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Mizzoni v. Allison

United States District Court, D. Nevada

May 14, 2018

C/O ALLISON, et al., Defendants.



         I. SUMMARY

         Before 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.


         Plaintiff 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.)

         Plaintiff 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.)

         Officers 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.)

         Plaintiff 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 footage.

         Plaintiff 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.)

         The 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.)

         The 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.)


         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 ...

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