United States District Court, Western District of Washington, Tacoma
May 18, 2015
TERRELL JONES, Plaintiff,
ARLEE ROTHWELL, Defendant.
ORDER DENYING MOTION FOR SPOLIATION OF EVIDENCE
Karen L. Strombom, United States Magistrate Judge
Plaintiff Terrell Jones asks this Court for an order “to replace spoiled evidence that was taken from me and shredded by Defendant.” Dkt. 7. In this case, Mr. Jones seeks compensatory damages against Arlee Rothwell for the alleged loss of his personal legal documents without due process of law. He also claims that Mr. Rothwell’s conduct violated his right to access the courts. Dkt. 6. On April 27, 2015, the Court directed service of the complaint. Dkt. 8. Mr. Rothwell has not yet been served nor has his time to respond to the complaint expired. Thus, Mr. Jones’ motion is premature.
In addition, this Court cannot grant the relief sought by Mr. Jones in his motion. Mr. Jones contends that Mr. Rothwell shredded his 42 U.S.C. § 1983 complaint (with accompanying kites and grievances) against officers at the Washington State Penitentiary (WSP) for the use of excessive force. The complaint was confiscated as contraband because it was found in another inmate’s cell. According to Mr. Jones, Mr. Rothwell destroyed the complaint because the documents were unidentifiable. However, Mr. Jones contends that Mr. Rothwell was lying. Dkt. 7.
It is unclear how Mr. Jones expects shredded documents to be returned to him. In addition, a complaint is not evidence. Spoliation is the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir.2009) (citation omitted). While a district court may levy sanctions for the spoliation of evidence, sanctions are appropriate only if the party had notice that the evidence is potentially relevant to a claim. See U.S. v. $40, 955.00 in U.S. Currency, 554 F.3d 752, 758 (9th Cir.2009); Leon v. IDX Syss. Corp., 464 F.3d 951, 958 (9th Cir.2006). The duty to preserve evidence is triggered when a party knows or reasonably should know that the evidence may be relevant to pending or future litigation.
Accordingly, Plaintiff’s motion for spoliation is DENIED. The Clerk shall send a copy of this Order to Plaintiff.