Evans v. Sisto et al

Filing 190

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/13/14 recommending that defendants' motion to dismiss 181 be denied. Motion to Dismiss 181 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES EVANS,

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Plaintiff,

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No. 2:09-cv-00292 TLN AC

v.

FINDINGS AND RECOMMENDATIONS

J. NUEHRING, et al.,

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Defendants.

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On August 13, 2014, the undersigned held a hearing on defendant’s motion to dismiss the

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action for perjury (ECF No. 181). Aldon L. Bolanos appeared for plaintiff. Deputy Attorney

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General David A. Carrasco appeared for the defendants. On review of the parties’ briefs and

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upon hearing the arguments of counsel, THE COURT FINDS AS FOLLOWS:

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I.

RELEVANT BACKGROUND

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A. Factual Allegations

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Plaintiff is a California state prisoner seeking relief pursuant to 42 U.S.C. § 1983. The

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case proceeds on a claim of excessive force against defendant correctional officers. On October

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3, 2007, plaintiff was forcibly removed from his cell at CSP-Solano. Plaintiff was housed alone

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in the Administrative Segregation Unit, and was informed that he was being transferred to High

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Desert State Prison (HDSP). Plaintiff became distraught, threatened to kill himself by taking

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prescription medication, and held up a razor. Defendants Nuehring and Terrazas tried to
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convince plaintiff to submit voluntarily to handcuffs so that he could be transported to HDSP.

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After plaintiff repeatedly refused, defendant Terrzaza performed an emergency cell extraction.

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Terrazas pepper-sprayed plaintiff through the cell’s food port, after which plaintiff submitted to

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being placed in handcuffs. He was removed from the cell. The complaint alleges that plaintiff

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was then “brutally beat[en]. . . into submission.” ECF No. 16 at 7.

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B. Procedural Background

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Plaintiff commenced this action in pro per, and was unrepresented through the discovery

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period and dispositive motions. Plaintiff’s deposition was taken on September 9, 2010.

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Discovery closed on September 10, 2010. ECF No. 66. On September 20, 2011, summary

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judgment was granted as to plaintiff’s Eighth Amendment claim against defendants Singh and

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Telford, and denied as to defendants Terrazas and Nuehring. ECF Nos. 99 (Findings and

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Recommendations), 104 (Order adopting Findings and Recommendations). The case has been

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proceeding toward trial in fits and starts ever since.

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On November 2, 2011, plaintiff filed a pro se pretrial statement in which he stated that the

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only “witness” he needed was the video of the cell extraction. ECF No. 110.1 In the pretrial

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order filed February 7, 2012, Judge Moulds ordered defendants to inform plaintiff and the court in

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writing whether the videotape exists or ever existed. ECF No. 121 at 5. On February 15, 2012,

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counsel for defendants filed a declaration averring that on December 6, 2011, he had asked the

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litigation coordinator at Solano if she could locate a videotape of the incident. ECF No. 122.

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Counsel further averred that on December 8, 2011, the litigation coordinator told him that while

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the incident report indicated the extraction had been videotaped, no videotape could be located.

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ECF No. 122 at 1-2. Plaintiff filed a response to that declaration, complaining about defense

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counsel’s failure to bring this information to the attention of plaintiff or the court, even though

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counsel had the information prior to issuance of the pretrial order. ECF No. 124.

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On April 12, 2012, Judge Moulds appointed counsel to represent petitioner. ECF No.
125.

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The incident report regarding the cell extraction specified that it had been video recorded.
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The case was first set to be tried to a jury on June 19, 2012, but that date was continued

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and then vacated because plaintiff’s detention in Santa Clara County in another case precluded his

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transfer to this court. See ECF Nos. 125, 131, 135, 152, 153. The case was subsequently

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reassigned to newly appointed district and magistrate judges (ECF Nos.163, 166), and trial was

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eventually reset for March 24, 2014 (ECF No. 165). That date was also vacated, and trial is

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currently scheduled for December 15, 2014, before District Judge Troy L. Nunley. ECF No. 180.

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According to the Declaration of David A. Carrasco, the CSP-Solano litigation coordinator

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notified counsel for defendants in late March 2014 that the videotape of plaintiff’s cell extraction

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had been discovered. ECF No. 181-2. Counsel for defendants received a copy of the video

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recording on April 24, 2014, and mailed a duplicate copy to plaintiff’s counsel on April 28, 2014.

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Id. The court was notified of the tape’s discovery on July 2, 2014, and a copy of the disk was

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lodged on that date. ECF No. 182.

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On July 2, 2014, defendants filed the instant motion to dismiss, on grounds the videotape

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demonstrates that plaintiff’s deposition testimony about the cell extraction was perjured. ECF

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No. 181. Plaintiff opposes the motion, and defendants have filed a reply. ECF Nos. 187, 188.

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II.

LEGAL STANDARDS
District courts have inherent authority to sanction parties who provide false testimony or

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engage in deceptive conduct. Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). The sanction of

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dismissal is available where a party’s “non-compliance is due to willfulness, fault, or bad faith.”

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Sigliano v. Medoza, 642 F.2d 309, 310 (9th Cir. 1981). Dismissal is an appropriate sanction for

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falsifying evidence, including deposition testimony. Combs v. Rockwell Int’l Corp., 927 F.2d

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486, 488 (9th Cir. 1991) (affirming dismissal with prejudice where counsel falsified transcript of

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deposition); see also Brown v. Oil States Skagit Smatco, 664 F.3d 71 (5th Cir. 2011) (dismissal

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with prejudice was warranted for plaintiff's perjury at his deposition); Chavez v. City of

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Albuquerque, 402 F.3d 1039 (10th Cir. 2005) (same); Allen v. Chicago Transit Auth., 317 F.3d

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696, 703 (7th Cir. 2003) (same).

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In the criminal context, perjury is defined as “false testimony concerning a material matter
with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or
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faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993); see also 18 U.S.C. § 1621.

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Perjury clearly constitutes “bad faith” for purposes of discovery sanctions. See Combs, 927 F.2d

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at 488-89.

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III.

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PLAINTIFF’S DEPOSITION TESTIMONY
At his deposition, plaintiff testified that after he was pepper sprayed he was “basically

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immobile” and officers “ran up in there with the gear on and dragged me out there and

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slammed me on my head, they slammed me face forward to the ground. I am going like this to

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the ground, that basically took me out of there. For a brief second come around, it is like a

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thousand feet and fists is pounding on the back of my head, laughing, we got his ass out of

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there.” Pl.’s Dep. at 34:10-18; see also Pl.’s Dep. at 48:12-18. Plaintiff testified that he was

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not resisting officers at all after he was placed in handcuffs; he “wasn’t kicking . . . wasn’t

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spitting at no staff or none of that” and that he was focused on trying to get the pepper spray out

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of his eyes. Id. at 59:6-14. Plaintiff also testified that he was kicked in his ribcage and shoulders

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and punched four or five times in the back of his head. Id. at 63:15-64:24.

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IV.

THE VIDEOTAPE
The video recording shows two uniformed correctional officers speaking in turn to an

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inmate through a closed cell door, as other officers in white hazmat suits and masks, at least one

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of whom is carrying a shield, gather in the vicinity. The first officer then repeatedly dispenses

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spray from a canister through the food port of the door. The inmate eventually presents his wrists

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through the door to be handcuffed. The door is then opened and the inmate is brought out of the

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cell and quickly surrounded by six to eight officers in hazmat suits. Because these officers block

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the view of the door, it is impossible to see precisely how the inmate is removed from the cell.

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The inmate is brought down to the floor adjacent to the cell door and surrounded by officers who

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are hunched down around him. The inmate is not clearly visible in the midst of the huddle

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before, during or after he is rendered prone, and the means by which he is brought to the floor

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cannot be seen. None of the officers visibly punch or kick the inmate. None of the officers make

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visible movements that are consistent with punching or kicking. The view of some officers is

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consistently obscured by other officers. The camera primarily shows the backs of the officers
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closest to the camera, and does not show how the officers are handling the inmate on the ground.

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After approximately 25 seconds on the ground, the inmate is brought to his feet and walks

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escorted to a stretcher on a vehicle parked just outside the building. The vehicle drives away.

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V.

DISCUSSION

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The videotape does not support plaintiff’s allegations or corroborate his deposition

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testimony. However, unsupported or even inaccurate deposition testimony is a very far cry from

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perjury. For the reasons that follow, the undersigned finds no basis for a conclusion that plaintiff

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deliberately lied at his deposition.

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The court notes first that the videotape (assuming its authenticity) does not affirmatively

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or conclusively disprove plaintiff’s allegations that he was struck in the head and/or ribs as he lay

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handcuffed on the ground immediately following the cell extraction. The video does not show

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any blows or any body movements by correctional officers that are consistent with the infliction

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of blows. However, plaintiff’s head and ribcage are not directly visible in this portion of the

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videotape, nor are all the limbs of all the correctional officers surrounding him. Moreover, given

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plaintiff’s undisputed state of emotional distress at the time of the incident, the fact that he had

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just been pepper-sprayed when he was subdued, his ongoing distress about the incident as

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reflected in his administrative appeals and pro se filings, and the passage of time between the cell

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extraction and the deposition, discrepancies between the videotape and the deposition testimony

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could be “the result of confusion, mistake, or faulty memory.” Dunnigan, 507 U.S. at 94.

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Testimony that reflects a witness’s subjective experience, even if exaggerated, or that is the

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product of confabulated memory influenced by emotional factors, may be inaccurate but is not

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necessarily willfully false. Accordingly, the videotape is insufficient to prove perjury and

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therefore does not support the ultimate sanction of dismissal.

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Defendants argue that the videotape so discredits plaintiff’s case that it would waste

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judicial resources to proceed to trial. Be that as it may, the Federal Rules of Civil Procedure do

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not provide for dismissal at this stage of litigation on grounds that newly discovered evidence

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renders a jury verdict for plaintiff unlikely. The dispositive motions deadline in this case has long

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since passed. The videotape came to light too late – literally years too late – for defendants to
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rely on it in summary judgment. Although defendants and their counsel may not be responsible

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for the long absence of the videotape, they are not therefore excused from the consequences of

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that absence. The circumstances regarding the prison’s “loss” and belated “discovery” of the tape

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are not before the court, and are irrelevant in any case to the only question presented here:

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whether dismissal with prejudice is an appropriate sanction for plaintiff’s alleged perjury.

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Because the undersigned finds that perjury has not been established, the motion to dismiss should

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be denied.

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Defendants argued for the first time at the hearing on the motion that the court should
conduct an evidentiary hearing and require plaintiff to testify before making any findings

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regarding perjury. Such a hearing would waste judicial resources and amount to an unauthorized

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second deposition of the plaintiff. There is an insufficient evidentiary basis to support further

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proceedings regarding perjury. Plaintiff’s credibility, and the truth of his allegations, are issues

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for the jury.

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In opposition to the motion, plaintiff argues among other things that the videotape is

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inadmissible at trial. The admissibility of evidence at trial is not before the undersigned. Motions

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in limine should be directed to the district judge at the appropriate time.

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CONCLUSION

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For the reasons explained above, IT IS HEREBY RECOMMENDED that defendants’
motion to dismiss, ECF No. 181, be DENIED.

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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 28 U.S.C. § 636(b)(l). Within fourteen days

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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 reply to the objections

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

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

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

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DATED: August 13, 2014

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