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Duncan v. Olivas

United States District Court, D. Nevada

January 16, 2020

CARL E. DUNCAN, Plaintiff,
RAMON OLIVAS, et al., Defendants.

          ORDER RE: ECF NO. 54


         Before the court is Plaintiff's “Motion for an Adverse Instruction and Spoliation of Evidence” (ECF No. 54). Defendants responded to Plaintiff's motion (ECF No. 64). No. reply memorandum has been filed by Plaintiff.[1]

         I. BACKGROUND

         Carl Duncan (Plaintiff) is an inmate in the Nevada Department of Corrections (NDOC). Plaintiff filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 4) arising from an alleged assault on October 18, 2015, by another inmate at the inmate “chow hall” at Lovelock Correctional Center (LCC), and LCC's failure to provide prompt medical care (and as to certain other claims which arose thereafter, as discussed below). In the court's Screening Order (ECF No. 3), Senior District Judge Robert C. Jones ordered Plaintiff's Eighth Amendment failure to protect and deliberate indifference to serious medical needs claims (Counts I and II) to proceed against Defendants Olivas, Chan, Owens, Fonoimoana, and Mosley, Plaintiff's due process claim (Count II) to proceed against Defendants Bellinger, Carpenter, and Bennett, and Plaintiff's First Amendment retaliation claim (Count III) to proceed against Defendants Bennett and Olivas. (ECF No. 3 at 13, 14.)

         The court initially addressed Plaintiff's motion for adverse instruction and spoliation of evidence (ECF No. 49) at its motions hearing on September 5, 2019. (ECF No. 52.) The court reviewed Plaintiff's argument that Defendants had a duty to preserve video evidence of the chow hall assault and battery against Plaintiff by another inmate, in October 2015. The attacking inmate was subject to a disciplinary hearing by the Nevada Department of Corrections (NDOC) and was convicted of the infraction. (ECF No. 49 at 2.) Plaintiff's original motion was based upon the four grievances he claims to have filed and that the grievances allegedly put NDOC/LCC on notice that any video evidence of the altercation should be preserved. He therefore contends that NDOC should have maintained and secured the alleged video evidence until the grievance process was completed or after a certain period of time.

         At the court's hearing on September 5, 2019, Deputy Attorney General Rands advised the court that he was not aware of the grievances referenced in Plaintiff's motion (ECF No. 49) particularly grievance number 20063016803. Plaintiff stated that he attached exhibits of the disciplinary proceeding and AR 707 to his motion (ECF No. 49) but confirmed with the court that his filed copy of the motion contained only 5 pages. Therefore, the court denied Plaintiff's motion for adverse instruction and spoliation (ECF No. 49) without prejudice and instructed Plaintiff to file a supplement to the motion (ECF No. 49). The Plaintiff was directed to provide copies of his grievances which Plaintiff claims would have put NDOC/LCC on notice that any video evidence of the altercation should be preserved. Plaintiff was also to cite specific language in AR 707 or any other reference regarding LCC's duty to preserve evidence. (ECF No. 52 at 2, 3.)

         In Plaintiff's renewed motion, Plaintiff submits a copy of grievance 20063016803 (the “803” grievance). It appears Plaintiff submitted the “803” grievance twice to LCC; the date of the first submission of “803” is February 8, 2016; the resubmission apparently occurred in February 17, 2016. These grievances were filed some 4 months after the altercation. The “803” grievance asserted LCC violated its duty to protect Plaintiff from a foreseeable risk of assault; Plaintiff references the lack of video surveillance equipment at LCC. Importantly, Plaintiff's grievances, however, did not assert Defendants or LCC should retain and preserve any video evidence of the October 18, 2015, incident.

         Defendants responded to Plaintiff's Motion for Adverse Instruction and Spoliation of Evidence (ECF No. 54), in which they state that in reviewing Plaintiff's grievance history and other records, “Counsel was unable to find grievances filed, by Plaintiff, on those dates. There were no grievances corresponding to those dates.” (ECF No. 64 at 2.) The only grievance Defendants could locate was the “803” grievance referred to above. Additionally, Defendants state that Plaintiff's renewed submission asserts the same arguments previously made and there was no reference by Plaintiff to a specific section of AR 707 which would have required LCC to maintain evidence, as alleged.

         Defendants' opposition further included a declaration of LCC Associate Warden Tara Carpenter under whose supervision video surveillance would fall. Ms. Carpenter represents that barring unusual circumstances, video surveillance is only retained for a period of approximately two weeks from a specific event. Accordingly, any footage from an October 2015 event would not have been maintained or available in February 2016 when Plaintiff submitted his 803 grievance. (ECF No. 64-5 at 2, ¶¶ 8-9.) Perhaps more importantly, however, Ms. Carpenter states further that the LCC dining hall (where the assault occurred) did not have video capabilities in October 2015. (Id. at ¶ 10.)

         Ms. Carpenter also represents no video was utilized at Plaintiffs disciplinary hearing. (Id. at p. 3, ¶ 11.) Plaintiff, on the other hand, claims video “was used to find Plaintiff innocent of the disciplinary charges. ECF No. 54 at 5, citing “Exh. A” as “OIC #398240.” (Id. at footnote 1.) However, Exh. A to Plaintiff's renewed motion (ECF No. 54 at 8-34) consisted of copies of grievances, not the disciplinary charges to which Plaintiff refers nor any evidence which “was used to find the attacker of Plaintiff guilty on his disciplinary charges.” (Id. at 5.) The court has before it no evidence substantiating Plaintiff's claim the “attackers” conviction was based on video surveillance. But even if it were, the failure to maintain such evidence would be a complaint the “attacker” might reasonably assert, not by the victim (i.e., Plaintiff).

         Plaintiff's filing submits an extract of AR 457 (ECF No. 54 at 36), which appears to be p. 3 of 5 pages. Plaintiff highlights section 457.04.1, which only states that an “Operational Procedure” (OPs) shall be developed by the Deputy Directors “for the preservation of evidence.” Two other pages (pp. 1 and 2) of AR 457 are submitted by Plaintiff as his Exhibit B (ECF No. 54 at 37-41). These pages of AR 457 discuss that the Associate Warden is to “ensure crime scene protection and the preserving, gathering and disposal of evidence” and that the Inspector General (who is not a Defendant in this action) is to review “OPs” with respect to, among other matters, “evidence collection.”[2] AR 457 would apply, if at all, to an protections the inmate accused might enjoy, not to a victim.


         Plaintiff does not predicate his motion on the duty to preserve electronically stored information under Fed.R.Civ.P. 37(e). Fed.R.Civ.P. 37(e) is not implicated with respect to this litigation because Rule 37(e) pertains to “electronic evidence” which was not preserved and as stated above, Plaintiff has not based his motion on Rule 37(e). Therefore, the court will consider Plaintiff's motions in the context of common law spoliation in the application of the court's discretion. Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1337 (9th Cir. 1985).

         At the court's initial hearing on Plaintiff's motion, the court addressed with Plaintiff his contention AR 707 required LCC to preserve evidence such as any video of the scene of the inmate altercation. Plaintiff was unable to cite to the court any language in AR 707 which supposedly imposed this duty. Plaintiff was instructed to address in his supplemental motion the court granted Plaintiff leave to file ...

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