ORDER

Re: ECF No. 284

WILLIAM G. COBB, Magistrate Judge.

Before the court is Plaintiff's Motion for Entry of Sanctions Due to the Spoliation of Evidence (Second). (Electronic Case Filing (ECF) No. 284.) Defendant has responded (ECF No. 287) and Plaintiff has replied (ECF No. 291). For the reasons stated in this order, Plaintiff's motion is denied.

Plaintiff Anthony Cross is an inmate in the custody of the Nevada Department of Corrections (NDOC) and has been at all relevant times. The subject of his lawsuit arose when he was housed at the Southern Desert Correctional Center (SDCC). (ECF No. 4 at 2.)

Plaintiff seeks sanctions against Defendant Jaeger by reason of the inability of NDOC to produce an organizational chart Plaintiff informally requested from NDOC outside of this litigation regarding the "`functions, spans of control, lines of authority and orderly channels of communication' for the Southern Desert Correctional Center on September 30, 2011." (ECF No. 284 at 5; "Exhibit A".) Plaintiff states he was advised by NDOC "that the documents are no longer available. See Exhibit A." (ECF 284 at 2; emphasis in the original.) Plaintiff contends the "spoliation of this evidence allows the Defendant to continue making false claims of being the Shift Supervisor and authorized to answer Plaintiff's emergency Grievance." (Id. at 3.) Defendant responds that the information Plaintiff sought from the NDOC is not relevant to the claims proceeding in Plaintiff's action. (ECF No.387 at 2.) Regardless of its relevancy, Defendant also asserts he "never had custody or control over any information made in the public records request by Plaintiff and was not responsible for its absence." (Id.) Plaintiff's reply argues that because Defendant Jaeger and the NDOC Public Information Officer "are both employed by the same agency (NDOC)," the Defendant should be sanctioned for the unavailability of the chart. (ECF No. 291 at 2.)

I. OVERVIEW OF PLAINTIFF'S CIVIL RIGHTS ALLEGATIONS

In view of Plaintiff's apparent misunderstanding of what factual and legal issues his case presents — or more appropriately, what his case does not present — the court will outline in greater detail the background of this action.

District Judge Miranda M. Du's initial screening order characterized Plaintiff's averments against Defendant Jaeger, as follows:

(ECF No. 4 at 3-4.)

Judge Du concluded that "Counts I, I-A, V and V-A state claims upon which relief may be granted under the First Amendment and Article 1, Sections 9 of the Nevada Constitution1 against defendant Jaeger based upon his alleged interference on September 30, 2011, with plaintiff's ability to pursue his disciplinary appeal and emergency grievance." (Id. at 4; emphasis added.)

In addition to identifying those claims which the court would allow to proceed, Judge Du explained which claims would not:

(Id., at 4; emphasis added.)

Judge Du afforded Plaintiff thirty days to file an amended complaint to correct other conclusory and non-viable averments in his complaint. (Id. at 5-6.)

Plaintiff timely submitted an amended complaint (ECF No. 5) which Judge Du allowed to proceed but again only in certain part as against Defendant Jaeger:

(ECF No. 6 at 1; emphasis added.)

Judge Du again did not allow Plaintiff's allegations that Defendants' failure to comply with either state law or NDOC grievance procedures to proceed as against Sgt. Jaeger (or against former Associate Warden Cheryl Burson, who was later dismissed as a defendant under Fed. R. Civ. P. 4(m) for failing to effect service (ECF No. 146)):

(ECF No. 6 at 2; emphasis added.)

As particularly relevant to Plaintiff's current allegations in his spoliation motion that an NDOC organizational chart would establish his cause of action, Judge Du's earlier order further stated:

(ECF No. 6 at 3; emphasis added.)

Plaintiff's spoliation motion, once again, misstates the issue presented by his civil rights action. Plaintiff's motion asserts that "the very core" of his action is "the identity of the shift supervisor, and his or her assigned post, authority and duties." (ECF No. 284 at 2.) As Plaintiff has been repeatedly advised, however, the issue is not whether Sgt. Jaeger had the actual or apparent authority from the Nevada Department of Corrections (NDOC) to process Plaintiff's emergency grievance. Instead, the issue is whether Defendant Jaeger interfered with Plaintiff's ability to pursue his disciplinary appeal and emergency grievance. (ECF No. 6 at 1; ECF no. 193; ECF No. 255 at 2.)

II. BACKGROUND OF LITIGATION: DISCOVERY

Plaintiff's motion for sanctions is an iteration of his numerous discovery motions, all of which revolved around Plaintiff's misinterpretation of his cause of action. Because the motion for sanctions is predicated upon similar misinterpretations of what facts or issues are attendant to Plaintiff's litigation, in addition to discussing in detail above what constitutional claims were allowed to proceed, the court will review the discovery orders which addressed similar contentions by Plaintiff.

Plaintiff first sought documentation pertaining to Sgt. Jaeger's status under NDOC authority or procedures on February 17, 2015, in his motion to compel production of documents (second set) from Defendant Jaeger. (ECF No. 96.) After briefing, the court held a hearing on May 22, 2015, and ordered defendant Jaeger to further state whether there were any documents available which identified him as the shift supervisor. (ECF No. 168.) Defendant responded in his Second Supplemental Discovery Responses (ECF No. 178-1) that no NDOC documents identify him as the shift supervisor; instead Defendant produced a Shift Log. (Id. at 7.) Defendant stated that "[t]he shift log identifies several sergeants and lieutenants who were in charge of various areas of the institution. Defendant Jaeger was the segregation sergeant, meaning he was the supervising sergeant for the segregation unit where Plaintiff was housed on September 30, 2011." (Id. at 4.)

A subsequent order of the court (ECF No. 192, 7/23/15) addressed a Notice of Compliance (ECF No. 178) and other briefing which was submitted in accordance with an earlier order (ECF No. 168). Defendant had been directed to further advise the court whether there are any administrative regulations which specifically authorized Jaeger — as a segregation sergeant — to act as the shift supervisor and to produce any documentation or written authority for this characterization. Defendant filed a Notice of Compliance (ECF No. 197) on August 3, 2015, which admitted no NDOC Administrative Regulation (AR) or Operating Procedure (OP) could be located which specifically authorized Jaeger to respond to the emergency grievance. Nevertheless, Defendant contended that "he was the segregation sergeant and thus a shift supervisor for purposes of AR 740. However, no document could be located which specifically details this designation." (ECF No. 197 at 1.)

On the same date, Plaintiff Cross filed a motion for leave to serve a third set of requests for documents and information where Plaintiff sought to pursue additional discovery on the shift supervisor matter. (ECF NO. 194.) The court in its order of August 4, 2015, denied Plaintiff's motion stating that Defendant previously admitted in ECF No. 197 there was no NDOC AR or OP which specifically authorized him to respond to the emergency grievance. (ECF No. 199.) The court concluded that "to the extent there is any relevance what [Jaeger's] grant of authority was from NDOC, that issue is resolved." (Id.; emphasis added.) 2

On August 6, 2015, Cross filed another motion requesting leave to serve a supplement to the third set of requests for documents and information (RFPs) (which the court had just denied in ECF No. 199) pertaining to Defendants's alleged "supervisory training" which identifies the duties of the shift supervisor (ECF No. 200). The court denied this motion on August 7, 2015, because the issue of Jaeger's authority to act as shift supervisor had been addressed and was again deemed not relevant to Plaintiff's claims. (ECF No. 201).

On August 17, 2015, Cross filed ECF No. 205, a motion for reconsideration of the court's order (ECF No. 199), which had denied Plaintiff motion for additional discovery (ECF No. 194). The court on August 18, 2015, denied plaintiff's motion for reconsideration as moot (ECF No. 210). Also on August 17, 2015, Cross filed a motion to allow service of subpoenas at defendant's expense (ECF No. 203), stating that "the defendant is concealing further proof that the Defendant `was not' the shift supervisor, nor authorized to answer Plaintiff's emergency grievance." Because Plaintiff did not state what the subpoenas were for, to whom the would be directed and what he expected to obtain, the court denied this motion on August 25, 2015. (ECF No. 212.)

On September 3, 2015, Plaintiff filed a motion for issuance of subpoenas duces tecum. This motion was accompanied by 5 proposed subpoenas (but without tender of any witness fees). (ECF No. 216). Except for the named "deponent," the subpoenas all sought the same information, i.e., Post Orders, Operational Procedures, Administrative Regulations, Training Curriculum and Methods of Training, etc., seeking to elicit the identity of whom and what is the Shift Supervisor, Shift Lieutenant, Shift Sergeant and Administrative Segregation Unit Sergeant and his or her duties, responsibilities, training, procedures; the identity by assigned post on the shift roster who was authorized to answer an emergency grievance, how the shift supervisor is assigned and/or appointed; identity of the Subordinate Sergeant and his/her duties and responsibilities, the amount of training; define the chain of command at SDCC, and so forth. The court denied this motion on September 4, 2015, stating: "Plaintiff's letter and the proposed subpoenas are merely a disguised attempt by Plaintiff to circumvent this court's multiple prior orders that discovery has been completed in this matter and the court will not again extend the discovery deadline." (ECF No. 220).

On November 23, 2015, Plaintiff again sought to reopen the discovery requests. (ECF No. 266.) The court denied this motion to the extent Plaintiff sought to undertake additional discovery on the shift supervisor issue.3 However, the court stated it needed additional information from Defendant about SDCC Operational Procedure 740 (there appeared to be two different albeit similar editions of OP 740 and the court needed clarification of which version was effective at the time of Plaintiff's grievance). Defendant was ordered to file a notice of the dates when the relevant version of SDCC OP 740 was provided Plaintiff. Plaintiff was also directed to file a notice of relevance of OP 740 as to either version of OP 740, and the parties were advised the court would thereafter conduct a discovery status conference on December 12, 2015 to discuss OP 740. (ECF No. 269.)

The defendant filed his Notice of Compliance with Order No. 266 on December 10, 2015. (ECF No. 271.) On December 18, 2015, Plaintiff filed his Notice of Relevance, stating he found no significant distinctions between the two SDC OP 740s the defendant sent him. (ECF No. 272 at 3.) That same day, Plaintiff also filed an objection (ECF No. 273) to the court's order (ECF No. 269) wherein he attempted to reargue the shift supervisor issue which the court had disposed of on multiple prior occasions. The court denied Plaintiff's motion (ECF No. 266) which sought to reopen the discovery requests. (ECF No. 274, as corrected in No. 275.)

On February 1, 2016, Plaintiff filed his motion to stay ruling on the dispositive pleadings/reopen discovery (as to the shift supervisor issue). (ECF No. 279). This motion, insofar as it sought to reopen discovery, was denied on February 3, 2016. The order also noted that the dispositive motions filed by both parties had been fully briefed, and that the component of Plaintiff's motion which sought to stay a ruling on the dispositive motions was denied as moot. (ECF No. 281.)4

III. APPLICABLE LAW: SPOLIATION OF EVIDENCE

Plaintiff previously asserted a claim of spoliation in a motion for sanctions (ECF No. 162), which the court denied in ECF No. 181.5 This court noted that the issue of sanctions for spoliation of evidence by reason of a party's failure to preserve relevant evidence was cogently addressed by Magistrate Judge George W. Foley in Anderson v. Wal-Mart Stores, Inc., No. 2:10-cv-02235-GMN-GWF, 2012 WL 300878 (Feb. 1, 2012). Rather than re-stating the law of spoliation, the court quoted from Judge Foley's order then, and will do so again, as follows:

(Id., at *2.)

The burden is on the movant of establishing the elements of a spoliation claim. United States v. Kitsap Physicians Serv., 314 F.3d at 1001.

IV. DISCUSSION

A. Alleged Spoliation of Evidence by Defendant

Plaintiff's motion for sanctions (ECF No. 284) does not identify any document that Defendant Jaeger spoliated. The NDOC organizational chart which Plaintiff seeks does not exist, and if it did, it was not in the possession of the Defendant. As Defendant stated in his memorandum:

(ECF No. 287 at 2.)

Plaintiff states the Administrative Regulation (AR) which he refers to in his motion, AR 111, imposes upon "Wardens, Division Heads and Administrators" to develop "organizational charts." Additionally, as Plaintiff also recognized, the organizational charts are to be in a "format approved by the Director." (ECF No. 284 at 1-2.) Although not cited by Plaintiff, AR 111.01(4) further states the organizational charts are to be approved by the Director. There is nothing to suggest in AR 111 that shift sergeants or lieutenants or shift supervisors are involved in either the creation of or the maintaining of such organizational charts. While as Plaintiff states, AR 111.01(7) provides the organizational charts were to have been "posted where staff have access" to them (ECF No. 291 at 2), it does not follow Defendant had possession of such a chart, or if he did, that he disposed of it. Quoted above was a statement of Defendant he did not have "custody or control" over the information. (ECF No. 287 at 2.)

Plaintiff's motion refers to the NDOC's response to his (Cross's) letter requesting production of "charts concerning the `functions, spans of control, lines of authority and orderly channels of communication' for the Southern Desert Correctional Center.'" (ECF No. 284 at 5, Exhibit A.) The NDOC response to Plaintiff's informal request, as Plaintiff paraphrases it, was that "the documents are no longer available." (Id. at 2, 5.) That such documents are no longer maintained by NDOC appears to be the basis upon which Plaintiff seeks to sanction Defendant Jaeger. Regardless of the motivation of NDOC and/or the SDCC Offender Management Unit in disposing of these charts, any such ulterior motives in doing so cannot be attributed to this Defendant. United States v. Kitsap Physician Serv., 314 F.3d at 1001.6

Neither NDOC nor SDCC is a party and the court cannot sanction a non-party. Nor does Plaintiff even request the sanctioning against a non-party; the sanctions Plaintiff seeks for the disposal of the organizational charts are against Defendant Jaeger.

B. Prejudice by Reason of Alleged Spoliation

Plaintiff states the "Organizational Charts should answer the very core of Plaintiff's claims, i.e., "the identity of the Shift Supervisor, and his, or her assigned post authority and/or duties." (ECF No. 284 at 2.) Plaintiff is mistaken; this is not the very core of Plaintiff's claims. The court has repeatedly stated that "[t]he issue before the court is whether Defendant Jaeger interfered with Plaintiff's ability to pursue a disciplinary appeal and grievance." See, e.g., ECF No. 183, citing the aforementioned Screening Order, ECF No. 6 at 1. As extensively outlined above, Judge Du's two screening orders made clear the only constitutional issues allowed to proceed as against Defendant Jaeger are whether he interfered with Plaintiff's ability to pursue a disciplinary appeal and grievance. (ECF No. 4 at 4; ECF No. 6 at 1.)

In a more recent ruling on Plaintiff's objections to this court's order on discovery, Judge Du again described Plaintiff's claims which survived screening as follows:

(ECF No. 255 at 2.)

Thus, the "core" of Plaintiff's case is not whether Defendant Jaeger was shift supervisor or did or did not have authority to process Plaintiff's grievance. The "core" is whether Jaeger retaliated against Plaintiff by interfering with the processing of Plaintiff's grievance. In addition to failing to demonstrate any personal involvement by Defendant Jaeger in the disposal of this "evidence," Plaintiff has not satisfied his burden of demonstrating prejudice by reason of NDOC not preserving any organizational charts because those charts are not determinative of Plaintiff's claim. Ryan v. Editions Ltd., West, 786 F.2d 754, 766 (9th Cir 2015).

V. CONCLUSION

Plaintiff's motion for entry of sanctions for spoliation of evidence (ECF No. 284 is DENIED. IT IS SO ORDERED.