California: Defendants’ Repeated Discovery Obstruction Sanctioned in Guard Sex Abuse Case

Loaded on May 7, 2018 published in Prison Legal News May, 2018, page 26

Filed under: Staff-Prisoner Assault, DOC/BOP misconduct, Failure to Protect (General), Discovery. Location: California.

On June 5, 2017, a California federal district court imposed sanctions against prison officials for destroying a warden’s personnel file and concealing or misrepresenting his involuntary termination and the existence of personnel file documents. The court granted the plaintiffs an adverse inference jury instruction regarding spoliation of the file, as well as monetary sanctions.

In 2012, California prisoners Jossie Ramos and Melissa Ortiz filed a lawsuit alleging that prison officials failed to take reasonable measures to protect them from sexual abuse by guards. They also brought suit in state court, which was stayed from September 2012 until August 2015.

California Institute for Women (CIW) warden Guillermo Garcia retired on February 28, 2013. While the state case was stayed, the plaintiffs submitted repeated discovery requests in the federal action between June 4, 2013 and January 2015, seeking Garcia’s personnel file and the reason for his termination. Garcia claimed not to have his file, while CIW and the California Department of Corrections and Rehabilitation (CDCR) claimed the file had been shredded despite being the subject of a June 17, 2011 litigation hold. Garcia was also evasive in his answers about whether his retirement was voluntary or not.

During a November 13, 2014 deposition, Garcia testified, “I retired.” When asked if it was a “voluntary departure from CIW,” he replied: “Well, it was a voluntary retirement. It was not a voluntary removal from the office.” He again denied possessing any portion of his CDCR personnel file.

The state court stay was lifted in August 2015. During discovery in that case, the plaintiffs discovered evidence that Garcia was involuntarily terminated due to his mishandling of sexual misconduct cases at CIW.

In April 2016 and on July 19, 2016, the district court ordered the defendants to produce documents from Garcia’s personnel file. They then provided a February 28, 2013 memorandum from Kathleen Dickinson announcing Garcia’s decision to retire. CDCR had not previously produced any documents from Garcia’s file.

The plaintiffs deposed Garcia’s former supervisor, Jay Virbel, on August 9, 2016. When repeatedly asked about the reason for Garcia’s departure, Virbel was evasive, claiming no reason was given. He testified that Garcia was not forced to retire, saying he could have continued to serve in some position, but that Garcia was involuntarily removed as warden.

Garcia subsequently admitted in an interrogatory response: “I voluntarily retired from CDCR before my exempt appointment as warden was terminated.” On September 2, 2016, he produced documents related to his termination as warden, including the February 28, 2013 letter from Kathleen Dickinson, a March 12, 2013 letter Garcia sent to Governor Jerry Brown claiming he had been unjustly terminated and the form Garcia used to appeal his termination to the State Personnel Board.

On March 21, 2017, the plaintiffs filed a motion for sanctions based on the defendants’ alleged misrepresentations and obstructive tactics throughout the case. The district court granted the motion, concluding “that sanctions are warranted based on CIW/CDCR’s failure to take appropriate measures to preserve, locate, and timely produce information responsive to plaintiffs’ discovery requests, and Garcia’s failure to conduct an adequate initial search for portions of his personnel file.” [See: PLN, Aug. 2017, p.31].

“Garcia effectively concealed for years the one surviving document from his personnel file by failing to properly search for it while misrepresenting to plaintiffs and the court that he had conducted a diligent search,” the court added. “Although Garcia may not have actually misrepresented the circumstances of his separation from employment at CIW, he certainly took advantage of plaintiffs’ lack of documentary evidence to be less than forthcoming in his initial deposition testimony.”

The district court concluded that sanctions were appropriate, finding “the failure to produce Garcia’s supervisory file when ordered ... prejudiced plaintiffs” and was “‘tantamount to bad faith.’” The court ordered an adverse inference jury instruction against Garcia for the spoliation of his personnel file. It also found that “monetary sanctions are warranted to remedy all of the sanctionable conduct,” and the plaintiffs were entitled to conduct additional discovery concerning the reasons for Garcia’s termination as CIW’s warden.

Ramos’ attorneys sought fees and costs related to their motion for sanctions. On February 15, 2018, the district court granted $49,104 in attorneys’ fees and $4,548.18 in costs against the defendants, “based on the sanctionable discovery conduct found by this court.” The case remains pending. See: Ramos v. Swatzell, U.S.D.C. (C.D. Cal.), Case No. 5:12-cv-01089-BRO; 2017 U.S. Dist. LEXIS 103014.