Hardy v. Moreno

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KRISTIN HARDY, Plaintiff, v. R. MORENO, et al., Defendants.

No. 1:21-cv-00327-ADA-EPG (PC)

United States District Court, E.D. California

April 13, 2023

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (ECF NO. 145)

Kristin Hardy (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on Plaintiff's unreasonable search and seizure claims against defendants Valencia Moreno, Chavez, Dohs, and Ceballos, based on Plaintiff's allegations that after Plaintiff was subjected to a full body scan, he was immediately subjected to an additional strip search without justification. (ECF Nos. 22, 42, & 43).

On January 20, 2023, Plaintiff filed a motion to compel. (ECF No. 145). On February 17, 2023, Defendants filed their opposition. (ECF No. 152). This motion to compel is now before the Court.

For the reasons that follow, the Court will grant in part and deny in part Plaintiff's motion to compel.

I. ANALYSIS

On January 20, 2023, Plaintiff filed a motion to compel. At issue are: 1): Defendants' response to Document Request No. 2, First Set; 2) defendant Moreno's supplemental response to Request for Admission No. 12; and 3) defendant Moreno's supplemental response to Request for Admission No. 24. (ECF No. 145).

a. Defendants' Response to Document Request No. 2, First Set

In Document Request No. 2, First Set, Plaintiff requested: “any and all holding cell logs for facility ‘A' gymnasium for the date of January 6th, 2019, and related to the allegations of Plaintiffs civil complaint.” (ECF No. 152-1, p. 6).

Defendants objected to the request, but also stated: “Despite a reasonable and diligent search, Defendants have not located any documents responsive to this request. Discovery is ongoing, and Defendants will supplement their response should responsive, non-privileged documents be located.” (Id. at 16).

Defendants supplemented this response. In their supplemental response, Defendants also objected to the request, but stated:

After a diligent search and reasonable inquiry, Defendants have not located any responsive documents. Defendants contacted J. Pasion, the Litigation Coordinator at North Kern State Prison, to request whether there were any holding cell logs related to Hardy's complaint regarding the institution-wide search on January 6, 2019. Defendants also requested from Mr. Pasion whether there were any holding cell logs indicating the name and rank of the officers that supervised Hardy while detained in the holding cell on January 6, 2019, including the amount of time Hardy was detained in that cell. Mr. Pasion informed Defendants that no such logs existed, and he also provided a declaration from Captain A. Guillen that there were no holding cell logs or records documenting Hardy's time in the holding cell on January 6, 2019.

(ECF No. 152-1, p. 37).

Plaintiff argues that Defendants' objections are boilerplate. Plaintiff also argues that the response is evasive and lacks details as to the search that was conducted. Plaintiff argues that California Department of Corrections and Rehabilitation policy requires such details to be provided. Defendants have not asserted that the holding cell log has been destroyed per policy, and the declaration submitted by Defendants does not establish that the declarant is the Records Coordinator. Moreover, as Plaintiff noted that the discovery dispute hearing on November 16, 2022, defendant Ceballos indicated that he created a log while Plaintiff was in the gym holding cell. This log was also reviewed by the hiring authority in connection with Plaintiff's appeal.

Plaintiff further argues that Defendants were required by law to preserve the requested material pending litigation and moves for spoliation sanctions against Defendants. Plaintiff believes that Defendants either illegally destroyed the holding cell logs or refused to provide them in violation of discovery rules.

Defendants allege that they have, at least twice, searched for the records identified by Plaintiff. Moreover, North Kern State Prison and the Archives Unit have also searched for the records. No responsive documents were found. Moreover, Defendants supported their assertion that no responsive documents were found “with a signed declaration from Captain A. Guillen verifying that assertion.” (ECF No. 152, p. 5). Accordingly, Defendants argue that they have fully responded to this request.

As to Plaintiff's request for sanctions, Defendants argue that Plaintiff has not identified a valid basis for sanctions. “[I]n each of the responses that Plaintiff challenges by this motion, Defendants undertook a good faith effort to fully respond to Plaintiff's requests and to articulate any investigation done in order to respond.” (Id. at 8). Moreover, “Plaintiff points to no evidence that Defendants' actions with regard to the holding cell logs were in bad faith.” (Id.). In fact, “the retention schedule for holding cell logs is one year. The holding cell logs should, therefore, have been retained until January 2020. This action commenced in March 2021, well after the retention period expired in January 2020.” (Id.) (citation omitted). Further, “[t]he only relevance of the holding cell log is the fact that Plaintiff was located in the holding cell when the search at issue occurred,” and “[t]he fact that Plaintiff was placed in a holding cell is not relevant to Plaintiff's Fourth Amendment claim premised on why an unclothed body cavity search was conducted after the low-dose body scanner was used.” (Id. at 9-10).

The Court will deny Plaintiff's motion to compel as to this request. Defendants explained that multiple searches were conducted, and no responsive records were found. Defendants also provided the declaration of a Correctional Captain who declared, under penalty of perjury, that a thorough search of files/records was carried out, and no records were found. (ECF No. 152-3, p. 1). Moreover, in their opposition, Defendants explain why no records were found: pursuant to policy, if responsive documents existed, they would have been destroyed in January of 2020 (which is over a year before Plaintiff filed this action). Nothing submitted by Plaintiff suggests that Defendants failed to conduct a thorough search or that the records should have been retained pursuant to policy. Plaintiff does assert that the Department of Operations Manuel (“DOM”) required Defendants to provide additional details in their discovery response regarding their search for records. However, Plaintiff does not quote or provide the text from any section of the DOM creating such a requirement. Instead, Plaintiff refers to sections that deal with records management. Moreover, Plaintiff cites to no law, nor is the Court aware of any, suggesting that the DOM controls federal discovery requirements.

As to Plaintiff's request for spoilation sanctions, it will be denied. “Spoliation is an evidentiary doctrine under which a district court can, in its discretion, sanction a party that destroys evidence, if the party is on notice that the evidence is potentially relevant to pending litigation.” Leeson v. Transamerica Disability Income Plan, 279 Fed.Appx. 563, 565 (9th Cir. 2008). “A party seeking spoliation sanctions ‘must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.'” Scalia v. County of Kern, 576 F.Supp.3d 703, 711 (E.D. Cal. 2021) (quoting In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006)); Washington v. Stark, 2019 WL 316864, at *2 (E.D. Cal. Jan. 24, 2019) (same).

Plaintiff asks for the harsh sanction of default, but provides no explanation as to how the cell logs support his claim, or what prejudice he will suffer from not having access to the cell logs. Moreover, as discussed above, Defendants provide evidence, in the form of a declaration from the Litigation Coordinator at North Kern State Prison, that pursuant to policy, holding cell logs are retained for one year. (ECF No. 152-2). The search occurred in January of 2019, and this action was filed over two years later, on March 1, 2021. Thus, if responsive documents existed, it appears that they were destroyed pursuant to policy prior to the date Plaintiff filed this lawsuit. Nothing submitted by Plaintiff suggests that he asked for a litigation hold prior to filing this lawsuit. There is also no evidence that responsive documents were destroyed after Plaintiff filed this lawsuit, or that they were destroyed with a culpable state of mind. Accordingly, Plaintiff's request for spoliation sanctions is denied.^[1]

b. Defendant Moreno's Supplemental Response to Request for Admission No. 12

In Request for Admission No. 12, Plaintiff asked defendant Moreno to admit that “[o]n January 6th, 2019 on second watch, building A-2 was the only building to undergo mass cell and unclothed body searches.” (ECF No. 152-1, p. 51).

In defendant Moreno's second supplemental response to this request, which was ordered by the Court (ECF No. 116, p. 2), defendant Moreno objected, but also stated:

Despite a reasonable inquiry, Defendant was unable to determine whether during second watch on January 6th, 2019, building A-2 was the only building to undergo mass cell and unclothed body searches, and on that basis, is unable to admit or deny this request. Specifically, Defendant contacted J. Pasion, the Litigation Coordinator at North Kern, to confirm

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