Dixon v. LaRosa, et al

Filing 110

ORDER signed by Magistrate Judge Kendall J. Newman on 7/9/2013 DENYING plaintiff's 105 motion for sanctions; counsel for defendant is requested to inform the litigation coordinator for MCSP to retain the 2008 cell search records pending further order of this court; and plaintiff shall file an opposition to the 7/3/13 motion for summary judgment on or before 8/19/13. (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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DANIEL STEVE DIXON,

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Plaintiff,

Defendant.

S. LAROSA,

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ORDER

vs.

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No. 2:10-cv-1441 GEB KJN P

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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel. This action proceeds solely on

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plaintiff’s claim that defendant LaRosa conducted a cell search on September 16, 2009, allegedly

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in retaliation for plaintiff filing grievance MCSP-09-01626, in violation of plaintiff’s First

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Amendment rights. (ECF No. 73.)

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On January 17, 2013, defendant was directed to provide plaintiff with copies of the cell

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search records for every cell in Building 1, searched from August 1, 2009, to September 30,

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2009, unless previously produced for plaintiff’s cell 140. (ECF No. 96.)

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By order filed March 14, 2013, the court reviewed defendant’s response to the court’s

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January 17, 2013 order. Defendant stated that prison officials had purged cell search records

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from 2009, but that an additional search turned up records from 2007 and 2008 which were
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slated for disposal but had not yet been purged, and that defendant has access to cell search

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records from March 2012 to the present, in the event the court ordered defendant to produce

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those records in lieu of the 2009 records. The court directed counsel to retain the 2008 records in

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the event plaintiff sought to discover the 2008 records rather than the 2012 records, and granted

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plaintiff until April 8, 2013, in which to reply to defendant’s opposition. On April 11, 2013,

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plaintiff was granted an additional 45 days in which to file a reply to defendant’s opposition. On

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June 3, 2013, rather than file a reply to defendant’s opposition, plaintiff filed a motion for

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sanctions against defendant LaRosa based on his alleged failure to produce cell search records

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from 2009. For the reasons set forth below, plaintiff’s motion for sanction is denied.

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II. Motion for Sanctions
Plaintiff seeks evidentiary and monetary sanctions against defendant, based on his alleged

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individual involvement, or with his counsel’s aid, in failing to produce the cell search records

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from 2009. (ECF No. 105.) While not entirely clear, it appears that plaintiff contends that

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because defendant produced the cell search records from the 2009 cell search of plaintiff’s cell at

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issue here, which had to be taken from the same binders that contained cell search records for

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other inmates from that same time period, means that defendant’s inability to now locate the

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other 2009 cell search records should “be treated as destruction of evidence since nonproduction

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leaves the same result.” (ECF No. 105 at 8.) Specifically, plaintiff asks that the court find that

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the 2009 cell search records would reflect that the searches of other inmates’ cells would

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demonstrate that routine searches resulted in the confiscation of a minimum number of items as

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compared to the “excessive amount of items” removed from plaintiff’s cell, and that other

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inmates were allowed to retain their white plastic bucket and cleaning supplies, while similar

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items were removed during plaintiff’s cell search.

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Defendant argues that it is unclear whether plaintiff contends that defendant and counsel

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misrepresented that the 2009 documents were purged, or whether he claims they are responsible

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for spoliation of the records, but that in any event both assertions are false. Defendant contends
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that defendant and counsel were not responsible for the documents’ destruction. Furthermore,

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defendant argues he was not put on notice of the pending litigation until after the retention period

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for the 2009 records expired. Upon receiving notice of the litigation, defense counsel issued a

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litigation hold, which resulted in the cell search records for plaintiff’s cell being retained for

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production to plaintiff. Defendant contends that a reasonable person would not have expected

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that cell search records for all inmates in Building I would have been material to plaintiff’s claim

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concerning the September 16, 2009 search. Finally, defendant offered similar, substitute records

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in a good faith effort to respond to the court’s order. Defendant argues that rather than

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responding to such offer, plaintiff delayed these proceedings by almost three months before

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bringing his motion for sanctions rather than reply to defendant’s opposition.

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Federal courts have broad powers to impose sanctions against parties or counsel for
improper conduct in litigation. Rule 11(b) of the Federal Rules of Civil Procedure provides:

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By presenting to the court a pleading, written motion, or other
paper -- whether by signing, filing, submitting, or later advocating
it -- an attorney or unrepresented party certifies that to the best of
the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:

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(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;

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(2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law;

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(3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity
for further investigation or discovery; and

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(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.

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Fed. R. Civ. P. 11(b). Rule 11 imposes an objective standard of reasonableness, which applies to

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pro se litigants. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 892 F.2d

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802, 811 (9th Cir. 1989).

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Further, the Court has inherent power to sanction parties or their attorneys for improper

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conduct. Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper,

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447 U.S. 752, 766 (1980). This includes the “inherent power to dismiss an action when a party

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has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly

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administration of justice.” Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 348

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(9th Cir. 1995) (quoting Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983).

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In the Ninth Circuit, sanctions are appropriate only in “extreme circumstances” and where

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the violation is “due to willfulness, bad faith, or fault of the party.” Fair Housing of Marin v.

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Combs, 285 F.3d 899, 905 (9th Cir. 2002.) (quoting United States v. Kahaluu Constr. Co., Inc.,

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857 F.2d 600, 603 (9th Cir. 1988) (citations omitted)). However, “disobedient conduct not

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shown to be outside the control of the litigant is all that is required to demonstrate willfulness,

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bad faith, or fault.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994). The party

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facing sanctions has the burden of establishing its failure was harmless. Yeti by Molly Ltd., v.

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Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).

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Here, defendant adduced evidence that the 2009 records were purged pursuant to the

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prison’s one year retention policy (ECF No. 98-1 at 2), and defense counsel notes that defendant

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did not receive notice of the instant litigation until after the one year period expired. The instant

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action was filed on June 11, 2010. Defendant waived service of process on January 14, 2011,

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and on January 18, 2011, defense counsel issued a litigation hold letter to the litigation

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coordinator at Mule Creek State Prison explaining that the prison must maintain records relevant

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to this lawsuit. (ECF Nos. 1, 106 at 6.) Thus, defendant adduced evidence demonstrating that

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the destruction of these records were outside the control of defendant or defense counsel.

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Plaintiff alleged no facts, and submitted no evidence, to the contrary.
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Moreover, defendant’s good faith is demonstrated by counsel’s offer to produce records

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from 2008, which were discovered during the search for the 2009 cell search records, or, in the

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alternative, to produce cell search records from March 2012 to the present. Plaintiff did not

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accept either offer, but instead filed the instant motion for sanctions.

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Therefore, the Court fails to find conduct that is “due to willfulness, bad faith, or fault of

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the party,” to justify the imposition of sanctions in this instance. Fair Housing of Marin, 285

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F.3d at 905. Thus, plaintiff's motion for the imposition of sanctions is denied.

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III. Production of 2008 Cell Search Records

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The Court has considered whether to sua sponte order defendant to produce the cell

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search records for Building l from 2008 in lieu of the records from 2009. After review of the

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record, the court declines to do so at this time, based on the following.

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First, plaintiff failed to file a reply to defendant’s opposition choosing to receive either

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the 2008 or 2012 cell search records in lieu of the 2009 records. Indeed, the court granted

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plaintiff two extensions of time in which to file his reply (ECF Nos. 101, 104), yet plaintiff failed

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to do so. Plaintiff could have filed both a reply and the motion for sanctions.

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Second, defendant previously provided plaintiff with the “Standard Cell Search” records

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of plaintiff and his previous Mule Creek State Prison cellmates from August 8, 2009, to August

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29, 2010, totaling fourteen cell search slips. (ECF No. 88 at 5.) Plaintiff earlier conceded that he

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could use this information to show a likelihood of retaliatory conduct by defendant. (Id.)

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Third, this action has been pending for over three years. On December 23, 2011,

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plaintiff’s numerous claims against eleven defendants were reduced to the instant claim against

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defendant LaRosa. The Court issued its first discovery and scheduling order on January 5, 2012,

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which was extended on June 22, 2012. On January 17, 2013, defendant’s first motion for

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summary judgment was denied without prejudice, and the scheduling order was again revised.

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(ECF No. 96.) On April 16, 2013, the court again revised the scheduling order in light of

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plaintiff’s multiple requests for extensions of time to file his reply concerning the production of
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the cell search records. On July 3, 2013, pursuant to the last scheduling order, defendant filed his

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second motion for summary judgment. (ECF No. 108.) Thus, the court has been very liberal in

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granting plaintiff time in which to prosecute this action. However, given these delays, the Court

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does not find good cause to further extend the scheduling order.

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Fourth, in his motion for summary judgment, defendant contends that he was unaware of
plaintiff’s protected activity on September 16, 2009, when he searched plaintiff’s cell.

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“[A] viable claim of First Amendment retaliation entails five basic elements: (1) An

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assertion that a state actor took some adverse action against an inmate (2) because of (3) that

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prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Thus, as argued by defendant, plaintiff must demonstrate, in his opposition to the motion,

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that defendant LaRosa searched plaintiff’s cell on September 16, 2009, because plaintiff filed

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grievance MCSP-09-01626. If plaintiff cannot adduce evidence demonstrating that defendant

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LaRosa had knowledge of such grievance, defendant LaRosa is entitled to summary judgment.

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Because the pending motion for summary judgment does not turn on the cell search records from

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cell searches conducted on other cells in Building 1, the court will not sua sponte order defendant

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to produce the cell search records from 2008 or 2012 to the present at this time.

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For these four reasons, the court declines to sua sponte order defendant to produce to

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plaintiff the 2008 cell search records at this time. However, the court directs defendant and his

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counsel to retain the 2008 cell search records in the event defendant’s motion for summary

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judgment is denied.

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IV. Defendant’s Pending Motion

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Finally, the court notes that plaintiff’s opposition to the motion for summary judgment is

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due on July 24, 2013. Because plaintiff’s motion for sanctions was pending at the time

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defendant’s motion was filed, plaintiff is granted until August 19, 2013, to file an opposition.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 3, 2013 motion for sanctions (ECF No. 105) is denied;

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2. Counsel for defendant is requested to inform the litigation coordinator for Mule Creek

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State Prison to retain the 2008 cell search records pending further order of this court; and
3. Plaintiff shall file an opposition to defendant’s July 3, 2013 motion for summary

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judgment on or before August 19, 2013. The court is disinclined to grant any further extensions.

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DATED: July 9, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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dixo1441.san

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