Kimmons v. Avilar et al

Filing 95

ORDER by Judge James Donato denying 82 Motion for Summary Judgment; granting 92 Motion for Extension of Time to File. (lrcS, COURT STAFF) (Filed on 6/19/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRANLETT EUGENE KIMMONS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 14-cv-00954-JD

ORDER DENYING MOTION TO
DISMISS WITHOUT PREJUDICE

v.

Re: Dkt. Nos. 82, 92

A. AVILAR,
Defendant.

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Plaintiff, a pro se former state prisoner and current detainee, proceeds with a civil rights

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action under 42 U.S.C. § 1983. This action continues on the second amended complaint (Docket

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No. 13) alleging that defendant Avilar used excessive force against plaintiff on February 7, 2014,

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after a discussion concerning plaintiff’s contact lenses and the use of a vest designating him as

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vision impaired. Defendant has filed a motion to dismiss due to plaintiff’s failure to prosecute

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and participate in discovery and a separate motion for summary judgment. Plaintiff filed an

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opposition and defendant filed a reply. The motion to dismiss is denied without prejudice.
BACKGROUND

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The Court ordered service on defendant Avilar on July 9, 2014, and an answer was filed on

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December 23, 2014. Docket Nos. 14, 25. On March 9, 2015, defendant filed a notice that plaintiff

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had been released from prison and had indicated that he would like to participate in a settlement

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conference. Defendant agreed that a settlement conference would be productive. Docket No. 27.

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The case was stayed on April 23, 2015, and referred to Magistrate Judge Vadas for settlement

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proceedings. Docket No. 30.

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The parties appeared at a telephonic scheduling conference on August 11, 2015, with
Judge Vadas, and a settlement conference was scheduled for December 30, 2015. Docket No. 39.

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On December 30, 2015, the parties, defense counsel and counsel for the CDCR Office of Legal

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Affairs appeared. Docket No. 39; Motion to Dismiss (“MTD”) Young Decl. ¶ 3. Plaintiff advised

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Judge Vadas that he was in the process of obtaining legal counsel. Young Decl. ¶ 3. The

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settlement conference was then vacated. Id.; Docket No. 39.

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Plaintiff did not retain counsel but filed a boilerplate motion to appoint counsel with the

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Court on January 19, 2016. Docket No. 40. The motion was denied. Docket No. 46. A

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telephonic status conference was held on February 23, 2016. Docket No. 47. Plaintiff stated that

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he planned to appeal the denial of the motion to appoint counsel. Young Decl. ¶ 4.

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A further telephonic status conference was held on March 22, 2016. Docket No. 48.
Plaintiff’s wife appeared and noted that plaintiff was being held on a 90-day probation violation

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United States District Court
Northern District of California

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and would be released in May 2016. Young Decl. ¶ 5. A further telephonic status conference was

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held on June 28, 2016. Docket No. 49. Plaintiff did not appear. Young Decl. ¶ 6. Judge Vadas

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concluded the conference by setting one final status conference and stating that if plaintiff did not

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appear for it the case would be referred back to the Court with a recommendation to dismissing the

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case for failure to prosecute. Id.

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Plaintiff appeared at the next telephonic status conference, held on July 26, 2016, at which

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at which a settlement conference was scheduled for December 14, 2016. Docket Nos. 50, 51. On

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December 13, 2016, Judge Vadas vacated the settlement conference after learning that plaintiff

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was unavailable. Docket No. 59.

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A telephonic status conference was held on January 17, 2017, with plaintiff still in Yolo

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County Jail. Docket No. 61; Young Decl. ¶ 7. Defense counsel told Judge Vadas that they were

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unable to make a settlement offer because plaintiff had not provided any medical or billing

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records, witness names, nor had he made a further settlement demand. Young Decl. ¶ 7. Defense

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counsel requested that the case be referred back to the Court so a motion to dismiss for plaintiff’s

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failure to prosecute could be filed. Id. Judge Vadas denied the request and instead allowed

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defendant an opportunity to serve written discovery upon plaintiff and take his deposition. Id.

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On January 19, 2017, defense counsel served an initial set of written discovery requests

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upon plaintiff. Young Decl. Exs. B, C. Defense counsel also sent plaintiff a letter requesting a
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further settlement demand. Id. Ex. D. Defense counsel also noticed plaintiff’s deposition for

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March 6, 2017, a date that provided plaintiff an opportunity to respond to discovery first. Id. Ex.

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E. Defense counsel also sent plaintiff an additional letter on February 21, 2017 advising him of

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the upcoming deposition and the importance of responding to the written discovery requests. Id.
Plaintiff never responded to the written discovery requests, so the deposition was taken off

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calendar. Id. Ex. F. Defense counsel informed plaintiff that he would either seek an order

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directing plaintiff to respond to the discovery or request the case be referred back to the Court with

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recommendations to dismiss the case for failure to prosecute. Id.
A further telephonic status conference was held on March 14, 2017. Docket No. 62.

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Judge Vadas declined to issue any orders concerning discovery or to terminate settlement

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Northern District of California

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proceedings and ordered the parties to meet and confer in person. Id. Defense counsel met with

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plaintiff in person at Yolo County Jail on March 17, 2017. Young Decl. ¶ 12. At the meeting

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plaintiff agreed to serve full responses to the written discovery requests within two weeks, and

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defense counsel sent plaintiff a letter confirming what they discussed. Young Decl. Ex. G.

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Plaintiff also spent a great deal of time during the meeting discussing issues not pertinent to his

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civil case, such as an “illegal sentence” in his criminal case, an improper classification as a sex

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offender, and his desire to obtain compensation for others who had been mistreated by law

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enforcement. Young Decl. ¶ 13. Defense counsel informed plaintiff that these issues were not

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relevant and would not be permitted to be discussed should the case proceed to trial. Young Decl.

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¶¶ 13, 14.
A further telephonic status conference was held on March 28, 2017, to discuss the

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discovery requests, and another status conference was scheduled. Docket No. 63. Defense

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counsel never received the written discovery requests from plaintiff, yet still took his deposition

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on April 12, 2017. Young Decl. Ex. A. At the deposition plaintiff stated that he had mailed the

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discovery responses but that guards at Yolo County Jail were tampering with his mail. Id. at 138-

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40.

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On May 9, 2017, defense counsel sent plaintiff another letter instructing him to re-send the
discovery responses and to keep records of any officers who assisted him so they could be
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investigated if the responses went missing. Young Decl. Ex. H. Plaintiff failed to respond to this

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letter and never provided responses to the discovery request. Young Decl. ¶ 16.

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Defense counsel submitted a second discovery request to plaintiff that specifically

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followed up on answers he provided at the deposition. Young Decl. ¶ 17. Plaintiff failed to

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respond to the second set of discovery requests. On June 29, 2017, defense counsel sent plaintiff a

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letter saying that he would be personally visiting the jail to pick up plaintiff’s discovery responses.

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Young Decl. Ex. K. On July 25, 2017, defense counsel visited the jail to obtain the discovery

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responses. Young Decl. ¶ 19. Plaintiff stated that he had not responded to the discovery requests

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because he had no pen or access to a copier, and he feared that his answers in pencil could be
altered Id. Defense counsel suggested that plaintiff write his answers and then contact him so

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Northern District of California

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that he could have the jail make two copies and give one copy to plaintiff. Id. ¶ 20. Plaintiff

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stated he would do this. Id. Defense counsel sent an additional letter describing this procedure to

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plaintiff, yet plaintiff never contacted defense counsel to have the copies made. Id.

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After a further telephonic status conference, a settlement conference was scheduled for

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October 19, 2017. Docket No. 74. The settlement conference was attended by defense counsel,

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counsel for CDCR’s Office of Legal Affairs, plaintiff and Judge Vadas. Docket No. 78. The

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settlement conference lasted one hour and eighteen minutes. Id. Plaintiff again discussed his

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sentence and other topics not relevant to the case, such as his belief that the mass shooting in Las

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Vegas was connected to his case. Young Decl. ¶ 23. When plaintiff was asked to provide any

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additional facts or witnesses that supported his case, he stated it would be up to “the people” to

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decide. Id. ¶ 24. His only settlement demand was for $999,999,999. Id. The case did not settle.

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Docket No. 78.

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On October 26, 2017, the Court lifted the stay and ordered defendant to file a motion for

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summary judgment or other dispositive motion. Docket No. 79. On October 31, 2017, defense

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counsel sent a letter to plaintiff with a copy of all the discovery requests and described the

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attempts made to obtain them. Young Decl. Ex. M. Plaintiff was informed that if he did not

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respond to the discovery requests, defense counsel would file a motion to dismiss for failure to

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prosecute. Id.
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Plaintiff did not submit any discovery responses to defense counsel. Young Decl. ¶ 27.

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The motion to dismiss and motion for summary judgment was filed on December 22, 2017.

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Docket No. 82. On January 12, 2018, plaintiff mailed a copy of defendant’s initial request for

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production to the Court along with several pages of his medical records that defendant had already

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subpoenaed. Docket No. 85; Reply at 1. The incident in this case occurred on February 7, 2014,

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and defendant’s request for production had been for documents related to health care treatment

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resulting from the incident. Id. The pages plaintiff submitted reflect medical charges from 2011

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and 2012 that have no relation to the incident in this case. Id.
Plaintiff failed to file an opposition, so, on March 1, 2018, the Court reminded plaintiff to

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file an opposition or else the case could be dismissed. Docket No. 89. Plaintiff filed an opposition

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United States District Court
Northern District of California

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on April 6, 2018, that only briefly addressed the motion to dismiss for failure to prosecute.

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Docket No. 91.1 Plaintiff makes no reference in the opposition to his failure to reply to the

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discovery requests or that the one discovery-related filing he sent to the Court in 2018 failed to

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respond to defendant’s requests and was not relevant.
DISCUSSION

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Even with allowances made for plaintiff’s status as a pro se and incarcerated party, he has

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failed to litigate his case in a responsible and timely manner. Plaintiff’s multiple defaults and

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overall lack of cooperation with opposing counsel and the Court warrant immediate termination of

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the action. Nevertheless, the Court will give plaintiff one last chance to prosecute his claims. To

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avoid dismissal for failure to prosecute this action, plaintiff must provide complete responses to

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defendant’s discovery requests within 60 days of the date of this order. The responses must

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directly address the substance of the discovery requests and the facts at issue in the complaint.

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Detours and asides such as the production of medical reports from several years prior to the

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incident are unacceptable and will not count as a proper response to the pending discovery. If

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defendant notices a deposition, plaintiff must appear for it and be prepared to testify. Failure to

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comply with these requirements will result in dismissal of the action with prejudice under

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Plaintiff does not dispute the facts and background set forth above.
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FRCP Rule 41(b) for failure to prosecute and failure to comply with the Court’s orders.

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Plaintiff may not file any requests for reconsideration or clarification of this order, or any

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statement of objections. Defendant may bring a motion to dismiss or for summary judgment as

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circumstances warrant after the completion of the 60-day discovery period.

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IT IS SO ORDERED.
Dated: June 19, 2018

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRANLETT EUGENE KIMMONS,

Case No. 14-cv-00954-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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A. AVILAR,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on June 19, 2018, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Branlett Eugene Kimmons
140 A Tony Diaz Drive
Woodland, CA 95776

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Dated: June 19, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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