United States District Court, D. Nevada
ORDER MOTION TO PRESERVE EVIDENCE [ECF NO. 64], RULE
60(B)(6) MOTION [ECF NO. 87], MOTION FOR SANCTIONS [ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
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
TO PRESERVE EVIDENCE AND REQUEST FOR SANCTIONS
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).
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).
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
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.).
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.
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.
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).
13, 2019, Plaintiff filed a Rule 60(b)(6) Motion. (ECF No.
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).
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 ...