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Mizzoni v. State

United States District Court, D. Nevada

January 19, 2018

JOSEPH L. MIZZONI, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before 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.

         II. BACKGROUND

         The Court adopts the facts as described in the R&R. (ECF No. 112 at 1-3.)

         III. LEGAL STANDARD

         A. Review of The Magistrate Judge's Recommendations

         This 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.

         B. Spoliation

         The Court adopts the standard for evaluating spoliation of evidence described in the R&R. (ECF No. 112 at 3-5.)

         IV. DISCUSSION

         A. Defendants' Objection

         Defendants 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.[1] Accordingly, the Court finds Defendants' argument unpersuasive.

         B. ...


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