Pinson v. Unknown Party ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Pinson, No. CV-13-02059-TUC-DCB 10 Plaintiff, ORDER 11 v. 12 Unknown Party, et al., 13 Defendants. 14 15 The Court dismissed Plaintiff’s right-to privacy, Bivens claim against the Bureau of 16 Prisons and granted summary judgment for the Defendants on Plaintiff’s Eighth 17 Amendment threat-to-safety claim, Count One, and First Amendment retaliation claim, 18 Count Two. On March 1, 2018, the Ninth Circuit Court of Appeals reversed and remanded 19 the case. On remand, the Court denied summary judgment for Defendants on Count One 20 and Two under the doctrine of qualified immunity. (Order (Doc. 93) at 6-7.) These claims 21 are ready for trial. Plaintiff’s privacy right claim is proceeding, with discovery ending 22 August 12, 2019, and dispositive motions due on September 12, 2019. 23 On August 19, 2019, the Plaintiff filed a Motion for Discovery Sanctions, alleging 24 that the Defendants destroyed evidence: a video recording of the alleged assault. The Court 25 assumes, Plaintiff refers to the 2013 assault which is the subject of the threat-to-safety 26 claim. 27 The Court has reviewed the record which reflects that the Plaintiff requested 28 preservation of the video at least three times in 2013. (Ds’ MSJ, SOF (Doc. 59-7) at 63- || 64.) For purposes of ruling on this motion, the Court presumes the video exists or existed. || As Defendants are well aware, and as they asserted in opposition to Plaintiffs past request 3|| for a preliminary injunction enjoining the video’s destruction, “‘[a] duty to preserve 4|| [evidence] arises when a party knows or should know that certain evidence is relevant to 5 || pending or future litigation.”” (Order (Doc. 90) at 3 (quoting Vicente v. City of Prescott, 6], 2014 WL 38944131, *9 (Ariz. Aug. 8, 2014)). The Court does not envision how this video would be relevant to the Privacy Act claim, including the dispositive motions, but in the 8 || event the Plaintiff seeks to rely on it, he may do so by describing what the video shows, 9|| and the Court may draw an adverse inference as a sanction for destruction of evidence. The Plaintiff may do the same for the purpose of trial. The Court will deny the Motion for Sanctions, but allow the Plaintiff to seek an adverse inference at any such time he needs 12 || this evidence, if it has been destroyed. The Defendants will be afforded an opportunity to 13 || object then. 14 Accordingly, 15 IT IS ORDERED that the Motion for Discovery Sanctions (Doc. 111) is DENIED, without prejudice to it being reurged either at the time of the Privacy Act dispositive motion 17}| or trial. 18 Dated this 21st day of August, 2019. 19 20 22 ae HonorableDavid C. Bus) 23 United States Prstrict Judge 24 25 26 27 28 -2-