Bradford v. Marchak

Filing 334

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion for Terminating Sanctions Against Plaintiff 326 , signed by Magistrate Judge Barbara A. McAuliffe on 6/18/2018: 14-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
RAYMOND ALFORD BRADFORD,
11
Plaintiff,
12
v.
13
M. MARCHAK,
14
Defendants.
15
16
17
18

I.

)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:14-cv-1689-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION FOR
TERMINATING SANCTIONS AGAINST
PLAINTIFF
(Doc. 326)
FOURTEEN-DAY DEADLINE

Background
Plaintiff Raymond Alford Bradford is state prisoner proceeding pro se and in forma pauperis

19
20

in this civil rights action pursuant to 42 U.S.C. § 1983. This action was initiated on October 29, 2014,

21

and proceeds on Plaintiff’s Eighth Amendment claim against M. Marchak, S. Grewal, J. Depovic, and

22

L. Clausell. In summary, Plaintiff claims that Defendants knowingly made false statements in

23

multiple Keyhea petitions, causing him to wrongfully be involuntarily medicated, and resulting in

24

injuries.1 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

25

636(b)(1)(B) and Local Rule 302.

26
27
28

Keyhea v. Rushen, 178 Cal. App. 3d 527, 527 (1986), in which the California Court of Appeal held that “state
prisoners presently have a statutory right to refuse long-term treatment with psychotropic drugs absent a judicial
determination that they are incompetent to do so.”
1

1

Currently before the Court is Defendants’ motion for terminating sanctions against Plaintiff,

1
2

filed on May 21, 2018. (Doc. 326.) Plaintiff filed an opposition to the motion on June 7, 2018. (Doc.

3

330.) Defendants filed a reply to the opposition on June 14, 2018. (Doc. 333.) The motion is deemed

4

submitted. Local Rule 230(l).

5

II.

Motion for Terminating Sanctions

6

A.

Relevant Procedural History

7

This case has an extensive history spanning some years, which the Court will attempt to

8

summarize here. Following several screenings of the complaint, Defendants answered Plaintiff’s

9

second amended complaint on August 7, 2017. (Doc. 26.) On August 10, 2017, the Court issued a

10

discovery and scheduling order. (Doc. 27.)

11

Over the next few months, between the opening of discovery and the first attempt to take

12

Plaintiff’s deposition, discussed further below, Plaintiff filed nearly 50 motions and other filings.

13

These included numerous repetitive, misnamed, onerous, overlapping, premature, and otherwise

14

meritless motions. (Docs. 32, 35, 36, 39, 41, 43, 44, 51, 53, 54, 55, 57, 58, 59, 60, 61, 70, 71, 72, 73,

15

74, 75, 76, 81, 82, 85, 86, 87, 89, 90, 91, 92, 96, 97, 104, 105, 106, 107, 112, 113, 114, 116, 117, 119,

16

125, 126, 127, 128.) Plaintiff made multiple filings each week, and sometimes multiple in a day.

17

While this burdensome motion practice was underway, Defendants both responded to these

18

numerous filings and attempted to conduct discovery on the merits of this action. On January 12,

19

2018, Defendants served a notice of Deposition and Request for Production of Documents on Plaintiff.

20

(Wilson Decl. & Ex. A, Notice of Deposition, Doc. 197-2, 1-12.) On January 22, 2018, Plaintiff filed

21

an objection to the notice, refusing to provide the documents requested, and declaring in support that

22

his health prevented him from sitting through a deposition. (Doc. 136.) The parties met and

23

conferred, and agreed that Plaintiff’s deposition would take place on January 29, 2018, at the R.J.

24

Donovan Correctional Facility in San Diego, California, where Plaintiff was then housed. Defense

25

counsel was required to travel to the deposition, incurring hundreds of dollars in costs for airfare, car

26

rental and gasoline, mileage fees, and hotel accommodations, and attorney’s fees for preparation,

27

travel, and for attending the deposition. (Wilson Decl. ¶¶ 9-10; Feher Decl., Doc. 200-1, ¶ 8.)

28

Defendants also incurred costs for court reporter charges for the deposition. (Id.)
2

1

Defense counsel conducted Plaintiff’s deposition on the date scheduled. However, the

2

deposition only lasted a minute or a few minutes. Just before the deposition began, Plaintiff indicated

3

that he would only answer one question from each defense counsel. (Wilson Decl. ¶ 7; Feher Decl. ¶

4

5.) A certified deposition transcript submitted by Defendants shows that Plaintiff answered one

5

question put to him by the first defense attorney about how many times he had previously given sworn

6

testimony. Plaintiff then turned to the other defense attorney, stating “Next Question. Your turn.”

7

(Pl.’s Jan. 29, 2018 Depo., Doc. 197-2, 4:11-16.) Counsel objected and attempted to speak, and

8

Plaintiff then refused to proceed, stating, “We’re done, sir.” (Id. at 4:17-22.) When counsel asked if

9

Plaintiff was leaving, Plaintiff replied that he “don’t feel good” and “I can’t sit here and tolerate the

10

riff-raff and shenanigans.” (Id. at 4:23-5:1.) Plaintiff then stated that he would “be back tomorrow,”

11

and exited the deposition. (Id.)

12

Defendants submitted a declaration from a registered nurse at Plaintiff’s institution stating that

13

she met with Plaintiff after his deposition, and he refused to be treated. (Wallace Decl., Doc. 197.)

14

Instead, Plaintiff stated that he was “okay” and expressed no health complaints. (Id.) The nurse

15

further noted that Plaintiff appeared to be alert, oriented, and showed no signs of distress. (Id.)

16

Based on the foregoing, on March 5, 2018 Defendants Claussell, Depovic, and Marchak filed a

17

motion to compel Plaintiff’s attendance at his deposition and for sanctions, including terminating

18

sanctions, for Plaintiff’s refusal to participate in discovery. (Doc. 197.) Defendant Grewal filed a

19

joinder in that motion on March 6, 2018. (Doc. 200.)

20

During the time that this discovery dispute was unfolding, Plaintiff continued his practice of

21

filing redundant, baseless, and harassing motions. Plaintiff filed over 40 additional motions and other

22

filings during the brief period from the noticing of his deposition to the time that Defendants filed their

23

motion to compel and for sanctions. (Docs. 131, 132, 133, 134, 135, 136, 139, 140, 141, 142, 143,

24

144, 145, 150, 151, 153, 154, 155, 156, 157, 158, 159, 160, 170, 172, 173, 174, 178, 179, 180, 181,

25

182, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196.)

26

On April 2, 2018, the Court issued an order denying over 50 of Plaintiff’s then-pending

27

motions, and expressly warning Plaintiff that submitting additional baseless, harassing filings would

28

subject him to sanctions. (Doc. 266.) Shortly thereafter, on April 16, 2018, the Court issued an order
3

1

on 70 additional pending motions, the majority of which were filed by Plaintiff. (Doc. 287.) This

2

order also included a ruling on Defendants’ motion to compel Plaintiff’s attendance at his deposition

3

and for sanctions. (Id.) The Court found that Plaintiff willfully refused to be deposed, impeding this

4

litigation. Although it was a close question at that juncture in the case, the Court declined to

5

recommend sanctions, and instead ordered the parties to meet and confer and agree on a date for

6

Plaintiff’s deposition, to be taken on or before June 18, 2018. (Id. at 5.) Plaintiff was warned that any

7

continued failure to meaningfully cooperate in discovery, failure to obey a court order, or failure to

8

comply with the Federal Rules of Civil Procedure and the Local Rules, would result in the imposition

9

of sanctions. (Id.). The Court also amended the discovery and scheduling order to allow the parties a

10

reasonable amount of additional time to complete discovery. (Id. at 6) The Court again expressly

11

warned Plaintiff that the continued filing of duplicative, onerous, baseless filings would result in

12

sanctions, up to and including dismissal of this action. (Id. at 9, 11.)

13

On April 10, 2018, Defendant Grewal filed a motion to compel Plaintiff to provide responses

14

to interrogatories, (Doc. 279), and response to requests for production of documents, (Doc. 280).

15

Plaintiff’s responses to the interrogatories are comprised of a slew of meritless objections to

16

straightforward interrogatories requesting the facts that support his claim or the basis for his alleged

17

damages. (Doc. 279-2, Ex. B.) Plaintiff likewise responded with blanket, meritless objections to the

18

requests for documents, and failed to produce any responsive documents. (Doc. 280-d, Ex. B.)

19

Defense counsel’s attempts to meet and confer went unanswered. (Gordon Decl. in support of Mtn. to

20

Compel Resps. to Interrogs., Doc. 279-2, ¶ 6; Gordon Decl. in support of Mtn. to Compel Resps. to

21

Reqs. for Produc., Doc. 280-2, ¶ 6.)

22

On April 17, 2018, the Court again issued an order denying several more of Plaintiff’s baseless

23

and duplicative motions to strike, motions to compel, and motions for sanctions. (Doc. 295.) Plaintiff

24

then began filing objections to the Court’s orders, raising no new evidence or arguments, and lacking

25

any sufficient grounds for reconsideration of prior rulings. The Court overruled the first set of such

26

objections on April 23, 2018. (Doc. 300). The Court again issued an order denying two more of

27

Plaintiff’s meritless, repetitive motions to strike on April 24, 2018. (Doc. 307.) Despite these rulings

28

and repeated warnings, Plaintiff’s baseless filings continued almost daily.
4

On April 27, 2018, Plaintiff filed a motion for a protective order pursuant to Federal Rule of

1
2

Civil Procedure 26(c), with a declaration in support. (Doc. 316.) Plaintiff sought to either be excused

3

from being deposed, or to be given 14 days to complete his deposition, allowing him to maintain his

4

regular daily schedule while being deposed over a two-week period. (Id.) On May 4, 2018, the Court

5

denied Plaintiff’s request, finding that under the rules he is required to submit to a deposition, and that

6

his requests were excessive and unduly burdensome. (Doc. 320.) The Court reviewed Plaintiff’s

7

submissions concerning his health and other matters, and found that reasonable accommodations could

8

be made for Plaintiff’s health issues, meals, and bathroom breaks in the ordinary course of conducting

9

a single-day deposition. (Id.) Defendants were ordered to inform the Court within 14 days whether

10

the parties were able to come to an agreement and schedule Plaintiff’s second deposition, or whether

11

the Court should consider sanctions in this matter, including terminating sanctions. (Id.)
On May 4, 2018, Defendant Grewal served a re-notice of Plaintiff’s deposition. (Second

12
13

Wilson Decl., Doc. 326-4, ¶ 3 and Ex. A.) The date tentatively selected for Plaintiff’s deposition was

14

June 7, 2018. (Id.) On May 7, 2018, Defendants Clausell, Marchak, and Depovic served a notice of

15

joinder in Defendant Grewal’s re-notice of deposition. (Id. ¶ 4 and Ex. B.)
On May 11, 2018, Plaintiff filed an objection to Defendants re-noticing his deposition. (Doc.

16
17

322.) A few days later, on May 16, 2018, Plaintiff filed an objection to the Court’s May 4, 2018 order

18

denying his motion for a protective order. (Doc. 323.) In these filings, Plaintiff clarified that he in

19

fact had no intention of participating in his first deposition, and he continued to seek to be excused

20

from being deposed, or at a minimum to be allowed a deposition lasting 14 days. On May 17, 2018,

21

the Court again overruled Plaintiff’s objections, and warned him again that he is required to

22

meaningfully participate in discovery, including his deposition, as the plaintiff in his civil action.

23

(Doc. 324.) The Court again expressly warned Plaintiff that sanctions, up to dismissal of this action in

24

its entirety, would result from his repeated failure to cooperate in discovery and comply with the

25

court’s orders and the applicable rules. (Id.)
As noted above, on May 21, 2018, the Defendants filed the instant motion for terminating

26
27

sanctions against Plaintiff, which is now fully briefed.

28

///
5

1

The above summarizes merely part of the proceedings in this case. The docket currently stands

2

at 333 entries. Despite the Court’s repeated warnings and admonitions, currently several of Plaintiff’s

3

recently-filed, repetitive, baseless, harassing, improper motions to strike and meritless objections

4

remain pending. It is against this backdrop of Plaintiff’s needless multiplying of the proceedings,

5

wasted judicial resources, bad faith, harassment, and prejudice to the Defendants, discussed below,

6

that the Court issues these findings and recommendations.
Parties’ Arguments

7

B.

8

In Defendants’ motion and in declarations submitted in support, defense counsel explains that

9

they engaged in a conference call with Plaintiff on May 8, 2018, to meet and confer regarding the

10

scheduling of Plaintiff’s second deposition. (Second Wilson Decl. ¶ 5.) During the call, Plaintiff

11

again refused to be deposed. Notably, he also shouted and was argumentative during the call, and

12

used abusive, foul language against counsel and about the Court. This conduct mirrors similar

13

language in Plaintiff’s recent filings, including but not limited to references to the Court as “dirty,” a

14

“common criminal,” “pitiful,” “pathetic,” “despicable,” and inappropriate references to the Court as

15

“Barbie.” (Docs. 296, 302, 312, 325, 330.) Strikingly, Plaintiff also repeatedly states in those filings

16

that he cannot take the Court seriously, and that he has no intention of obeying any court orders and

17

will ignore them, and will ignore any attempts to sanction him. (Id.)
Based on Plaintiff’s abusive and bad faith litigation tactics, the history of this litigation, his

18
19

ignoring of numerous warnings and admonishments made by the Court, his failure to obey court

20

orders and the rules, and his refusal to meaningfully participating in discovery, depriving them of the

21

right to the fair adjudication of Plaintiff’s claim, Defendants seek terminating sanctions. Defendants

22

argue that the circumstances of this litigation make plain that Plaintiff’s conduct rises to the level of

23

willfulness, bad faith, and fault. Further, the factors to be weighed in considering terminating

24

sanctions are heavily in favor of termination in this case. These factors include Plaintiff’s delay of the

25

resolution of this action, the burden of Plaintiff’s tactics on the Court’s management of its docket,

26

prejudice to Defendants in the wasted costs and resources and inability to conduct discovery without

27

Plaintiff’s cooperation, and the lack of a viable alternative in less drastic sanctions.

28

///
6

Plaintiff’s opposition contains little substance, contends that Defendants’ reasons for seeking

1
2

sanctions are mere technicalities, and states that he believes he will fare better on appeal before the

3

Ninth Circuit Court of Appeals. Plaintiff further declares in support that he never agreed to be

4

deposed, is not obligated to be deposed, and refuses to do so.
In reply, Defendants assert that Plaintiff’s opposition reflects his lack of material opposition to

5
6

their request for sanctions, as it merely serves to confirm his derogatory, hostile, and long-standing

7

pattern of sanctionable conduct.

8

III.

9
10

Discussion
A.

Legal Standard

Broad sanctions may be imposed against a person or party for failure to obey a prior court

11

order compelling discovery. Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that if a

12

party fails to obey an order to provide or permit discovery, a court may issue further just orders, which

13

may include prohibiting the disobedient party from supporting or opposing designated claims or

14

defenses, or from introducing designated matters in evidence. Fed. R. Civ. P. 37(b)(2)(A). The Court

15

also may dismiss the action or proceeding in whole or in part. Id. Dismissal and default are such

16

drastic remedies, they may be ordered only in extreme circumstances—i.e., willful disobedience or

17

bad faith. In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996). Even a single willful violation may

18

suffice depending on the circumstances. Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1056

19

(9th Cir. 1998) (dishonest concealment of critical evidence justified dismissal).

20

Further, the Court may order sanctions against a party for failure, after being served with

21

proper notice, to appear for that person’s deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Such sanctions

22

may include prohibiting the disobedient party from supporting or opposing designated claims or

23

defenses, or from introducing designated matters in evidence. Fed. R. Civ. P. 37(b)(2)(A). The Court

24

also may dismiss the action or proceeding in whole or in part. Id.

25

Additionally, Local Rule 110 provides that “[f]ailure . . . of a party to comply . . . with any

26

order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the

27

inherent power of the Court.” District courts have the inherent power to control their dockets and “[i]n

28

the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.”
7

1

Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). Terminating sanctions may be warranted

2

where “discovery violations threaten to interfere with the rightful decision of the case.” Conn. Gen.

3

Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007).

4
5
6

B.

The Court Finds that Plaintiff has Acted in Bad Faith
1.

Plaintiff’s Litigation Tactics and Refusal To Cooperate in Discovery

This action has been pending since July 2011, and Plaintiff shows little interest in

7

expeditiously complying with this Court’s discovery orders or fulfilling his discovery obligations. The

8

original discovery period in this action opened on August 10, 2017. (Doc. 27.) Right away, Plaintiff

9

began a pattern of filing numerous onerous, baseless motions, delaying this case, and avoiding his

10

discovery responsibilities. Among his earliest motions was a motion to amend his complaint after

11

having already been granted leave to amend on two previous occasions, where he raised no new

12

allegations or reasons to seek leave to amend yet again. (Doc. 256.) As Defendants responded to

13

these filings, Plaintiff moved to strike each opposition and response. (See, e.g., Docs. 41, 58, 59,

14

73,75, 76, 86, 91, 94, 95, 106, 107, 112, 116, 117, 119, 125, 127, 128.) Plaintiff also made numerous

15

repetitive and duplicative motions, beginning a cycle of attempts to respond and motions to strike such

16

responses, and filling the docket with numerous meritless matters. As noted above, despite repeated

17

express warnings to cease these improper litigation tactics, Plaintiff’s near-daily filings continued, and

18

some of the more recently-filed of such motions remain pending. (See, e.g., Docs. 297, 303, 304, 305,

19

306, 309, 310, 311, 312, 313, 314, 315, 317, 318.)

20

Defendants have also noticed Plaintiff for his deposition twice, and Plaintiff has either failed to

21

cooperate or refused to appear. Moreover, Plaintiff has admitted that he did not intend to cooperate in

22

his first deposition, but let Defendants incur significant expenses for their counsel to prepare for, travel

23

to, and attend the deposition. Plaintiff has also filed multiple motions attempting to avoid sitting for a

24

deposition in this matter, requiring the Court to expend significant resources addressing such motions

25

along with his other numerous filings. Plaintiff has also refused to provide substantive written

26

discovery responses in this action or produce documents, responding only with objections.

27
28

Plaintiff’s discovery obligation under the Federal Rules of Civil Procedure does not permit him
to abdicate his responsibility to respond to properly propounded and pending discovery or to appear
8

1

for a properly noticed deposition. In addition, Plaintiff’s pro se status does not excuse intentional non-

2

compliance with discovery rules and court orders. See Lindstedt v. City of Granby, 238 F.3d 933, 937

3

(8th Cir. 2000) (affirming sanction of dismissal, holding that “[a] pro se litigant is bound by the

4

litigation rules as is a lawyer, particularly here with the fulfilling of simple requirements of discovery);

5

see also Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (holding that district court could not

6

decline to impose any sanction for violation of Fed. R. Civ. P. 11 simply because plaintiff was

7

proceeding pro se).
Plaintiff has known since at least the Court’s issuance of the initial discovery and scheduling

8
9

order on August 10, 2017, that he would be required to appear and cooperate in a deposition. (Doc. 27

10

¶ 3 (“Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant may depose Plaintiff and any

11

other witness confined in a prison upon condition that, at least fourteen (14) days before such a

12

deposition, Defendant serves all parties with the notice required by Federal Rule of Civil Procedure

13

30(b)(1).”).) At his first deposition on January 29, 2018, Plaintiff willfully refused to be deposed,

14

impeding this litigation. (See Doc. 287, at 5-6.) On April 2, 2018, the Court granted Defendants’

15

motion to compel Plaintiff’s attendance at a second deposition, and required that he sit for that

16

deposition on or before June 18, 2018. (Id.) Although the Court declined to impose sanctions at that

17

juncture, it expressly warned Plaintiff that his continued failure to cooperate in discovery, and any

18

failure to appear and sit for his deposition, would result in findings and recommendations

19

recommending that this action be terminated. (Id.)
Following this order, Plaintiff repeatedly filed motions and objections to being deposed. The

20
21

Court issued no less than three orders denying these requests or overruling these objections, and

22

reminding Plaintiff that he was required to cooperate in discovery—on May 7, 2018, May 9, 2018, and

23

May 17, 2018—yet Plaintiff repeatedly refused to appear and submit to examination by deposition.

24

Up through his opposition to the current motion for sanctions, he remains steadfast in that refusal.

25

(See Pl.’s Opp’n, Doc. 330, at 4 (“Plaintiff never agreed to be deposed. For he is NOT obligated to do

26

so.”) (emphasis in original).) The above-described conduct constitutes willful discovery disobedience

27

warranting terminating sanctions. See Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993).

28

///
9

2.

1
2

The Court Rejects Plaintiff’s Excuses for Refusing to Comply

Throughout this action, Plaintiff has filed numerous motions asserting that he is unable to

3

litigate this action or conduct discovery, primarily due to health concerns and other reasons. On these

4

occasions, the Court considered the full docket, and Plaintiff’s many submissions regarding his health

5

and other matters. The Court repeatedly found that Plaintiff’s pro se status, incarceration, and

6

documented health issues did not prevent him from actively litigating this case, and would not prevent

7

him from participating in discovery and being deposed. (Docs. 23, 56, 287, 320, 321, 324, 329.)

8

Moreover, as noted above the Court initially declined to sanction Plaintiff and allowed additional time

9

for the parties to meet and confer and agree to a second deposition with adequate breaks and

10
11

accommodations for his health issues.
Plaintiff also initially asserted that he failed to cooperate in his first deposition due to health

12

issues, but there was no indication in the record that he requested any break or that his health

13

prevented him from being deposed. Instead his filings and conducts show an unreasonable and willful

14

refusal to appear and cooperate in discovery in this case. Further, Plaintiff’s conduct has been

15

characterized by defiance, harassment, and a lack of respect for the Court, the parties, and counsel in

16

this case. Abusive, foul language and disrespectful conduct cannot be tolerated, and Plaintiff has

17

stated that he has no intention of obeying the court’s orders and no respect for the judicial process.

18

(See, e.g., Pl.’s April 19, 2018 Objs., Doc. 296, at 3 (“. . . this judge . . . is a disgrace, cannot be taken

19

seriously . . . and plaintiff will ignore any and all sanctions, orders or otherwise ruling form this dirty

20

judg[e] who is nothing more than – a common [criminal].”); see also Pl.’s April 23, 2018 Objs., Doc.

21

302, at 3 (“The plaintiff cannot and will not take this judge serious, even if, he eventually wins this

22

case.”).)

23
24

In short, the Court finds that Plaintiff’s conduct has been dilatory, obstructive, and constitutes
willful and bad faith disregard for the discovery process and for the Court’s orders.

25

C.

Terminating Sanctions are Appropriate

26

In determining whether to dismiss an action, the Court must consider several factors: (1) the

27

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

28

the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
10

1

merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423

2

(9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). The amount of prejudice

3

resulting from the discovery violations and the availability of less drastic sanctions are said to be “key

4

factors.” Wanderer v. Johnston, 910 F2d 652, 656 (9th Cir. 1990).

5

Here, the first two factors, the public’s interest in expeditious resolution of litigation and the

6

Court’s need to manage its docket, weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191

7

F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation always

8

favors dismissal.”). This case has been pending since 2014. It currently has 333 docket entries in

9

what should be a relatively straightforward deliberate indifference claim. But even with so many

10

docket entries, the case is mired in a longstanding discovery dispute which should have been resolved

11

by Plaintiff’s fully compliant answers and participation in his deposition. Defendants are entitled to

12

know the facts upon which Plaintiff bases his claims and the documents which support his claims.

13

Instead, Plaintiff has engaged in dilatory and obstructionist tactics, and this case has become an undue

14

consumption and waste of limited judicial resources to manage and address Plaintiff’s filings.

15

Plaintiff was repeatedly warned that that his failure to timely comply with this Court’s orders, the

16

applicable rules, and his failure to meaningfully participate in discovery would lead to sanctions, up to

17

and including the dismissal of this action. Nevertheless, Plaintiff refuses to comply with any of the

18

court’s orders and refuses to be deposed or respond to discovery requests.

19

This Court has not lost sight of the strong interest in resolving cases on the merits. But even

20

this strong interest in deciding cases on the merits cannot override a litigant’s conduct in refusing to

21

abide by court orders, insisting on multiplying the proceedings, and wasting judicial resources. As

22

detailed throughout these findings and recommendations, and as is located throughout the docket in

23

the case, the Court has devoted inordinate amounts of time to deal with what should be limited-in-

24

scope claims.

25

The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal. There is a

26

rebuttable presumption of prejudice to a defendant that arises when a plaintiff unreasonably delays

27

litigation. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). “To prove prejudice, a defendant must

28

establish that plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to
11

1

interfere with the rightful decision of the case.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

2

2002) (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987). The risk of prejudice is

3

considered in relation to plaintiff’s reason for defaulting. Id. (citing Yourish v. Cal. Amplifier, 191

4

F.3d 983, 991 (9th Cir. 1999)).

5

Plaintiff’s failure to respond to written discovery requests and to be deposed in this action

6

substantially hinders Defendants’ ability to investigate and defend against his allegations. This is

7

particularly true due to the time spent in discovery disputes in this case, caused by Plaintiff’s

8

unreasonable conduct, and the time that has passed since the events in this case transpired. In the over

9

ten months since discovery was first opened in this case, Defendants are no further along in learning

10

the evidence which supports Plaintiff’s claims than when the case was filed, and no further along in

11

preparing the dispositive motions they seek to file. A deposition is necessary for Defendants to

12

question Plaintiff with respect to the events alleged in the complaint, the circumstances surrounding

13

the events alleged in the complaint, any injuries received, and what damages he is claiming. Instead,

14

due to Plaintiff's conduct, Defendants have been forced to expend time and resources attempting to

15

secure his cooperation by filing motions (including the instant motion for sanctions). The inability to

16

fully defend the case or to move forward with any potential dispositive motions, coupled with the

17

delay, is prejudicial to Defendants.

18

The fourth factor—public policy favoring disposition of cases on their merits—is greatly

19

outweighed by the factors in favor of dismissal discussed herein. When a case has stalled or is

20

unreasonably delayed by a party’s failure to comply with deadlines and discovery obligations, the case

21

cannot move toward resolution on the merits. Thus, the fourth factor—public policy favoring

22

disposition of cases on their merits—is not compelling when it is thwarted by the Plaintiff’s dilatory

23

and evasive conduct.

24

Next, the Court has considered lesser sanctions, but no lesser sanction is warranted.

25

Evidentiary sanctions would be ineffective, as Plaintiff would still be able to testify to information that

26

he has withheld and the Court would have no practical way of excluding such testimony. Monetary

27

sanctions are worthless because of Plaintiff’s in forma pauperis status. He would likely be unable to

28

pay any monetary sanctions, making such sanctions of little use. Most importantly, the Court
12

1

repeatedly admonished Plaintiff about his discovery obligations, and issued several warnings about the

2

consequences of continued noncompliance, but Plaintiff has indicated no intent to comply with any

3

rulings or orders by the Court. The Ninth Circuit has explained that “[a] district court need not

4

exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible

5

and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986). Here, the

6

Court finds that there are no other, lesser sanctions that would be satisfactory or effective.
Finally, Rule 37 requires “the party failing to act . . . to pay the reasonable expenses, including

7
8

attorney’s fees, caused by the failure, unless the failure was substantially justified or other

9

circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). As noted previously,

10

Plaintiff is proceeding in forma pauperis in this action, which makes it unlikely that he would be able

11

to pay any monetary sanction. Thus, the imposition of such a sanction would be unjust, and no

12

monetary sanctions will be issued.
For these reasons, the undersigned finds that terminating sanctions are justified and

13
14

recommends granting Defendants’ motion.

15

IV.

Conclusion and Recommendations

16

Accordingly, the Court HEREBY RECOMMENDS as follows:

17

1.

Defendants’ motion for terminating sanctions, (Doc. 326), be granted, and this action

18

dismissed for Plaintiff’s failure to obey a court order and failure to meaningfully

19

cooperate in discovery, including his refusal to be deposed. See Fed. R. Civ. P. 16(f);

20

Fed. R. Civ. P. 37(b)(2)(A)(v); Fed. R. Civ. P. 41(b); L.R. 110; and

21

2.

All pending motions and objections be denied and overruled as moot.

22

These Findings and Recommendation will be submitted to the United States District Judge

23

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

24

days after being served with these Findings and Recommendation, the parties may file written

25

objections with the court. The document should be captioned “Objections to Magistrate Judge’s

26

Findings and Recommendation.”

27

///

28

///
13

1

The parties are advised that failure to file objections within the specified time may result in the

2

waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler,

3

772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

4
5
6
7

IT IS SO ORDERED.
Dated:

/s/ Barbara

June 18, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14