I. MOTION RE VIDEO FOOTAGE.

*1 On or about February 1, 2018, Plaintiff Robert Voskanyan (“Plaintiff”) constructively filed a “Motion [for] Failure to Provide Video Tapes.” (Dkt. 139.) He asserts that, in response to subpoenas seeking video of the incident(s) that form the basis of his claim, the Los Angeles County Sheriff's Department (the “Sheriff's Department”) advised him that no such footage was available. (Id. at 1-2.) According to Plaintiff, the Sheriff's Department explained that “cameras [for] each of [these] incidents were not [supposedly] working.” (Id. at 2.) Plaintiff requests that the Court order the Sheriff's Department “to produce this video ... that [it is] hiding.” (Id. at 3.)

On February 9, 2018, the Court ordered the Sheriff's Department to file a response stating why video footage responsive to Plaintiff's subpoenas is unavailable. (Dkt. 140 at 2.) The Court stated that “if responsive video footage was available at one time and was later overwritten or disposed of, then the Sheriff's Department should indicate when that occurred.” (Id.)

The law firm Monroy, Averbuck & Gysler filed a response on March 9, 2018. (Dkt. 141.) The response indicates that it is filed on behalf of “Defendant Emmanuel Moscoso, R.N.,” who is not named in the operative Third Amended Complaint (the “TAC”). (Id. at 1; Dkt. 113.) The response includes a declaration from Deputy Adam P. Kennedy, an employee of the Sheriff's Department, representing that the “video retention policy for the Men's Central Jail (for DVTel) is one year.”[1] (Dkt. 141-1 [Kennedy Decl.] ¶ 1.) Deputy Kennedy declares that this was the policy in 2015 when Plaintiff filed this action. (Id.; see Dkt. 1 [Complaint dated July 30, 2015].) The response contends that although Plaintiff filed his initial Complaint in 2015, it was not served until May 2017, and Plaintiff did not issue subpoenas requesting the video footage until August 2017. (Dkt. 141 at 2; see Dkts. 59; 63-71; 74-81 [process receipts reflecting May 2017 service]; Dkts. 97-106 [subpoenas issued August 2017].) These events occurred “almost two years after the subject time period,” such that the Sheriff's Department had destroyed responsive video footage pursuant to its one-year retention policy before it knew of Plaintiff's litigation. (Dkt. 141 at 2.)

The Court credits Deputy Kennedy's testimony that the Men's Central Jail adheres to a one-year retention policy for video surveillance, and that the relevant video evidence has therefore been destroyed. “The court cannot order production of a video recording that does not exist.” Mitchell v. Haviland, No. 2:09-cv-3012, 2013 WL 5587404, at *7, 2013 U.S. Dist. LEXIS 146979 at *19 (E.D. Cal. Oct. 9, 2013). Because the Sheriff's Department represents that it did not become aware of this litigation until 2017—after the expiration of that retention period—the Court DENIES without prejudice Plaintiff's request to compel the production of video footage.

*2 In doing so, the Court notes that Plaintiff attached to the TAC several prison complaints dated July through September 2015, i.e., during the asserted retention period. (See Dkt. 113 at 22-61.) Included among them is a complaint about a “staff member” dated July 9, 2015, stating that Plaintiff “got assaulted by 40 inmates in M.C.J. 5600 ....” (Id. at 23.) Another complaint dated July 10, 2015, indicates that Plaintiff has a “broken nose, fracture face, can't walk.” (Id. at 28.) It is unclear from the documents that Plaintiff submits and the current record (1) who received these prison complaints; (2) whether the named Defendants received or became aware of the complaints; and (3) whether the complaints gave rise to a duty preserve evidence. If Plaintiff develops evidence that Defendants or the Sheriff's Department were aware of a duty to preserve the disputed videos during the one year retention period, yet destroyed them nonetheless, then Plaintiff may raise the issue of spoliation with the District Judge directly prior to trial.

Given the Sheriff's Department's current position that it did not receive notice of this lawsuit before Plaintiff filed his Complaint, the Court expects that Defendants may claim that Plaintiff failed to exhaust administrative remedies before bringing this action. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). “[T]he exhaustion question in PLRA cases should be decided as early as feasible” and “before reaching the merits of a prisoner's claim.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014); id. at 1170-71 (describing procedure for raising failure to exhaust). Accordingly, if Defendants intend to raise the issue of administrative exhaustion, then they should seek to do so via summary judgment at the earliest feasible time.

II. CLARIFICATION RE STATUS OF DEFENDANTS.

The March 9, 2018, response that Monroy, Averbuck & Gysler filed also indicates that “Plaintiff's efforts have led to a lot of confusion in terms of what his claims are and who are the defendants in the case.” (Dkt. 141 at 3.) Counsel Jennifer E. Gysler submits a declaration noting that several Defendants that she previously represented, including Defendant Moscoso, have been terminated from the case docket. (Dkt. 141 at 5 [Gysler Decl.] ¶ 1.)[2] For purposes of clarification, the Court provides a summary of the active Defendants below.

The Court's September 28, 2017, screening order summarized the status of the Defendants in this matter. (Dkt. 119 at 1-2.) It stated as follows:

(Dkt. 119 at 1-2 (footnotes and citations omitted).)

In the same September 28, 2017, screening order, the Court concluded that Plaintiff's claims against Deputies Broja and Hass could proceed. (Id. at 3.)

Based on the above, the remaining named defendants in this action are: (1) Dr. Vivo; (2) Deputy Upchurch; (3) Deputy Zuniga; (4) Lieutenant Mosquera; (5) Deputy Broja; and (6) Deputy Hass. The docket reflects that none of these Defendants have been terminated.[3]

The Court ordered Defendants Vivo, Upchurch, Zuniga, and Mosquera to respond to the TAC on or before October 16, 2017. (Dkts. 114; 119 at 2.) None have done so. The Court advised Plaintiff on November 30, 2017, that he “may raise this matter with opposing counsel and seek a default if appropriate.” (Dkt. 126 at 2.) Plaintiff has not sought such relief.

*4 On December 11, 2017, the Court received process receipts indicating that Deputies Broja and Hass could not be served based on the information Plaintiff provided. (Dkts. 129, 130.) After counsel indicated that Plaintiff had been sent a response to subpoenas seeking information relevant to the identity of those deputies (Dkt. 136), the Court ordered Plaintiff to submit (1) a request to file an amended pleading setting forth the correct identities of the Doe defendants and Defendants Hass and Broja; or (2) a status report explaining in detail why he has been unable to properly identify those individuals. (Dkt. 137.) Per Plaintiff's request, the pending deadline for that filing was extended to March 30, 2018. (Dkt. 140.)