Howell v. Allen et al

Filing 82

ORDER that Plaintiff's objection to Magistrate Judge Cobb's denial of his motion for sanctions (ECF No. 55 ) is overruled; Plaintiff's motion for status check on ECF No. 55 (ECF No. 81 ) is denied as moot; Plaintiff 9;s objection to Judge Cobb's denial of his motion to compel the production of RFP Nos. 1, 2, 3, 4, and 7 (ECF No. 76 ) is overruled. Signed by Judge Miranda M. Du on 3/27/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID HOWELL a/k/a ANDRE GILLIAM,

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Plaintiff,

ORDER

v.

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Case No. 3:17-cv-00449-MMD-WGC

SHERIFF CHUCK ALLEN, et al.,
Defendants.

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Before the Court are two objections to separate orders Magistrate Judge William

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G. Cobb issued in this case. (ECF Nos. 55, 76.) First, Plaintiff objects to Judge Cobb’s

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denial of his motion for sanctions (“First Objection”). (ECF Nos. 55 (objection), 52 (order),

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44 (motion).) Second, Plaintiff objects to Judge Cobb’s denial of his motion to compel

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certain requests for production (“RFP”)—Nos. 1, 2, 3, 4, and 7—after a hearing on the

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matter (“Second Objection”). (ECF Nos. 76 (objection), 75 (order), 56 (motion).) Finding

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no clear error, the Court overrules both objections.

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In reviewing a magistrate judge’s non-dispositive pretrial order, the magistrate’s

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factual determinations are reviewed for clear error. See 28 U.S.C. § 636(b)(1)(A); see also

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Fed. R. Civ. P. 72(a). “A finding is clearly erroneous when although there is evidence to

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support it, the reviewing body on the entire evidence is left with the definite and firm

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conviction that a mistake has been committed.” United States v. Ressam, 593 F.3d 1095,

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1118 (9th Cir. 2010) (quotation omitted). A magistrate judge’s pretrial order issued under

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§ 636(b)(1)(A) is not subject to de novo review, and the reviewing court “may not simply

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substitute its judgment for that of the deciding court.” Grimes v. City & County of San

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Francisco, 951 F.2d 236, 241 (9th Cir. 1991).

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The Court finds that Judge Cobb’s denial of Plaintiff’s motion for sanctions was not

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in error. In the motion for sanctions, Plaintiff sought sanctions for “Defendant’s deliberate

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and duplicit destruction of evidence, electronically stored information confirming violations

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inflicted upon plaintiff by the Defendants.” (ECF No. 44 at 4.) The allegedly pertinent video

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was overwritten. Judge Cobb denied the motion, finding, inter alia, that Plaintiff failed to

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establish that either of the relevant Defendants—Heather Hagan and Sean Smith—were

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responsible for the video being overwritten. Moreover, Plaintiff’s motion for sanctions failed

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to establish any deliberate conduct by the overwriting of the video. Pertinently, Plaintiff

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notes that in response to his request for production of the video, he received the following

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response from Defendants:

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Th[e] requested video surveillance footage does not exist because the video
surveillance system in-place at the time did not store footage for more than
a few-months, and the footage requested is over one year old.

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(ECF No. 44 at 2-3; cf. id. at 9.) Given these considerations, the Court overrules Plaintiff’s

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First Objection.

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The Court additionally overrules Plaintiff’s Second Objection. Judge Cobb denied

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Plaintiff’s RFP Nos. 1, 2, 3, and 7 because the requests were not directed to the custodian

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of records, and because he found that Plaintiff’s requests had received adequate

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responses. (ECF No. 75 at 3.) Judge Cobb overruled Plaintiff’s RFP No. 4 finding the

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requested information was privileged and/or not relevant. (Id. at 2.) Nothing in Plaintiff’s

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Second Objection supports a finding that Judge Cobb’s rulings were clearly erroneous.
It is therefore ordered that Plaintiff’s objection to Magistrate Judge Cobb’s denial of

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his motion for sanctions (ECF No. 55) is overruled.
It is further ordered that Plaintiff’s motion for status check on ECF No. 55 (ECF No.

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81) is denied as moot.

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It is further ordered that Plaintiff’s objection to Judge Cobb’s denial of his motion to
compel the production of RFP Nos. 1, 2, 3, 4, and 7 (ECF No. 76) is overruled.
DATED THIS 27th day of March 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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