Jones v. Rothwell

Filing 9

ORDER denying 7 Motion for Spoilation signed by Judge Karen L Strombom.(MET) cc: plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TERRELL JONES,
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Plaintiff,

CASE NO. C15-5101 RBL-KLS

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v.

ORDER DENYING MOTION FOR
SPOLIATION OF EVIDENCE

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ARLEE ROTHWELL,
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Defendant.
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Plaintiff Terrell Jones asks this Court for an order “to replace spoiled evidence that was
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taken from me and shredded by Defendant.” Dkt. 7. In this case, Mr. Jones seeks compensatory
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damages against Arlee Rothwell for the alleged loss of his personal legal documents without due
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process of law. He also claims that Mr. Rothwell’s conduct violated his right to access the
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courts. Dkt. 6. On April 27, 2015, the Court directed service of the complaint. Dkt. 8. Mr.
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Rothwell has not yet been served nor has his time to respond to the complaint expired. Thus,
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Mr. Jones’ motion is premature.
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In addition, this Court cannot grant the relief sought by Mr. Jones in his motion. Mr.
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Jones contends that Mr. Rothwell shredded his 42 U.S.C. § 1983 complaint (with accompanying
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kites and grievances) against officers at the Washington State Penitentiary (WSP) for the use of
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ORDER DENYING MOTION FOR
SPOLIATION OF EVIDENCE - 1

1 excessive force. The complaint was confiscated as contraband because it was found in another
2 inmate’s cell. According to Mr. Jones, Mr. Rothwell destroyed the complaint because the
3 documents were unidentifiable. However, Mr. Jones contends that Mr. Rothwell was lying. Dkt.
4 7.
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It is unclear how Mr. Jones expects shredded documents to be returned to him. In

6 addition, a complaint is not evidence1. Spoliation is the “destruction or significant alteration of
7 evidence, or the failure to preserve property for another’s use as evidence, in pending or future
8 litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir.2009) (citation
9 omitted). While a district court may levy sanctions for the spoliation of evidence, sanctions are
10 appropriate only if the party had notice that the evidence is potentially relevant to a claim. See
11 U.S. v. $40,955.00 in U.S. Currency, 554 F.3d 752, 758 (9th Cir.2009); Leon v. IDX Syss. Corp.,
12 464 F.3d 951, 958 (9th Cir.2006). The duty to preserve evidence is triggered when a party
13 knows or reasonably should know that the evidence may be relevant to pending or future
14 litigation.
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Accordingly, Plaintiff’s motion for spoliation is DENIED. The Clerk shall send a copy

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Dated this 18th day of May, 2015.

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A

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Karen L. Strombom
United States Magistrate Judge

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The Court notes that Mr. Jones filed a complaint for the excessive use of force against WSP
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August 7, 2014. See Jones v. Washington State Penitentiary, Case No. C14-5557 RBL-JRC.

ORDER DENYING MOTION FOR
SPOLIATION OF EVIDENCE - 2