United States District Court, D. Nevada
May 16, 2014
KEVIN FERNANDEZ, Plaintiff,
DR. CENTRIC, et al., Defendants.
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 at 9-11.
Thus, there is no dispute this material was confiscated and destroyed. What is different between the descriptions of the events by Defendants and Plaintiff is that there is no mention in the NDOC reports (which the correctional officers apparently prepared contemporaneous with the events) that Plaintiff told any of the correctional officers he was attempting to preserve feces and urine for use in prospective litigation, as Plaintiff claims. Instead, the reports stated Plaintiff informed the officers he stored his urine and feces in plastic bags because of an alleged inability to use the toilet. According to the reports, he claimed if he had used the toilet, staff would then "go tell all the other inmates on the tier what he was doing." ( Id., Schober Report.)
The issue is thus narrowed as to whether the correctional officers were advised by Plaintiff of his intentions to use this evidence in support of litigation he was contemplating and, if yes, why they undertook the actions they did (to dispose of the material). Therefore, on or before May 30, 2014, Defendants' counsel is directed to submit a declaration from one or more of the individuals involved in this incident, addressing:
(1) the nature of the initial report beyond what is outlined above, if any;
(2) the motivations of those involved in confiscating and disposing of the biological material;
(3) whether inmate Fernandez advised any of the NDOC officers that there was a likelihood of litigation and that he needed to preserve this evidence for litigation. If the declarant states Plaintiff communicated this information, the declarant shall explain all further actions taken thereafter; and
(4) any other subject which the declarant(s) wish to address regarding the alleged spoliation.
Plaintiff shall thereafter have an opportunity to submit to the court, on or before June 20, 2014, by declaration any additional facts beyond those recited in his motion (Doc # 151) and attachments. Plaintiff shall also address what facts or other information he has which would make the biological evidence relevant, i.e., how this biological evidence would confirm Plaintiff was directly or surreptitiously forced to ingest a laxative, and what medical or scientific information Plaintiff has which would establish that ant such test would reveal the presence of a laxative. Additionally, Plaintiff shall explain to the court by whom he expected to have this testing performed and at whose expense. Last, Plaintiff shall identify against which Defendants he seeks to have sanctions imposed.
The parties shall also each address, with respect to this specific topic, relevant authorities pertaining to spoliation and/or a failure to preserve evidence insofar as it relates to these constitutional claims asserted by Plaintiff.
b) The Alleged Failure to Preserve Photographic Evidence
As discussed above, Plaintiff claims the Defendants also took photographs and video taped not only the confiscation of the biological evidence but also his ingesting a laxative. (Doc. # 151 at 3.) Plaintiff also states that the "photographs from September 29, 2011, which Wilson took, support and relate to Plaintiff's claim of retaliation." ( Id. at 7.) Officer Wilson, who was not added as a defendant until Judge Hicks' order of September 18, 2013 (Doc # 217), does not appear to be mentioned elsewhere in the motion.
Plaintiff also makes no specific reference to whoever supposedly "destroyed" the photographic evidence, assuming there ever was any such evidence. (Doc. # 151 at 6.) According to Defendants, no such "evidence" ever existed. In that regard, in Exhibit P to Plaintiff's motion, Plaintiff set forth the following responses Defendants provided to Plaintiff's First Request for Production regarding photographic or visual evidence:
Request for Production No 26:
Produce and identify all video, digital, and audio recordings of plaintiff while in Unit 7A and B, while in the exercise yard being escorted to or from those units, and while in the Mental Health Unit at NNCC from September 14, 2011 though January 16, 2012.
Response to Production No. 26:
* * *
Not withstanding these objections, and without waiving them, Defendants are not aware of any such video or audio recordings from movements of Plaintiff on the exercise yard or during escort from September 14, 2011 and January 16, 2012.
Doc. # 151 at 3; pp.39-40 (Exh. P).
Plaintiff's motion also references Defendants' Response to Plaintiff's Second Request for Production, Request No. 5 as follows:
Request for Production No. 5:
Produce and identify each and every video, digital and audio record of Plaintiff while Plaintiff was incarcerated at the Northern Nevada Correctional Center in Unit 7A, Unit 7B, the Mental Health Unit, and while Plaintiff was being escorted on the exercise yard during the time between September 14, 2011 through January 16, 2012.
Response to Production No. 5:
* * *
Notwithstanding these objections and without waiving them, Defendants reiterate that they have investigated this request and there are no recordings that would be responsive to this request, therefore no response is forthcoming to this request.
Id. at 3; pp. 41-42 (Exh. Q).
Plaintiff also refers to Defendants' responses to certain of Plaintiff's requests for admissions. These responses reiterate what Defendants stated in their earlier discovery responses, i.e., there are no video recordings or photographs which were made or retained during the September 14, 2001-January 2, 2012 time period:
Request for Admission No. 2:
Admit that from September 14, 2011 through January 02, 2012, Unit 7B at NNCC had the capability of video recording persons within the unit.
Response to Admission No. 2:
Deny. Equipment was installed, but information indicates recording ability wasn't present until after time referenced.
Request for Admission No. 3:
Admit that from September 14 through January 02, 2012 or during this period, the Plaintiff was video recorded in Unit 7B at NNCC.
Response to Admission No. 3:
Deny. See Response no. 2.
Request for Admission No. 4:
Admit that during January 02, 2012 through January 05, 2012 Unit 8B-17A Cell had video recording cameras installed within it at the MHU at NNCC.
Response to Admission No. 4:
Deny. Any cameras for the unit and time reference were merely for observation, not recording.
Request for Admission No. 5:
Admit that during January 02, 2012 through January 05, 2012 Plaintiff was video recorded in Cell 8B-17A in the MHU at NNCC.
Response to Admission No. 5:
Deny, see response 4 above.
Id. at 3; pp. 43-45 (Exh. R).
This court emphasizes that the foregoing discovery responses, which consistently deny any such photographic evidence ever existed, were submitted by Plaintiff as exhibits accompanying his motion. On the other hand, other than his own contentions of how the NDOC camera systems were supposed to function, Plaintiff submitted no documentary evidence that in fact there were any photographs or video tapes substantiating Plaintiff's contentions.
Additionally, in another filing submitted by Defendants, the court was provided with further discovery responses which, for the third time, verify the absence of any photographs or video recordings:
Defendants' Response to Request for Production of Documents [Set Six]:
REQUEST FOR PRODUCTION NO. 1:
Produce each and every digital video images and/or photographs which were taken by correctional officers on January 02, 2012, of Plaintiff's cell at NNCC unit 7B 40A, including but not limited to the bags of fecal matter and cups of urine which were referenced in the officer's incident report. Report number IR-2012-NNCC-000004 filed on January 02, 2012, and appears in your exhibit 6 of Doc. #12 Def. Op. To Pl. Mtn for TRO and PI.
RESPONSE TO PRODUCTION NO. 1:
As indicated in IR-2012-NNCC-000004, 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 officer to Defendants' knowledge. Therefore, no further response is forthcoming to this request.
* * *
REQUEST FOR PRODUCTION NO. 3:
Produce each video recording and/or digital recordings from Unit7B on January 02, 2012 at NNCC from 6:00 am through 12:00 pm.
RESPONSE TO PRODUCTION NO. 3:
* * * after a reasonable inquiry, Defendants were unable to locate any such video or digital recordings of Plaintiff from Unit 7B on January 02, 2012, at NNCC.
Doc. # 192-2 at 3 (Exh. B).
The foregoing discovery production (Defendants' Response to Plaintiff's Sixth Set of Requests for Production of Documents) also addresses the photographs which Plaintiff claims were taken by Officer Wilson and asserts that Defendants have not located any such photographs:
REQUEST FOR PRODUCTION NO. 8:
Produce each and every video recording, digital recording, video image, photographs, digital image, regardless of the form, which would have been produce by Jonathan Wilson, correctional officer, on September 29, 2011 of the cell door at NNCC at Unit 7B cell 40 and the video recording and/or digital recording from that unit on that day.
RESPONSE TO PRODUCTION NO. 8:
* * * Defendants have made a reasonable inquiry into whether or not any such video recording, digitial (sic) or video image or photographs were produce by Officer Wilson on or about September 28, 2011, and have not located any such documents. In addition, the document sought in this request are irrelevant and not related to the subject matter of this litigation involving the MHU in January 2012.
Id. at 6 (Exh. B).
The conclusion the court draws from these discovery responses is that the Defendants have consistently represented no photographs or video recordings were obtained or the relevant time period. Other than Plaintiff's unsubstantiated allegations photographs were taken and that recordings were made of the videos, the court is not aware of any evidence documenting the existence of any video tapes or photographs.
In most spoliation cases, there is no dispute certain evidence existed and that the evidence was destroyed. See, e.g., U.S. v. Kitsap Physicians Services, 314 F.3d 995, 1001 (9th Cir. 2002). However, in this matter, in light of Defendants' discovery responses, there is a serious issue whether the photographic or video taped evidence Plaintiff claims was spoliated ever existed.
It is Plaintiff's burden to make a prima facie showing that this evidence existed. "The party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim." Reinsdorf v. Skechers U.S.A., Inc. et al., 296 F.R.D. 604, 628 (C.D.Cal.2013) citing Centrifugal Force, Inc. v. Softnet Communication, Inc., 783 F.Supp.2d 736, 740 (S.D.NY.2011). One of the elements of a spoliation claim is that the party must demonstrate the evidence actually existed and was destroyed. Genon Mid-Atlantic, LLC v. Stone & Webster, 282 F.R.D. 346, 357 (S.D.NY.2012), citing Orbit One Commc'ns v. Numerex Corp., 271 F.R.D. 429, 441 (S.D.NY.2010).
Plaintiff's motion has not demonstrated any photographs were actually taken or video recordings made during the relevant time period. Plaintiff has failed to satisfy the burden imposed upon him to establish the existence of this evidence. Accordingly, it logically follows there can be no spoliation of evidence which the court cannot verify ever existed.
The component of Plaintiff's motion for sanctions relating to photographic and video taped evidence is denied.
c. Failure to Preserve Evidence: Plaintiff's Request to Warden Palmer
Plaintiff states he "wrote a memo to Palmer advising that he had relevant evidence that needed to be picked up. Exh. G. Palmer, nor his agents picked up the evidence." (Doc. # 151 at 2.) An affidavit of Plaintiff's mother, Dorothy Bedell, states that on or about September 21, 2011, she called Defendant Palmer and communicated her son's allegations to him. She recites that Warden Palmer said "they would look in to (sic) it." ( Id. at 24, ¶ 5; Exh. B.) She represents she called again on or about November 11, 2011, asking that "he [Warden Palmer] pick up this evidence, which was "a sample of [Plaintiff's] urine and the food as evidence." ( Id. at 25, ¶ 8.) Plaintiff in his affidavit represents he made similar requests to Warden Palmer "to pick up my evidence I had of constitutional violations." ( Id. at 22; ¶ 6, Exh. B.) Plaintiff's motion also references "Exhibit G" to his motion, filed under seal as Doc. # 152-2. This document purports to be a November 15, 2011 memorandum to Warden Palmer wherein Plaintiff claims he has "evidence that I wish to provide to authorities concerning" what Plaintiff descried were "serious violations to my rights and my health." ( Id. at 16.)
The court does not have any responsive material from Defendants, particularly Defendant Palmer, regarding Plaintiff's assertion of Warden Palmer's failure to preserve this evidence. Accordingly, on or before May 30, 2014, Defendants shall submit a declaration(s) of Warden Palmer, and, if desired, any other NDOC personnel knowledgeable about the alleged requests for preservation of evidence. Defendants shall also provide legal authorities pertinent to these factual allegations as to whether they give rise to an actionable claim for spoliation.
Plaintiff may reply to Defendants' submission on or before June 20, 2014. Plaintiff shall also provide the court any additional facts Plaintiff has with respect to the request for preservation of evidence made to Warden Palmer. Plaintiff shall also address and provide the court legal authorities pertinent to these factual allegations as to whether they give rise to an actionable claim for spoliation.
d) Failure to Take Blood Samples
Other than Plaintiff's passing reference the "Defendants failed to take blood samples from Plaintiff to obtain the truth" (Doc. # 151 at 11), the court is unaware of any facts or even allegations with regard to this contention. Nevertheless, Defendants are directed to provide the court on or before May 30, 2014, any additional factual information regarding the alleged failure to take blood samples (Doc # 151 at 11) and to discuss legal authorities whether the failure to take blood samples constitutes an actionable spoliation claim.
Plaintiff's shall reply to Defendant's submission on or before June 20, 2014. Plaintiff shall also identify which Defendant(s) he believes should be subject to an imposition of sanctions for the alleged failure to secure blood samples. However, as with the issue of analysis of the urine and feces samples, Plaintiff is also directed to identify medical or scientific literature which would establish that a blood test would reveal the presence of a laxative. Additionally, Plaintiff is to explain to the court by whom he expected to have this testing performed and at whose expense.
e) Failure to Administer Polygraph Examination
Plaintiff states that "the Defendants failed to provide Plaintiff with a polygraph examination to preserve this evidence." (Doc. # 151 at 10, 11.)
The Defendants are directed to provide the court on or before May 30, 2014, any additional factual information regarding the alleged failure to administer a polygraph examination and to discuss legal authorities whether the failure to administer a polygraph examination constitutes an actionable spoliation claim. Plaintiff shall reply to Defendants' submission on or before June 20, 2014. Plaintiff shall also identify which Defendant(s) he believes should be subject to an imposition of sanctions, if the court were to impose sanctions for this failure, and what a polygraph examination was expected to reveal with respect to Plaintiff's claims the Defendants forcibly medicated him with a laxative.
f) Spoliation: I-File
Plaintiff's motion (Doc. # 151) also alleged Defendants lost a portion of Plaintiff's Institutional File (I-File). The court addressed this contention at a hearing on August 19, 2013. The Court granted in part Plaintiff's motion to compel production of his complete I-File. (Doc. # 201 at 3.) Defendants were directed to either produce the entire file or explain what effort has been undertaken to locate the missing portion and were provided 30 days to supplement their discovery filings. ( Id. at 5.) Defendants subsequently reported the missing sections of Plaintiff's I-File were located and were sent to Ely State Prison for Plaintiff to review. (Doc. # 216 at 2-3; Doc. # 216-1 (Exh U); Doc. # 216-2 (Exh. V); Doc. # 216-3 (Exh. W); Doc. # 216-4 (Exh. X); and Doc. # 216-5 (Exh. Z).)
Thus, the Plaintiff's I-File is no longer relevant to Plaintiff's spoliation motion, particularly since this court further determined that there was no prior preservation order regarding the I-file. (Doc. # 221 at 4-5.) Therefore, the court will not request nor entertain any further briefing on the subject of Plaintiff's I-File relating to any spoliation claim.
The parties are directed to address spoliation issues as more specifically delineated in this order.
IT IS SO ORDERED.