Harris v. German et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this Case be Dismissed Without Prejudice Based on Plaintiff's Falsehood, signed by Magistrate Judge Gary S. Austin on 11/02/2022. Referred to Judge De Alba. Objections to F&R due within Fourteen-Days. (Maldonado, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVONTE B. HARRIS,
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Plaintiff,
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vs.
GERMAN, et al.,
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Defendants.
1:15-cv-01462-ADA-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED WITHOUT PREJUDICE
BASED ON PLAINTIFF’S FALSEHOOD
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS
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I.
PROCEDURAL HISTORY
Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. § 1983.) This case now proceeds with
Plaintiff’s First Amended Complaint filed on March 14, 2016, against defendants Correctional
Officers (C/O) Humberto German, Philip Holguin, and R. Burnitzki (collectively, “Defendants”),
for use of excessive force in violation of the Eighth Amendment; and against defendant C/O
Philip Holguin for retaliation in violation of the First Amendment.1 (ECF No. 8.)
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On January 17, 2018, the court dismissed all other claims and defendants from this
action, based on Plaintiff’s failure to state a claim. (ECF No. 31.)
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II.
BACKGROUND
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On August 5, 2022, the Court issued an order to show cause, requiring Plaintiff to respond
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within 20 days showing cause why this case should not be dismissed for his failure to file his
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pretrial statement. (ECF No. 114.) On August 31, 2022, Plaintiff filed a motion for a 14-day
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extension of time to respond to the order to show cause. (ECF No. 117.) Plaintiff declared, under
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penalty of perjury, that he was not able to access the law library at the prison before the deadline
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to respond to the order to show cause. (Declaration of Devonte B. Harris, ECF No. 117 at 2 ¶
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2.)
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On September 2, 2022, Defendants filed the declaration of P. Williams, Litigation
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Coordinator for Corcoran State Prison, who provided evidence that contrary to Plaintiff’s
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declaration, Plaintiff had been to the law library nine times between June 9, 2022 and August 15,
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2022, on the following dates:
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a.
June 9, 2022;
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b.
June 16, 2022;
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c.
June 23 2022;
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d.
June 27, 2022;
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e.
July 7, 2022;
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f.
July 11, 2022;
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g.
July 19, 2022;
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h.
July 26, 2022; and
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i.
August 15, 2022.
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(Declaration of P. Williams, ECF No. 118 at 2 ¶ 4.) Thus, evidence shows that Plaintiff attended
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the law library on August 15, 2022, which was well before the deadline for Plaintiff to respond
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to the Court’s order to show cause. (Id. at 17.) This evidence is contrary to Plaintiff’s declaration,
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in which Plaintiff declares, under penalty of perjury, that he was not able to access the library
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before the deadline to respond to the order to show cause.
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On September 14, 2022, the Court issued another order to show cause, requiring Plaintiff
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to respond to the order within 20 days, showing cause why this case should not be dismissed
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based on the apparent falsehood written by Plaintiff in his declaration. (ECF No. 120.) On
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October 7, 2022, Plaintiff responded to the order to show cause. (ECF No. 121.) Plaintiff
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contends that “[t]he Court appears to be misled by the defendant conflating the reason I requested
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an extension with the reason I did not file a pretrial statement.” (Id. at 4 ¶ 12.) Plaintiff called
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Defendants “impetuous” for providing the Court with evidence demonstrating his false claims
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and attempted to explain his sworn statements. (Id. at 4-5.)
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On October 11, 2022, Defendants replied to Plaintiff’s response. (ECF No. 122.)
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Defendants argue that Plaintiff fails to show cause why this case should not be dismissed as he
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did not comply with the Court’s order to file a pretrial statement, he has filed false declarations,
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and there is no indication that he will comply with future Court orders. Defendants show that in
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the Court’s Second Scheduling Order issued on March 3, 2021, (ECF No. 110 at 5), the Court
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made explicit the sanctions which could be imposed should the parties fail to file pretrial
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statements: “The parties are advised that failure to file pretrial statements as required by this
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order may result in the imposition of sanctions, which may include dismissal of the action or
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entry of default,” (Id). By October 11, 2022, the date of Defendants’ reply, Plaintiff had not filed
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his pretrial statement.2
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Defendants also argue that Plaintiff has not shown cause why his case should not be
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dismissed for filing a false declaration. Defendants argue that the statement in Plaintiff’s
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declaration that, “I have not been able to access library before deadline,” is demonstrably false,
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which Plaintiff conceded, admitting that he accessed the library on August 15, 2022, before the
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deadline to respond to the order to show cause. (Id.)
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III.
DISCUSSION
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Plaintiff has clarified that on August 31, 2022, he requested an extension of time to file a
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response to the Court’s order to show cause, not to file his pretrial statement. However, Plaintiff
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has not adequately explained why he declared that he was unable to access the law library at the
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prison before the deadline to respond to the order to show cause, when evidence shows that he
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Plaintiff filed his pretrial statement on October 14, 2022. (ECF No. 123.)
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attended the law library on August 15, 2022.
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misinterpreted, and he explains as follows:
Plaintiff contends that his words were
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“The court issued the first order to show cause on 8/4/22 and only one of
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the nine dates of library access cited by defendants occurred thereafter on 8/15/22.
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This was 9 days before the deadline for my order to show cause. Prisoners are
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allowed to access the library for 4 hours per week within 30 days of a verified
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legal deadline. CCR § 3123(h). Therefore, I should have accessed the library the
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week of my deadline from 8/22/22 to 8/24/22. I did not. Therefore, I declared
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under penalty of perjury that I hadn’t accessed the library before my deadline. I
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did not declare under penalty of perjury that I hadn’t accessed the library between
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8/4/22 and 8/24/22! If a parent directs their child to brush their teeth before
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bedtime, it is unlikely they were referring to after breakfast. So to the extent my
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words were misinterpreted, the Court now has clarification from the source.”
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(ECF No. 121 ¶¶ 13-20.)
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Plaintiff’s contention that the time period “before his August 24th deadline” does not
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include August 15th is illogical and fails to persuade the Court that his apparent falsehood was
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not meant to mislead the Court. Moreover, Plaintiff’s argument that he failed to file his pretrial
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statement until October 14, 2022, because he was busy litigating his other cases and failed to
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keep track of his deadlines in this case is not well taken. Even after the Court made Plaintiff
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aware of his missed deadline, he did not file the pretrial statement until more than two months
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later. Plaintiff’s delay caused the Court to vacate the pretrial conference scheduled for September
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26, 2022.
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The court has authority to control and manage matters such as this case pending before
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it, and Plaintiff's pro se status does not excuse him from conforming to acceptable standards in
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approaching the court. Moody v. Inch, No. 3:20cv5420/LAC/EMT, 2020 U.S.Dist.LEXIS
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102937, at *6-7 (N.D.Fla. May 11, 2020). If the court cannot rely on the statements or responses
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made by the parties, the quality of justice is threatened. Id. The court will not tolerate false
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responses or statements in any pleading or motion filed before it. Id. Here, Plaintiff filed a
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declaration under penalty of perjury with false and misleading information. If Plaintiff suffered
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no penalty for his untruthful response, there would be little or no disincentive for him to use
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falsehoods in the future. Furthermore, if word spread around the prisons that false information
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was tolerated by the court, the court might be confronted with widespread abuse from its many
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prisoner litigants. Therefore, this court should not allow Plaintiff’s false response to go
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unpunished.
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The court recommends that an appropriate sanction for Plaintiff’s abuse of the judicial
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process in not providing the court with true factual statements or responses, is to dismiss this
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cause without prejudice. See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (dismissal of
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an action without prejudice as a sanction for a pro se prisoner’s failure to disclose the existence
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of a prior lawsuit, where that prisoner was under penalty of perjury, is proper); Spires, Case No.
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3:00cv249/RH, 2000 U.S.Dist.LEXIS 23224, Order (N.D. Fla. Oct. 27, 2000) (“Dismissal
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without prejudice is not too severe a sanction under these circumstances.”). In general, a
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dismissal without prejudice does not amount to an abuse of discretion.
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U.S.Dist.LEXIS 102937, at *3-4; see Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499
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(11th Cir. 1983) (holding that dismissal without prejudice, even for a minor violation of a court
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order, was not an abuse of discretion).
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Plaintiff also should be warned that such false responses, filed herein or filed in the future,
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will not be ignored and may result in more severe and long-term sanctions.
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IV.
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Moody, 2020
RECOMMENDATIONS AND CONCLUSION
Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that this case
be dismissed without prejudice, based on Plaintiff’s apparent falsehood to the Court.
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These findings and recommendations are 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
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(14) days after the date of service of these findings and recommendations, any party may file
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written objections with the court.
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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
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and filed within fourteen (14) days after the date the objections are filed. The parties are advised
Such a document should be captioned “Objections to
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that failure to file objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
November 2, 2022
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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