Smith v. Stovall et al

Filing 91

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 5/2/2012 RECOMMENDING that defendants' 78 motion to dismiss be denied. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHEAL SMITH,

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Plaintiff,

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No. 2:08-cv-2492 LKK JFM (PC)

vs.
R. STOVALL, ET AL.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. This matter is before the court on defendants’ motion, pursuant to Federal

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Rules of Civil Procedure 41(b), 16(f), and 37(b)(2)(A), to dismiss this action as a sanction for

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plaintiff’s failure to pay an award of discovery expenses ordered by this court. Plaintiff opposes

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the motion on the ground that he is without the financial ability to pay the expenses.

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On September 23, 2010, this court entered an order granting in part defendants’

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motion to compel plaintiff’s deposition and for sanctions and/or expenses and awarded

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defendants expenses of a failed video deposition in the amount of $950.00. Order filed

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September 23, 2010, at 4. It is undisputed that plaintiff has not paid the expenses. At a trial

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confirmation hearing before the district court on September 12, 2011, defendants requested

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clarification of when payment of those expenses was due. By order filed September 13, 2011,

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the district court referred that matter to the undersigned.

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On November 7, 2011, this court issued an order stating that plaintiff’s obligation

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to pay the award arose at the time this court’s September 23, 2010 order became final and that

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the award of expenses “is in the nature of a judgment, albeit not yet a final one, enforceable like

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any other monetary judgment entered in a federal court.” Order filed November 7, 2011, at 2.

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On November 8, 2011, defendants filed the motion at bar. By order filed November 15, 2011,

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the district court vacated the trial set in this matter and set a briefing schedule on the motion, and

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by order filed February 3, 2012, the motion was referred to the undersigned for findings and

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recommendations.

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As noted above, defendants rely on Federal Rules of Civil Procedure 41(b), 16(f),

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and 37(b)(2), all of which grant the court authority to dismiss an action as a sanction for failure to

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comply with court orders. Dismissal as a sanction “is a harsh remedy and should only be

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imposed in ‘extreme circumstances.’” Hamilton Copper & Steel Corp. v. Primary Steel

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Corporation, 898 F.2d 1428, 1429 (9th Cir. 1990) (quoting Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986)). As noted above, plaintiff opposes the motion on the ground that he has no

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financial ability to pay the award of expenses and he has presented evidence to support that

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representation. See Ex. A to Opposition to Motion to Dismiss, filed December 27, 2011. Absent

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evidence that compliance with the court’s order is possible, it would be an abuse of discretion to

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dismiss the action for failure to do so. See Thomas v. Gerber Productions, 703 F.2d 353, 357 (9th

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Cir. 1983).

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’
November 8, 2011 motion to dismiss be denied.
These findings and recommendations are submitted to the United States District

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

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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 2, 2012.

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