Kirkelie v. Thissell
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action with Prejudice, signed by Magistrate Judge Stanley A. Boone on 3/8/18. Referred to Judge Drozd. Objections to F&R Due Within 21-Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JONATHAN KIRKELIE,
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Plaintiff,
v.
C.O. THISSELL, et al.,
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Defendant.
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Case No.: 1:15-cv-00735-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE
[ECF No. 65]
Plaintiff Jonathan Kirkelie is a prisoner in the custody of the Federal Bureau of Prisons
(“BOP”).
Currently before the Court is Defendants’ motion for terminating sanctions, filed on February
13, 2018. (ECF No. 65.)
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I.
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RELEVANT HISTORY
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Plaintiff filed the instant action on May 15, 2015. On January 25, 2016, the Court screened
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plaintiff’s second amended complaint and found that Plaintiff stated a cognizable Fourth and Eighth
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Amendment claim against defendant Thissell and a cognizable Eighth Amendment claim for failure to
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protect against defendants Smith, Madttavi, Masterson, Knoll, and Does 1 and 2. (Doc. No. 20.) The
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Court dismissed all other claims and defendants from the action for failure to state a cognizable claim
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for relief. (Id.) The Court indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the
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fact that plaintiff had consented to magistrate judge jurisdiction and no other parties had yet appeared.
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(Id.)
On August 5, 2016, Defendants Knoll, Mahdavi, Masterson, Smith and Thissell filed a motion
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to dismiss or, in the alternative, motion for summary judgment.
Plaintiff filed an opposition on November 17, 2016, and Defendants filed a timely reply on
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November 29, 2016.
On February 2, 2017, the undersigned issued Findings and Recommendation recommending
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that Defendants’ motion for summary judgment be granted as to Defendant Masterson only and denied
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as to all other Defendants. The Findings and Recommendations were adopted in full on March 29,
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2017, and judgment was entered in favor of Defendant Masterson only.
Defendants filed a notice of appeal to the Ninth Circuit Court of Appeals, but it was voluntarily
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dismissed on August 28, 2017.
On August 31, 2017, the Court directed Defendants Knoll, Mahdavi, Smith and Thissell to file
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a further response to Plaintiff’s second amended complaint within ten days.
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On September 8, 2017, Defendants filed an answer to the second amended complaint.
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On September 13, 2017, the Court issued the discovery and scheduling order.
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On December 7, 2017, Defendants filed a motion to compel Plaintiff to respond to discovery or
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dismiss the case for failure to prosecute. Plaintiff did not file an opposition.
On January 9, 2018, the Court granted Defendants’ motion to compel and directed Plaintiff to
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file a response to Defendants’ discovery requests within thirty days from the date of service of the
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order or the Court would recommend dismissal of the action, with prejudice.
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As previously stated, on February 13, 2018, Defendants filed an ex parte motion for
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terminating sanctions for Plaintiff’s failure to comply with the Court’s January 9, 2018, namely, to
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serve responses to the outstanding discovery requests. Plaintiff has not filed a response to Defendants’
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motion and the time to do so has expired. Accordingly, Defendants’ motion is deemed submitted for
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review without oral argument. Local Rule 230(l).
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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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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 May 2015. See Yourish v. California Amplifier, 191 F.3d 983, 990
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(9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors dismissal.”)
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Further, the Eastern District of California is one of the busiest federal jurisdictions in the United States
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and its District Judges carry the heaviest caseloads in the nation, the Court’s interest in managing its
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docket weighs in favor of terminating the action. See, e.g., Gonzales v. Mills, No. 1:09-cv-1549 AWI
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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 production of documents, and
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Plaintiff has been given ample time to fully respond to them, seek an extension of time to respond, or
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explain why non-compliance is not possible. Plaintiff has not done any of these, and Defendants were
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forced to file a motion to compel, which was granted and Plaintiff disobeyed the Court’s order to
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respond to discovery. “[A] case that is stalled or unreasonably delayed by a party’s failure to comply
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with deadlines and discovery obligations cannot move forward toward resolution on the merits. Thus,
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we have also recognized that this factor ‘lends little support’ to a party whose responsibility it is to
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move a case toward disposition on the merits but whose conduct impedes progress in that direction.”
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(PPA) Prods. Liab. Litig., 460 F.3d at 1228. Thus, the fourth factor weighs in favor of dismissal of the
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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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January 9, 2018, order granting Defendants’ motion to compel, and the Court’s order specifically
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advised Plaintiff that failure to comply with the order will result in a recommendation for dismissal of
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the action with prejudice. (ECF No. 64.) As evidenced by the record in this case, it is apparent that
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Plaintiff has abandoned this litigation and it is reasonable to dismiss the action, in lieu of lesser
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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 January
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9, 2018, order (despite the warning of dismissal for failure to comply), as well as Defendants’
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discovery requests and letters, and it seems clear that Plaintiff has abandoned this action and dismissal,
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with prejudice, is warranted. Fed. R. Civ. P. 41(b); Pataglunan v. Galaza, 291 F.3d 639, 640-643 (9th
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Cir. 2002) (affirming district court’s sua sponte dismissal of habeas corpus petition with prejudice “for
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failure to prosecute and failure to comply with a court order”); see also Morris v. Morgan Stanley &
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Co., 942 F.2d 648, 652 (9th Cir. 1991) (it is the responsibility of the moving party to prosecute an
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action at a reasonable pace and to refrain from dilatory and evasive tactics, or actions that
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unreasonably slow (or stall) the pace of the litigation).
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III.
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RECOMMENDATIONS
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 and for failure to obey
a court order.
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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 fourteen (14)
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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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March 8, 2018
UNITED STATES MAGISTRATE JUDGE
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