Shove v. McDonald et al

Filing 126

ORDER by Judge James Donato denying 97 Motion to Dismiss. (lrcS, COURT STAFF) (Filed on 5/3/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THEODORE SHOVE,

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Plaintiff,

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ORDER DENYING MOTION TO
DISMISS

v.

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MCDONALD, et al.,

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Re: Dkt. No. 97

Defendants.

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United States District Court
Northern District of California

Case No. 14-cv-02903-JD

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Pro se plaintiff Shove is a state prisoner suing under 42 U.S.C. § 1983. Defendants have

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moved to dismiss under Federal Rule of Civil Procedure 41(b) effectively as a termination

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sanction for Shove’s failure to appear for a deposition. The request is denied.
BACKGROUND

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The material facts are not in dispute. On December 22, 2017, in response to the Court

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ordering that a motion for summary judgment be filed, defendants served a deposition notice on

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plaintiff for January 5, 2018. Dkt. No. 97-1, Ex. 2. On January 2, 2018, Shove had a phone call

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with defense counsel and said he had not had enough time to prepare and that the scope of the

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deposition should be limited. Id. Ex. 3. 1 Counsel agreed to move the deposition to January 11,

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2018. Id. Defense counsel sent plaintiff a letter stating the new deposition date and that

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defendants would move for sanctions, including dismissal, if plaintiff did not provide testimony.

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Id. Shove sent a letter back to counsel on January 7, 2018, which said that he could not be

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deposed because he had broken a dental bridge and could not talk. Id. Ex. 4. Plaintiff also sought

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a stay on all discovery issues, which presumably included the deposition. Id.

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Plaintiff’s argument that he requires at least 21 days’ notice of a deposition pursuant to Fed. R.
Civ. P. 27(a)(2) is incorrect. Rule 27(a)(2) is not applicable.

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Defense counsel received Shove’s letter the day before the deposition, but nevertheless

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appeared as scheduled and initiated the deposition. Id. Ex. 5. Plaintiff also appeared, spoke for

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several minutes before going on the record, was sworn in by the court reporter, responded to

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general deposition instructions, and then interrupted the examination to read a prepared statement.

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Id. Plaintiff then declared the deposition over. Id.

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Defense counsel renoticed the deposition on January 25, 2018. Id. Ex. 6, 7. Defense

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counsel noted that plaintiff had twice referred to an agreement to hold the deposition after January

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22. Id. Ex. 5 at 9:9-11; 11:25-12:2, Ex. 6. On January 18, 2018, plaintiff sent a letter stating that

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he could not participate in the deposition because of his medical situation, and accused counsel of
ordering medical staff to delay his treatment. Id. Ex. 8. Defense counsel sent plaintiff a letter

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United States District Court
Northern District of California

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noting that plaintiff had failed to present any evidence of a medical problem or attempts to seek

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treatment. Id. Ex. 9. Defense counsel also stated that plaintiff was able to speak clearly on

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January 11, 2018, and did not appear to be in discomfort. Id. Defense counsel stated that he

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intended to proceed with the deposition and would seek sanctions, including dismissal of the case,

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if Shove did not cooperate. Id.

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Defense counsel arrived at the prison on January 25, but plaintiff refused to participate. Id.

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Ex. 10. A correctional officer reported that Shove would not leave his cell. Id. Defense counsel

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asked the officer to advise plaintiff that counsel would file a motion to dismiss the case. Id.

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Plaintiff stayed in his cell. Id.

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Defense counsel obtained plaintiff’s medical records. On December 3, 2017, plaintiff

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submitted a healthcare request stating, “I have a bridge permanent [] fallen out. I need to get it

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fixed as soon as possible. I also need to get a couple of teeth pulled.” Id. Ex. 11 at 13. Plaintiff

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was seen by a dentist on December 22. Id. at 9. On the intake form, plaintiff circled “No” in

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response to the question “Are you in pain now?” Id. at 2. Plaintiff also indicated on a second

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intake form that he was not in pain. Id. at 7. The dentist found that plaintiff misdiagnosed the

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issue. Id. at 9. The dentist wrote that he “[d]idn’t see any signs of bridge falling out. Bridge

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seems stable.” Id. The dentist discussed various treatment options with plaintiff and recorded that

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plaintiff, “was happy with the bridge the way it is now and does not want to do anything with
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bridge now . . .” Id.

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Plaintiff submitted another healthcare request on January 6, 2018. Reply, Fisher Decl. Ex.

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1 at 8. Plaintiff was seen again by a dentist on January 24, 2018. Id. at 2, 4. He indicated he was

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in moderate pain that was lessened by Acetaminophen, and that the dental issue had only a limited

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impact on his daily functioning. Id. at 4. Plaintiff stated that he had sensitivity when consuming

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hot or cold liquids. Id. at 2. The dentist reported that plaintiff “does not want anything done today

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as his not feeling well. He thinks he has a cold or the flu.” Id. at 2.

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DISCUSSION

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While Shove’s conduct is not acceptable, it does not warrant the drastic sanction of
termination at this time. The motion (Docket No. 97) is DENIED without prejudice. Shove is

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United States District Court
Northern District of California

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advised that defendants are entitled to examine him under oath about his claims and allegations.

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The parties are directed to set a date for the deposition within 45 days of this order. The Court

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expects Shove to sit for the deposition and answer defendants’ questions as required under the

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Federal Rules of Civil Procedure. If Shove does not do that, the Court will impose an appropriate

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sanction. Sanctions may take the form of issue or claim preclusion, evidentiary preclusion or

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outright dismissal of the case.

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IT IS SO ORDERED.
Dated: May 3, 2018

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THEODORE SHOVE,

Case No. 14-cv-02903-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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MCDONALD, et al.,
Defendants.

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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 May 3, 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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Theodore Shove ID: G11092
San Quentin State Prison
San Quentin, CA 94974

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Dated: May 3, 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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