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Peck v. State

United States District Court, D. Nevada

July 15, 2019

FRANK PECK, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER MOTION TO PRESERVE EVIDENCE [ECF NO. 64], RULE 60(B)(6) MOTION [ECF NO. 87], MOTION FOR SANCTIONS [ECF NO. 95]

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff Frank Peck's Motion to Preserve Video Evidence of March 19th, 2019 11:30 AM, Legal Mailings and Subsequent Retaliatory Disarrangement of Mr. Peck's Files (ECF No. 64), Rule 60(b)(6) Motion (ECF No. 87), and Objection and Request for Sanctions to Defendants' Notice Regarding Motion to Preserve Video Evidence (ECF No. 95). For the reasons discussed below, the motion to preserve evidence is granted in part, the Rule 60(b)(6) motion is denied, and the request for sanctions is denied.

         MOTION TO PRESERVE EVIDENCE AND REQUEST FOR SANCTIONS

         On March 27, 2019, Plaintiff filed a motion to preserve video evidence from High Desert State Prison, where he is incarcerated. (ECF No. 64). Plaintiff alleges that on March 19, 2019 “at approximately 11:48 am, ” Ms. Ennis took unsealed envelopes containing legal mail from Plaintiff's cell. (Id. at 3). At approximately noon, Plaintiff left his cell. (Id.). When he returned, he found that his cell had been searched. (Id.). “[T]his particular search was obviously directed at Mr. Peck's legal files, and unduly disrespectful and damaging to the organization” of Mr. Peck's documents. (Id.). Plaintiff asserts the search in retaliation for the open legal materials that Ms. Ennis had apparently read. (Id.). Plaintiff requested that Defendants “preserve the video evidence of March 19, 2019 on or around 11:45-12:00 Unit 12, C-Wing, Cell 6.” (Id. at 4).

         The Court held a hearing regarding the motion to preserve evidence on May 7, 2019. (ECF No. 83). The Court ordered Defendant's counsel “to file a statement, regarding the camera/video, as it pertains to motion to preserve video evidence” and took the motion under submission. (Id.). On May 21, 2019, Defendants filed their statement. (ECF No. 89). Defendants stated that, “Associate Warden Monique Hubbard-Pickett successfully identified and preserved video footage believed to be described in Plaintiff's Motion to Preserve Video Evidence (ECF No. 64). The preserved video footage was taken by High Desert State Prison Housing Unit 12C camera 1227/12CC2 on March 19, 2019, from 12:17 p.m. to 1:02 p.m.” (Id. at 2).

         On May 29, 2019, Plaintiff filed an objection to the statement and a request for sanctions. (ECF Nos. 94, 95). Plaintiff argues Defendants failed to locate and preserve footage from 11:30 to noon, when Ms. Ennis took Plaintiff's open legal mail, and from additional “breezeway cameras.” (ECF No. 95 at 2). Plaintiff asks the Court monetarily sanction Defendants for intentionally concealing this other video evidence. (Id. at 2-3). In response, Defendants argue Plaintiff

did not specifically identify additional footage related to the encounter with Caseworker Ennis for preservation and provided almost no information about which camera captured the footage he believed to be at issue.1 See Id. Therefore, Defendants reasonably interpreted Plaintiff's request to be limited to footage related to the cell search, and the information provided in the Notice Regarding Motion to Preserve Video Evidence represents a good faith effort by Defendants to comply with Plaintiff's request and preserve relevant video footage.

(ECF No. 99 at 4). “Defendants are increasingly concerned that Plaintiff is using his video preservation requests to harass Defendants or that the requests are further contributing to the already high costs of litigating this matter.” (Id.).

         The Court finds that Plaintiff's original motion clearly referenced preserving video evidence starting around 11:45 AM, which would cover the time period when Ms. Ennis took Plaintiff's open legal mail. (ECF No. 64 at 3-4). Therefore, Defendants will file a statement with a Court regarding the preservation of video evidence, from any relevant camera angles, covering this incident.

         However, the Court will not sanction Defendants. As discussed further below, Plaintiff's conduct in this case has made the proceedings unnecessarily complicated and contentious. In addition, this Order does not give Plaintiff another opportunity to object to Defendants' preservation of video evidence. Objections are filed in response to orders and reports and recommendations by the Court, not in response to another party's filings.

         RULE 60(B)(6) MOTION

         On March 25 and 26, 2019, the Court issued two Orders denying Plaintiff's Motion Under 42 USCA § 12101-12213 Americans with Disabilities Act (ADA). (ECF Nos. 62, 63). Plaintiff's motion originally asked for assistance with word processing at High Desert State Prison, specifically stating that “[a]ll that is missing is a thumb drive.” (ECF No. 50 at 3, 5). The Court held that Plaintiff failed “to provide an adequate basis for the Court to order High Desert State Prison to provide Plaintiff with a thumb drive.” (ECF No. 62 at 1). The Court noted Plaintiff had “failed to use an administrative procedure to address his alleged disability” (Id. at 2) and stated that, “[t]here is no basis for the Court to intervene if the administrative process has not been completed.” (ECF No. 63 at 1).

         On May 13, 2019, Plaintiff filed a Rule 60(b)(6) Motion. (ECF No. 87).[1] Plaintiff argues that a grievance from three years ago was recently denied, providing grounds for the Court to reconsider its Order. (Id. at 2). In October 2016, Plaintiff requested “some form of word processing…to alleviate painful handwriting under the ADA. (Id. at 9-10). The grievance was denied in October 2016 because “[a] Typewriter is available in the Law Library.” (Id. at 8). Plaintiff requested a review of his grievance that same month, asserting that the typewriter “is junk” and “does not work.” (Id. at 7). In May 2019, the grievance was again denied. (Id.). The Nevada Department of Corrections stated that “[t]he Law Library does not have an actual typewriter…Warden Neven removed that privilege due to the inmates compromising the typewriter parts.” (Id. at 6).

         In response to Plaintiff's motion for reconsideration, Defendants argue “nothing about the [grievance] response undermines this Court's findings that Plaintiff failed to ‘support his assertion regarding his injury or pain with any evidence,' ‘failed to address why the [prison's] proffered accommodation is inadequate,' and ‘failed to use an administrative procedure to address his alleged disability.'” (ECF No. 91 at 4). In his reply, Plaintiff ...


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