United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
District Judge Larry R. Hicks has remanded Plaintiff's Motion for Sanctions for Defendants' Spoilation (sic) of Evidence (Doc. # 151) to this court for further consideration. As directed, this order will address the legal and factual issues presented by Plaintiff's motion.
On May 30, 2013, Plaintiff filed a motion for sanctions for Defendants' alleged spoliation of evidence. (Doc. # 151.) The court ruled on Plaintiff's motion in Docs. # 200 and # 201; Plaintiff's motion was denied (Doc. # 201 at 2, ¶ 6). Plaintiff's motion to seal exhibits (Doc. # 152), which was filed in support of his motion for sanctions, was granted in this court's minute order. (Doc. # 204.). Plaintiff later moved to "correct" the court's order denying his motion for sanctions. (Doc. # 212.) The court addressed Plaintiff's motion to correct in another order. (Doc. # 221.) In that order, the court determined that even if Defendants confiscated and destroyed Plaintiff's biological evidence, Plaintiff's motion for sanctions (Doc. # 151) was moot because the cause of action to which the alleged spoliation appeared relevant (Eighth Amendment claim for involuntarily ingesting a laxative) had been dismissed and thus Plaintiff's claims of spoilation pertaining to that cause of action was moot. (Doc # 221 at 2-4.)
This court's analysis of the pertinence of the biological and/or photographic was stated as follows:
One of Plaintiff's numerous pending motions to compel pertains, inter alia, to the production of photographs of "fecal matter and cups of urine which were referenced in the officer's incident report...." (Doc. #192-2 at 2-3.) Defendants responded to Plaintiff's request for production #1, sixth set, stating that the "fecal matter in plastic wrap and plastic bags of urine were secured in bio-hazzard containers and disposed of; photographs or digital video images were not taken by officers to Defendants' knowledge." ( Id. at 3.) Therefore, this purported drugging evidence is no longer in existence.
Doc. # 221 at 2:22-28.
This court concluded, however, even if this evidence was disposed of, wrongfully or otherwise, because Plaintiff's Eighth Amendment claims relating to an assertion Defendants put a laxative in his food had been dismissed (Doc. # 116 at 22, 23, 38; Doc. # 217 at 5), any such evidence which was destroyed was irrelevant to this constitutional allegation. (Doc. # 221 at 2-4.) However, following consideration of Plaintiff's objections to this order (Doc. # 228), Judge Hicks perceived this spoliation allegation might be relevant to Plaintiff's claim he was involuntarily admitted into the prison's Mental Health Unit and his being labeled - and treated - as mentally ill. (Doc. # 227 at 2.) Judge Hicks remanded Plaintiff's motion (Doc. # 151) for further consideration by this court of this issue and several others, i.e., whether video recordings and photographs were disposed of and also whether Plaintiff has a viable spoliation claim for Defendants' failure to administer a polygraph or secure blood work. ( Id. )
Accordingly, the court now addresses Plaintiff's motion for spoliation and request for sanctions from the standpoint of whether there has been any actionable spoliation
II. Overview of Plaintiff's Motion for Sanctions (Doc. # 151)
Plaintiff moved for sanctions because of "the Defendants' spoilation (sic) of evidence." (Doc. # 151 at 1.) Plaintiff did not identify which "Defendants" should be subject to sanctions. However, it appears from Plaintiff's motion that three to six individuals may have some involvement with the confiscation of the biological evidence. Plaintiff's motion states:
On January 02, 2012, the Defendants Shorey, Willhite and Hogan confiscated the biological evidence Plaintiff was keeping and destroyed it.
Doc. # 151 at 3.
Plaintiff additionally alleges he told two other Defendants, Burchett and Schober - whom he states "controlled the scene" - that this biological material "was evidence which proved Plaintiff was being drugged through his food." ( Id. ) Plaintiff further avers that "it is likely Defendants Burchett and Schober ordered them to do it." ( Id. at 8.) Plaintiff alleges that "this evidence is directly related to whether Defendants Shepherd and Rhalston drugged Plaintiff's food." ( Id. at 6.) He also asserts that "Shorey, Willhite and Hogan destroyed the evidence intentionally." ( Id. at 8.)
The affidavit of Plaintiff Fernandez which accompanied the motion (Doc. # 151 at 21-22) provides a somewhat different scenario. In ¶ 9 of Plaintiff's affidavit, he states on January 2, 2012, he advised "Defendants Burchett, Schober and Moe" that the "urine and human waste" in his cell "were evidence of [his] being drugged with laxatives by officers and that his evidence should be saved and tested." In ¶ 10, he states he told officers Lamb, Moe and Schober "the urine and food samples were evidence of [his] being drugged by NDOC officers with laxatives." Plaintiff's affidavit, unlike his motion, does not assert which officers confiscated the biological evidence. Nevertheless, based upon the assertions found in both the motion and affidavit, it appears that a total of six NDOC correctional officers are possibly implicated by Plaintiff in this activity, thus presumably constituting the makeup of the "Defendants" about whom Plaintiff complains for the confiscation and spoliation of this evidence.
Plaintiff also contends as part of his spoliation claims the Defendants also took photographs and video taped the "drugging." ( Id. at 2.) He avers also the "video, photographs and audio recordings are relevant to every claim presented by Plaintiff. ( Id. at 7.) He alleges the Defendants (again, without specifying which Defendants) "have intentionally destroyed the urine samples and food samples and failed to preserve... video and audio recordings, and polygraph evidence." (Doc. # 151 at 6.)
Plaintiff also implicated another Defendant in his motion, Warden Palmer. He states that on November 11, 2011, Plaintiff's family called Palmer "to advise him Plaintiff's food was drugged with a laxative" and that Plaintiff had "saved samples of the food tray and urine and they needed to be picked up and preserved." ( Id. at 11.) Plaintiff also alleges that he wrote Palmer a memorandum on November 15, 2011, requesting him "to pick up the evidence" and that "Palmer and Defendants failed to do so." ( Id. at 11.)
Last, Plaintiff alleges the Defendants "failed to provide Plaintiff with a polygraph examination to preserve this evidence" (Doc. # 151 at 10) and that "Defendants also failed to investigate or take blood samples" ( id. at 11).
The foregoing sets forth the gravamen of Plaintiff's claims. The details of the nature of the alleged spoliation are addressed later in this order at pages 6-9. However, prior to addressing the request for sanctions and the alleged misconduct giving rise to the claims of spoliation, the court expresses its concern about the identity of the Defendant(s) against whom Plaintiff seeks sanctions.
Technically, when Plaintiff filed his spoliation motion against the "Defendants" on May 30, 2013, the only persons involved in the alleged spoliation were Defendants Schober and Palmer. Defendants Willhite, Hogan, Burchett, Moe and Lamb were not then Defendants in this matter. It is problematic whether this court can even entertain a motion for sanctions for spoliation against individuals where were not defendants when the motion was filed.
Although procedurally this is a potentially fatal flaw to Plaintiff motion, at least as to certain Defendants, the court will not dispose of Plaintiff's motion on procedural grounds but will, instead, turn to a substantive analysis of Plaintiff's motion. (Doc. # 151.)
III. Legal Standard
The courts have held that if a party has engaged in unjustified spoliation of evidence, sanctions may be imposed. Magistrate Judge George Foley cogently reviewed the relevant law on this subject in Anderson v. Wal-Mart Stores, Inc., No. 2:10-cv-02245-GMN-GWF, 2012 WL 300878 (D. Nev. 2012):
The court has the inherent authority to impose sanctions based on a party's failure to preserve relevant evidence. Sanctions may be imposed if the party was on notice that the evidence was potentially relevant to pending or reasonably foreseeable litigation and failed to take reasonable steps to preserve it. United States v. $40, 955 In U.S. Currency, 554 F.3d 752, 758 (9th Cir.2009); Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006); and United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.1992). See also Anderson v. Wal-Mart Stores, Inc., 2011 WL 4621286, at *3-*4 (D.Nev.2001). The forms of sanction may include (1) an instruction to the jury that it may draw an inference adverse to the party or witness responsible for destroying the evidence, (2) an order excluding witness testimony proffered by the party responsible for destroying the evidence, or (3) and dispositive order dismissing the complaint or entering a default judgment. In re Napster, 462 F.Supp.2d 1060, 1066 (N.D.Cal.2006). See also Powell v. Texvans, Inc., 2011 WL 1099120, *4 (D.Nev.2011) and Morford v. Wal-Mart Stores, Inc., 2011 WL 635220, *3 (D.Nev.2011). While a finding of bad faith is not required for the imposition of sanctions, "a party's motive or degree of fault in destroying evidence is relevant to what sanction if any, is imposed." In re Napster, 464 F.Supp.2d at 1066-67, citing Baliotis v. McNeil, 870 F.Supp. 1285, 1291 (M.D.Pa.1994). Courts should choose "the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim." Schmid v. Milwaukee Electric Tool Corp., 13 F.3d.76, 79, (3rd Cir.1994); Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263 (9th Cir.1993). See also Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir.2006).
These authorities, and others cited in this Order, demonstrate that if relevant evidence has been shown to exist, and if the possessor of that evidence was on notice that the evidence was potentially relevant to litigation which was reasonably foreseeable, and if that party failed to take reasonable steps to preserve it, sanctions may be imposed upon that party. The nature of the sanctions will depend on the party's motive or degree of fault in not preserving that evidence. This court will now turn to a review of the factual background of Plaintiff's motion.
IV. Review and Discussion of the Components of Plaintiff's Spoliation Motion
As discussed above, it appears there are five aspects to Plaintiff's motion for spoliation of evidence. One relates to the confiscation and destruction of the biological evidence (urine and feces). The second pertains to whether photographs or video recordings of the seizure of the biological evidence and/or "drugging" was destroyed (if it was recorded). The third relates to whether Warden Palmer was advised to "pick up the evidence, " whether he failed to do so and if so, his explanation. The fourth and fifth are whether Plaintiff's request to undergo a polygraph examination, and to obtain blood tests, which he contends Defendants failed to provide, gives rise to a viable spoliation claim.
The court will address in greater detail these aspects of Plaintiff's spoliation motion.
a) The Alleged Spoliation of Biological Evidence
As addressed above, this claim of spoliation relates to an assertion "Defendants Shorey, Willhite and Hogan confiscated the biological evidence and destroyed it." (Doc. # 151 at 3.) There is no dispute that these materials were seized and disposed of. Indeed, the discovery and disposition of this biological material was the subject of an exhibit filed by Defendants in response to Plaintiff's Motion for a Temporary Restraining Order/Preliminary Injunction, Doc. # 13-1. This document, an NDOC incident report regarding the discovery of the plastic-wrapped urine and feces in Plaintiff's cell, was filed under seal. In light of Plaintiff's motion for sanctions for spoliation which references the Plaintiff's actions which are the subject of this NDOC report, Doc. # 13-1 at 9-11 will now be unsealed and published by the court.
This NDOC report reads in pertinent part as follows:
Doc. # 13-1 ...