Johnson v. Beard

Filing 36

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/7/2019 RECOMMENDING plaintiff's 35 motion to amend be denied; and this action be dismissed without prejudice. Referred to Judge Troy L. Nunley; 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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PAUL DAVID JOHNSON,

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Plaintiff,

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v.

No. 2:15-cv-1313 TLN KJN P

FINDINGS AND RECOMMENDATIONS

J.A. BEARD, et al.,

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Defendants.

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Introduction
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights

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action under 42 U.S.C. § 1983. On February 4, 2019, plaintiff filed a motion to amend. As set

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forth below, the undersigned recommends that plaintiff’s motion to amend be denied, and that

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this action be dismissed based on plaintiff’s failure to comply with court orders. Fed. R. Civ. P.

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41(b).

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Background

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On March 20, 2018, the undersigned issued an order and findings and recommendations,

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which the district court adopted in full over plaintiff’s objections on October 31, 2018. (ECF

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Nos. 19, 25.) On November 5, 2018, plaintiff was granted, sua sponte, a thirty-day extension of

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time in which to file a second amended complaint that complied with the March 20, 2018 order,

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and warned that failure to do so would result in dismissal of this action. (ECF No. 26.)
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Thereafter, plaintiff filed interlocutory appeals, which were dismissed for lack of jurisdiction.

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(ECF No. 31.) On January 18, 2019, again sua sponte, the court granted plaintiff one final

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extension of time of twenty-one days in which to file a second amended complaint that complied

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with the March 20, 2018 order. (ECF No. 34.) Plaintiff was cautioned that “[f]ailure to file his

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pleading in response to this order will result in the dismissal of this action. Fed. R. Civ. P.

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41(b).” (ECF No. 34 at 1.)

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Plaintiff’s Motion
Despite this court’s orders, plaintiff has not filed a second amended complaint. Rather, on

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February 4, 2019, plaintiff filed a motion to amend in which he seeks leave to pursue a claim

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against D.L. Runnels, Warden of High Desert State Prison (“HDSP”), who allegedly set in

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motion a series of acts by others, including being legally responsible for the safe drinking water,

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the medical treatment, and health, safety, and welfare of the inmate population. (ECF No. 35 at

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3.) Plaintiff alleges Runnels, with the approval of the contracted medical doctors and the

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institutional plant operator, allowed the drinking water at HDSP to continue to be consumed by

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inmates knowing it was unsafe due to high levels of arsenic and nitrate, exposing plaintiff to

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arsenic from 2000 to 2004 or 2005. (Id.) Plaintiff contends that despite such awareness, Runnels

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acted with negligence, breaching his obligation to plaintiff. (ECF No. 35 at 5.) Plaintiff concedes

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that Runnels was not the medical provider, but argues that supervisors can be liable under § 1983

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based on their supervision and control of their subordinates by their own culpable action or

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inaction in the training, supervision or control of such subordinates; acquiescence in the

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constitutional deprivation; or conduct showing a reckless or callous indifference for the rights of

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others.

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Standards Governing Terminating Sanctions
District courts retain broad discretion to control their dockets and “[i]n the exercise of that

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power they may impose sanctions, including where appropriate, default or dismissal.” Adams v.

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California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007)1 (brackets in original)

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Adams was overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).
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(quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)

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(per curiam)). “[C]ourts have inherent power to dismiss an action when a party has willfully

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deceived the court and engaged in conduct utterly inconsistent with the orderly administration of

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justice.” Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1338 (9th Cir. 1985)

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(internal quotations and citation omitted); see, e.g., Anheuser-Busch, Inc. v. Natural Beverage

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Distrib., 69 F.3d 337, 348 (9th Cir. 1995) (upholding dismissal where party engaged in deceptive

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practices that undermined the integrity of the proceedings). But such a harsh penalty “should be

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imposed as a sanction only in extreme circumstances.” Thompson, 782 F.2d at 831 (citing

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Courts have dismissed an action

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with prejudice for various reasons. See, e.g., Malone v. United States Postal Service, 833 F.2d

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128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson, 779

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F.2d at 1424 (dismissal for failure to prosecute and for failure to comply with local rules);

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Sanchez v. Rodriguez, 298 F.R.D. 460, 464 (C.D. Cal. 2014) (applied terminating sanctions for

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pro se plaintiff’s failure to respond to discovery requests).

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Accordingly, the Ninth Circuit permits imposition of such terminating sanctions only after

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the district court has weighed: “(1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits and (5) the availability of less drastic

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sanctions.” Thompson, 782 F.2d at 831; Conn. Gen. Life Ins. Co. v. New Images of Beverly

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Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (“Only ‘willfulness, bad faith, and fault’ justify

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terminating sanctions.”) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)).

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Discussion

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Initially, plaintiff’s motion to amend fails because it was not accompanied by a proposed

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second amended complaint. As a prisoner, plaintiff’s pleadings are subject to evaluation by this

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court pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915A. Because plaintiff did not

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submit a proposed second amended complaint, the court is unable to evaluate it.

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More importantly, however, plaintiff failed to comply with the court’s orders, which this
court finds willful in light of the specific rulings contained in the order and findings and
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recommendations issued on March 20, 2018. “Disobedient conduct not shown to be outside the

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control of the litigant is sufficient to demonstrate willfulness, bad faith, or fault.” Jorgensen v.

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Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (citation omitted). Plaintiff’s failure to file a second

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amended complaint is solely within plaintiff’s control, as evidenced by his ability to file other

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documents with the court.

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The court made clear that this action would proceed solely on plaintiff’s claims

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concerning medical care at CSP-SOL and DVI, and plaintiff was warned that he was not allowed

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to change the nature of this suit by alleging new, unrelated claims. (ECF No. 19 at 38.)

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Specifically, plaintiff was granted leave to amend the following claims:

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a. Eighth Amendment medical claims based on medical care provided by Dr. Naku, Dr.
Mahmoud, Dr. Chen, or Dr. Collinsworth, at CSP-SOL after December 13, 2010;
b. Eighth Amendment medical claims based on medical care provided by defendants Dr.
Win, Dr. Zheng, or Dr. Kim at DVI; and
c. Negligence or medical malpractice state law claims based on medical care, provided he

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can demonstrate timely compliance with the CTCA’s presentation requirement.

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(ECF No. 19 at 39 (emphasis added.) Further, plaintiff was informed that his water claims must

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be raised in a separate civil rights action, and cautioned that his HDSP claims were likely barred

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by the statute of limitations. (ECF No. 19 at 8.) Moreover, plaintiff’s claims against doctors at

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HDSP based on medical care from 2000 to 2005 at HDSP were dismissed as barred by the statute

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of limitations. (ECF No. 19 at 25.) Plaintiff was reminded that Runnels is not liable based on a

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theory of respondeat superior in a federal civil rights action. (ECF No. 19 at 5 n.4.)

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In light of the detailed screening order, as well as plaintiff’s continued failure to file a

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second amended complaint, the undersigned finds that plaintiff’s failure to comply with court

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orders is willful and intentional.

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The court finds that the public’s interest in expeditiously resolving this litigation and the

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court’s interest in managing the docket weigh in favor of dismissal. This action has been pending

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since June of 2015, and plaintiff’s willful refusal to file a second amended complaint since

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December 5, 2018, further delays screening, service of process, and timely resolution of this
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action. Moreover, plaintiff’s filing of a futile motion to amend usurps scarce judicial resources by

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requiring the court to revisit issues already addressed in the March 20, 2018 screening order.

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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal. “To

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prove prejudice, a defendant must establish that plaintiff’s actions impaired defendant’s ability to

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proceed to trial or threatened to interfere with the rightful decision of the case.” Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Malone, 833 F.2d at 131). The risk of prejudice

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is considered in relation to plaintiff’s reason for defaulting. Id. (citing Yourish v. Cal. Amplifier,

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191 F.3d 983, 991 (9th Cir. 1999)). Here, defendants have not yet been served with process and

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therefore have not received notice of plaintiff’s claims. Fed. R. Civ. P. 4(m). Plaintiff’s claims

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grow more stale as time passes, and his continued efforts to pursue stale claims from 2000 to

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2005, which are likely barred by the statute of limitations, are prejudicial and interfere with the

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court’s ability to address plaintiff’s timely claims. Technically, plaintiff’s amended pleading

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should have been filed April 20, 2018 (ECF No. 19 at 39), but this court sua sponte granted

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plaintiff extensions of time in which to comply. Plaintiff’s additional delay in filing his pleading

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further prejudices defendants by depriving them of an opportunity to timely respond.

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The fourth factor weighs against dismissal, because “public policy strongly favors

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disposition of actions on the merits.” Yourish, 191 F.3d at 992 (citation and internal quotation

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marks omitted). However, in this case it is outweighed by the factors in favor of dismissal

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discussed herein.

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Finally, the court finds that there are no other, lesser sanctions that would be satisfactory

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or effective. Plaintiff has twice been warned that failure to file a second amended complaint

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would result in the dismissal of this action. (ECF Nos. 26 at 1; 34 at 1.) See, e.g., Anderson v.

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City of Davis, 368 Fed. Appx. 851 (9th Cir. 2010); Puckett v. Dyer, 331 Fed. Appx. 476, 477 (9th

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Cir. 2009); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (1992) (citing Malone, 833 at 132-33;

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Henderson, 779 F.2d at 1424). Monetary sanctions are ineffective in light of plaintiff’s in forma

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pauperis status. Because no operative pleading is on file, the court is unable to consider any other

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evidentiary sanctions. Additional court orders are ineffective because plaintiff refuses to comply

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with them. Plaintiff’s objections were overruled by the district court, and his appeals were
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dismissed by the United States Court of Appeals for the Ninth Circuit.

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In addition, plaintiff has been granted multiple opportunities to amend his pleading.

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Plaintiff filed his first pleading in the Northern District of California in 2014. (See ECF No. 19 at

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2.) Plaintiff’s claims against defendants at HDSP, CSP-SOL and DVI were dismissed without

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prejudice to filing an action in the Eastern District. (Id.) On June 19, 2015, plaintiff filed his

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original complaint in this action. (ECF No. 1.) On June 21, 2016, plaintiff filed a 220-page

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amended complaint. (ECF No. 15.) Despite the court’s two prior warnings, plaintiff did not

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otherwise file or submit a proposed second amended complaint with his motion to amend.

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For all of the above reasons, and after weighing all of the factors required by the Ninth

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Circuit, the undersigned finds that plaintiff’s willful failure to file a second amended complaint as

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required by the district court’s October 31, 2018 order warrants the imposition of terminating

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sanctions based on plaintiff’s failure to comply with the court’s orders. Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion to amend (ECF No. 35) be denied; and

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2. This action be dismissed with prejudice. Fed. R. Civ. P. 41(b).

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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, plaintiff may file written objections

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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.” Plaintiff is advised that

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

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

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Dated: February 7, 2019

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/john1313.56

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