Jones v. Sacramento County Sheriff Department et al

Filing 65

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/10/12 recommending that defendants' motion to dismiss 53 and 55 be granted. This action be dismissed. Plaintiff be ordered to pay $1650.00 in required mone tary sanctions. Plaintiff's pending motion for default 59 be denied as moot; and the clerk of the court be directed to enter judgment and close this file. Motions 53 , 55 and 59 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY JONES,

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No. 2:10-CV-0033-LKK-CMK-P

Plaintiff,

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vs.

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E. McATEE, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.
Defendants move to dismiss this case as an appropriate discovery sanction for

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plaintiff’s refusal to attend his noticed deposition. According to defendants’ evidence, plaintiff

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was served with a deposition notice on August 2, 2011. Prison mail records, plaintiff received

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the deposition notice on August 4, 2011, for a deposition to take place on September 8, 2011.

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Defendants’ counsel appeared at the prison on September 8, 2011, for the purpose of taking

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plaintiff’s deposition but was told by correctional staff that plaintiff refused to attend his

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deposition. While plaintiff denies having received the deposition notice, he provides no evidence

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to this effect. He simply says that prison mail records are inaccurate. Moreover, plaintiff does
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not address at all defendants’ contention that, on the day of his deposition, he refused to attend.

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Sanctions are appropriate for a refusal to attend a deposition. See Estrada v.

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Rowland, 69 F.3d 405, 406 (9th Cir. 1995). Under the Federal Rules of Civil Procedure, the

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court may dismiss the action as an appropriate sanction for a discovery violation. See Fed. R.

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Civ. P. 37(d)(c); 37(b)(2)(A)(v). In this case, plaintiff’s unjustified refusal to attend his

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deposition warrants dismissal of the action. It is reasonable to conclude that, had there been a

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legitimate reason for plaintiff not to attend his deposition on September 8, 2011, plaintiff would

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have informed prison officials of that reason. It is apparent from plaintiff’s opposition to the

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instant motion to dismiss that he did not attend his deposition because he felt he needed the

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assistance of counsel. Given the court’s July 22, 2011, order denying the appointment of

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counsel, this is not a valid reason justifying the discovery violation in this case.

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Rule 37(d)(3) requires this court to order plaintiff to pay reasonable expenses,

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including attorney’s fees. According to counsel’s declaration, counsel spent ten hours preparing

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for and traveling to the deposition. At a reasonable rate of $150.00 per hour, this expense comes

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to $1,500.00. In addition, counsel expended $150.00 for the court reporter. Thus, a total

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monetary sanction in the amount of $1,650.00 must be ordered.

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Based on the foregoing, the undersigned recommends that:

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Defendants’ motion to dismiss (Docs. 53 & 55) be granted;

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This action be dismissed;

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Plaintiff be ordered to pay $1,650.00 in required monetary sanctions;

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Plaintiff’s pending motion for default (Doc. 59) be denied as moot; and

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The Clerk of the Court be directed to enter judgment and close this file.

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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 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 10, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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