Sutherland v. Yates et al
Filing
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ORDER denying 18 Motion to secure vital evidence signed by Magistrate Judge Gary S. Austin on 5/31/2011. (Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM SUTHERLAND,
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Plaintiff,
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1:09-cv-02152-LJO-GSA-PC
ORDER DENYING PLAINTIFF'S MOTION
TO SECURE VITAL EVIDENCE
(Doc. 18. Petition for Writ of Mandate)
vs.
JAMES A. YATES, et al.,
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Defendants.
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I.
BACKGROUND
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William Sutherland (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 11,
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2009. (Doc. 1.) On November 12, 2010, the Court issued an order requiring Plaintiff to either file an
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amended complaint or notify the Court of his willingness to proceed only on the claims found cognizable
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by the Court. (Doc. 14.) On December 6, 2010, Plaintiff filed an Amended Complaint. (Doc. 15.) The
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Court screened the Amended Complaint pursuant to 28 U.S.C. § 1915 and found cognizable claims. On
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April 28, 2011, the undersigned issued findings and recommendations, recommending that this action
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proceed against defendants Fernando and Jericoff for use of excessive force, and against defendant Yates
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for failure to protect Plaintiff. (Doc. 17.) The time for objections is pending.
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On May 26, 2011, Plaintiff filed a motion which he entitled "Emergency Petition for Writ of
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Mandate/Prohibition to Secure Vital Evidence," seeking a court order requiring defendants to release
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evidence into Plaintiff’s custody, including a recording of the May 26, 2009 assault upon Plaintiff by
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a correctional officer and the bloody shirt that Plaintiff was wearing when he was assaulted. (Doc. 18.)
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II.
MOTION TO PRESERVE EVIDENCE
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Plaintiff requests a court order requiring defendants to release evidence into his custody, to
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prevent spoliation of evidence. “Spoliation of evidence is the ‘destruction or significant alteration of
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evidence, or the failure to preserve property for another’s use as evidence, in pending or future
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litigation.’” Kearney v. Foldy & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (quoting Hernandez
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v. Garcetti, 68 Cal.App.4th 675, 680, 80 Cal.Rptr.2d 443 (1998)).
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“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold
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requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City
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of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665 (1983) (citations omitted); Jones v.
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City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). Plaintiff may presume that an actual case
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of controversy exists at this stage of the proceedings because the Court has found cognizable claims in
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his Amended Complaint. However, because none of the defendants have been served with the Amended
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Complaint or appeared in this action, the Court does not have before it an actual case or controversy, nor
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does the Court have jurisdiction over any of the defendants in this action. As a result, the Court has no
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jurisdiction at this time to require defendants to act or refrain from acting. A federal court may not
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attempt to determine the rights of persons not before the court. Zepeda v. United States Immigration
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Service, 753 F.2d 719, 727 (9th Cir. 1985). Until defendants have appeared in this action, a motion
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requiring defendants to provide Plaintiff with evidence is premature, and Plaintiff’s motion must be
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denied.
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Moreover, Plaintiff has not provided sufficient evidence demonstrating that defendants will
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destroy evidence or that the videotape and shirt are in danger of being destroyed. The destruction of
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evidence is sanctionable conduct, and “[l]itigants owe an uncompromising duty to preserve what they
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know or reasonably should know will be relevant evidence in a pending lawsuit, or one in the offing .
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. . .” JUDGE WILLIAM W. SCHW ARZER ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125
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(2004) (internal quotations and citations omitted). Given the duty to preserve evidence, the Court
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declines to presume that defendants will destroy evidence.
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After the Amended Complaint has been served and an Answer has been filed by one or more of
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the defendants, the Court will issue an order commencing discovery. “Unless otherwise limited by court
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order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged
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matter that is relevant to any party's claim or defense — including the existence, description, nature,
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custody, condition, and location of any documents or other tangible things and the identity and location
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of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). When discovery has been
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opened, Plaintiff may then seek to discover evidence, or the whereabouts of evidence, by serving
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discovery requests upon defendants.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for a court order
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requiring defendants to release evidence into Plaintiff’s custody, filed on May 26, 2011, is DENIED.
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IT IS SO ORDERED.
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Dated:
6i0kij
May 31, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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