Karban v. Ostrander

          ORDER

          Dominic W. Lanza, United States District Judge.

         INTRODUCTION

         This is a pro se civil rights action brought by Stephen Frank Karban (“Plaintiff”), an inmate in the Arizona state prison system. In a nutshell, Plaintiff's remaining allegation is that correctional officer J. Ostrander (“Defendant”) falsely accused him of making physical contact (via his thigh) with a female visitor in the prison's visitation room. (Docs. 1, 8.) Plaintiff further alleges that Defendant's intent in filing the false report was to retaliate against him, in violation of the First Amendment, for making earlier complaints about the prison's no-contact rules. (Id.)

         This matter was referred to Magistrate Judge Metcalf for all pretrial proceedings. (Doc. 5.) In the fourteen months since the referral was made, Judge Metcalf has ably and diligently addressed a veritable blizzard of motions filed by Plaintiff. Among other things, Plaintiff has filed a motion for reconsideration (Doc. 9), a motion for status re: service (Doc. 10), a motion for status re: reconsideration (Doc. 13), an application for entry of default judgment (Doc. 18), a motion for a final order to dismiss count one of the complaint (Doc. 26), a motion for partial summary judgment (Doc. 27), a motion for leave to conduct a deposition (Doc. 30), a second motion for partial summary judgment (Doc. 32), a third motion for partial summary judgment (Doc. 34), a motion for a discovery conference (Doc. 36), a second motion for a discovery conference (Doc. 44), a motion to grant one of his earlier partial summary judgment motions (Doc. 50), a motion to compel (Doc. 54), a motion for order re: demonstrative exhibit (Doc. 60), a motion to determine the sufficiency of Defendant's answer to an objection (Doc. 65), a motion to amend the complaint (Doc. 66), a motion for discovery sanctions (Doc. 73), a motion to amend the complaint and modify the scheduling order (Doc. 75), a second motion for discovery sanctions (Doc. 78), a motion for a status report concerning a pending motion for partial summary judgment (Doc. 83), a motion to be mailed documents (Doc. 89), a third motion for discovery sanctions (Doc. 93), a motion to compel (Doc. 96), a fourth motion for discovery sanctions (Doc. 100), a motion for expenses (Doc. 103), a motion for summary judgment (Doc. 104), a motion for reconsideration (Doc. 111), a fifth motion for discovery sanctions (Doc. 125), a sixth motion for discovery sanctions (Doc. 126), a motion to secure telephonic recordings (Doc. 127), a motion for clarification (Doc. 128), a motion to strike (Doc. 141), a motion to modify the scheduling order (Doc. 159), and a motion for status (Doc. 163).

         Now pending before the Court are two sets of objections to Judge Metcalf's rulings on these motions. The first concerns a 23-page order issued by Judge Metcalf on September 19, 2018, which addressed several of Plaintiff's motions. (Doc. 90.) Among other things, Judge Metcalf (1) granted Plaintiff's motion to compel Defendant to respond to his seventh request for admission (“RFA7”) (id. at 12-18), and (2) issued a $100 sanction against Defendant for forgetting to participate in a court-ordered teleconference with Plaintiff concerning deposition-scheduling logistics (id. at 18-21). Defendant has now filed a timely objection to these two aspects of the September 19, 2018 order (Docs. 115, 116), to which Plaintiff has filed a response (Doc. 130).

         The second concerns a 10-page order issued by Judge Metcalf on November 15, 2018 addressing Plaintiff's motion for discovery sanctions arising from Defendant's failure to preserve all of the video footage of the incident in the visitation room. (Doc. 147.) Judge Metcalf denied the motion, holding that sanctions were inappropriate because (1) Defendant, who is being sued in her personal capacity, had no control over her employer's decision whether to preserve all of the footage, and (2) the destruction occurred pursuant to the prison's normal 21-day retention policy at a time when the prison lacked objective knowledge of the probability of litigation. (Id.) Plaintiff has now filed a timely objection to this ruling (Doc. 157), to which Defendant has filed a response (Doc. 158).

         As explained below, the Court will grant Defendant's objections to the September 19, 2018 order and deny Plaintiff's objections to the November 15, 2018 order.

         LEGAL STANDARD

         Under Rule 72(a) of the Federal Rules of Civil Procedure, when a magistrate judge issues an order resolving a non-dispositive motion, “[a] party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.”

         Separately, Rule 72(b) provides that, when a magistrate judge issues a report and recommendation, “a party may serve and file specific written objections to the proposed findings and recommendations” within 14 days and “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”^[1]

         ANALYSIS

         I. The September 19, 2018 Order

         A. RFA7

         On July 11, 2018, Plaintiff propounded RFA7 to Defendant. (Doc. 90 at 12.) It asks Defendant to admit or deny whether “Defendant would be able to demonstrate how thigh contact, as described in [the disciplinary report, ] is possible.” (Id.) Defendant objected to RFA7 “as argumentative and irrelevant, asserting that Defendant's ability to demonstrate the contact is not a discoverable fact, only whether the contact was observed, and ...