Sharp v. Morrison et al

Filing 49

ORDER GRANTING IN PART 48 Defendant's Motion to Impose Discovery Sanctions and Dismissal of Plaintiff's Complaint; ORDERING that Plaintiff is Bound by His March 4, 2009 Interrogatory Responses Going Forward; ORDERING that Plaintiff is Prevented From Offering Any Evidence That Was Not Previously Disclosed During Discovery, signed by Senior Judge Stephen M. McNamee on 8/12/2009. (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Antonio Sharp, Plaintiff, vs. A.D. Morrison, et al., Defendants.

) ) ) ) ) ) ) ) ) )

No. 1:07-CV-00458-SMM (PC) ORDER

Before the Court is Defendants' Motion to Impose Discovery Sanctions and Dismissal of Plaintiff's Complaint (Doc. 48). Defendants request an order prohibiting Plaintiff from offering any evidence not disclosed during discovery. Alternatively, Defendants request an order dismissing Plaintiff's complaint for failure to comply with the Court's prior Orders. Plaintiff filed an amended complaint on July 2, 2007, alleging that Defendants Coronado, Hernandez, McNutt and Morrison subjected him to excessive force while he was housed at Corcoran State Prison. (Doc. 10.) On October 2, 2008, the Court issued is Discovery Order and Scheduling Order providing that discovery was to be completed by April 2, 2009. (Doc. 25.) On January 16, 2009, Defendants served Plaintiff with interrogatory requests. On March 4, 2009, Plaintiff served his responses, but included the caveat that he did not have his property due to his housing in administrative segregation and presumably could not fully respond to certain interrogatories. Prior to the discovery cut-off, Defendants moved the Court for an order compelling further responses to the interrogatories or modifying the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

scheduling order to allow an additional thirty days of discovery. (Doc. 35.) Within those thirty days, it was anticipated that Plaintiff would return to the general population and have access to his property again. On April 6, 2009, the Court denied the motion to compel, but extended the discovery deadline to May 4, 2009. (Doc. 36.) Further extensions were granted on May 8, 2009 and June 5, 2009. (Docs. 40, 43.) In the May 8 Order, the Court required that "Plaintiff must respond to Defendants' interrogatories by June 3, 2009, or file a response by that date explaining why he is unable to comply with this deadline." (Doc. 40.) A similar statement was included in the Court's June 5, 2009 Order, requiring interrogatory responses or other response by July 3, 2009. (Doc. 43.) However, as of July 3, 2009, Plaintiff still had not served further interrogatory responses, nor filed a response explaining why he was unable to comply with the Court's deadlines. (Doc. 48, V. Kamberian Decl. ¶ 9.) Consequently, on July 6, 2009, Defendants moved to impose discovery sanctions on Plaintiff, including prohibiting Plaintiff from introducing evidence not disclosed in discovery and dismissal of Plaintiff's Complaint. (Doc. 46.) The Court denied this motion and gave Plaintiff one more chance to respond to Defendants' interrogatories by July 24, 2009, or to file a response by that date explaining why he is unable to comply with the deadline. (Doc. 47.) The Court's Order, dated July 8, 2009, specifically warned Plaintiff of the discovery sanctions provided in Federal Rule of Civil Procedure 37 for failure to comply with courtordered discovery. (Id. at 3.) Such sanctions include prohibiting the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters in evidence. (Id.) Plaintiff also was warned that Rule 37 permits the court to dismiss the action in whole or in part for discovery violations . (Id.) Finally, the Court's Order stated, It is Plaintiff's obligation to follow Court Orders regarding discovery. The failure of Plaintiff to respond to Defendants' interrogatories or file a response explaining why compliance is not possible may, in the discretion of the Court, result in sanctions including the dismissal of Plaintiff's action and the entry of judgment against him. (Id.) Despite numerous Court Orders, Plaintiff has not complied by providing further interrogatory responses or filing a response indicating why compliance is not possible.
-2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants indicate in their motion that Plaintiff is still housed in administrative segregation. (Doc. 48, V. Kamberian Decl. ¶ 13.) While Plaintiff may not have access to his property in administrative segregation, he has failed to inform the Court that this housing is the reason for his non-compliance. Plaintiff has had over four months to comply with the Court's multiple Orders and supplement his answers to Defendants' interrogatories, if he wished. However, he has not done so. Instead, Plaintiff has disregarded the Court's Orders that he supplement his interrogatory responses or file a response explaining the reasons that he is unable to comply. Consequently, the Court will bind Plaintiff to his interrogatory responses previously filed on March 4, 2009. While Plaintiff's interrogatory responses were unsigned, Plaintiff indicated in his April 16, 2009 Motion for Immediate Transfer that "Plaintiff has answered the question to the best of his ability with or without property." (Doc. 37.) This statement authenticates the interrogatory responses and indicates Plaintiff's intention to be bound by those responses. The Court has given Plaintiff multiple opportunities to supplement his responses if he wished, but Plaintiff has failed to do so. Furthermore, since the discovery period has now ended, Plaintiff is prevented from offering any evidence, either testimony or documentary, that was not previously disclosed during discovery. While Defendants have asked for the greater sanction of dismissal, the Court finds that binding Plaintiff to his interrogatory responses is a more appropriate sanction at this time. Plaintiff is warned, however, that failing to follow future court orders could lead to dismissal of his case. Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Impose Discovery Sanctions and Dismissal of Plaintiff's Complaint (Doc. 48) is granted in part. The motion is granted in that Plaintiff will be bound by his prior interrogatory responses and prevented from offering any evidence not previously disclosed during the discovery process. The motion will be denied in that Plaintiff's Complaint will not be dismissed. IT IS FURTHER ORDERED that Plaintiff is bound by his March 4, 2009 interrogatory responses going forward.
-3-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS FURTHER ORDERED that Plaintiff is prevented from offering any evidence, either testimony or documentary, that was not previously disclosed during discovery. DATED this 12th day of August, 2009.

-4-