Bradford v. Davis et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that 37 Defendants' Motion for Sanctions be GRANTED and Plaintiff's Claims be DISMISSED Without Prejudice re 1 Complaint, signed by Magistrate Judge Stanley A. Boone on 1/6/2014. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVON BRADFORD,
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Plaintiff,
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Case No. 1:12-cv-01712-AWI-SAB
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT DEFENDANT’S
MOTION FOR SANCTIONS BE GRANTED
v.
RANDY DAVIS, et al.,
ECF NO. 37
Defendants.
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OBJECTIONS DUE WITHIN THIRTY (30)
DAYS
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On December 4, 2013, Defendants Randy Davis, John Carrico, Jacob Keiser, Paul
18 MacDonald and Douglas Ridenour (“Defendants”) filed a motion for terminating sanctions
19 against Plaintiff Devon Bradford. (ECF No. 37.)
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The Court finds it appropriate for Defendants’ motion to be submitted upon the record
21 and briefs on file without need for oral argument. See Local Rule 230(g). For the reasons set
22 forth below, the Court recommends that Defendants’ motion be granted and this action be
23 dismissed.
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I.
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BACKGROUND
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Plaintiff filed the complaint in this action on August 20, 2012. (ECF No. 1.) Plaintiff,
27 proceeding pro se, raises claims under 42 U.S.C. § 1983 against Defendants for the use of
28 excessive force during Plaintiff’s arrest.
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On October 23, 2013, Defendants filed a motion to compel. (ECF No. 32.) In their
3 motion to compel, Defendants noted that Plaintiff had not provided any initial disclosures under
4 Federal Rule of Civil Procedure 26(a), which were due on August 2, 2013. Further, Defendants
5 propounded discovery requests on Plaintiff, which Plaintiff ignored.
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On November 14, 2013, the Court granted Defendants’ motion to compel and ordered
7 Plaintiff to provided Defendants with initial disclosures and discovery responses within fourteen
8 days. (ECF No. 36.) The Court later received notice that the November 14 order was not
9 deliverable as addressed. The order was sent to the address provided by Plaintiff and Plaintiff
10 has not provided the Court with an updated address.
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Defendants filed the present motion for terminating sanctions on December 4, 2013.
12 Defendants’ motion indicates that Plaintiff has not yet provided Defendants with initial
13 disclosures or discovery responses.
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II.
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LEGAL STANDARDS
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Sanctions arising from the failure to obey a discovery order are governed by Federal Rule
17 of Civil Procedure 37(b)(2), which states, in pertinent part:
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(b)
Failure to Comply with a Court Order.
...
(2)
Sanctions Sought in the District Where the Action is
Pending.
(A)
For Not Obeying a Discovery Order. If a party or a party’s
officer, director, or managing agent--or a witness designated under
Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or
permit discovery, including an order under Rule 26(f), 35, or 37(a),
the court where the action is pending may issue further just orders.
They may include the following:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
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except an order to submit to a physical or mental examination.
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III.
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DISCUSSION
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Defendants request terminating sanctions against Plaintiff for failing to comply with the
Court’s order requiring Plaintiff to provide Defendants with initial disclosures and discovery
responses. “A terminating sanction, whether default judgment against a defendant or dismissal
of a plaintiff’s action, is very severe.” Connecticut General Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). “Only ‘willfulness, bad faith, and fault’
justify terminating sanctions.” Id.
In determining whether terminating sanctions are appropriate, the Court looks to the
following five factors: (1) the public’s interest in expeditious resolution of litigation; (2) the
Court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring disposition of cases on their merits; and (5) the availability of less
drastic sanctions. Id. In assessing the fifth factor, the Court looks at “whether the court has
considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party
about the possibility of case-dispositive sanctions. Id.
“When a court order is violated, the first and second factors will favor sanctions and the
fourth will cut against them.
[Citation.]
Therefore, whether terminating sanctions [are]
appropriate ... turns on the third and fifth factors.” Computer Task Group, Inc. v. Brotby, 364
F.3d 1112, 1115 (9th Cir. 2004).
Addressing the third factor, Plaintiff’s refusal to provide initial disclosures and provide
discovery responses clearly prejudices Defendants. “The most critical factor to be considered in
case-dispositive sanctions is whether ‘a party’s discovery violations make it impossible for a
court to be confident that the parties will ever have access to the true facts.’” Connecticut
General Life Ins. Co., 482 F.3d at 1097. Plaintiff’s complete failure to participate in discovery
has made it impossible for Defendants to defend against Plaintiff’s claims and allegations.
Accordingly, this factor weighs heavily in favor of dismissal sanctions.
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With respect to the fifth factor, the Court has already imposed lesser sanctions. On
2 November 14, the Court granted Defendants’ motion to compel and ordered Plaintiff to provide
3 Defendants with initial disclosures and discovery responses. The Court informed Plaintiff that
4 any objections he could have asserted had been waived by Plaintiff’s failure to provide timely
5 objections. Further, the Court twice warned Plaintiff that the failure to comply with the Court’s
6 order would result in further sanctions, and expressly mentioned the possibility of terminating
7 sanctions. Therefore, the fifth factor weighs in favor of dismissal sanctions.
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The Court’s records indicate that Plaintiff may not have received the Court’s admonition
9 regarding the possibility of dismissal sanctions because Plaintiff has not provided the Court with
10 an updated, current address. However, it is Plaintiff’s responsibility to notify the Court of any
11 change of address and, by Local Rule, absent such notice, service at the prior address is deemed
12 fully effective. See Local Rule 182(f). Accordingly, to the extent Plaintiff has not received the
13 Court’s prior orders, it is the result of his failure to comply with the Court’s rules and it does not
14 change the Court’s findings regarding the appropriateness of dismissal sanctions. Plaintiff has
15 not made any effort to participate in this action for nearly six months. The last time the Court
16 has heard from Plaintiff was in June 2013, when Plaintiff sought an extension of time because he
17 was evicted from his residence.
Inexplicably, Plaintiff informed the Court of his eviction
18 without providing the Court with an updated address: the address that appeared in the caption of
19 Plaintiff’s request for the extension of time used the same address in the Court’s record
20 throughout this litigation. If Plaintiff had been evicted from that address, it is unclear why
21 Plaintiff used that same address in the notice informing the Court of the eviction. In sum, to the
22 extent Plaintiff has not received Defendants’ filings and the Court’s orders since notifying the
23 Court of his eviction, the fault lies with Plaintiff for not providing the Court with an updated
24 address.
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Based upon the foregoing, the Court finds that first, second, third and fifth factors weigh
26 in favor of the imposition of dismissal sanctions from Plaintiff’s failure to participate in
27 discovery in this matter.
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IV.
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CONCLUSION AND RECOMMENDATION
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The Court finds that dismissal sanctions against Plaintiff are appropriate due to Plaintiff’s
4 refusal to participate in discovery and general lack of participation in litigating this action.
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Accordingly, it is HEREBY RECOMMENDED that:
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Defendants’ motion for sanctions be GRANTED; and
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Plaintiff’s claims be DISMISSED without prejudice.
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These Findings and Recommendations are submitted to the United States District Judge
9 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the
10 Local Rules of Practice for the United States District Court, Eastern District of California.
11 Within thirty (30) days after being served with a copy, any party may file written objections with
12 the court and serve a copy on all parties. Such a document should be captioned “Objections to
13 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate
14 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file
15 objections within the specified time may waive the right to appeal the District Court’s order.
16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
January 6, 2014
UNITED STATES MAGISTRATE JUDGE
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