United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Valerie P. Cooke (ECF No. 123) relating to Plaintiff Joseph
Mizzoni's motion seeking permission to file a
spoliation/destruction of video tape evidence against
defendants for relief under Fed.R.Civ.P. 6 (“Spoliation
Motion”) (ECF No. 91). Defendants Joseph Allison,
Robert Ardinger, Nathan Garnica, Lee Grider, Sgt. John
Henley, Joel Hightower, John Hill, Sgt. Juliette Roberson,
Chris Smith, and Steven Crowder responded to Plaintiff's
Spoliation Motion (ECF No. 102), and Plaintiff replied (ECF
No. 103). The Magistrate Judge held a hearing on the
Spoliation Motion on January II, 2018 (ECF No. 109) and
issued her R&R on April 4, 2018. Defendants filed an
objection (ECF No. 126), as did Plaintiff (ECF No. 129). The
Court has reviewed the parties' respective responses.
(ECF Nos. 134, 135.) For the reasons discussed below, the
Court accepts and adopts the R&R in its entirety.
is an inmate in the custody of the Nevada Department of
Corrections (“NDOC”). (See ECF No. 91 at
1.) Proceeding pro se and pursuant to 42 U.S.C.
§ 1983, Plaintiff brings claims for First Amendment
retaliation and Eighth Amendment excessive force against
several NDOC and Northern Nevada Correctional Center
(“NNCC”) officials. (ECF No. 41 at 1.)
Plaintiff's claims concern his involvement in a physical
altercation with multiple correctional officers at NNCC.
(See Id. at 4.)
alleges that he confronted Defendant Chris Smith on March 28,
2015, in the rotunda of housing Unit 5 about a cell search.
(Id.) Smith allegedly ordered Plaintiff to put his
hands on the wall, and although Plaintiff complied, Smith
forcefully wrestled Plaintiff to the ground and handcuffed
him. (Id.) Plaintiff contends that there were
inmates present during this physical altercation and that
there is a video camera in Unit 5 that would have captured
the incident. (See ECF No. 40 at 5.)
allegedly arrived shortly after and dragged Plaintiff to
another area in the rotunda, which Plaintiff speculates was
out of view of both the Unit 5 camera and inmates in the
vicinity. (See id.) Plaintiff alleges that the
officers beat him so badly that he lost consciousness twice.
(Id. at 6.) Plaintiff believes that Defendant
Roberson “took pictures and video of the whole
in[c]ident in Unit 5” because he saw her point the
camera at him while the other defendant officers beat him.
(Id. at 12.) Finally, Plaintiff alleges that he
suffered further physical abuses while being escorted to the
infirmary in Unit 8 and back to his cell. (ECF No. 41 at
4-5.) Defendants dispute Plaintiff's version of events.
(See, e.g., ECF No. 52 at 3.)
requested video footage and photographs of the incident in
the weeks following the incident. (See, e.g., ECF
No. 91 at 2.) Plaintiff requested all video footage and still
pictures “from inside Unit 5 to 7-A-38” that were
recorded on the date of the physical altercation.
(Id. at 8.) Plaintiff did not receive any such
filed his Spoliation Motion on September 5, 2017. (ECF No.
91.) Plaintiff argued that Defendants engaged in intentional
spoliation of video footage from Units 4, 5, 7, and 8 as well
as handheld footage that would have been incriminating to
Defendants. (See Id. at 3.)
Magistrate Judge held a hearing and issued an R&R
imposing sanctions on Defendants for spoliation of the video
footage from the Unit 5 camera. (ECF No. 123 at 8.) Regarding
the handheld camera footage, the Magistrate Judge found that
sanctions could not issue because no handheld footage ever
existed. (Id. at 6.) Regarding the footage from
surveillance cameras in Units 4, 7, and 8, the Magistrate
Judge found that Plaintiff failed to establish that
Defendants had a duty to preserve such footage. Plaintiff did
not offer any evidence or argument that these cameras
captured images of potential witnesses or the officers'
alleged use of force. (Id. at 7.)
Magistrate Judge recommended permitting the parties to
present evidence and argument to the jury that Plaintiff
asked for this video footage; that the prison had a duty to
preserve the footage; and that the video would have shown
there were other inmates present in the wings of the Unit 5
rotunda that may have witnessed the incident between
Plaintiff and Smith. (Id. at 15-16.)
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 ...