Armstrong v. Spearman, et al.
Filing
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FINDINGS and RECOMMENDATIONS Regarding Defendants' 72 Motion for Terminating Sanctions signed by Magistrate Judge Stanley A. Boone on 08/20/2015. Referred to Judge Ishii; Objections to F&R due by 9/14/2015. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRADY K. ARMSTRONG,
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Plaintiff,
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v.
M.E. SPEARMAN, et al.,
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Defendants.
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Case No.: 1:13-cv-00246-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS‟ MOTION FOR
TERMINATING SANCTIONS
[ECF No. 73]
Plaintiff Brady K. Armstrong is appearing pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983.
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I.
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PROCEDURAL HISTORY
On March 25, 2015, the Court issued the discovery and scheduling order, setting November 25,
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2015, as the deadline for completion of all discovery. (ECF No. 68.) On March 30, 2015, Defendant
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Spearman served Plaintiff with his first set of interrogatories pertaining to Plaintiff‟s efforts, if any, to
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exhaust his administrative remedies regarding the claims raised in the first amended complaint. (ECF
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No. 70-1 at 2.) Plaintiff was served by mail at the address of record, 12036 Bartlett Avenue, Suite F,
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Adelanto, California 92301. (Id.) Pursuant to the discovery and scheduling order, Plaintiff‟s
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responses were due on or before May 18, 2015, but no responses were received by Defendant. (Id. at
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3.)
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On June 8, 2015, Defendants moved to compel Plaintiff‟s interrogatory responses. (ECF No.
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70.)
On June 29, 2015, the Court granted Defendants‟ motion to compel and directed Plaintiff to
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serve his responses to Defendant Spearman‟s interrogatories no later than July 20, 2015. (ECF No. 72
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at 5.) The Court also advised Plaintiff that his “failure to comply with this order will result in
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dismissal of the action for failure to prosecute.” (Id, citing Local Rule 110.) To date, Plaintiff has not
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provided responses to Defendant Spearman‟s interrogatories. (ECF No. 73-1, Decl. of Erick J. Rhoan
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(Rhoan Decl.) ¶ 2.)
Now pending before the Court is Defendants‟ motion for terminating sanctions, filed July 24,
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2015.1 Plaintiff did not file an opposition, and the motion is deemed submitted for review. Local Rule
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230(b)-(c).
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II.
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DISCUSSION
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Defendants seek terminating sanctions for Plaintiff‟s failure to comply with discovery requests
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pursuant to Rule 37 of the Federal Rules of Civil Procedure, which “authorizes the district court, in its
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discretion, to impose a wide range of sanctions when a party fails to comply with the rules of
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discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d
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585, 589 (9th Cir. 1983); see also Fed. R. Civ. P. 41(b); Local Rule 110.
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Dispositive sanctions may be warranted where “discovery violations threaten to interfere with
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the rightful decision of the case.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d
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1091, 1097 (9th Cir. 2007). The Ninth Circuit has identified five factors that a court must consider
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when a party seeks terminating sanctions: “(1) the public‟s interest in the expeditious resolution of
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litigation; (2) the court‟s need to manage its docket; (3) the risk of prejudice to the [party seeking
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terminating sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986);
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Because Plaintiff is out of custody, Defendants noticed the motion for oral argument on September 2, 2015, at 10:00a.m.
After the time to file an opposition expired, the Court vacated the hearing date and took the motion under submission
without oral argument. (ECF No. 74.)
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Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988). Where a court order is
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violated, the first and second factors will favor sanctions and the fourth will cut against them. Adriana
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Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990).
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Although involuntary dismissal can be a harsh remedy, on balance the five relevant factors
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weigh in favor of dismissal of the action. The first two factors strongly support dismissal. The
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public‟s interest in resolving this litigation weighs in favor of the issuance of terminating sanctions as
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this case has been pending since February 2013. See Yourish v. California Amplifier, 191 F.3d 983,
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990 (9th Cir. 1999) (“The public‟s interest in expeditious resolution of litigation always favors
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dismissal.”) Further, the Eastern District of California is one of the busiest federal jurisdictions in the
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United States and its District Judges carry the heaviest caseloads in the nation, the Court‟s interest in
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managing its docket weighs in favor of terminating the action. See, e.g., Gonzales v. Mills, No. 1:09-
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cv-1549 AWI DLB, 2011 WL 976713, at *5 (E.D. Cal. March 16, 2011).
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Defendants have suffered prejudice due to Plaintiff‟s failure to respond to discovery requests.
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The failure to obtain discovery information significantly impairs the Defendants‟ ability to go to trial
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and to determine whether Plaintiff has adequately exhausted administrative remedies and to make
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rightful and informed decisions as to whether this affirmative defense should be explored. Plaintiff‟s
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failure to respond to discovery has created an unreasonable delay, which in turns creates a
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presumption of prejudice. Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th
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Cir. 2006). In addition, the additional efforts to obtain discovery responses required Defendants to
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incur expenses that would not otherwise have been incurred had Plaintiff responsibility cooperated.
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The fourth factor requires the Court to consider the availability and adequacy of less drastic
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sanctions. Defendants have served requests for interrogatories, and Plaintiff has been given ample
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time to fully respond to them, seek an extension of time to respond, or explain why non-compliance is
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not possible. Plaintiff has not done any of these, and Defendants were forced to file a motion to
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compel, which was granted and Plaintiff disobeyed the Court‟s order to respond to Defendant
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Spearman‟s interrogatories. “[A] case that is stalled or unreasonably delayed by a party‟s failure to
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comply with deadlines and discovery obligations cannot move forward toward resolution on the
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merits. Thus, we have also recognized that this factor „lends little support‟ to a party whose
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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction.” (PPA) Prods. Liab. Litig., 460 F.3d at 1228. Thus, the fourth factor
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weighs in favor of dismissal of the action.
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Finally, with respect to less drastic alternatives, although the Court could issue a less drastic
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sanction, it would not make a difference in this case given Plaintiff‟s repeated failure to comply with
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the applicable rules and court orders. Plaintiff was granted ample time to comply with the Court‟s
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June 29, 2015, order granting Defendants‟ motion to compel, and the Court‟s order specifically
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advised Plaintiff that “failure to comply with this order will result in dismissal of the action for failure
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to prosecute.” (ECF No. 72.) Furthermore, as noted by Defendants, the Court has repeatedly advised
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Plaintiff that he could not delay the progression of this case. See ECF Nos. 49 (vacating hearing date
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because Plaintiff failed to oppose Defendants‟ motion to dismiss and motion for definite statement);
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52 at 2 (Court‟s order for Plaintiff to show cause why litigation should not be dismissed: “Plaintiff‟s
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inaction hinders the Court‟s ability to move this case toward disposition and indicates that Plaintiff
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does not intend to litigate this action diligently.”) 53 (Plaintiff‟s first request for 60-90 day extension
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of time to show cause); 57 (Plaintiff‟s second request for an extension of time to show cause); 58
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(Court‟s order granting the second request, but noting this case‟s “lengthy history of delay due to
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Plaintiff‟s failure to comply and/or respond to orders and filings in this case;” “Plaintiff‟s repeated
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inaction and/or requests to extend time to comply with orders have hindered the Court‟s ability to
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move this case toward disposition and indicates that Plaintiff may not be able to litigate this action
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diligently.”) 59 (Findings and Recommendations initially recommending this case be dismissed
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because “Plaintiff has repeatedly failed to comply with court orders and has not been in
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communication with the Court[;]” and that “Plaintiff has been warned previously that his failure to
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comply with this order will result in dismissal of the action for failure to prosecute.”); 60 (Plaintiff‟s
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third request for an extension of time); 61 at 2-3 (Findings and Recommendations denying
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Defendants‟ motion to dismiss and motion for a more definite statement, but opining that “the Court
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does not condone Plaintiff‟s conduct … Plaintiff‟s repeated failure to comply with court orders can
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and will result in the imposition of sanctions, which may include dismissal of the action;” and that
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“Plaintiff is hereby forewarned that future noncompliance with court orders and/or failure to meet
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deadlines will result in imposition of sanctions, including dismissal of the action.”).) As evidenced by
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the record in this case, it is apparent that Plaintiff has abandoned this litigation and it is reasonable to
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dismiss the action, in lieu of lesser sanctions (which have proven unsuccessful).
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In sum, the five factors favor dismissal in this case. Plaintiff has ignored the Court‟s June 29,
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2015, order (despite the warning of dismissal for failure to comply), as well as Defendant Spearman‟s
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interrogatories and previous motion to compel, and the Court can only conclude that Plaintiff has
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abandoned the litigation in this case and dismissal, with prejudice, is justified. Fed. R. Civ. P. 41(b);
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Pataglunan v. Galaza, 291 F.3d 639, 640-643 (9th Cir. 2002) (affirming district court‟s sua sponte
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dismissal of habeas corpus petition with prejudice “for failure to prosecute and failure to comply with
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a court order”).
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III.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Defendants‟ motion for terminating sanctions be GRANTED; and
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This action be dismissed, with prejudice, for failure to prosecute.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge‟s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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August 20, 2015
UNITED STATES MAGISTRATE JUDGE
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