Jones v. Arnette, et al.

Filing 121

ORDER DENYING 118 Plaintiff's Motion for Sanctions, signed by Magistrate Judge Gary S. Austin on 1/31/2022. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMY JONES,

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Plaintiff,

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vs.

1:16-cv-01212-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR SANCTIONS
(ECF No. 118.)

ARNETTE, et al.,

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Defendants.

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I.

BACKGROUND

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Jeremy Jones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12132. This case now proceeds with Plaintiff’s ADA claims against

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defendants Vasquez, Keener, Gonzalez, Flores, Arnett,1 Zamora, and Lopez; Plaintiff’s Eighth

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Amendment Claims against defendants Vasquez, Keener And Gonzalez; and Plaintiff’s Due

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Process Claims against defendants Vasquez, Keener, and Gonzalez.

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Sued as Arnette.
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Defendants Vasquez and Lopez remain unserved. On February 8, 2021, summonses were

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returned unexecuted by the United States Marshal as to Defendants Vasquez and Lopez with the

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following notations: “Returning process unexecuted due to not enough information to identify

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Vasquez” and “Returning process unexecuted due to not enough information to identify Lopez.”

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(ECF No. 69.)

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On March 24, 2021, the court issued an order to show cause, requiring Plaintiff to respond

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and show cause why defendants Lopez and Vasquez should not be dismissed for Plaintiff’s

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failure to provide sufficient information to effect service. (ECF No. 72.) On June 23, 2021,

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Plaintiff responded that defendants Lopez and Vasquez should not be dismissed because “all

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avenues to serve them has [sic] yet to be explored.” (Id. at 90:20-21.) Plaintiff indicated that he

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had made a request through discovery to produce service information, and he had an opportunity

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to speak to the litigations coordinator directly.

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On July 1, 2021, Defendants’ request to modify the scheduling order was granted and the

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discovery deadline was extended to August 5, 2021. (ECF No. 93.) On August 2, 2021, Plaintiff

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filed a motion to compel (ECF No. 97), and on October 18, 2021, the motion was granted in part

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(ECF No. 111). The court ordered Defendants to respond to Plaintiff’s Request for Production

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No. 3, which sought “adequate information in order to properly serve Defendants Vasquez and

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Lopez,” within thirty days. (ECF No. 111 at 5:3-5.)

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On December 3, 2021, the court issued an order requiring Plaintiff to provide information

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sufficient to identify defendants Vasquez and Lopez and locate them for service of process,

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within twenty-one days. (ECF No. 117.)

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On December 20, 2021, Plaintiff filed a motion for sanctions. (ECF No. 118.) On

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January 10, 2022, Defendants filed an opposition to the motion. (ECF No. 120.) Plaintiff’s

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motion for sanctions is now before the court. Local Rule 230(l).

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II.

DISCOVERY SANCTIONS

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Failure to cooperate in discovery may result in the imposition of sanctions, including, but

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not limited to, a recommendation that this action be dismissed. See Fed. R. Civ. P. 37(b)(2)(A)

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(sanctions may be imposed for failure to comply with a discovery order); Fed. R. Civ. P. 37(d)(3)
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(sanctions may be imposed for failure to serve answers to interrogatories or to respond to request

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for production of documents). The Federal Rules specifically contemplate dismissal as a

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potential sanction for a party’s failure to comply with an order compelling discovery, Fed. R.

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Civ. P. 37(b)(2)(A)(v), but “[o]nly ‘willfulness, bad faith, and fault’ justify terminating

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sanctions,” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th

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Cir. 2007) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)).

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Plaintiff contends that nearly sixty days have passed and Defendants have not complied

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with this court’s October 18, 2021 order compelling Defendants to respond to Plaintiff’s

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discovery requests. Specifically, Plaintiff argues that Defendants failed to provide information

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to enable service of process upon Defendants Vasquez and Lopez. (ECF No. 111.) Plaintiff

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asserts that Defendants have not notified him that the two remaining defendants have been served

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or that their addresses were provided to the Marshals Service. Plaintiff surmises that because he

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is incarcerated it would be illegal to provide him with defendants’ actual addresses. As sanctions

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for Defendants’ noncompliance, Plaintiff requests an entry of judgment in favor of Plaintiff, or

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at the very least, $20,000.00.

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Defendants filed an opposition to Plaintiff’s request indicating that they complied with

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the court’s October 18, 2021 order before the order was issued by responding to Plaintiff’s

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Request for Production of Documents No. 3, which sought “adequate information in order to

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properly serve Defendants Vasquez and Lopez.” Defense counsel Janet N. Chen declares that

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on September 1, 2021, her office served Defendants’ Responses to Plaintiff’s Second Set of

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Requests for Production of Documents, and on November 15, 2021, after the Court issued its

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October 18, 2021 order, she sent Plaintiff a letter informing him that Defendants had complied

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with the court’s order having properly served responses on September 1, 2021. (Chen Decl.,

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ECF No. 120 at 5 ¶¶ 4, 5 and Exhs. A & B.)

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Plaintiff’s Request No. 3 and Defendants’ Response, dated September 1, 2021, follow.
PLAINTIFF’S REQUEST FOR PRODUCTION NO. 3:
“Produce adequate information in order to properly serve Defendants Vasquez and
Lopez.”
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DEFENDANTS’ RESPONSE TO REQUEST FOR PRODUCTION NO. 3:

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Defendants object to this request on the grounds it is vague and ambiguous as to

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“adequate information” and “properly serve.” The request is also not the proper subject of a

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request for production of documents as it seeks “information” as opposed to documents or things.

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Defendants further object because Plaintiff does [not] specify the documents or types of

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documents that he seeks. Defendants further object on the grounds that Plaintiff, who is bringing

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this lawsuit, is in the best position to provide information regarding the identities of the

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individuals he is suing. Defendants further object on the grounds that the request calls for

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speculation. Without waiving any objection, Defendants respond as follows:

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Defendants argue that they do not know who Plaintiff is referring to by “Defendants

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Vasquez and Lopez” and are therefore unable to provide information to “properly” serve them.

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Vasquez and Lopez are both common last names. Furthermore, Defendants do not recall the

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events alleged in the complaint from 2012 because nothing significant occurred (no incident

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report was generated as a result of the alleged events).

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The only information available to Defendants regarding Vasquez and Lopez are contained

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in Plaintiff’s complaint and the 602 appeal (log no. COR-12-05951) that Plaintiff submitted

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regarding the claims in his complaint. A copy of the 602 appeal and the related responses is

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produced in response to this document request.

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In the 602 appeal, Plaintiff complained that Correctional Officer (CO) Arnett, CO Flores,

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CO Lopez, CO Zamora, CO, Vasquez, Correctional Sergeant Gonzales, and Correctional

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Lieutenant Keener discriminated against him and denied him medical treatment. In the appeal

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Plaintiff complained that he had a medical emergency in the visiting room on August 11, 2012.

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In the appeal, Plaintiff complained that he was taken out by medical staff and that “these C/Os”

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denied him medical treatment when they wheeled him back to his cell and CO Flores dumped

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him on the floor. In the appeal, Plaintiff complained that he tried to see his parents in visiting the

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next day, but CO Arnett “cut up” his ID and threw it out the window of the program office. In

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the appeal, Plaintiff complained that CO Lopez and CO Zamora told him he couldn’t use his bed

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card to go to visiting. In the appeal, Plaintiff complained that he was “then abruptly moved out
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of the only building that was medically-equipped for [him] to shower and banned by CO Vasquez

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or Velasquez the buildings tower C/O that somehow got the move stopped when it was authorized

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by medical.” Section D of the appeal provides additional information, provided that Plaintiff, that

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he was moved from “5 block” to “1 block” and that Vasquez allegedly “killed” the move.

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Using information contained in the 602 appeal and related response—both of which are

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available to Plaintiff [as] it is his 602 appeal—Defendants are only able to provide the following

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information about Vasquez and Lopez:
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Vasquez (or Velasquez) was a Correctional Officer employed at Corcoran State
Prison on August 11, 2012, and was assigned to the Facility where Plaintiff was
housed, and was a “tower cop.”

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•

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Lopez was a Correctional Officer employed at Corcoran State Prison on August

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11, 2012, and was possibly assigned to the Facility where Plaintiff was housed or

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visiting. After a reasonable and diligent search, which included reviewing

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available FLSAs from 2012, Defendants were unable to locate any other

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documents or information responsive to this request.

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(ECF No. 120 at 20-21.)

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III.

DISCUSSION

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Defendants appear to have fully responded to Plaintiff’s Request for Production of

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Documents No. 3, and the court finds no willfulness, bad faith, or fault by Defendants to justify

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the imposition of terminating sanctions. Defendants’ evidence shows that they timely responded

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to Plaintiff’s discovery requests and also complied with the court’s October 18, 2021 order, which

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compelled them to respond to Plaintiff’s Request for Production No. 3.

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Defendants attest that the only information available to them regarding Vasquez and

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Lopez is contained in Plaintiff’s complaint and the 602 appeal (log no. COR-12-05951) that

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Plaintiff submitted regarding the claims in his complaint. They claim that they have made a

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reasonable and diligent search, including reviewing available FLSAs from 2012.

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Defendants cannot be compelled to provide information to Plaintiff that is not available

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to them. In this case, neither the Marshal nor the CDCR were able to identify Defendants
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Vasquez and Lopez with the information provided by Plaintiff. Plaintiff is reminded that it is his

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responsibility to provide information to the Marshal that is sufficient to serve process on

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Defendants. “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely

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on the U.S. Marshal for service of the summons and complaint.” Walker v. Sumner, 14 F.3d

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1415, 1422 (9th Cir. 1994) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990)),

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abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). However, where a pro

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se plaintiff fails to provide the Marshal with accurate and sufficient information to effect service

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of the summons and complaint, the Court’s sua sponte dismissal of the unserved defendants is

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appropriate. Walker, 14 F.3d at 1421-22.

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IV.

CONCLUSION

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The court finds no willfulness, bad faith, or fault by Defendants to justify the imposition

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of terminating sanctions, or good cause to impose other sanctions, for failure to comply with the

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Court’s October 18, 2021 order granting in part Plaintiff’s motion to compel. Therefore,

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Plaintiff’s motion for sanctions shall be denied.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for sanctions, filed on
December 20, 2021, is denied.

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IT IS SO ORDERED.
Dated:

January 31, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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