Hammler v. Hernandez et al

Filing 89

ORDER Adopting Report and Recommendation [Doc. No. 86 ], Granting Motion for Terminating Sanctions [Doc. No. 81 ] and Dismissing Case With Prejudice. Signed by Judge Cathy Ann Bencivengo on 12/21/2020. (All non-registered users served via U.S. Mail Service)(anh)(dsn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

Case No.: 18cv259-CAB-MDD
Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 86],
GRANTING MOTION FOR
TERMINATING SANCTIONS [Doc.
No. 81] AND DISMISSING CASE
WITH PREJUDICE

J. HERNANDEZ, et al.,

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Defendant.

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in
forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983.
[Doc. No. 1.] On October 23, 2020, Defendants filed a motion for terminating and
monetary sanctions for Plaintiff’s failure to participate in his deposition for a second time
and to comply with court orders. [Doc. No. 81.] On November 16, 2020, Plaintiff filed
an opposition to the motion. [Doc. No. 84.] On November 17, 2020, Magistrate Judge
Mitchell D. Dembin issued a Report and Recommendation (“Report”) to grant the motion
for terminating sanctions. [Doc. No. 86.] On December 3, 2020, Plaintiff filed
objections to the Report. [Doc. No. 87.] On December 15, 2020, Defendants filed a
reply to the objections. [Doc. No. 88.]

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18cv259-CAB-MDD

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Having reviewed the matter de novo and for the reasons that follow, the Report is
ADOPTED and the motion for terminating sanctions is GRANTED.

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REVIEW OF REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of

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a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b). The district court need not review de novo those portions of a report and

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recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003)

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(en banc).

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DISCUSSION

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As described at length in the Report [Doc. No. 86 at 2-6], Defendants have

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attempted to take Plaintiff’s deposition for the last nine months. In the first deposition in

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March 2020, Plaintiff engaged in obstreperous behavior and failed to answer questions in

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a meaningful way. Defendants brought a motion to compel and for monetary sanctions.

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Magistrate Judge Dembin declined to impose monetary sanctions, but allowed

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Defendants to re-depose Plaintiff, and admonished Plaintiff that his behavior in the first

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deposition was inappropriate. When Plaintiff was re-deposed in September 2020, he

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again engaged in obstreperous behavior and failed to answer questions about Defendants’

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involvement in the incidents alleged in the complaint. Defendants now seek terminating

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sanctions for Plaintiff’s failure to participate in a meaningful way in the second

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deposition. Magistrate Judge Dembin recommends granting the motion for terminating

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sanction because Plaintiff’s failure to answer substantive questions about the allegations

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of the complaint was willful, and the five factors considered in the Ninth Circuit to

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determine whether terminating sanctions are appropriate (see Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986)) weigh in favor of granting the motion.
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18cv259-CAB-MDD

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In his objections, Plaintiff focuses primarily on the portion of the Report that

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summarizes Defendants’ first attempt to depose Plaintiff on March 10, 2020. [Doc. No.

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87 at 2-3.] But Magistrate Judge Dembin’s recommendation is based on Plaintiff’s

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refusal to answer appropriate questions about his current allegations at his September 23,

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2020 deposition. [See Doc. No. 86 at 4-6.]

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Plaintiff admits that he refused to answer questions at his September 23, 2020

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deposition, but claims that the portions of the deposition transcript Magistrate Judge

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Dembin used as examples of his non-cooperation were not relevant to his current

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allegations. [See Doc. No. 87 at 6.] However, Defendants’ knowledge of the incidents

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that they allegedly retaliated against Plaintiff for complaining about— whether it be from

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personal involvement or another source—is relevant to Plaintiff’s claims and Defendants’

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possible defenses. See Rhodes v. Robinson, 621 F.3d 1002 (2010).

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In his objections, Plaintiff now offers to stipulate that Defendants were not

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involved in three specific incidents. [See Doc. No. 87 at 6.] But this will not cure the

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prejudice Defendants have suffered. Despite two attempts to depose Plaintiff, and

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Plaintiff being admonished by the Court, Defendants still have not been able to ask

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Plaintiff questions about his allegations against them. Finally, Plaintiff’s objections do

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not indicate that he will change his behavior.

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CONCLUSION
For the reasons set forth above, the Report is ADOPTED, the objections are

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OVERRULED, the motion for terminating sanctions is GRANTED, and the case is

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DISMISSED WITH PREJUDICE. The Clerk shall enter judgment accordingly.

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IT IS SO ORDERED.
Dated: December 21, 2020

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18cv259-CAB-MDD