Ejonga-Deogracias v. Department of Corrections et al

Filing 16

ORDER Denying Plaintiff's 13 Motion for Preservation of Evidence, by Magistrate Judge Karen L Strombom. **2 PAGES, PRINT ALL** (JoJo Ejonga-Deogracias, Prisoner ID: 366372) (GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOJO EJONGA-DEOGRACIAS,
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Plaintiff,
v.

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DEPARTMENT OF CORRECTIONS,
11 LEON N. KERSHAW, CAROLEE ROOP,
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CASE NO. C15-5784 RJB-KLS
ORDER DENYING PLAINTIFF’S
MOTION FOR PRESERVATION OF
EVIDENCE

Defendants.

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Plaintiff JoJo Ejonga-Deogracias is a state prisoner proceeding pro se and in forma
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pauperis in this 42 U.S.C. § 1983 civil rights action. On November 23, 2015, Plaintiff filed a
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motion seeking the preservation of evidence relevant to the claims in this action. Dkt. 13.
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“[A]s soon as a potential claim is identified, a litigant is under a duty to preserve
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evidence which it knows or reasonably should know is relevant to the action.” National Ass'n of
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Radiation Survivors v. Turnage, 115 F.R.D. 543, 566-67 (N.D.Cal.1987)). A motion to preserve
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evidence requires the court to consider “1) the level of concern the court has for the continuing
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existence and maintenance of the integrity of the evidence in question in the absence of an order
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directing preservation of the evidence; 2) any irreparable harm likely to result to the party
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seeking the preservation of evidence absent an order directing preservation; and 3) the capability
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ORDER DENYING PLAINTIFF’S MOTION
FOR PRESERVATION OF EVIDENCE - 1

1 of an individual, entity, or party to maintain the evidence sought to be preserved, not only as to
2 the evidence's original form, condition or contents, but also the physical, spatial and financial
3 burdens created by ordering the evidence preservation.” Capricorn Power County, Inc. v.
4 Siemens Westinghouse Power Corporation, 220 F.R.D. 429 (2004).
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Plaintiff’s motion is premature. At this juncture in the lawsuit, defendants have been

6 served and filed waivers of service, but have not yet filed an answer or motion responsive to
7 Plaintiff’s complaint. After defendants have made an appearance in this action, by filing either
8 an answer or a motion responsive to plaintiff's complaint, Plaintiff may renew his motion, taking
9 care to make the requisite showing set forth in the preceding paragraph.
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Accordingly, it is ORDERED:

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1.

Plaintiff’s motion (Dkt. 13) is premature and is DENIED without prejudice.

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2.

The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants.

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Dated this 21st day of December, 2015.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION
FOR PRESERVATION OF EVIDENCE - 2