United States District Court, D. Arizona
Dominic W. Lanza, United States District Judge.
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.)
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).
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).
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).
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.
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.”
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
The September 19, 2018 Order
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