plaintiff admits in his motion that “it is impossible to obtain direct

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evidence of defendants’ involvement in the disappearance of these videos.” (ECF No. 73 at 6:7-

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10.)

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Under these circumstances the court finds no evidence that any Defendant destroyed

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video tapes knowing that they were relevant to this case. Therefore, it would be inappropriate to

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sanction Defendants for spoliation of evidence.
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V.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for sanctions,

filed on August 30, 2019, is DENIED.

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IT IS SO ORDERED.
Dated:

December 5, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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