Washington v. Young, et al.
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/26/2019 ORDERING plaintiff's 76 motion for ruling is GRANTED; plaintiff's 47 motion to treat Grissom as a hostile witness is DENIED; plaintiff' s 72 motion to appoint counsel is DENIED; and plaintiff's 74 motion for leave to file an objection is DENIED. IT IS RECOMMENDED that the declaration submitted with the complaint be stricken from the record; and defendants' 41 motion for terminating sanctions be denied. Referred to Judge John A. Mendez; 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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CHRISTOPHER NATHANIEL
WASHINGTON,
Plaintiff,
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No. 2:16-cv-1341 JAM DB P
ORDER AND FINDINGS AND
RECOMMENDATIONS
v.
YOUNG, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
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pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendants violated his rights under the Eighth
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Amendment. Currently before the court is defendant’s motion for terminating sanctions (ECF
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No. 41), plaintiff’s opposition to defendant’s motion for terminating sanctions (ECF Nos. 47, 48),
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and plaintiff’s motion to appoint counsel (ECF No. 72). For the reasons set forth below the court
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will deny plaintiff’s motion to appoint counsel and recommend that defendants’ motion for
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terminating sanctions be denied.
PLAINTIFF’S MOTION FOR RULING
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Plaintiff filed a motion requesting the court rule on defendants’ motion for sanctions.
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(ECF No. 76.) The court will grant the motion and rule on defendants’ motion for sanctions as
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set forth below.
DEFENDANT’S MOTION FOR TERMINATING SANCTIONS
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I.
Procedural History
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Plaintiff initiated this action by filing the complaint on June 16, 2016. (ECF No. 1.) The
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court screened plaintiff’s complaint, found that he stated a cognizable Eighth Amendment claim
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for cruel and unusual punishment against defendants Young, Weeks, Haas, and Coen. (ECF No.
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20.) All other claims and defendants were dismissed and plaintiff was given the opportunity to
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file an amended complaint. Plaintiff responded by filing a motion for leave to amend his
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complaint by withdrawing those defendants and claims found to be non-cognizable. (ECF No.
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23.) The court construed the motion as notice of plaintiff’s willingness to proceed on the
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complaint as screened. (ECF No. 24.)
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In response to service of the complaint, defendants filed a motion for terminating
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sanctions and request to seal. (ECF No. 41.) Therein they alleged a declaration purported to be
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that of inmate Howard Grissom and filed as an attachment to the complaint was fraudulent. After
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being directed to file a response, plaintiff filed both an opposition (ECF No. 48) and a motion to
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treat Howard Grissom as a hostile witness (ECF No. 47).
After reviewing defendants’ motion (ECF No. 41), plaintiff’s opposition (ECF Nos. 47,
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48), and defendants’ reply (ECF No. 49), the court ordered plaintiff, Grissom, and defense
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counsel to appear at a show cause hearing to determine whether defendants’ motion should be
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granted. (ECF No. 53.) The court also granted the motion to seal out of an abundance of caution.
The court held a show cause hearing on the matter of defendants’ motion for terminating
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sanctions on September 12, 2018. (ECF No. 71.) Plaintiff appeared pro se, and Sean Lodholz
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and Tracy Hendrickson appeared on behalf of defendants. Plaintiff testified on his own behalf.
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Howard Grissom testified on behalf of defendants.
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II.
Defendants’ Argument in Support of their Motion for Sanctions
Defendants’ motion for terminating sanctions alleges that plaintiff submitted a fraudulent
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declaration purportedly written by inmate Howard Grissom as an exhibit attached to the
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complaint. (ECF No. 41.) Defendants assert that the declaration (ECF No. 1 at 10), was not
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signed or written by Grissom. In support of this assertion they filed a declaration from Grissom
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stating he did not sign or write the declaration attached to the complaint. (ECF No. 41-2.)
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Defendants argue that this action should be dismissed because monetary sanctions would
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have little or no effect and striking the declaration would leave plaintiff in the same position he
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would have been had he not attempted to defraud the court. (ECF No. 41-1 at 3.) However, they
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also acknowledge that they have not been significantly prejudiced by the declaration because they
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were able to uncover it early in the case.
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III.
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Legal Standards
Federal courts possess broad powers to impose sanctions against parties or counsel for
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improper conduct during litigation. The court derives the power to impose sanctions on parties or
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their counsel from three sources, (1) Federal Rule of Civil Procedure 11, (2) 28 U.S.C. § 1927,1
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and (3) the court’s inherent power. Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001).
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Under Federal Rule of Civil Procedure 11, sanctions may be imposed if a party or their
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attorney submits a pleading to the court which is submitted for an improper purpose, is frivolous,
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has no evidentiary support, or is not warranted by the evidence. A party moving for Rule 11
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sanctions bears the burden to show why sanctions are justified. See Tom Growney Equip., v.
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Shelley Irr. Dev., Inc., 834 F.2d 833, 837 (9th Cir. 1987). The Ninth Circuit has stated that Rule
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11 sanctions are “an extraordinary remedy, one to be exercised with extreme caution.” Operating
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Eng’rs Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988).
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When evaluating the imposition of sanctions, Rule 11 requires the court to consider not
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whether the party demonstrated subjective good faith in filing the document, but whether the
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party acted objectively reasonably in doing so. G.C. K.B. Investments v. Wilson, 326 F.3d 1096,
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1109 (9th Cir. 2003). “An order imposing a sanction must describe the sanctioned conduct and
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explain the basis for the sanction.” Fed. R. Civ. P. 11(c)(6).
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Federal courts also have the inherent power to sanction parties or their attorneys for
improper conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991). In order to impose
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This section is aimed at penalizing conduct that unreasonably and vexatiously multiplies the
proceedings which his not applicable here.
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sanctions pursuant to its inherent power, “the court must make an express finding that the
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sanctioned party’s behavior ‘constituted or was tantamount to bad faith.’” Leon v. IDX Sys.
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Corp., 464 F.3d 951, 961 (9th Cir. 2006). “Because of their very potency, inherent powers to
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sanction must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44.
“[O]utright dismissal of a lawsuit . . . is a particularly severe sanction, yet is within the
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court’s discretion.” Chambers, 501 U.S. at 45 (citation omitted). “It is well settled that dismissal
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is warranted where . . . a party has engaged deliberately in deceptive practices that undermine the
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integrity of judicial proceedings . . . .” Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69
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F.3d 337, 348 (9th Cir. 1995). The Ninth Circuit has held that falsifying evidence is a ground for
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imposing the sanction of dismissal. See Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th
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Cir. 1991) (affirming dismissal as appropriate sanction for falsifying a deposition); Wyle v. R.J.
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Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983) (affirming dismissal where plaintiff’s
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denials of material fact were knowingly false and plaintiff willfully failed to comply with
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discovery orders). Recklessness, when combined with an additional factor such as frivolousness,
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harassment, or an improper purpose, may support sanctions, Gomez v. Vernon, 255 F.3d 1118,
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1134 (9th Cir. 2001); Fink, 239 F.3d at 994, but mere negligence or recklessness will not suffice,
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In re Lehtinen, 564 F.3d 1052, 1058 (9th Cir. 2009) abrogated on other grounds by Bullard v.
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Blue Hills Bank, 135 S. Ct. 1686 (2015).
In determining whether to impose terminating sanctions the court must weigh: “(1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
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their merits; and (5) the availability of less drastic sanctions.” Thompson v. Hous. Auth. of City
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of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (per curium); Conn. Gen. Life Ins. Co. v. New
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Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (“Only ‘willfulness, bad faith, and
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fault’ justify terminating sanctions.”) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir.
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2003)).
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IV.
Analysis
At the outset, the court notes that sanctions may not be imposed under Rule 11. A motion
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for sanctions brought under Rule 11 has stringent notice and filing requirements. Rule 11
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includes a strictly-enforced “safe harbor” provision. See Fed. R. Civ. P. 11(c)(2) (“The motion
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must be served . . . but it must not be filed or be presented to the court if the challenged paper,
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claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after
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service . . . .”). See also Holgate v. Baldwin, 425 F.3d 671, 677-78 (9th Cir. 2005) (quoting
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Barber v. Miller, 146 F.3d 707, 710-11 (9th Cir. 1998)) (sanctions cannot be awarded when “the
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challenging party failed to comply with the safe harbor provisions, even when the underlying
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filing is frivolous”). Here, plaintiff claims defendants failed to comply with the safe harbor
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requirement prior to moving for sanctions (ECF No. 74), and there is nothing in the record to
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indicate otherwise.
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The court next turns to the imposition of sanctions pursuant to its inherent authority.
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Defendants argued in their motion, and maintained at the hearing, that plaintiff attempted to
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defraud the court by preparing and signing the Grissom declaration and that alone demonstrates
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sufficient bad faith to warrant the imposition of terminating sanctions. In support of their
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argument, they rely on Uribe v. McKesson, No. 1:08-cv-1285 SMS PC, 2011 WL 3925077 (E.D.
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Cal. Sept. 7, 2011) (imposing terminating sanctions against pro se prisoner plaintiff for filing a
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false declaration in support of his motion for summary judgment). However, the court finds
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Uribe is distinguishable. In Uribe, the inmate plaintiff admitted he forged the signature and gave
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conflicting testimony regarding whether he had received permission to sign on the declarant’s
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behalf. Id. at *2-4. There was also evidence in the record that the inmate plaintiff traced the
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declarant’s signature from another legal document and the declarant testified that plaintiff
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attempted to pay the declarant money to mollify him when he raised issues with the forged
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declaration. Id.
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At the hearing, defendants put on evidence showing that the signature on the challenged
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declaration was not visually similar to the signature Grissom identified as his own. They also
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presented evidence that the signature on the challenged declaration is visually similar to
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plaintiff’s handwriting and the document was prepared using the same typewriter used to prepare
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plaintiff’s other filings. Plaintiff argued that the visual difference in the signatures was the result
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of Grissom printing his name on one declaration and signing in cursive writing on the other
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declaration.
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The defendants have not presented any additional evidence that would support a finding
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that plaintiff acted in bad faith. Further, Grissom testified that he made the statements contained
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in the declaration at some point. Plaintiff filed an additional declaration containing a signature
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visually similar to the one Grissom identified as his own and containing substantially similar
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allegations as the challenged declaration. (ECF No. 57 at 3.) Grissom also testified that a third
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inmate, Michael Clark, typed up a declaration stating similar allegations while Grissom stood at
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Clark’s cell door, and Grissom voluntarily signed that declaration when it was finished.
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While Grissom testified that some of the allegations contained in the challenged
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declaration were untrue and stated to attain a transfer to a different prison, it does not appear that
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the allegations contained in the declaration were fabricated by plaintiff for the purpose of
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defrauding the court. Grissom indicated he made statements similar to those in the challenged
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declaration and signed a similar declaration prepared by Clark. It is unclear how plaintiff learned
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of Grissom’s statements. However, the evidence presented at the hearing does not support a
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finding that plaintiff fabricated the allegations. Instead, it appears plaintiff relied on the
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declaration prepared by Clark that Grissom signed when he prepared the declaration attached to
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the complaint. There is no evidence in the record that plaintiff knew the allegations contained in
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the declaration were false at the time he submitted the complaint to the court or that he fabricated
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the allegations contained therein.
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Although the court has determined that there is not sufficient evidence in the record to
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establish that plaintiff acted in bad faith, the challenged declaration (ECF No. 1 at 10), should be
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stricken from the record. At the hearing, inmate Grissom denied signing the declaration attached
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to the complaint and stated that some of the allegations contained in the declaration were lies he
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told to receive a transfer to a different institution. The court can have no confidence in a
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declaration which the declarant himself disavows. See Masterson v. Killen, 1:11-cv-1179 DAD
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SAB PC, 2017 WL 892761 at *5 (E.D. Cal. Mar. 6, 2017).
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Moreover, even if defendants had shown that plaintiff acted in bad faith, dismissal of this
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action as a sanction would not be appropriate in this instance. Defendants have acknowledged
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that they have not been prejudiced by the declaration (ECF No. 41-1 at 3), public policy always
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weighs in favor of a disposition on the merits, and the less drastic sanction of striking the
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challenged declaration is an adequate remedy. In re Phenylpropanolamine (PPA) Products
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Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (The factors guide a court in deciding
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what to do and are not conditions that must be met in order for a court to take action.).
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Because it appears that defendants failed to comply with the safe harbor provision of Rule
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recommend that defendants’ motion for sanctions be denied.
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PLAINTIFF’S MOTION TO TREAT GRISSOM AS A HOSTILE WITNESS
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After plaintiff was directed to file a response to defendants’ motion for terminating
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sanctions, plaintiff filed a motion requesting to treat Howard Grissom as a hostile witness (ECF
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No. 47) concurrently with his opposition. Upon review of the motion, it appears that the
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substance of this filing contains additional arguments in opposition to the motion for terminating
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sanctions. To the extent plaintiff’s motion was a request to question Grissom regarding the claim
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that Grissom did not write or sign the declaration attached to the compliant, it was granted when
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plaintiff was permitted to cross-examine Grissom during the show cause hearing. To the extent
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plaintiff’s motion contained arguments in opposition, the court has read and considered them.
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Accordingly, the motion will be denied as moot.
PLAINTIFF’S MOTION TO APPOINT COUNSEL
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Plaintiff filed a motion to appoint counsel on September 8, 2018.2 (ECF No. 72.)
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Plaintiff requested the assistance of counsel during the show cause hearing; however, the motion
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Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs
the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276
(1988); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010).
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did not appear on the docket until after the show cause hearing. Plaintiff argued the court should
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appoint counsel because his appearance at the hearing was an exceptional circumstance and he
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could not articulate his claim pro se in light of the complexity of the legal issues involved. (ECF
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No. 72.)
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The court previously found that plaintiff’s filings indicated he was adequately able to
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articulate his claims in this action and denied plaintiff’s request to appoint counsel to assist
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plaintiff during the hearing. (ECF No. 64.) The court will deny as moot plaintiff’s motion
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because the court previously found plaintiff did not require the assistance of counsel at the
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hearing and the motion was not received before the hearing.
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PLAINTIFF’S MOTION FOR LEAVE TO FILE AN OBJECTION
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Following the hearing, plaintiff filed a motion to object to the undersigned making a
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handwriting analysis based on exhibits used during the show cause hearing. (ECF No. 73.)
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Plaintiff also filed a document captioned “Request leave to file notice of Motion and Motion to
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Object to there not being an example of the Witnesses Mr. Grissom’s printing to compare to the
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printing on defenses exhibit 001.” (ECF No. 74.) Defendants filed an opposition to the motions
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arguing that any objections were premature because the court had not yet issued findings and
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recommendations on the underlying motion for sanctions. (ECF No. 75.) The court will deny the
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motion without prejudice as premature. Plaintiff may file objections to the court’s ruling on the
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motion for sanctions based on the findings and recommendations set forth above.
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CONCLUSION
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for ruling (ECF No. 76) is granted;
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2. Plaintiff’s motion to treat Grissom as a hostile witness (ECF No. 47) is denied;
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3. Plaintiff’s motion to appoint counsel (ECF No. 72) is denied; and
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4. Plaintiff’s motion for leave to file an objection (ECF No. 74) is denied.
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IT IS HEREBY RECOMMENDED that:
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1. The declaration submitted with the complaint (ECF No. 1 at 10) be stricken from the
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record; and
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2. Defendants’ motion for terminating sanctions (ECF No. 41) be denied.
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These findings and recommendations will be 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)(1). 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. The document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within seven days after service of the objections. The parties
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are advised that failure to file objections within the specified time may result in waiver of the
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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: February 26, 2019
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DLB:1/Orders/Prisoner-Civil rights/wash1341.mot.sanct.hrg
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