West v. Dizon

Filing 125

MEMORANDUM, and ORDER signed by Chief Judge Morrison C. England, Jr on 6/16/15 ORDERING that Plaintiff's MOTION for Reconsideration 115 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MACK A. WEST, JR.,
Plaintiff,

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v.

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No. 2:12-cv-01293-MCE-DAD
MEMORANDUM AND ORDER

NOEL DIZON,
Defendant.

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On March 10, 2014, Plaintiff filed a Motion for Sanctions. ECF No. 88. Almost

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exactly a year later, on March 18, 2015, the assigned magistrate judge issued an order

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denying Plaintiff’s Motion for Sanctions. ECF No. 110. Plaintiff filed a Motion for

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Reconsideration with this Court on April 22, 2015.1 ECF No. 115. For the reasons set

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forth below, Plaintiff’s Motion is DENIED.

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Pursuant to Local Rule 303(b), pretrial rulings by a magistrate judge are final “if no
reconsideration thereof is sought from the Court within fourteen (14) days calculated from the date of
service of the ruling on the parties, unless a different time is prescribed by the Magistrate Judge or the
Judge.” Plaintiff was not bound by this deadline because he requested and obtained an extension of the
deadline to file Motion for Reconsideration. See ECF Nos. 113, 114. Pursuant to the Court’s order,
Plaintiff was required to place his Motion for Reconsideration in the mail on or before April 20, 2015.
Plaintiff timely mailed his Motion April 19, 2015. See ECF No. 115 at 34.

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BACKGROUND2

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On January 9, 2014, the assigned magistrate judge considered Plaintiff’s request

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for a court order requiring prison officials at the California Medical Facility (CMF) to allow

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him to correspond with non-party inmates at another prison. Plaintiff argued the inmates

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in question were potential witnesses who could testify in support of his claim that

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Defendant retaliated against him for exercising his First Amendment right to file inmate

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grievances. Plaintiff maintained that he had properly sought permission to correspond

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with non-party inmates through the usual administrative process at CMF, but that his

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requests had been ignored. The magistrate judge ordered the defendant to “provide any

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and all documentation at his or his counsel’s disposal, including records in the custody

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or control of the California Department of Corrections and Rehabilitation (CDCR),

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reflecting the response, if any, of the warden or other official at CMF to plaintiff’s

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administrative request for permission to contact certain alleged inmate witnesses

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concerning this case.” Order, ECF No. 66, at 5.
On January 23, 2014, defense counsel timely submitted a response that was

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supported by a declaration sworn under penalty of perjury by Correctional Officer Hogg

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at Salinas Valley State Prison (“Officer Hogg”). Officer Hogg stated that he had been

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Plaintiff’s correctional counselor for “between one and two years” (which covered the

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entire time period relevant to Plaintiff’s request) and that he could “recall” only one

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instance in which Plaintiff had requested permission to correspond with inmates at

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another prison. See Hogg Decl., ECF No. 67-1, at 1. According to Officer Hogg, Plaintiff

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submitted his request on the wrong form, Officer Hogg returned the request with

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instructions to Plaintiff to use the correct form, and Plaintiff never re-submitted the

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request. Id. at 2.

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The following facts are taken, sometimes verbatim, from the magistrate judge’s order denying the
imposition of sanctions (ECF No. 110).

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Based on Officer Hogg’s sworn statement, the magistrate judge concluded that

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“[d]efendant’s evidence refutes plaintiff’s contentions that he has used the proper

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procedure to request access to inmates who might be able to provide testimony in

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support of his claim and that he was denied access for no legitimate penological

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purpose.” Order, ECF No. 69, at 2-3. The magistrate judge therefore declined to order

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any prison officials to allow plaintiff to correspond with inmates at other prisons.

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On February 6, 2014, Plaintiff filed a Motion to Amend the order denying his

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request to correspond with other inmates. See ECF No. 75. In support of his Motion to

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Amend, Plaintiff attached documents showing that he had in fact given a previous

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correctional counselor the forms necessary to correspond with the potential inmate-

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witnesses in this case. The same documents reflected that Officer Hogg had been

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Plaintiff’s correctional counselor for less than a year—not between one and two years,

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as Officer Hogg had sworn to the court—and that in April 2013 Officer Hogg was directly

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involved in processing Plaintiff’s request for inter-prison correspondence that Plaintiff

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had originally presented to his previous correctional counselor. See ECF No. 75,

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Exhibits A-C. In short, Plaintiff was able to show that Officer Hogg’s sworn statements,

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on which the magistrate judge had relied in making its ruling against Plaintiff’s request,

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were not accurate. Accordingly, on March 10, 2014, Plaintiff filed a Motion for Sanctions

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against Defendant, defense counsel and Officer Hogg. ECF No. 88.

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After Plaintiff demonstrated that Officer Hogg’s sworn statement was inaccurate,

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defense counsel: (1) withdrew Officer Hogg’s declaration and Defendant’s Opposition

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that had relied on it (ECF No. 84); (2) submitted a renewed opposition to Plaintiff’s

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request to correspond with other inmates and a new supplemental declaration, sworn to

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under penalty of perjury, by Officer Hogg explaining his “refreshed” memory (ECF

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Nos. 81 and 81-2); (3) then submitted a third declaration under penalty of perjury from

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Officer Hogg in opposition to Plaintiff’s Motion for Sanctions (ECF Nos. 93-2);

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(4) reversed course and consented to allowing Plaintiff to correspond with the inmate

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witnesses (ECF No. 99); and, in the same filing, (5) withdrew both Officer Hogg’s

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second and third sworn declarations without explanation (ECF No. 99).

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On March 18, 2015, the assigned magistrate judge denied Plaintiff’s Motion for

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Sanctions. ECF No. 110. First, the magistrate judge found that there was no indication

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that Defendant was involved with Officer Hogg’s perjured testimony. Id. at 4. Next, the

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magistrate judge determined that defense counsel timely withdrew the perjured

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testimony, thus qualifying for the safe harbor provision of Federal Rule of Civil Procedure

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11.3 Id. at 5. Finally, the magistrate judge held that Officer Hogg’s inability to submit a

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truthful sworn declaration was “negligent at best” and did not warrant sanctions. Id. at 5-

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6. While the magistrate judge chastised Officer Hogg for not taking his “obligation in

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swearing to his declaration under penalty of perjury seriously enough,” the magistrate

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judge ultimately determined that there was not

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compelling evidence that Officer Hogg acted “vexatiously,
wantonly, or for oppressive reasons.” [Chambers v. Nasco,
Inc., 501 U.S. 32, 45-46 (1991).] It is more likely that he,
unfortunately, was simply lax in responding to the multiple
inquiries of defense counsel, who was acting under order of
this court, and made material representations under penalty
of perjury without performing the due diligence necessary to
confirm their accuracy. Such conduct, while quite unwise,
falls short of warranting the imposition of sanctions here on
this record.

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Id. at 6.

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On April 22, 2015, the Plaintiff filed the Motion for Reconsideration currently

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before the Court. ECF No. 115. Plaintiff’s Motion notes that prison officials continued to

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deny access to material witnesses. Subsequent to his filing, defense counsel has taken

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steps to ensure that Plaintiff has access to his inmate witnesses going forward. See

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ECF No. 120.

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Unless otherwise stated, all further references to “Rule” or “Rules” are to the Federal Rules of
Civil Procedure. Rule 11(c)(1)(A) states that a motion for sanctions shall not be filed unless the motion is
first presented to the opposing party and the challenged paper, claim, or contention is not withdrawn within
21 days. Under this provision, “the timely withdrawal of a contention will protect a party against a motion
for sanctions.” Rule 11 Advisory Committee Notes.

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ANALYSIS

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Pursuant to Local Rule 303(f), Plaintiff is entitled to reconsideration if the

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magistrate judge’s decision is either “clearly erroneous or contrary to law.” See

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28 U.S.C. § 636(b)(1)(A). In applying the clearly erroneous standard, this Court can not

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reverse the magistrate judge’s order simply because this Court “would have decided the

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case differently.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). “Rather, a

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reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and

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firm conviction that a mistake has been committed.’” Easley v. Cromartie, 532 U.S. 234,

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242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

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(1948)). The Court is not convinced that a mistake has been committed here.
Plaintiff does not ask for reconsideration of the denial of sanctions against

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Defendant. His Motion is focused on the order as it pertains to defense counsel and

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Officer Hogg. Plaintiff alleges that defense counsel was involved in a “conspiracy to

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cover up the ongoing obstruction.” Pl.’s Mot., ECF No. 115, at 1. Plaintiff also argues

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that the denial of Plaintiff’s Motion to Amend, which was decided based on the perjured

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declaration of Officer Hogg, created a final or irreparable injury that made the safe

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harbor provision of Rule 11 inapplicable for defense counsel. Id. at 2.
Plaintiff also argues that the magistrate judge should have imposed sanctions

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under 28 U.S.C. § 1927 even if the Rule 11 safe harbor provision applied. An award of

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sanctions under 28 U.S.C. § 1927 requires that counsel did, or acted with the purpose

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to, “so mulitpl[y] the proceedings . . . unreasonably and vexatiously . . . or that counsel

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acted recklessly or in bad faith.” Sneller v. City of Bainbridge Island, 606 F.3d 636 (9th

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Cir. 2010). Here, the magistrate judge focused on defense counsel’s reasonable efforts

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to correct the mistake by quickly withdrawing Officer Hogg’s testimony. The Court

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cannot say that the magistrate judge’s determination that these efforts demonstrated a

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lack of bad faith was clearly erroneous.

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Finally, Plaintiff takes issue with the magistrate judge’s determination that

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Corrections Officer Hogg was “simply lax” in responding to multiple inquiries by defense

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counsel. Pl.’s Mot. at 1. Plaintiff notes that Officer Hogg spoke with Plaintiff once or

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twice a week when he was Plaintiff’s assigned counselor and was thus familiar with

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Plaintiff and his case. Id. at 6. Therefore, Plaintiff argues that this perjured testimony

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cannot be the result of forgetfulness but must be the result of intentionally misleading

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statements made to conceal Officer Hogg’s efforts to prevent Plaintiff from accessing his

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material witnesses.

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The Court agrees that Officer Hogg’s conduct was totally unacceptable. Officer

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Hogg has wasted a considerable amount of judicial resources and has delayed the

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resolution of Plaintiff’s request to speak with his witnesses. However, this does not

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entitle Plaintiff to reconsideration. As Officer Hogg was neither a party nor an attorney in

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this case, the magistrate judge’s authority to impose sanctions stemmed from the court’s

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inherent powers. “Because of their very potency, inherent powers must be exercised

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with restraint and discretion.” Chambers, 501 U.S. at 44. On review, the Court cannot

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say that the assigned magistrate judge was clearly erroneous in exercising caution and

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finding that this situation did not warrant sanctions.

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CONCLUSION

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For the reasons stated above, Plaintiff’s Motion for Reconsideration (ECF No. 115)
is DENIED.
IT IS SO ORDERED.
Dated: June 16, 2015

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