Masterson v. Killen et al

Filing 128

ORDER Setting Evidentiary Hearing to Determine Authenticity of Declarations and on Cross-Motions for Sanctions 118 , 123 , signed by Magistrate Judge Stanley A. Boone on 1/26/17: February 15, 2017, at 10:30 a.m. in Courtroom 9 (SAB). (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL MASTERSON,
Plaintiff,

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v.

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S. KILLEN, et al.,

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Defendants.

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No. 1:11-cv-01179-DAD-SAB (PC)
ORDER SETTING EVIDENTIARY HEARING
TO DETERMINE AUTHENTICITY OF
DECLARATIONS AND ON CROSSMOTIONS FOR SANCTIONS
(ECF Nos. 118, 123)
Hearing Date:
February 15, 2017, at 10:30 a.m. in
Courtroom 9 (SAB)

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I.

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INTRODUCTION

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Plaintiff Daniel Masterson is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On June 10, 2016, Defendants filed a motion for summary judgment in this case. (ECF No.

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90.) Following some extensions of time, on September 19, 2016, Plaintiff filed an opposition with

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support. (ECF Nos. 100, 101, 102, 103, 105, 105.) Following some extensions of time and certain

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additional submissions, on December 2, 2016, Defendants filed a reply in support of their motion for

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summary judgment. (ECF No. 117.)

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Among the arguments in their reply brief, Defendants assert that Plaintiff submitted forged and
fraudulent declarations in support of his opposition to their motion for summary judgment. (ECF No.
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117, pp. 2, 12-13.) Specifically, Defendants argue that Plaintiff filed two declarations ostensibly from

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inmate Jaymes Thomas McCollum, (ECF No. 100, at pp.177-178, 202-204), that are “complete

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fabrications and were [neither] written nor signed by inmate Jaymes Thomas McCollum,” (ECF No.

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117, at p. 12 (citing Decl. of Counsel in Support of Defs.’ Reply, ECF No. 117-2, ¶ 6, Ex. A).)

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Defendants further argue that a third declaration Plaintiff filed, ostensibly from former inmate Daniel

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Womack, is false as well. (ECF No. 117, at p. 13.) Defendants moved to strike the allegedly false and

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fraudulent declarations.

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On December 14, 2016, Defendants moved for an order requiring Plaintiff to show why he
should not be sanctioned for preparing and filing the allegedly false declarations of Mr. McCollum and

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Mr. Womack. Defendants further requested a show cause hearing, and an order directing the

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transportation of Plaintiff and Mr. McCollum to the court for that hearing. (ECF No. 118.) Deputy

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Attorney General Michelle M. Mayer, then-defense counsel, submitted a declaration in support of the

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motion for an order to show cause, declaring that Mr. McCollum attested that the declarations Plaintiff

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submitted are false, with a hand-written and signed declaration purporting to be from Mr. McCollum

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attached. (ECF No. 118-2 ¶ 5.) Then-counsel further declared that she had been unsuccessful in

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attempting to speak with Mr. Womack, but she had nevertheless determined Mr. Womack’s

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declaration submitted by Plaintiff was false and fraudulent because it concerned a conversation in the

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institution’s law library when that institution was on lockdown with no library access. (Id. at ¶6.)

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Defendants argue that dismissal should be imposed as a sanction against Plaintiff for his alleged

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misconduct, as well as monetary sanctions to reimburse Defendants for their fees and costs in drafting

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their reply and objections to the allegedly false declarations, as well as for any further defense of this

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litigation.

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That same day, Plaintiff filed a motion to stay the proceedings in this matter, to appoint a

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handwriting expert, or for an extension of time in the alternative. (ECF No. 120.) Plaintiff contests the

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allegations in Defendants’ reply brief that he had submitted forged and fraudulent declarations, seeks a

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stay in the proceedings to resolve this matter, seeks the appointment of a court-ordered handwriting

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expert to assist in resolving the issue, or seeks an extension of time so that he may obtain his own

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handwriting expert.
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On December 16, 2016, Deputy Attorney General Michelle M. Mayer was removed from the

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list of defense counsel for service in this case, and current defense counsel was substituted. (ECF No.

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119.) On December 21, 2016, Defendants responded to Plaintiff’s motion, opposing his request for a

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court-ordered handwriting expert, but agreeing that the allegations that Plaintiff submitted forged and

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fraudulent declarations should be resolved before the case proceeds. (ECF No. 121.)
On December 27, 2016, Plaintiff moved for leave to file a sur-reply to Defendants’ reply in

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support of their motion for summary judgment, moved for limited discovery concerning the false

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declarations allegations, and requested an in-camera review by the Court. (ECF No. 122.)

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A few days later, on January 3, 2017, Plaintiff filed a motion for an order to show cause why

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sanctions should not be imposed and requesting a show cause hearing, asserting that former defense

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counsel, Ms. Mayer, knowingly submitted a declaration that included false information, to perpetrate a

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fraud upon the Court. (ECF No. 123, pp. 3-4.) Specifically, Plaintiff alleges that Ms. Mayer’s

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declaration stating that Mr. Womack’s declaration is false, is itself a knowingly false declaration.

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Plaintiff further alleges that Ms. Mayer “obviously attempt[ed] to distort the signature by McCollum

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on the declaration filed by Mayer.” (Id. at p. 6.) Plaintiff argues that Defendants’ motion for summary

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judgment should be denied in full as a sanction for Ms. Mayer’s alleged misconduct. That same day,

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Plaintiff also filed a statement of non-opposition to Defendants’ request for a show-cause hearing,

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with a supporting declaration and exhibits concerning these matters. (ECF No. 124.)
On January 18, 2017, Defendants filed an opposition to Plaintiff’s December 27, 2016 request

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for leave to file a sur-reply in opposition to Defendants’ motion for summary judgment, and his

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request for discovery concerning the false declaration allegations. (ECF No. 126.)

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On January 25, 2017, Defendants filed a brief response to Plaintiff’s January 3, 2017 motion

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for an order to show cause, agreeing that the Court should hold an evidentiary hearing in this matter

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regarding the false declaration allegations and to determine whether sanctions should be imposed.

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(ECF No. 127.)

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II.

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DISCUSSION

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The parties numerous submissions on this matter are briefly summarized above, and although

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they are not described in detail, as always the Court has thoroughly analyzed and considered all of the

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submissions. Omission of reference to a specific argument or document is not to be construed to the

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effect that this Court did not consider that matter.

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Although a formal stay of proceedings is not required at this time, the Court agrees with the

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parties that this case cannot move forward until the disputed issues here are resolved. The Court

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further finds that a hearing is necessary to resolve the evidentiary disputes in this matter, as well as the

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cross-motions seeking sanctions.
Pursuant to Local Rule 230(l), that hearing is set for February 15, 2017 at 10:30 a.m. in

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Courtroom 9. Separate orders and writs of habeas corpus ad testificandum will issue to order the

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presence of Plaintiff and inmate McCollum for that hearing. Defense counsel shall make former-

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defense counsel, Ms. Michelle M. Mayer, present for the hearing. Defendants may subpoena Mr.

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Womack for the hearing, if they wish.

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Due to the nature of the allegations, the Court finds that an in-camera review of inmate

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McCollum’s central file is necessary in preparation for the hearing. As a result, defense counsel will

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be ordered to provide inmate McCollum’s central file to the Court for in-camera review on or before

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February 8, 2017. To the extent that Plaintiff is requesting that a copy of inmate McCollum’s central

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file for his personal review, that request is denied, because of the safety, security, and privacy

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concerns noted by Defendants in their opposition to that request.

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Plaintiff’s request for a court-appointed handwriting expert is denied. Although a court has the

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discretion to appoint an expert witness pursuant to Rule of Evidence 706 under certain circumstances,

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“[r]easonably construed, [Rule 706] does not contemplate the appointment of, and compensation for,

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an expert to aid one of the parties.” Trimble v. City of Phoenix Police Dept., Case No. 04-0745-PHX-

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PGR, 2006 WL 778697, at *2 (D. Ariz. 2006) (citation omitted). Here, Plaintiff does not seek the

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appointment of a neutral expert to aid the trial of fact to determine an evidentiary or fact issue, but

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rather seeks the expert “to prove all three signatures on all three declarations signed by inmate Jaymes
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Thomas McCollum are in fact made by the same person.” (ECF No. 120, p. 3.) The Court will not

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grant this request for an expert to help Plaintiff present his case. Furthermore, although Plaintiff does

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not expressly withdraw his request for an appointed handwriting expert, he asserts in his December 27,

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2016 filing that an expert should not be required to compare the signatures at issue here. (ECF No.

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122, pp. 4-5.)

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Finally, the Court notes that this matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302, following Defendants’ declination to proceed

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before a United States Magistrate Judge for all proceedings in this case. (ECF No. 40.) Plaintiff has

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previously consented to proceeding before a United States Magistrate Judge for all purposes. (ECF

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No. 6.) The parties are advised that this reminder is for informational purposes only, and that no
The parties seek sanctions for allegedly fraudulent conduct, but this Court’s ability to impose

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any sanctions it determines are appropriate in this case is limited. Specifically, if the Court determines

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that a dispositive ruling or evidentiary sanction is appropriate, the effect or imposition of any such

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recommended sanction will be within the discretion of the trial judge who ultimately presides over this

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matter. Under the current status of this action, the findings and recommendations made as a result of

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this hearing will be submitted to the United States District Judge assigned to the case, pursuant to the

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provision of 28 U.S.C. § 636 (b)(1)(B).

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III.

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CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The parties cross-motions for an order to show cause and for sanctions shall be set for

hearing on February 15, 2017, at 10:30 a.m., in Courtroom 9;
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Separate orders and writs of habeas corpus ad testificandum will issue concurrently

with this order to obtain the presence of Plaintiff and inmate McCollum for that hearing;
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Defense counsel shall make former-defense counsel, Ms. Michelle M. Mayer, present

for the hearing. Defendants are authorized to subpoena Mr. Womack for the hearing, if they wish;
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Defense counsel is ordered to provide inmate McCollum’s central file to the Court for

in-camera review on or before February 8, 2017; and
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5.

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Plaintiff’s request for a court-appointed handwriting expert is denied.

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IT IS SO ORDERED.

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Dated:

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January 26, 2017
UNITED STATES MAGISTRATE JUDGE

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