McElroy v. Cox et al

Filing 100

ORDER GRANTING Defendants' 59 Motion for Sanctions; ORDER Imposing Monetary Sanctions on Plaintiff; ORDER for Plaintiff to Send Witness Statements to Defendants Within Ten Days, or Self-Executing Evidentiary Sanctions Shall Also be Impose, signed by Magistrate Judge Gary S. Austin on 2/16/2012. (Marrujo, C)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

LATWAHN McELROY,

11

1:08-cv-01221-LJO-GSA-PC

Plaintiff,

12

vs.

13

ORDER GRANTING DEFENDANTS’
MOTION FOR SANCTIONS
(Doc. 59.)

ROY COX, et al.,

ORDER IMPOSING MONETARY SANCTIONS
ON PLAINTIFF

14
Defendants.

ORDER FOR PLAINTIFF TO SEND WITNESS
STATEMENTS TO DEFENDANTS WITHIN TEN
DAYS, OR SELF-EXECUTING EVIDENTIARY
SANCTIONS SHALL ALSO BE IMPOSED

15
16
17
18

/
I.

BACKGROUND

19

Plaintiff Latwahn McElroy (“Plaintiff”) is a state prisoner proceeding pro se and in forma

20

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

21

commencing this action on August 19, 2008. (Doc. 1.) This action now proceeds with the First

22

Amended Complaint, filed on February 1, 2010, against defendants Correctional Officer (“C/O”) Roy

23

Cox, C/O B. Cope, C/O R. Robles, C/O Paul Rocha, C/O Thomas Acosta, C/O Sherri Stinnett, and LVN

24

M. Hankins, for excessive force and deliberate indifference in violation of the Eighth Amendment.

25

On December 17, 2010, Defendants filed a motion to compel discovery responses, seeking an

26

order compelling Plaintiff to provide them with copies of three inmate witness statements which Plaintiff

27

claimed, at his deposition, were in his possession. (Doc. 53.) On February 16, 2011, the Court granted

28

Defendants’ motion and ordered Plaintiff to mail Defendants the three witness statements no later than
1

1

February 18, 2011. (Doc. 57.) On March 18, 2011, Defendants filed a motion for sanctions, on the

2

ground that Plaintiff failed to comply with the Court’s February 16, 2011 discovery order. (Doc. 59.)

3

On October 19, 2011, Plaintiff filed an opposition to the motion. (Doc. 96.) On October 26, 2011,

4

Defendant filed a reply. (Doc. 97.)

5
6

Defendants’ motion for sanctions is now before the Court.
II.

MOTION FOR SANCTIONS – RULE 37

7

Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that if a party fails to obey an

8

order to provide or permit discovery, the court may issue further just orders, which may include the

9

imposition of sanctions upon the disobedient party, including dismissal of the action or proceeding in

10

whole or in part. Fed. R. Civ. P. 37(b)(2)(A). “[T]he court must order the disobedient party, the attorney

11

advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the

12

failure, unless the failure was substantially justified or other circumstances make an award of expenses

13

unjust.” Fed. R. Civ. P. 37(b)(2)(C). In the Ninth Circuit, sanctions are appropriate only in “extreme

14

circumstances” and where the violation is “due to willfulness, bad faith, or fault of the party.” Fair

15

Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002.) (quoting United States v. Kahaluu

16

Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir.1988) (citations omitted)). Disobedient conduct not shown

17

to be outside the litigant's control meets this standard. Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th

18

Cir.1994). In North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986),

19

the Ninth Circuit held that “[b]elated compliance with discovery orders does not preclude the imposition

20

of sanctions. Fair Housing of Marin, 285 F.3d at 905 (also citing Nat'l Hockey League v. Metro. Hockey

21

Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778 (1976) (per curiam); G-K Props. v. Redevelopment Agency

22

of the City of San Jose, 577 F.2d 645, 647-48 (9th Cir.1978)).

23

In determining whether to dismiss this action for failure to comply with the directives set forth

24

in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

25

resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

26

defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring

27

disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing

28

Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).
2

1

A.

2

Defendants move for an order imposing terminating sanctions against Plaintiff under Rule 37(b)

3

because Plaintiff failed to comply with the Court's February 16, 2011 discovery order which ordered

4

Plaintiff to send Defendants three witness statements by February 18, 2011. In the alternative.

5

Defendants seek a court order prohibiting Plaintiff from supporting his case or opposing Defendants'

6

defenses with any testimony from, or any reference to, his three inmate witnesses.

Defendants' Motion

7

Defendants' counsel declares that as of March 18, 2011, he had not received any witness

8

statements from Plaintiff. (Declaration of P. Arthur, Doc. 59-2.) Defendants argue that Plaintiff has had

9

ample time to comply with the Court's order and has not offered any reason for his noncompliance.

10

Defendants argue that Plaintiff's failure to provide them with the three witness statements has interfered

11

with their ability to determine the nature and basis of Plaintiff's claims, to further investigate Plaintiff's

12

allegations through additional discovery, and to make rightful and informed decisions in this case.

13

Defendants also argue that Plaintiff's failure to respond demonstrates willful disobedience.

14

B.

15

In opposition, Plaintiff requests leniency because he was on lock-up status most of the time

16

through July 2011; he lacks access to legal resources, supplies, and assistance; he is not an attorney and

17

is not well versed in the law; he has physical, mental, and psychological disabilities and takes

18

medication; he has been diagnosed with a delusional disorder and major depression; he has symptoms

19

of amnesia, attention deficit disorder, and paranoia; and prison officials are not properly processing his

20

inmate appeals.

Plaintiff's Opposition

21

C.

22

Defendants reply that as of October 26, 2011, Plaintiff had not provided them with the three

23

witness statements as required by the Court's discovery order. However, Defendants assert that Plaintiff

24

provided witness statements with his opposition to Defendants' motion for summary judgment.1

25

Defendants seek clarification from Plaintiff as to whether these statements are in fact those referred to

Defendants' Reply

26
27
28

1

Defendants filed a motion for summary judgment on April 1, 2011. (Doc. 63.) Plaintiff filed an opposition to the
motion on May 6, 2011. (Doc. 70.) On June 23, 2011, the Court denied Defendants’ motion for summary judgment. (Doc.
80.)

3

1

at Plaintiff's deposition. Defendants argue that even if the statements are those requested, Plaintiff

2

should be ordered to reimburse Defendants for the costs of their motions to compel and for sanctions.

3

Defendants also argue that Plaintiff's opposition fails to demonstrate why the Court should not sanction

4

him.

5

D.

6

Plaintiff has blatantly disobeyed the Court's discovery order of February 16, 2011 which required

7

him to send witness statements to Defendants. The Court agrees with Defendants’ arguments that

8

Plaintiff's lack of access to legal materials, mental illness and associated treatment, and problems with

9

the inmate appeals process do not affect his ability to provide Defendants with the three witness

10

statements. Plaintiff has offered no reasonable explanation why he has been unable, for the past year,

11

to make copies of three inmate witness statements and mail them to Defendants. Plaintiff also failed to

12

respond to Defendants’ request for clarification as to whether the witness statements Plaintiff provided

13

with his opposition to Defendants’ motion for summary judgment were in fact those referred to at

14

Plaintiff’s deposition. Therefore, the Court shall grant Defendants' motion for sanctions.

Discussion

15

Plaintiff shall be required to pay Defendants' reasonable expenses, including attorney's fees, for

16

the preparation of their motion to compel, filed on December 17, 2010, and their motion for sanctions,

17

filed on March 18, 2011. The monetary award shall be deducted from Plaintiff’s damages award if he

18

is successful at trial, or shall be assessed as part of Defendants’ costs if they prevail at trial.

19

The Court finds monetary sanctions to be sufficient and shall not grant terminating sanctions.

20

While Plaintiff has caused a delay in the resolution of discovery, Defendants have not demonstrated they

21

are unable to defend this action on the merits. “What is most critical for case-dispositive sanctions,

22

regarding risk of prejudice and of less drastic sanctions, is whether the discovery violations ‘threaten to

23

interfere with the rightful decision of the case.’” Valley Engineers, Inc. v. Electric Engineering Co., 158

24

F.3d 1051, 1057 (9th Cir. 1998) (quoting Adriana International Corp. v. Thoeren, 913 F.2d 1406, 1412

25

(9th Cir. 1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1019 (1991)).

26

Plaintiff is hereby ordered to send the three witness statements to Defendants within ten days of

27

receipt of this order; if he fails to do so then a self-executing evidentiary sanctions shall also be imposed,

28

precluding Plaintiff from calling those three witnesses or using those witness statements as evidence at
4

1

trial.

2

IV.

CONCLUSION AND ORDER

3

Based on the foregoing, it is HEREBY ORDERED that:

4

1.

Defendants’ motion for sanctions, filed on March 18, 2011, is GRANTED;

5

2.

Plaintiff shall be assessed Defendants' reasonable expenses and attorney fees incurred

6

for preparation of their motion to compel filed on December 17, 2010, and their motion

7

for sanctions, filed on March 18, 2011. The monetary award shall be deducted from

8

Plaintiff’s damages award if he is successful at trial, or assessed as part of Defendants’

9

costs if they prevail at trial;

10

3.

Within ten days of the date of service of this order, Plaintiff shall send the three witness

11

statements to Defendants, or a self-executing evidentiary sanction shall also be imposed,

12

precluding Plaintiff from calling those three witnesses or using those witness statements

13

as evidence at trial; and

14

4.

15
16
17

Plaintiff’s failure to comply with this order may result in the imposition of further
sanctions deemed appropriate by this court, up to and including dismissal of this action.

IT IS SO ORDERED.
Dated:
6i0kij

February 16, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
5