United States District Court, D. Nevada
JOSEPH L. MIZZONI, Plaintiff,
STATE OF NEVADA, et al., Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
William G. Cobb (ECF No. 112) relating to Plaintiff's
Motion Seeking Permission to File a Spoliation/Destruction of
Video Tape Evidence Against Defendants (“Spoliation
Motion”) (ECF No. 100). Defendants responded (ECF No.
106) and Plaintiff replied (ECF No. 111). The Magistrate
Judge held a hearing on the the Spoliation Motion on
September 21, 2017 (ECF No. 113) and issued his R&R on
September 21, 2017. Defendants filed an objection (ECF No.
114), as did Plaintiff (ECF No. 115). Defendants responded to
Plaintiff's objection (ECF No. 116), and Plaintiff
replied. (ECF No. 117.) LR IB 3-1(a) provides that a reply
brief “will be allowed only with leave of court.”
Plaintiff did not seek leave to file his reply. Accordingly,
the Court strikes Plaintiff's reply. For the reasons
described below, the Court finds good cause to accept and
adopt the R&R in full.
Court adopts the facts as described in the R&R. (ECF No.
112 at 1-3.)
Review of The Magistrate Judge's Recommendations
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge's report and
recommendation, then this Court is required to “make a
de novo determination of those portions of the
[report and recommendation] to which objection is
made.” Id. Mindful of the fact that the
Supreme Court has “instructed the federal courts to
liberally construe the ‘inartful pleading' of pro
se litigants, ” Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)), the
Court will view Plaintiff's pleadings with the
appropriate degree of leniency.
Court adopts the standard for evaluating spoliation of
evidence described in the R&R. (ECF No. 112 at 3-5.)
argue that the Magistrate Judge erred in determining that
Associate Warden Walsh would have known to preserve the
relevant video footage on April 5, 2015, the date Plaintiff
sent a kite to Walsh asking for the footage. (ECF No. 114 at
4 (citing ECF No. 112 at 7).) Defendants contend that Walsh
did not know that the relevant video footage might be
relevant to Plaintiff's claim until she opened
Plaintiff's request, on April 17, 2015. (Id.)
The Magistrate Judge did not err in concluding that
Defendants received notice on April 5, 2015. If the Court
were to accept Defendants' position-that they are not on
notice of the need to preserve video footage until they open
the request-then Defendants could avoid producing footage in
any case by sitting on requests until the footage has been
taped over. Accordingly, the Court finds
Defendants' argument unpersuasive.