Holt v. Nicholas et al

Filing 135

ORDER Regarding Plaintiff's Motions for Imposition of Sanctions and Motion for Stay of Proceedings 125 , 127 , 133 , signed by Magistrate Judge Stanley A. Boone on 7/9/14: Plaintiff's motion for imposition of sanction is DENIED; and Plaintiff's motion to stay the proceedings pending his motion for imposition of sanctions is DENIED as MOOT. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VIRGIL E. HOLT,

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Plaintiff,

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v.
R. NICHOLAS, et al.,

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Defendants.

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[ECF Nos. 125, 127, 133]

On May 8, 2014, Plaintiff filed a motion for sanctions.1 Defendants filed an opposition on
May 29, 2014.
On June 27, 2014, Plaintiff filed a motion to stay proceeding of the summary judgment

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ORDER REGARDING PLAINTIFF’S MOTIONS
FOR IMPOSITION OF SANCTIONS AND
MOTION FOR STAY OF PROCEEDINGS

pursuant to 42 U.S.C. § 1983.

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Case No.: 1:09-cv-00800-AWI-SAB (PC)

Plaintiff Virgil E. Holt is appearing pro se and in forma pauperis in this civil rights action

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pending the instant motion for sanctions.

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I.

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BACKGROUND
In the instant action, Plaintiff contends that Defendants Nicholas, Holguin, Ortega, Machado,

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and Juden used excessive force on him by dispensing O.C. pepper spray into his cell on April 9, 2007,

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Plaintiff submitted and filed the identical motion on June 5, 2014. (ECF No. 127.)

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and Defendants Carrasco and Zanchi knew that Nicholas and Holguin would use excessive force and

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failed to act to prevent it. Plaintiff further contends that Defendants Adame, Bubbel, Coontz, Knight,

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Large, Pinkerton, Prior, Rivera, Soto, Tyree, Valverde, Vo, Worrell, and Yubeta were deliberately

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indifferent to a serious medical need by refusing to provide Plaintiff with any decontamination while

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he waited for several hours to be rehoused in the administrative segregation unit.

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On October 28, 2013, Plaintiff moved to compel Defendants to provide further discovery

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responses. Defendants filed an opposition on November 18, 2013. Plaintiff did not file a reply. On

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January 21, 2014, the Court granted in part, and denied in part, Plaintiff’s motion to compel. (ECF

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No. 121.) The Court ordered Defendant Juden to supplement his response to request for production

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number nine and produce a copy of “CCI’s training manual on decontamination process after exposure

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to chemical agents (O.C. pepper spray, T-16 grenade, etc.) used as force on inmates.” (Id. at 8:7-9.)

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The Court denied Plaintiff’s motion as to Plaintiff’s request for production number thirteen as to

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Defendant Valverde, finding that Defendant had previously provided the “Material Safety Data

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Sheets” for T-16 OC grenade and the OC Spray, and that Plaintiff had to accept counsel’s declaration

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that there were no other documents responsive to this request. (ECF No. 121, 9:13-17.)

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As previously stated, on May 8, 2014, Plaintiff moved for sanctions against Defendants

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claiming that Defendant Valverde had misrepresented his response to the Court, and had provided the

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data sheets for a flameless expulsion grenade rather than a T-16 grenade. Plaintiff also moved for

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sanctions against Defendant Juden for failure to respond as ordered by the Court. Defendants filed an

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opposition on May 29, 2014.

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II.

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DISCUSSION

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Rule 37(c)(1) provides that where a party fails to provide the information “required by Rule 26

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(a) or (e), the party is not allowed to sue that information or witness to supply evidence on a motion, at

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a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.

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37(c)(1). The burden of showing that the failure to disclosure was substantially justified or harmless

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lies with the party facing sanctions. R & R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d

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1240, 1246 (9th Cir. 2012). “Rule 37(c)(1) gives teeth to these requirements for forbidding the use at
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trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”

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Hoffman v. Constr. Protective Servs. Inc., 541 F.3d 1175, 1179 (9th Cir. 2008).

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This Court, on motion or on its own, may also issue sanctions under Rule 16(f) in the event

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that a party or their attorney fails to obey a scheduling or pretrial order. Fed. R. Civ. P. 16(f). The

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Court may issue any just sanctions, including those authorized by Rule 37(b)(2)(A)(ii)-(vii). Id.

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Finally, this Court may issue sanctions under its inherent power, but only upon a showing of

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bad faith. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); see also Mendez v. County of

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San Bernardino, 540 F.3d 1109, 1130-1133 (9th Cir. 2008) (vacating sanction order imposed under

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district court’s inherent powers where the court did not make a bad faith finding before imposing

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sanctions and the record did not support such a finding); Fink v. Gomez, 239 F.3d 989, 992 (9th Cir.

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2001) (noting that Chambers used ‘“bad faith’ as a shorthand term to encompass a broad range of

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conduct in observing that a party may ‘show [] bad faith by delaying or disrupting the litigation or by

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hampering enforcement of a court order’” (quoting 501 U.S. at 46)).

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Plaintiff seeks sanctions against Defendants for failure to comply with the Court order in the

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form of: (1) a default judgment against Defendants; (2) an order barring Defendants from submitting

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the documents provided into evidence; (3) an order striking Defendant Valvarde’s supplemental

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response to Plaintiff Request for Documents 13; (4) an order staying the case until Defendant Juden

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has obeyed the Court’s order; and (5) an award of $2,000.00 in monetary sanctions.

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Entry of default is not an appropriate sanction in this case. The Ninth Circuit employs a five

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factor test to determine whether dismissing a case as a sanction is appropriate, which includes: “(1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3)

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the risk of prejudice to the [opposing party]; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions.” In re Exxon Valdez, 102 F.3d 429, 433 (9th

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Cir. 1996).

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In this instance, Plaintiff was not prejudiced by the failure to provide the documents as

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ordered, and there is no showing otherwise by Plaintiff. Defendant Valverde provided a supplemental

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response to Plaintiff’s request for production of documents, set one on November 18, 2013, in which

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he stated the following:
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Defendant objects to this request on the grounds that it lacks foundation and call [sic]
for speculation. Without waiving these objections, Defendant refers Plaintiff to the
prison’s use of force policy, which is attached as Exhibit C. After conducting a
reasonable inquiry, there are no other documents responsive to this request. However,
see Attachment 1, for a copy of the applicable “Material Safety Data Sheets” for the T16 OC grenade and the OC spray. (ECF No. 125, Ex. A.)

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In opposition to Plaintiff’s motion for sanctions, Defendant submits the declaration of D.

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Robbins, Use of Force Coordinator at California Correctional Institution (CCI) in Tehachapi,

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California. (ECF No. 126-1, Ex. A.) D. Robbins declares that “As the Use of Force Coordinator, I am

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familiar with different types of force that can be utilized by correctional staff. This includes a working

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knowledge of the types of chemical agents used by CDCR. [¶] On May 12, 2014, I was contacted by

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the Litigation Coordinator at CCI, and asked to explain the difference between a T-16 OC grenade and

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a flameless expulsion grenade. There is no difference between the two. T-16 OC grenade and

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flameless expulsion grenade are different names for the same item.” (Id., Decl. of D. Robbins, at ¶¶ 1-

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3.) Given Defendant’s supplemental response and declaration by D. Robbins, Defendant has

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provided an adequate explanation and response to Plaintiff’s request for production of documents and

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Plaintiff must accept such response, and there does not appear to be a display of bad faith to warrant

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sanctions under these circumstances.

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With regard to Defendant Juden, defense counsel indicates that in researching Plaintiff’s

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instant motion for sanctions, she discovered that Defendant Juden “had not supplemented his

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responses as ordered by the Court [by way of order issued January 22, 2014].” The response has now

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been supplemented. (ECF No. 125, Ex. B.) Defendant Juden provided a copy of the CDCR CCI

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training manual regarding the procedures for decontamination for exposure to pepper spray. (Id.)

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Accordingly, although Defendant Juden did fail to comply with the Court’s order, it appears that such

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failure was attributable to negligent, not intentional, conduct of prior counsel and not done in bad

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faith. Current counsel researched Plaintiff’s motion for sanctions, and subsequently corrected the

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failure by providing Plaintiff with an appropriate response to his discovery request as ordered by the

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Court. Given that Plaintiff has received all information as ordered by the Court, the supplemental

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production by Defendants reflects an absence of bad faith and Plaintiff has not been prejudiced

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sufficient to impose sanctions under Rule 37 of the Federal Rules of Civil Procedure.
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III.

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ORDER

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Based on the foregoing,

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IT IS HEREBY ORDERED that:

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Plaintiff’s motion for the imposition of sanction is DENIED; and

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2.

Plaintiff’s motion to stay the proceedings pending his motion for imposition of
sanctions is DENIED as MOOT.

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IT IS SO ORDERED.
Dated:

July 9, 2014
UNITED STATES MAGISTRATE JUDGE

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