Opinion
CV-22-00528-TUC-RM-BGM
08-23-2023
Gary Allen Kachina, Petitioner, v. M. Gutierrez, Warden, Respondent.
REPORT AND RECOMMENDATION RE: PETITIONER'S
MOTION FOR SPOLIATION SANCTIONS (DOC. 18)
Honorable Bruce G. Macdonald, United States Magistrate Judge
Pending before the Court is Petitioner Gary Allen Kachina's (“Petitioner” or “Kachina”) Motion for Spoilation Sanctions (“Motion for Spoliation”) (Doc. 18). Respondent filed a Response and Petitioner replied. (Doc. 23, Doc. 26.) This matter was referred to Magistrate Judge Macdonald for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”). (Doc. 2). The Parties have adequately presented the facts and legal arguments in their briefs and supporting documents, and the decisional process would not be significantly aided by oral argument or an evidentiary hearing. The Magistrate Judge recommends that the District Court, after its independent review, dismiss, with prejudice, Petitioner's Motion for Spoliation (Doc. 18).
Also pending before the Court is Kachina's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), addressed under separate Report and Recommendation (R&R), filed contemporaneously herewith.
....
The Court merges and incorporates herein by this reference the “Background” as set forth in the Report and Recommendation (R&R) addressing Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody.
Petitioner's Motion for Spoliation and Sanctions moves under Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), Rule 37(e), and seeks an order from the Court to presume that the alleged ‘lost' information-i.e., a closed-captioned video tape (CCTV)-was unfavorable to Respondent, or alternatively, an order of default judgment regarding Petitioner's currently pending Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). See Motion for Spoliation (Doc. 18 at 9.)
Respondent asserts Petitioner's Motion for Spoliation neglects to address “prerequisite” elements of Fed.R.Civ.P., Rule 37(e)(1), and prejudice, for purposes of sanctions, or the heightened ‘intent' element under Fed.R.Civ.P., Rule 37(e)(2) for the harsher sanctions of an adverse inference or default judgment. See Response to Petitioner's Motion for Spoliation (“Response”) (Doc. 23 at 2). Respondent submits Petitioner bears the burden of proof and has failed to meet the burden or demonstrate that Petitioner suffered prejudice. Id.
II. LAW
A. Jurisdiction
“Generally, [p]etitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Pending before the Court is Kachina's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), seeking relief with respect to the time credited to his federal sentence, and as such is challenging the manner, location, or condition of a sentence's execution under § 2241. Therefore, this Court determined it has jurisdiction to address Petitioner's habeas Petition (Doc. 1), under separate R&R, filed contemporaneously herewith, and thus, likewise, the Court has jurisdiction to address Petitioner's related Motion for Spoliation (Doc. 18) filed in the same matter.
B. Spoliation
Under Fed.R.Civ.P., Rule 37(e), in pertinent part:
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
A. presume that the lost information was unfavorable to the party;
B. instruct the jury that it may or must presume the information was unfavorable to the party; or
C. dismiss the action or enter a default judgment.Fed. R. Civ. P., Rule 37(e) (emphasis added). “Spoliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another's use in litigation.” Surowiec v. Cap. Title Agency, Inc., 790 F.Supp.2d 997, 1005 (D. Ariz. 2011). “The failure to preserve electronic or other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences.” Surowiec, 790 F.Supp.2d at 1005 citing Thompson v. U.S. Dep't of Housing & Urban Dev., 219 F.R.D. 93, 100 (D.Md.2003).
C. Applicability of Federal Rules of Civil Procedure to Habeas Proceedings
Regarding the applicability of the Federal Rules of Civil Procedure to habeas proceedings, in general, under Fed.R.Civ.P., Rule 81(a)(4), regarding “Special Writs”, “[The Federal Rules of Civil Procedure] apply to proceedings for habeas corpus and for quo warranto to the extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions[.] See Fed. R. Civ. P., Rule 81(1)(4). For example, “During the pendency of a habeas proceeding, [if] the procedure indeed is set out in the habeas corpus statutes[,] Fed.R.Civ.P. 81(a)(2) recognizes the supremacy of the statutory procedures over the Federal Rules.” Browder v. Dir., Dep't of Corr. of Illinois, 434 U.S. 257, 267-68, 98 S.Ct. 556, 562 (1978). 28 U.S.C. § 2246, provides, in pertinent part, “On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.” 28 U.S.C. § 2246. In addition, 28 U.S.C. § 2247, provides:
On application for a writ of habeas corpus documentary evidence, transcripts of proceedings upon arraignment, plea and sentence and a transcript of the oral testimony introduced on any previous similar application by or in behalf of the same petitioner, shall be admissible in evidence.28 U.S.C.A. § 2247. However, “[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97 (1997).
D. Code of Federal Regulations and Inmate Discipline Program
28 C.F.R. § 541.3, provides, in pertinent part, under subsection (a) Prohibited acts; subsection (b) Available sanctions, and Table 1, lists the High Severity Level Prohibited Acts, including 201 Fighting with another person; along with the “Available Sanctions for High Severity Level Prohibited Acts; including “(B.2) Forfeit up to 27 days of earned FSA time Credits for each prohibited act committed.” 28 C.F.R. § 541.3. In addition, pursuant to 28 C.F.R. § 541.7, in pertinent part:
(e) Evidence. You are entitled to make a statement and present documentary evidence to the UDC on your own behalf. The UDC will consider all evidence presented during its review. The UDC's decision will be based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.
* * *
(g) Referral to the DHO. If the UDC refers the incident report to the DHO for further review, the UDC will advise you of your rights at the upcoming DHO hearing, as detailed in § 541.8.
(h) Written report. You will receive a written copy of the UDC's decision following its review of the incident report.28 C.F.R. § 541.7(e), (g), and (h).
28 C.F.R. § 541.8, provides in pertinent part:
The Discipline Hearing Officer (DHO) will only conduct a hearing on the incident report if referred by the UDC. The DHO's hearing involves the following:
a) Available dispositions. The DHO will make one of the following decisions after a hearing on the incident report:
(1) You committed the prohibited act(s) charged, and/or a similar prohibited act(s) as described in the incident report;
(2) You did not commit the prohibited act(s) charged; or
(3) The incident report will be referred back for further investigation, review, and disposition.
b) Discipline Hearing Officer. The DHO will be an impartial decision maker who was not a victim, witness, investigator, or otherwise significantly involved in the incident.
* * *
f) Evidence and witnesses. You are entitled to make a statement and present documentary evidence to the DHO on your own behalf. The DHO will consider all evidence presented during the hearing. The DHO's decision will be based on at least some facts and, if there is conflicting evidence, on the greater weight of the evidence.28 C.F.R. § 541.8(a), (b), and (f) (italics added).
E. Discovery and Disclosure in Prisoner Disciplinary Proceedings
Regarding discovery in prisoner disciplinary proceedings, in addition to 1) advance written notice of the disciplinary charges; and 2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense-due process is afforded according to the Wolff factors-when the DHO provides 3) a statement of the evidence relied on by the prison officials and the reasons for the disciplinary action. Zimmerlee v. Keeny, 831 F.2d 183, 186 (9th Cir. 1987); Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985); Wolff v. McDonnel, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 2978-79 (1974). The DHO's due process requirements set forth in Hill and Wolff are mirrored in 28 C.F.R. § 541.8(h), in pertinent part, as follows:
(h) Written Report. You will receive a written copy of the DHO's decision following the hearing. The DHO is not required to prepare a verbatim record of the hearing. The DHO's written report will document the following:
(1) Whether you were advised of your rights during the DHO process;
(2) The evidence relied on by the DHO;
(3) The DHO's decision;
(4) The sanction imposed by the DHO; and
(5) The reason(s) for the sanction(s) imposed.28 C.F.R. § 541.8(h).
III. ANALYSIS
Petitioner is asking this Court to apply Fed.R.Civ.P., Rule 37, “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions” to Petitioner's habeas proceeding, for alleged lack of discovery and disclosure in his disciplinary proceeding, held, in accordance with the Federal Bureau of Prisons (“BOP”) Inmate Discipline Program. Petitioner's Motion for Spoliation (Doc. 18) is an attempt to collaterally attack the discovery and disclosure in his disciplinary proceeding, below, and is misplaced, here. The discovery and disclosure procedures applicable to Petitioner's disciplinary proceedings are controlled by the BOP Inmate Discipline Program, the Code of Federal Regulations, and the due process procedures afforded prisoners faced with the possibility of revocation of good conduct time, as interpreted by the United States Supreme Court in Hill, supra, Wolff, supra, and its progeny. The Wolff factors, as set forth in Hill, are as follows:
The Court merges and incorporates herein by this reference, Section III, Inmate Discipline Program, of the R&R addressing Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1).
Where a prison disciplinary hearing may result in the loss of good time credits, Wolffheld that the inmate must receive:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985) citing Wolff, 418 U.S. at 563-567, 94 S.Ct. at 2978-2980.
The due process afforded prisoners, as it relates to discovery and disclosure in disciplinary proceedings, as interpreted by the United States Supreme Court, is limited. Provisions of the Code of Federal Regulations, Inmate Discipline Program do not include a provision for mandatory discovery and disclosure, in the ordinary course. According to the “Discipline Process” as set forth in 28 C.F.R. § 541.5(b)(2), “When the investigator asks for your statement, you may give an explanation of the incident, request any witnesses by interviewed, or request that other evidence be obtained and reviewed. However, the staff investigation of the incident report may be suspended before requesting your statement if it is being investigated for possible criminal prosecution.” 28 C.F.R. § 541.5(b)(2) (emphasis added). In other words, a prisoner may request that other evidence be obtained and reviewed, however, the language does obligate prison officials to comply with the request, nor does the language imply an affirmative duty to disclose, rather, the language is discretionary “provided institutional safety would not be jeopardized.” See Inmate Rights at Discipline Hearing (Doc. 12-1 at 45.).
As stated by the United States Supreme Court in Wolff, “Our conclusion that some, but not all, of the procedures specified in Morrissey and Scarpelli must accompany the deprivation of good time by state prison authorities is not graven in stone.” Wolff, 418 U.S. at 571-72, 94 S.Ct. at 2982, citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973). “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply”; however, “there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975.
Petitioner asserts Respondent had a duty to inform Petitioner that the CCTV footage was being used as evidence at the hearing, and had a duty to preserve the CCTV footage, and its destruction constitutes spoliation warranting the imposition of sanctions. (Doc. 18 at 3.). Petitioner further asserts prejudice is presumed because this was the only evidence to fully prove that Petitioner did not engage in a fight the day of the incident. Id. at 4. Lastly, Petitioner asserts Petitioner was denied the opportunity to request the CCTV footage be preserved because the existence of the evidence was never disclosed to Petitioner. Id. at 5.
Respondent submits Petitioner has failed to meet the burden of proof under Fed.R.Civ.P., Rule 37, and has not established prejudice or bad faith required for the severe sanctions Petitioner is seeking. (Doc. 23 at 1-4.). Respondents further submit due process requirements are satisfied when there is ‘some evidence' in the disciplinary record to support the decision of the Discipline Hearing Officer (DHO), and the record satisfies these requirements even if the video is excluded from consideration. (Doc. 23 at 4.) Respondents further submit Petitioner does not establish the heightened ‘intent' element under Fed.R.Civ.P. 37(e)(2) for adverse inference or default judgment sought by Petitioner. Id. at 5.
Under Federal Rules of Civil Procedure (Fed.R.Civ.P.), Rule 37, a party may move for an order compelling disclosure or discovery under subsection (a). Petitioner has not filed a motion in this habeas action for an order compelling disclosure or discovery, nor has Petitioner included a certification that the movant [here, Petitioner] has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Fed.R.Civ.P., Rule 37(a).
As indicated by Respondent, “[t]he Motion does not set forth any evidence concerning whether the video evidence can or cannot be restored or replaced through additional discovery.” (Doc. 23 at 2.) In addition, Respondent raises as an issue, the fact that Petitioner's attempt to obtain CCTV footage was raised for the first time in Petitioner's Reply and cites to Steward v. Bank of New York Mellon, No. 10-cv-791-PHX-GMS, 2010 WL 3789536, at *3 (D. Ariz. Sept. 22, 2010) (“Arguments raised for the first time in [the] reply are deemed waived.”) citing Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) andMarlyn Nutraceuticals, Inc. v. Improvita Health Prods., 663 F.Supp.2d 841, 848 (D. Ariz. 2009).
The Court agrees with Respondent that Petitioner has not moved in this habeas action for discovery. Furthermore, the parties are under no obligation in a habeas proceedings to participate in discovery, as a matter of ordinary course. Bracy, 520 U.S. at 904, 117 S.Ct. at 1796-97. Because a habeas petitioner is not entitled to discovery as a matter of ordinary course, Bracy, supra, instead of Petitioner following the civil procedural rule and move for an order compelling disclosure under Fed.R.Civ.P., Rule 37(a), in Petitioner's habeas proceeding, and then, in the event Respondent failed to comply, moving for an order, under Rule 37(b), for sanctions, Petitioner's Motion for Spoliation jumps directly to Rule 37(e), failure to preserve electronically stored information.
The Court agrees with Respondent's assertion that Petitioner's Motion for Spoliation does not set forth the ‘prerequisites' under Rule 37(e), i.e., any statement concerning whether the video evidence can, or cannot, be restored or replaced through additional discovery, and ignores these key ‘prerequisite' elements on which Petitioner bears the burden of proof under Fed.R.Civ.P., Rule 37(e). See Mannion, 2020 WL 417492, at *6 (denying sanctions over destroyed business card for failure to address one element).
B. Spoliation
“There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who fails to obey an order to provide or permit discovery.” Leon v. IDX Sys. Corp., 4646 F.3d 951, 958 (9th Cir. 2006) (emphasis added). Five Factors for the court to consider in determining whether dismissal for spoliation is appropriate: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. The district court need not make explicit findings regarding each of these factors. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) citing United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603(9th Cir.1988); Anheuser-Busch v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995). A threshold requirement for dismissal, however, is that the Court make a “finding of willfulness, fault, or bad faith.” Valley Engineers Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
“It is well established that the duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation.” Christoffersen v. Malhi, 2017 WL 2653055 at *3 (D. Ariz. June 20, 2017) (citations and quotations omitted). “Spoliation of evidence occurs when a party (1) destroys evidence after receiving ‘some notice' that the evidence was potentially relevant to litigation; and, in doing so, (2) impairs the non-spoiling party's ability to go to trial, or threatens to interfere with the rightful decision of the case.” Padgett v. City of Monte Sereno, 2007 WL 878575 at * 2 (N.D. Cal. Mar. 20, 2007) (citations omitted).
A court may impose sanctions for spoliation of evidence pursuant to its inherent powers, or if in violation of a court order, under Federal Rule of Civil Procedure 37(b). Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 367-68 (9th Cir. 1992). The Ninth Circuit Court of Appeals “has recognized as part of a district court's inherent powers the broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.” Id. at 368 (quotations and citations omitted). “District courts may impose sanctions against a party that merely had notice that the destroyed evidence was potentially relevant to litigation.” Christoffersen, 2017 WL 2653055 at *2 (citations omitted). “When a party is prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high degree of culpability, a harsh but less extreme sanction than dismissal or default is to permit the fact finder to presume that the destroyed evidence was prejudicial.” Id. at *4 (citations omitted). “In the Ninth Circuit, a party's destruction of evidence need not be in ‘bad faith' to warrant a court's imposition of sanctions.” Id. at *5 (quotations and citations omitted). “[C]ourts have found that an adverse inference instruction may be warranted where the destruction was either willful or grossly negligent.” Id. (citations omitted).
C. Prerequisites to Sanctions under Rule 37(e)
Under Fed.R.Civ. P., Rule 37(e), as a “prerequisite,” the party seeking sanctions must first establish (a) the ESI should have been preserved in the anticipation or conduct of litigation, (b) the ESI was lost for failure to take reasonable steps to preserve it, and (c) the ESI cannot be restored or replaced through additional discovery. Fast v. GoDaddy.com, 340 F.R.D. 326, 335 (D. Ariz. 2022).
Once these prerequisites are met, there are “additional requirements.” Id. at 339. The party must establish prejudice, in which case the Court “may order measures no greater than necessary to cure the prejudice.” Id. at 335; Fed.R.Civ.P. 37(e)(1). Then, if and only if, the party makes a further showing of “intent to deprive another party of the information's use in the litigation” may the Court consider the harsh sanctions of presuming the information was unfavorable, instructing the fact-finder that it may or must presume the information was unfavorable, or dismissing the action or entering default. Id.; Fed.R.Civ.P. 37(e)(2). Assumptions and speculation are insufficient - the movant bears the burden of establishing each and every element “by a preponderance of the evidence.” Id. at 335. If Plaintiff fails to establish all the necessary elements, or the record is unclear, the motion should be denied. See, e.g., Mannion v. American Freight Sys., 2020 WL 417492, at *6 (D. Ariz. 2020) (finding record undeveloped).
D. Prerequisites are Lacking from Petitioner's Motion
1. Lack of Triggering Event to Preserve Evidence
Petitioner asserts “Respondent's duty to preserve the CCTV video footage was indeed triggered[,]” and in support thereof, cites to In Re: Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1067-68 (N.D. CA 2006), inter alia. (Doc. 18 at 5.) In further support, Petitioner cites to a Tenth Circuit case, Howard v. U.S. Bureau of Prisons for the proposition that an inmate's due process right to present documentary evidence may be violated when prison officials unjustifiably refuse the inmate's request to produce and review video footage. 487 F.3d 808, 814-15 (10th Cir. 2007) (Doc. 18 at 3.) Petitioner cites to no Ninth Circuit precedent supporting the same. Lastly, Petitioner's Reply (Doc. 26), asserts “the need to preserve this video evidence was indeed triggered by Petitioner informing the Bureau of Prisons in the appeal of the hearing, that Petitioner was going to file a § 2241 litigation in U.S. District Court in this case. See Attachment 1.” See Petitioner's Reply [in Support of Motion for Spoliation] (Doc. 26 at 6); see also Petitioner's Attachment 1, (Doc. 26-1 at 3).
“The duty to preserve evidence begins when litigation is pending or reasonably foreseeable.” Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). “When litigation is ‘reasonably foreseeable' is a flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.” Id. “[T]his is an objective standard, asking [w]hether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.” Id.
Petitioner cites to the Tenth Circuit case of Howard, supra, is somewhat misplaced, and distinguishable from the facts of the case at hand. In the Howard case, Mr. Howard requested that the DHO review videotape records from a camera which was allegedly sited atop a neighboring building.” Howard, 487 F.3d at 813. In the case at bar, however, there is no evidence in the record that Petitioner requested production or review of the CCTV footage in the disciplinary proceedings below, or in the instant habeas action. Petitioner's assertion that, “[i]n this case Petitioner was denied even the opportunity to request [CCTV footage] to be preserved because the existence of this evidence was never disclosed to Petitioner[,]” is insufficient. (Doc. 18 at 5.) The Court finds the existence of the CCTV footage was cited to in the DHO Report. (Doc. 12-1 at 30.)
Despite the reference to the CCTV footage in the DHO Report, Petitioner did not raise the CCTV footage as an issue in Petitioner's administrative appeals. (Doc. 12-1 at 21-22, 24-25.) Petitioner does not allege that he requested review of the CCTV footage. In addition, there is no evidence of a court order compelling Respondent to produce the CCTV footage. Furthermore, Petitioner was provided “Inmate Rights at Discipline Hearing,” which includes, inter alia, “The right to call witnesses (or present written statements of unavailable witnesses) and to present documentary evidence in your behalf, provided institutional safety would not be jeopardized[,]” which Petitioner signed on June 7, 2021. (Doc. 12-1 at 45) (italics added). At the DHO Hearing, Petitioner “had no documentary evidence to submit.” (Doc. 12-1 at 29.) DHO Estrada stated in the DHO Report, that “[t]he DHO viewed video footage of the reported incident, and it clearly showed you approach inmate [redacted] in front of cell 209, you push inmate [redacted] he looks at you and then away, you push him again, and then he swings and punches you.” (Doc. 12-1 at 30.) Petitioner fails to address the ‘institutional safety' proviso.
Lastly, Petitioner's Reply (Doc. 26) asserts the need to preserve video evidence was ‘triggered' by Petitioner's Central Office Administrative Appeal (Doc. 26-1 at 3); however, Petitioner's appeal centered around the re-written incident report with no mention of the video footage, despite the DHO's identification of the CCTV video footage in the DHO Report. Although the last sentence of Petitioner's Central Office Administrative appeal states “[I] request this be expunged from my disciplinary record and the sanctions be expunged for due process violations or I will file a 2241in U.S. District Court”; the appeal neglects to identify CCTV video footage as relevant to Petitioner's potential litigation, and neglects to consider, Petitioner's right to present documentary evidence is limited by the BOP's safety provision, i.e., “provided institutional safety would not be jeopardized.”
Accordingly, the Court finds Petitioner's notice to Respondent of the relevance of the CCTV footage to the anticipation or conduct of litigation is lacking, particularly given the first time the issue of the CCTV footage was raised, was in Petitioner's Reply. The Court finds there is the lack of a triggering event necessary to establish ‘notice' and or a ‘duty' to preserve electronically stored information (“ESI”), particularly when this is a habeas proceeding and “[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97 (1997).
2. Whether Evidence Can Be Restored
Respondent submits Petitioner's Motion for Spoliation does not set forth any evidence concerning the ‘prerequisite' of whether the video evidence can or cannot be restored or replaced through additional discovery. (Doc. 23 at 2.)
Petitioner's Reply (Doc. 26), asserts that because DHO Estrada's Declaration attests, “[t]he CCTV footage was viewed as part of my review of the evidence but was not stored and is no longer available”; that the ‘prerequisite' element is “not in dispute” “is already in the record” and asserts, therefore, that this relieves Petitioner of any “burden of proof.” (Doc. 26 at 2.)
The Court finds the DHO's use of the words ‘not available' does not relieve Petitioner of the burden to establish grounds for sanctions under Fed.R.Civ.P., Rule 37(e). The Court agrees Petitioner's Motion for Spoliation lacks identification of a triggering event to establish ‘notice' and a ‘duty' to preserve electronically stored information, as well as, lacking a statement as to whether the video evidence can or cannot be restored, i.e., the prerequisite elements are lacking for Petitioner's claim to move for sanctions under Fed.R.Civ.P., Rule 37(e)(1). Indeed, ‘notice' plays an integral role in spoliation matters. The nature of ESI, particularly in large institutions, involves document retention policies, as well as, ‘inaccessible' back-up tapes. The District of Maryland Court described ‘notice' and ‘duty' in ‘spoliation' cases as follows:
In Zubulake v. UBS Warburg LLC, 2003 WL 22410619 (S.D.N.Y. October 22, 2003) (“Zubulake IV”), the court analyzed the duty to preserve electronically stored materials and affirmed that the duty is triggered “when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Id. at *2. More important, though, the court gave a helpful definition to the scope of what the duty to preserve encompasses:
Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes
are accessible (i.e. actively used for information retrieval), then such tapes would likely be subject to the ligation hold.
Id. at *4.Thompson v. U.S. Dep't of Hous. & Urb. Dev., 219 F.R.D. 93, 100 (D. Md. 2003). This account of the scope of ‘what the duty to preserve ESI encompasses' is in the context of civil litigation matters where discovery is conducted in the ordinary course of litigation.
Here, however, Petitioner is seeking habeas relief for which discovery is not afforded to the parties in the ordinary course of litigation. Bracy, 520 U.S. at 904, 117 S.Ct. at 1796-97. Petitioner's attempt to collaterally attack the disciplinary proceedings, below, utilizing Fed.R.Civ.P., Rule 37(e), neglects to appreciate the procedural posture of Petitioner's habeas Petition. “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply[.]” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. This includes limitations on discovery.
3. ‘Some Evidence' Standard Precludes a Finding of Prejudice
Regarding the evidence established at the DHO hearing, Petitioner asserts “[t]he evidence is conflicting and Petitioner is prejudiced by the failure to preserve the ESI, because without the video footage, Petitioner is unable to challenge the validity of the officer's re-written report.” (Doc. 18 at 8-9.) Petitioner's Reply (Doc. 26) asserts prejudice is judged in relation to the importance of the information to the litigation, and in support thereof cites to Keenan v. Maricopa Cnty. Special Health Care Dist., No. CV-18-01590-PHX-DJH, 2022 WL 684348, at *5 (D.Ariz. Mar. 8, 2022). (Doc. 26 at 4.)
Respondent asserts Petitioner has failed to establish prejudice because “the disciplinary action at issue could be upheld in the absence of the video evidence at issue” and in support thereof cites to Keenan, supra. (Doc. 18 at 3.) Respondent further submits “the some evidence standard was met with or without the CCTV footage that Petitioner raises in his Motion for Sanctions[,]” and in support thereof cites to Foley v. Copenhaver, 2016 U.S. Dist. LEXIS 63683, *8. (Doc. 23 at 4.)
The prejudice inquiry “looks to whether the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision of the case.” Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988). The court may issue sanctions upon finding prejudice to another party from loss of the information, and may order measures no greater than necessary to cure the prejudice.
The Wolff factors, on the other hand, address the due process afforded prisoners in disciplinary proceedings involving a loss of good conduct time, as set forth in Hill, follow:
Where a prison disciplinary hearing may result in the loss of good time credits, Wolf held that the inmate must receive:
(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985) citing Wolff, 418 U.S. at 563-567, 94 S.Ct. at 2978-2980.
According to the record before the Court, in addition to the DHO Report finding the act was committed as charged (Section IV), and identification of the Specific Evidence Relied on to Support Findings (Section V), DHO Estrada's Declaration, in pertinent part, states as follows:
After careful consideration and based upon the greater weight of the evidence, I found that Petitioner did commit the prohibited act of fighting with another person (Code 201). [Attach. 5 at 3 (Doc. 12-1 at 28).]. In reaching my finding, I relied on the factual information in Incident Report No. 3510327, which I noted had been rewritten. Id. at 2-3. I also viewed the closed-circuit television (CCTV) footage of the incident. Id. at 3. The footage showed Petitioner approach the other inmate and push him twice. Id. At that point the other inmate punched Petitioner and both inmates moved into a cell, out of sight of the CCTV. Id. The footage indicated that Petitioner was the aggressor and started the incident. Id. I also reviewed the medical assessments of both inmates, which noted injuries consistent with fighting. Id.(Doc. 12-1 at 5, ¶ 16.) Petitioner was provided a copy of the DHO Report on June 21, 2021. (Doc. 12-1 at 31.) Petitioner did not raise the issue of the undisclosed CCTV footage of the incident in Petitioner's Regional Administrative Remedy Appeal or in Petitioner's Central Office Administrative Remedy Appeal. (Doc. 12-1 at 24) (Doc. 12-1 at 21). Rather, the focus of Petitioner's appeal addressed the lack of disclosure of the original incident report. (Doc. 12-1 at 18-26.) Accordingly, the Court finds Petitioner has failed to show prejudice necessary under Fed.R.Civ.P., Rule 37(e)(1), particularly given the proceedings involved, not a civil litigation, but rather a disciplinary proceeding for an inmate.
The Wolff Factors, as interpreted in Hill, afforded Petitioner sufficient due process
The Court merges and incorporates herein by this reference the “Analysis” of the due process afforded Petitioner under the Wolff factors, as interpreted in Hill, and as set forth in the R&R addressing Petitioner's Writ of Habeas Corpus (Doc. 1) filed contemporaneously herewith and supplements with the following, specific to Petitioner's claim of ‘spoliation.' Superintendent, Massachusetts Corr. Inst., Walpole v. Hill 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985) citing Wolff, 418 U.S. 539, 563-567, 94 S.Ct. 2963, 2978-2980 (1974). “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply”; however, “there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975.
Incident Report No. 3510327
According to Petitioner's administrative appeal, Petitioner acknowledges receiving a copy of the incident report on June 4, 2021. (Doc. 12-1 at 24.) Petitioner was provided a copy of the DHO Report on June 21, 2021. (Doc. 12-1 at 6-7, ¶ 19.). The DHO Report identified the evidence relied on-with the inclusion in the report that DHO Estrada viewed the CCTV footage of the incident, inter alia-before rendering the decision to revoke Petitioner's good time credits. (Doc. 12-1 at 6, ¶ 16.).
Despite Petitioner's assertion that, “[i]n this case Petitioner was denied even the opportunity to request [CCTV footage] to be preserved because the existence of this evidence was never disclosed to Petitioner” (Doc. 18 at 5)-the Court finds the existence of the CCTV footage was cited to in the DHO Report-Petitioner did not raise this as an issue in his administrative appeals. Petitioner provides no evidence that he requested to present as evidence, the CCTV footage; either by a written request presented prior to, or at, the DHO Hearing held on June 15, 2021, nor after receiving the DHO Report identifying the CCTV footage, nor did Petitioner raise the CCTV footage as an issue in Petitioner's Regional Administrative Remedy Appeal Application dated July 22, 2021, or the Central Office Administrative Remedy Appeal dated October 14, 2021. (Doc. 12-1 at 20-25.)
The Court merges and incorporates herein by this reference this Court's discussion of “Exhaustion in the Instant Case” as set forth in the R&R at p. 14 addressing Petitioner's habeas petition (Doc. 1) filed contemporaneously herewith.
Indeed, the United States Supreme Court in Wolff discussed circumstances wherein “[i]t may be that there will be occasions when personal or institutional safety is so implicated that the statement may properly exclude certain items of evidence, but in that event the statement should indicate the fact of the omission.” Wolff v. McDonnell, 418 U.S. 539, 565, 94 S.Ct. 2963, 2979 (1974). Here, however, DHO Estrada included identification of the CCTV footage in the DHO Report. (Doc. 12-1 at 30.) DHO Estrada identified the following “Documentary Evidence” in addition to the Incident Report and Investigation:
Incident Report - (BP-A288)
Inmate Rights at Discipline Hearing - (BP-1293)
Notice of Discipline Hearing Before the (DHO) - (BP-A294)
Incident Report - Medical Assessments - (BOP-IRMEDA)
Incident Report - Staff Memorandums - (BOP-IRMEM)
Incident Report - Photographs - (BOP-IRPHO)
Administrative Detention Order - (BP-A308)(Doc. 12-1 at 29.) Under specific evidence relied on to support findings, Section V. of the DHO Report, in pertinent part, DHO Estrada, stated,
The DHO finds credible the staff member's account of this incident as stated above. The supporting documentation (CCTV footage, medical assessment) submitted corroborates the incident. Specifically, the DHO viewed video footage of the reported incident, and it clearly showed you approach inmate [redacted] in front of cell 209, you push inmate [redacted] he looks at you and then away, you push him again, and then he swings and punches you.(Doc. 12-1 at 29-30) (emphasis added). The DHO Report further states:
Although the inmate denied the charge, the DHO based her decision on the greater weight of the evidence. Specifically, the DHO relies upon the reporting officer s eyewitness statement.(Doc. 12-1 at 30.)
The Code of Federal Regulations as set forth in pertinent part above, provides for a procedure followed by the Federal Bureau of Prisons to accommodate prisoner's federal due process rights in a good time credit revocation proceeding. From the proceedings for parole revocation set forth in Morrisey v. Brewer, 408 U.S.471, 489, 92 S.Ct. 2593, 2604 (1972), to the Wolff Factors applicable to determine due process for good time credit revocation proceedings, to the ‘some evidence' standard in Hill, to 28 C.F.R. § 541.7, the point at which a prisoner receives notice of the evidence relied on for the charges may occur after the DHO hearing. With these procedures in place, and the fact that a prisoner is not afforded the full panoply of due process protections in a good time credit revocation proceeding, Fed.R.Civ.P., Rule 37, may not fully apply to Petitioner's attempt to collaterally attack Petitioner's disciplinary proceeding, despite Petitioner's citation to a Tenth Circuit opinion. In the Tenth Circuit opinion of Howard, in pertinent part:
The Bureau has never asserted, and the record before us does not support, a conclusion that producing the videotape alleged by Mr. Howard to have recorded the incident would be “unduly hazardous to institutional safety or correctional goals.” The DHO's unjustified refusal to produce and review it deprived Mr. Howard of the process due him.Howard, 487 F.3d at 813-14 citing Wolff, 418 U.S. at 566, 94 S.Ct. 2963.
Petitioner, in the instant case, has not demonstrated that Petitioner ever requested a copy of the CCTV footage.
To be clear, a prisoner's right to access and prepare evidence for a disciplinary hearing is not unlimited nor unfettered. It may be limited by prison officials if they have a “legitimate penological reason.” Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992). If granting a prisoner access to the requested evidence would “be unduly hazardous to institutional safety or correctional goals,” access may be denied.Melnik v. Dzurenda, 14 F.4th 981, 986-87 (9th Cir. 2021) citing Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (emphasis added). Here, however, Petitioner submits no evidence that Petitioner requested the now sought after evidence, i.e., the CCTV footage, until Petitioner filed the Reply [in support of Petitioner's Petition Under 28 U.S.C. § 2241] (Doc. 17).
Spoliation of Physical Evidence
Here, given that the Court finds the due process standard has been met, as set forth in Wolff, supra, Hill, supra, as Petitioner received advanced written notice of the disciplinary charges on June 4, 2021; Petitioner was provided the opportunity to call witnesses and present documentary evidence, however, declined to do so; and Petitioner received a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action; the Court cannot find abusive litigation practices. By Petitioner's own acknowledgment, Petitioner was “not served a report until 6-4-2021.” See Petitioner's Regional Administrative Remedy Appeal (Doc. 12-1 at 24.) On June 7, 2021. Petitioner signed the Notice of Discipline Hearing Before the (DHO) and declined to have a staff representative, and declined to have witnesses present at the DHO Hearing. (Doc. 12-1 at 46.) According to the DHO Report, “The DHO confirmed the inmate received a copy of his incident report, did not want to call any witnesses. The inmate was afforded the opportunity to request a staff representative, but chose not to request a staff representative. The inmate had no documentary evidence to submit. The inmate understood his due process rights and was ready to proceed with the DHO hearing.” (Doc. 12-1 at 29.) Petitioner has provided no evidence to the contrary.
In general, Wolff did not hold, that to satisfy due process in disciplinary proceedings involving a revocation of good conduct time, that the BOP has to disclose to the inmate all of the evidence relied on. Wolff, supra. Indeed, the Court in Hill, held, the Wolff factors merely require a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action, in addition to the first two requirements, i.e., (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense. Hill, supra, Wolff, supra. Furthermore, because Petitioner did not raise the issue of non-disclosure of the CCTV footage during Petitioner's administrative appeals, the Court cannot find, here, that Respondent has “failed to obey an order to provide or permit discovery under Rule 37.” Leon, supra. Moreover, “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Wolff, 418 U.S. at 556, 94 S.Ct. at 2975; Cf. Morrissey, 408 U.S. at 488, 92 S.Ct. at 2603.
Lack of Intent - Willfulness, Fault, or Bad Faith
Under Fed.R.Civ.P., Rule 37(e)(2), Petitioner asserts that Respondent destroyed the CCTV footage “knowing Petitioner did not know of its existence, and knowing Petitioner was appealing the findings of the hearing officer.” (Doc. 18 at 4.) Petitioner further asserts the CCTV footage was “exculpatory evidence.” (Doc. 26 at 7.)
Only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation, the Court may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed.R.Civ.P. 37(e)(2).
The CCTV footage, however, was identified in the DHO Report, and a copy of the DHO Report was provided to Petitioner on June 21, 2021. (Doc. 12-1 at 31.) Contrary to Petitioner's assertion, by virtue of the DHO Report, Petitioner would have known of the existence of the CCTV footage prior to filing Petitioner's administrative appeals. Petitioner has not alleged that Petitioner made a request for the CCTV footage and the request was denied. And, because the CCTV footage was cited in the DHO report, it was not necessary to provide a reason for the omission as “unduly hazardous to institutional safety or correctional goals” because the DHO acknowledged its existence. Furthermore, Petitioner's appeal did not raise as an issue the lack of disclosure of the CCTV footage.
At least two individuals-CO Hernandez (through eye-witness) and DHO Estrada (through review of the video)-‘observed' the incident, and concluded that Petitioner ‘pushed' another inmate, first, before the altercation ensued. Accordingly, the ‘some evidence' standard under Hill, is satisfied for a finding of the Code 201 violation, fighting with another person. Hill, 472 U.S. at 454, 105 S.Ct. at 2773. (“We now hold that revocation of good time does not comport with “the minim requirements of due process,” unless the findings of the prison disciplinary board are supported by some evidence in the record.”) The Court finds evidence of intent to destroy the CCTV footage is lacking. DHO Estrada addressed, in the Estrada Declaration, that the footage was “not stored and is no longer available.” (Doc. 12-1 at 6, ¶ 16 n.3.)
Petitioner has failed to establish that Respondent utilized “abusive litigation tactics,” for the Court to impose sanctions pursuant to its inherent powers. Unigard, 982 F.2d at 367-78. Petitioner has not filed a motion to compel in Petitioner's habeas action. Petitioner has also failed to establish that Respondent violated a court order, for the Court to act under Fed.R.Civ.P., Rule 37(b). Id. Lastly, Petitioner has failed to address the ‘prerequisites' of Fed.R.Civ.P., Rule 37(e), i.e., evidence of ‘notice' to Respondent of the relevance of the CCTV footage to future litigation to trigger the duty to preserve, and or that the Respondent has failed to take reasonable steps to preserve, or that the CCTV footage cannot be restored or replaced through additional discovery. Fed.R.Civ.P., Rule 37(e). Notice to Respondent of Petitioner's intent to utilize CCTV footage did not appear in the record until Petitioner raised the issue for the first time, in his Reply, despite the inclusion of the CCTV footage identified in the DHO Report, and Petitioner receiving a copy of the DHO Report on June 21, 2021. (Doc. 17.)
Petitioner did not raise the issue of the CCTV footage in his administrative appeals. (Doc. 12-1 at 21, 24.) Petitioner did not file a motion to compel the CCTV footage in Petitioner's habeas action. Accordingly, the Court cannot find that there was a triggering event necessitating a duty to preserve the CCTV footage, because Respondent did not receive ‘notice' of the relevance to pending or future litigation until Petitioner filed the Reply (Doc. 17) on June 23, 2023 (Doc. 17). The ‘some evidence' standard is met, even without the CCTV footage, by virtue of CO Hernandez's re-written incident report.
IV. CONCLUSION
For the foregoing reasons, this Court finds it appropriate to deny Petitioner's Motion for Spoliation Sanctions (Doc. 18), with prejudice.
V. RECOMMENDATION
For the foregoing reasons, this Court finds that the Petitioner's claims lack merit. Accordingly, the Magistrate Judge recommends that the District Judge, after its independent review, dismiss, with prejudice, Petitioner's Motion for Spoliation Sanctions. (Doc. 18).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use case number: CV-22-00528-TUC-RM. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.