(PC) Ortega v. United States of America

• Court: District Court, E.D. California
• Decided: March 15, 2022
• Docket: 1:19-cv-00999
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 ALBERT ORTEGA, Case No. 1:19-cv-00999-JLT-EPG (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S 11 MOTION CLARIFYING SPECIFIC v. DOCUMENT AND ITS PRODUCTION 12 AND PLAINTIFF’S MOTION FOR UNITED STATES OF AMERICA, SPOLIATION SANCTIONS 13 Defendant. (ECF. Nos. 56, 57, 62, & 66) 14

15 16 17 I. BACKGROUND 18 Albert Ortega (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis 19 in this action. 20 This action is proceeding on Plaintiff’s Federal Tort Claims Act claim against defendant 21 United States of America, based on allegations that officers at United States Penitentiary 22 Atwater failed to address water that had accumulated. (ECF No. 25). This failure allegedly led 23 to Plaintiff slipping and falling. (Id. at 3). 24 On December 20, 2021, Plaintiff filed a motion clarifying specific document and its 25 production. (ECF No. 56). On that same day, Plaintiff filed a motion for spoliation sanctions. 26 (ECF No. 57). On January 11, 2022, Defendant filed an opposition to both motions. (ECF No. 27 60). On February 2, 2022, Plaintiff filed a motion to strike pursuant to Federal Rule of Civil 28 \\\ 1 Procedure 12(f), which appears to be his reply to Defendant’s opposition. (ECF No. 62).1 On 2 February 18, 2022, after being granted permission by the Court, Defendant filed supplemental 3 evidence in support of its opposition. (ECF No. 65). On March 7, 2022, Plaintiff filed what 4 appears to be a reply to the supplemental evidence. (ECF No. 66).2 5 For the reasons that follow, the Court will deny both motions. 6 II. PLAINTIFF’S MOTION CLARIFYING SPECIFIC DOCUMENT AND 7 ITS PRODUCTION 8 a. Plaintiff’s Motion 9 Plaintiff states that he is bringing this motion in “continuity” of his earlier Rule 37 10 motion. (ECF No. 56, p. 1). Plaintiff is seeking the “Daily Activity Log” of the Special 11 Housing Unit of United States Penitentiary Atwater, for the day of July 10, 2018, for the eight- 12 hour period of 12:30 a.m. to 8:30 a.m. (Id. at 1-2). The daily activity log is the log kept by the 13 prison staff about the area under their watch/post, and all notable activities thereof. (Id. at 2). 14 This would include any reports of that logbook with specific reference to “water” and/or 15 “flood/flooding” and/or “wet” conditions of the bottom tier of the Special Housing Unit during 16 the relevant time. (Id.). 17 b. Defendant’s opposition 18 Defendant opposes the motion. (ECF No. 60). Defendant argues that it already 19 responded to this request and produced the only record it had. (Id. at 2). Moreover, the Court 20 already ruled that it cannot compel Defendant to provide a report that does not exist. (Id.). 21 Additionally, Defendant conducted a search in the relevant database, and the database 22

23 1 To the extent that Plaintiff’s reply is a motion to strike it is DENIED. “The court may strike from a 24 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). However, “[m]otions to strike are generally viewed with disfavor, and will usually be denied unless the 25 allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.” Campbell v. Pricewaterhouse Coopers, LLP, 2007 WL 841694, at *2 (E.D. Cal. Mar. 20, 2007). 26 Moreover, “[u]nder the express language of [Rule 12(f)], only pleadings are subject to motions to strike.” Sidney- Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Defendant’s opposition is not a pleading. 27 Moreover, Defendant’s filing does not include any redundant, immaterial, impertinent, or scandalous matter. 2 To the extent that Plaintiff’s reply to Defendant’s supplemental evidence is a motion to strike it is 28 DENIED. Defendant’s supplemental evidence is not a pleading. Moreover, Defendant’s filing does not include any redundant, immaterial, impertinent, or scandalous matter. 1 “contains no information responsive to Plaintiff’s document request.” (Id. at 3). 2 c. Analysis 3 Plaintiff’s motion clarifying specific document and its production will be denied. The 4 motion to compel deadline was July 26, 2021, the non-expert discovery cutoff was October 8, 5 2021, and the dispositive motion deadline was November 8, 2021. (ECF No. 39). Plaintiff 6 provides no explanation as to why he waited until all of these deadlines passed to file his 7 discovery motion. Moreover, Defendant has stated that it conducted a search for the relevant 8 document, and that no such document exists. Plaintiff has not submitted any evidence 9 suggesting that this is untrue or that the search was inadequate. As the Court previously 10 informed Plaintiff, “the Court cannot compel Defendant to provide records that do not exist.” 11 (ECF No. 47, p. 7).3 12 III. PLAINTIFF’S MOTION FOR SPOLIATION SANCTIONS 13 a. Plaintiff’s Motion 14 Plaintiff moves for spoliation sanctions on the ground that Defendant did not preserve 15 the “telltale” video footage of his slip and fall incident, or what occurred prior to Plaintiff 16 falling. (ECF No. 57, pgs. 1 & 4). Plaintiff alleges that he has reason to believe that the video 17 footage was purposefully destroyed because it would be indicative of the negligence by 18 government employees. (Id. at 1). Plaintiff argues that he will suffer prejudice because of this 19 destruction because the video shows Defendant’s culpability. (Id. at 1-2). Plaintiff further 20 argues that Defendant has not been forthcoming with any information regarding the relevant 21 procedure(s) by which the video was destroyed, and it did not provide any information as to 22 when the video was destroyed. (Id. at 4). 23 As a sanction, Plaintiff asks for default judgment pursuant to Federal Rule of Civil 24 Procedure 37.4 (Id. at 2). In his reply, instead of default judgment, Plaintiff asks for an adverse 25

26 3 In his reply, Plaintiff argues that the fact that this document was not created when it should have been 27 shows negligence, as does the fact that the video footage was not saved. (ECF No. 62, p. 8). While the Court is denying both of Plaintiff’s motions, nothing in this order precludes Plaintiff from attempting to address these 28 issues at trial. 4 Plaintiff cites to “Rule 37(C)” (ECF No. 57, p. 2), but appears to be referring to Rule 37(e). 1 inference jury instruction. (ECF No. 62, p. 7). 2 b. Defendant’s Opposition 3 Defendant opposes the motion. (ECF No. 60). 4 “Whether Plaintiff slipped and fell is not in question; the United States has admitted that 5 on July 20, 2018, Plaintiff slipped and fell at the bottom of a staircase at USP Atwater while 6 being escorted with his hands secured behind him by Officer Fontes. Plaintiff asserts that the 7 BOP [(“Bureau of Prisons”)] had a duty to preserve video footage because ‘the day of 8 Plaintiff’s injuries was a very eventful day’ and ‘in anticipation of Plaintiff bringing his claim.’ 9 Documents submitted by Plaintiff with his motion show that although Plaintiff did slip and fall, 10 he denied any injury immediately after the incident, declined medical attention, and was seen 11 exercising in the SHU recreation area in the hours that followed his slip and fall. Plaintiff does 12 not assert, let alone show, that he put BOP staff on notice at the time of the incident that he 13 would make a legal claim for injury. In fact, Plaintiff’s own pleadings show that he did not 14 submit a claim for injury until December 17, 2018, nearly five months after the incident.” 15 (ECF No. 60, p. 5) (citations omitted). 16 “USP Atwater’s digital video recording system (‘DVRS’) maintains a record of video 17 data, but with limited capacity. Preservation of video evidence ordinarily occurs when it relates 18 to a security concern such as a fight or an assault, or when there is an allegation of misconduct 19 by inmates or staff. Plaintiff’s slip and fall did not present a security concern, and Plaintiff did 20 not allege any misconduct at the time. Plaintiff did not claim any injury at the time. If video 21 footage of Plaintiff’s slip and fall existed, it was recorded over in the ordinary course of 22 business due to the recording space limitations in the DVRS. No video evidence responsive to 23 Plaintiff’s request exists.” (Id.) (citations omitted). 24 “Plaintiff has failed to show that the BOP had any duty to preserve video footage, let 25 alone that it destroyed evidence with a culpable state of mind. Plaintiff’s assertion that he ‘has 26 reason to believe’ in the BOP’s culpable state of mind is not enough to support a finding of 27 spoliation, much less the dispositive sanction of a default judgment. The Court should deny 28 Plaintiff’s motion.” (Id. at 5-6) (citations omitted). 1 c. Legal Standards 2 “Spoliation is an evidentiary doctrine under which a district court can, in its discretion, 3 sanction a party that destroys evidence, if the party is on notice that the evidence is potentially 4 relevant to pending litigation.” Leeson v. Transamerica Disability Income Plan, 279 F. App’x 5 563, 565 (9th Cir. 2008). “A party seeking spoliation sanctions ‘must establish (1) that the 6 party having control over the evidence had an obligation to preserve it at the time it was 7 destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the 8 destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of 9 fact could find that it would support that claim or defense.’” Scalia v. County of Kern, 2020 10 WL 5959905, at *4 (E.D. Cal. Oct. 8, 2020) (quoting In re Napster, Inc. Copyright Litig., 462 11 F. Supp. 2d 1060, 1078 (N.D. Cal. 2006)). 12 Additionally, Federal Rule of Civil Procedure 37 provides: “If electronically stored 13 information that should have been preserved in the anticipation or conduct of litigation is lost 14 because a party failed to take reasonable steps to preserve it, and it cannot be restored or 15 replaced through additional discovery, the court: (1) upon finding prejudice to another party 16 from loss of the information, may order measures no greater than necessary to cure the 17 prejudice; or (2) only upon finding that the party acted with the intent to deprive another party 18 of the information’s use in the litigation may: (A) presume that the lost information was 19 unfavorable to the party; (B) instruct the jury that it may or must presume the information was 20 unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Fed. R. Civ. P. 21 37(e). 22 d. Analysis 23 While Plaintiff states, in a conclusory fashion, that he has reason to believe the video 24 footage was purposefully destroyed because it would show the negligence of government 25 employees, Plaintiff has not submitted any evidence suggesting that the video was destroyed 26 with culpable state of mind or that Defendant destroyed the video with the intent to deprive 27 Plaintiff of the information’s use in this litigation. 28 Moreover, according to the declaration of Lieutenant Jose Garcia, who is employed by 1 the Federal Bureau of Prisons at United States Penitentiary Atwater, the recording system at 2 United States Penitentiary Atwater overwrites video data within fourteen days. (ECF No. 65-1, 3 p. 2, ¶ 5).5 While Plaintiff asserts that Defendant should have preserved the video because it 4 was “a very eventful day” (ECF No. 57, p. 3) and because his slip and fall presented a security 5 concern (ECF No. 66, pgs. 2-3), Plaintiff has not submitted any evidence suggesting that he 6 asked anyone to preserve the video because he may file a lawsuit. Nor has he submitted 7 sufficient evidence suggesting that his slip and fall presented a security concern that should 8 have been preserved pursuant to a policy in place at United States Penitentiary Atwater. 9 Moreover, “the fact that a tort might have occurred cannot by itself be sufficient to 10 place a defendant on notice of impending litigation. If [it did], there would be no reason, ever, 11 to inquire when an accused despoiler should have known of impending litigation; a duty to 12 preserve would always attach automatically from the time when a plaintiff alleges a defendant 13 committed a culpable act.” Garcia v. United States, 2014 WL 12709430, at *2 (C.D. Cal. Sept. 14 3, 2014). Plaintiff does allege that he filed an administrative claim using Standard Form 95 15 (Claim for Damage, Injury or Death) on December 17, 2018 (ECF No. 24, p. 2). However, the 16 incident occurred on or around July 20, 2018 (ECF No. 24, p. 3). Thus, the video evidence had 17 already been overwritten by the time the BOP received notice of Plaintiff’s potential claim. 18 Accordingly, there is no evidence that Defendant was on notice that it should have 19 preserved the video, and “[a] party does not engage in spoliation when, without notice of the 20 evidence’s potential relevance, it destroys the evidence according to its policy or in the normal 21 course of its business.” United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 758 (9th 22 Cir. 2009). 23 As there is no evidence that Defendant destroyed the video with a culpable state of 24 mind, that Defendant destroyed the video with the intent to deprive Plaintiff of the video’s use 25 in this litigation, or that Defendant was on notice that it should have preserved the video but 26 failed to do so, Plaintiff’s motion for spoliation sanctions will be denied. 27 28 5 While Plaintiff objects to portions of the declaration as hearsay, Plaintiff specifically does not object to ¶ 5 of the declaration (ECF No. 66, p. 3). 1 IV. ORDER 2 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion clarifying specific 3 || document and its production (ECF No. 56) and Plaintiff's motion for spoliation sanctions (ECF 4 || No. 57) are DENIED. 5 IT IS SO ORDERED. Dated: _Mareh 15, 2022 [Je hey —— 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28