Benyamini v. Swett et al

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/17/2017 RECOMMENDING defendants' 82 motion to compel and request for terminating sanctions be granted and that this action be dismissed with prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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Plaintiff,

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No. 2:13-cv-0735-KJM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

M. SWETT, et al.,

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Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. He claims that on May 6, 2009, defendants Swett, Miranda, Carpenter, Perry,

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and Roth used excessive force in violation of the Eighth Amendment. ECF Nos. 1, 8. Pending

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before the court is defendants’ motion to compel and request for terminating sanctions. ECF No.

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82. For the reasons stated below, defendants’ request for terminating sanctions should be granted.

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I.

Background
Defendants initially served plaintiff with their requests for production of documents on

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December 31, 2014. ECF No. 69-1, ¶ 2. After plaintiff requested several extensions of time,

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defendants received plaintiff’s responses nearly one year later, on October 28, 2015. Id. ¶ 9. But

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plaintiff’s responses consisted of mere objections. Id. ¶¶ 9-11, Ex. B. Defendants responded with

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a motion to compel appropriate substantive responses. ECF No. 69. Despite an order extending

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plaintiff’s time for responding to the motion and warning him that his failure to so respond could

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result in a recommendation of dismissal, plaintiff again failed to respond. ECF No. 70.

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In the May 18, 2016 order granting the motion to compel, the court instructed plaintiff that

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he is “obligated to participate in the discovery process and respond to written discovery

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propounded on him.” ECF No. 80 at 3. The court informed plaintiff that if he could not “produce

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responsive documents because they are not in his possession, custody, or control, he may say so

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in his response.” Id. Plaintiff was ordered to properly respond to the discovery requests and was

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cautioned that “[f]ailure to serve full and complete responses may result in sanctions, including

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the dismissal of this action for plaintiff’s failure to follow court orders and prosecute his case.”

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Id. at 5.

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Throughout this action, the court has repeatedly warned plaintiff that his failure to comply

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with court orders, the Local Rules, or the Federal Rules of Civil Procedure, could result in the

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imposition of terminating sanctions. See, e.g., ECF No. 12, 25, 38, 70.

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II.

Legal Standards

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Federal Rule of Civil Procedure 37(b) provides that if a party “fails to obey an order to

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provide or permit discovery,” the court may issue appropriate sanctions, including establishing

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facts as proven, striking pleadings, dismissal, rendering a default judgment against the

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disobedient party, or finding a party in contempt of court. Fed. R. Civ. P. 37(b)(2)(A). Rule

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41(b) also provides the court with the discretion to dismiss an action if the plaintiff fails to

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prosecute his action or to comply with the Rules or court orders. Fed. R. Civ. P. 41(b); See also

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E.D. Cal., Local Rules 110, 183(a).

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A district court must “weigh five factors to determine whether to dismiss a case for lack of

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prosecution: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring the

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen,

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31 F.3d 1447, 1451 (9th Cir. 1994); accord, Southwest Marine Inc. v. Danzig, 217 F.3d 1128,

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1138 (9th Cir. 2000). Warning a plaintiff that his failure to obey a court order may result in

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dismissal is considered to be a less drastic alternative sanction. Malone v. United States Postal

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Service, 833 F.2d 128, 132-33 & n.1 (9th Cir. Cal. 1987).

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Furthermore, a party’s failure to comply with any order or with the Local Rules “may be

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grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” E.D. Cal. Local Rule 110. The court may recommend

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that an action be dismissed with or without prejudice, as appropriate, if a party disobeys an order

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or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did

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not abuse discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-

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file an amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856

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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local

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rule regarding notice of change of address affirmed).

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III.

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Discussion
The court’s May 18, 2016 order determined that defendants’ requests for production of

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documents (“RFPs”) seek documents that are relevant to plaintiff’s claims and injuries. ECF No.

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80 at 2.

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Defendant Swett’s RFP No. 1 seeks plaintiff’s witness statements. Despite the court’s

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prior ruling as to relevance, plaintiff insists that defendants “only have a right to ask how many

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witnesses are involved in this action.” ECF No. 82-2, Ex. A at 2; ECF No. 86 at 4. And

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although the court’s May 18, 2016 order informed plaintiff that his response of not wanting to

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“compromise his witnesses” was inadequate, ECF No. 80 at 1-3, plaintiff maintains this vague

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and unsupported objection in his response to the RFP and in his opposition to the instant motion.

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ECF No. 82-2, Ex. A at 1 (“At this time plaintiff will not provide documentation and form a

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declaration or otherwise of his witnesses in fear his witness will be compromised and or his

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witness had a change of heart.”); ECF No. 86 at 3. Plaintiff did not produce any responsive

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documents, deny that responsive documents exist, or claim to not be in possession, custody, or

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control of responsive documents. His response demonstrates his unwillingness to comply with

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court orders and to participate, in good faith, in the discovery process.

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Defendant Swett’s RFP Nos. 2 and 11 seek plaintiff’s personal diary entries regarding the

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May 6, 2009 cell extraction at issue in this case. Once again, ignoring the court’s prior ruling as

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to relevance, plaintiff objects to the plainly pertinent and narrowly tailored requests as
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“irrelevant.” ECF No. 82-2, Ex. A at 2. Plaintiff also objects to the request as an “invasion of

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privacy” but makes no attempt to explain the basis of this objection. Id. at 2-3. More troubling

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about plaintiff’s response is his representation that he “cannot provide such documents [because]

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his property was stripped of him” while he was incarcerated. Id. Plaintiff, however, is no longer

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incarcerated and he admitted to possessing his journal as recently as March 2015. See ECF No.

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82-3 at 83-85 (explaining that he has “stashed” his journal, which documents “every single day”

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since 2002, “so nobody steals it”). Plaintiff’s claimed inability to produce his diary on the

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grounds that it was confiscated in prison, therefore, suggests bad faith and exposes plaintiff’s

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unwillingness to fairly cooperate in the discovery process.

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Defendant Swett’s RFP Nos. 7 and 9 seek documents regarding plaintiff’s alleged “pain,”

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“suffering,” and “expenses,” and defendants Carpenter, Miranda, Perry, and Roth’s RFP No. 1

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seeks documents related to plaintiff’s injuries. Notwithstanding the court’s prior ruling and the

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facial relevance of the RFPs to plaintiff’s claims and injuries, ECF No. 80 at 2,1 plaintiff again

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objected as “irrelevant” and refused to produce responsive documents or state whether any

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documents exist. ECF No. 82-2 at 6, 7-8, 10-11. With respect to plaintiff’s injuries in particular,

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plaintiff admits that he “[is] refusing to provide any more documentation based on injuries he

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received during the attack prior to trial . . . .” ECF No. 86 at 9.

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As noted, the court already found that these discovery requests appropriately seek relevant

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evidence. For that reason plaintiff was specifically ordered to provide defendants with adequate

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responses or risk dismissal for failure to comply with court orders and for failure to prosecute. Id.

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at 5. He has failed to do so and his statements confirm his refusal to comply with the court’s May

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18, 2016 order or to meaningfully fulfill his discovery obligations.

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Plaintiff has had nearly two years to locate and fully respond to defendants’ RFPs. He has

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not shown any due diligence in attempting to locate responsive documents, and the responses

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provided are inadequate, and at times, incoherent. Plaintiff’s failure to properly respond to the

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RFPs interferes with defendants’ ability to determine the nature and basis of plaintiff’s claims, to

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Indeed, defendants are entitled to know what medical care plaintiff has received since his
release from prison that bear on the injuries he alleges occurred on May 6, 2009.
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further investigate plaintiff’s allegations through additional discovery, and to make informed

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decisions in this case. Plaintiff’s conduct has delayed the case, demonstrates bad faith, and

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interferes with defendants’ ability to defend. Thus, the first three factors weigh in favor of

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dismissal. See Adriana Intl. Corp. v. Lewis & Co., 913 F.2d 1406, 1412 (9th Cir. 1990) (“Where

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a court order is violated, the first two factors support sanctions”); Yourish v. California Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation

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always favors dismissal.”); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is

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incumbent upon the Court to manage its docket without being subject to routine noncompliance

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of litigants”). The fifth factor also weighs in favor of dismissal, given the absence of available

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less drastic sanctions. The court’s May 18, 2016 warning of dismissal was plainly ineffective,

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monetary sanctions are futile given plaintiff’s indigent status, and evidentiary sanctions against

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plaintiff in this instance is tantamount to dismissal. Having considered the relevant factors, the

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court finds that dismissal of this action is the appropriate sanction.

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Accordingly, it is hereby RECOMMENDED that defendants’ motion to compel and

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request for terminating sanctions (ECF No. 82) be granted and that this action be dismissed with

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prejudice.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 17, 2017.

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