Carbajal v. Warner et al

Filing 598

ORDER Discharging 594 Order to Show Cause, Staying Case, and Closing Case Administratively. On or after May 1, 2014, but before May 15, 2014, the plaintiff, Dean Carbajal, MAY SEEK TO REOPEN this case by complying with the requirements stated in this Order. By Judge Robert E. Blackburn on 3/27/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiffs,
v.
CAROL WARNER, et al.,
Defendants.

ORDER DISCHARGING ORDER TO SHOW CAUSE,
STAYING CASE, AND CLOSING CASE ADMINISTRATIVELY
Blackburn, J.
This matter is before the court on the following: (1) the Order To Show Cause
[#594]1 filed February 13, 2014; and (2) Plaintiff’s Response To the Court’s Show
Cause Order [#594] [#596] filed February 28, 2014. I discharge the Order To Show
Cause [#594], stay all action in this case, and close this case administratively, subject
to re-opening on the terms stated in this order.
I. BACKGROUND
On two occasions in recent months, the magistrate judge entered orders [#553 &
#584] imposing sanctions on the plaintiff, Dean Carbajal, based on his unwarranted
failure to comply with his discovery obligations in this case. In both orders, the
magistrate judge ordered Mr. Carbajal to pay the expenses, including attorney fees,

1

“[#594]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

incurred by the defendants and tied to the failure of Mr. Carbajal to fulfill his discovery
obligations. In both orders, the magistrate judge warned Mr. Carbajal that continued
refusal to fulfill his discovery obligations and to abide by the orders of the court may
lead to dismissal of this case as a sanction. The magistrate judge cited and discussed
the five factors relevant to the imposition of dismissal as a sanction as rehearsed in
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) and related cases.
One of the orders [#584] entered by the magistrate judge concerned the failure of
Mr. Carbajal to provide the defendants with properly executed releases concerning
documents sought in discovery by the defendants. Shortly after that order was issued,
the defendants notified the court that Mr. Carbajal had provided the required releases
before the court issued its order [#584] sanctioning Mr. Carbajal for his failure to provide
properly executed releases. As a result, the magistrate judge entered an order [#586]
vacating the order [#584] imposing sanctions. When addressing the issues raised in the
Order To Show Cause [#594], I do not consider the discovery issues previously
addressed by the court concerning the requirement that Mr. Carbajal provide properly
executed releases to the defendants.
An earlier order [#553] entered by the magistrate judge concerned the willful
refusal of Mr. Carbajal to participate in a deposition scheduled by the defendants to
obtain the testimony of Mr. Carbajal. On May 7, 2013, the court granted the request of
the defendants to take a combined deposition of Mr. Carbajal and authorized a total of
thirteen hours over the course of two consecutive days. Minute order [#484]. After Mr.
Carbajal refused to appear for this deposition, the defendants filed a motion [#526] for
dismissal as a sanction. Mr Carbajal filed a response [#544], and the defendants filed a
reply [#552].
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In an order addressing the motion [#526] to dismiss, the magistrate judge
considered the evidence submitted by the parties, including Mr. Carbajal, on the
question of whether Mr. Carbajal had refused to appear for his deposition. The
magistrate judge entered findings of fact as follows. The deposition was noticed
properly. Counsel for the defendants appeared for the deposition as scheduled at the
Sterling Correctional Facility, where Mr. Carbajal was incarcerated. On the day counsel
appeared for the deposition, Mr. Carbajal was housed in the segregation unit. Inmates
in the segregation unit are required to wear an orange jumpsuit. Specifically, the
magistrate judge found
(T)here is no dispute that Plaintiff refused to follow the simple DOC
requirement that he dress in the orange jumpsuit that all inmates in his
unit are required to wear. Other than Plaintiff’s unsubstantiated and
conclusory allegations that DOC staff were affirmatively attempting to
prevent him form attending his own deposition, there is no reason
provided as to why Plaintiff could not have simply dressed in the
appropriate jumpsuit and attended his deposition. The Court therefore
finds that Plaintiff willfully refused to attend his own deposition and, thus,
that Plaintiff’s failure to attend was not substantially justified.
Order [#553], p. 5. The foregoing findings of fact are circumstantiated by the record.
Based on the willful refusal of Mr. Carbajal to attend his deposition, the
magistrate judge ordered Mr. Carbajal to pay the reasonable expenses, including
attorney fees, incurred by the defendants. After the defendants filed motions
substantiating the expenses they had incurred, including attorney fees, the magistrate
judge ordered Mr. Carbajal to pay reasonable expenses and attorney fees totaling over
12,000 dollars. Order [#583]. In subsequent filings, including in his response [#596] to
the Order To Show Cause [#594], Mr. Carbajal claims he is “unable to presently pay
the awarded attorney fees and cost(s).” Response [#596], p. 4. He says, however, that
“he will make a continuing effort to pay these sanctions in payments, and irrespective of
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whether or not the Trial Court dismisses this action . . . .” Id., p. 4.2 Nothing in the
record shows that Mr. Carbajal has made any payment toward the expenses, including
attorney fees. Given this record, I must determine what sanction or sanctions are
appropriate in response to (1) the willful refusal of Mr. Carbajal to attend his deposition;
and (2) the failure of Mr. Carbajal to pay any part of the mandatory monetary sanctions
imposed against him under FED. R. CIV. P. 37.
II. DISMISSAL AS A SANCTION
In determining whether dismissal as a sanction is appropriate, I must evaluate
several factors:
(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for non-compliance; and (5) the efficacy of
lesser sanctions.
Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002), citing Ehrenhaus v.
Reynolds, 965 F.2d 916, 918 (10th Cir. 1992). These criteria are known as the
Ehrenhaus factors. “These factors do not create a rigid test; rather, they represent
criteria for the district court to consider prior to imposing dismissal as a sanction.”
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Dismissal is an
appropriate sanction if, after considering all of the factors, the court “concludes that
dismissal alone would satisfy the interests of justice.” Id. As the magistrate judge notes
in her recent order [#553], given the current circumstances of this case, many of the
Ehrenhaus factors clearly weigh in favor of dismissal of this action. Order [#553], pp. 62

Addressing various statements to the court by Mr. Carbajal concerning his ability or inability to
fund various aspects of this litigation, the magistrate judge noted in the order [#583] requiring Mr. Carbajal
to pay expenses, including attorney fees, that Mr. Carbajal has taken distinctly varied positions on this
question. Order [#583], p. 5.

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7. I analyze each of the factors.
A. Degree of Actual Prejudice to the Defendants
In his complaint [#254], Mr. Carbajal asserts a complex array of claims against a
long list of defendants. A good summary of the background of this case and the claims
of Mr. Carbajal can be found in the recommendation [#369] of the magistrate judge. In
essence, Mr. Carbajal claims the defendants acted in concert during the years 2005
through 2010 as part of a “conspiracy to arrest, prosecute, convict, and confine [him].”
Complaint [#254], p. 6. Since this case was filed on November 23, 2010, the defendants
have filed numerous motions addressing the claims of Mr. Carbajal. As a result, some of
the claims have been dismissed.
It took more than a year and many motions filed by the defendants to narrow the
claims of Mr. Carbajal to claims which, assuming the allegations of Mr. Carbajal are true,
might be plausible. With the claims of Mr. Carbajal somewhat refined and limited, the
defendants then sought to conduct discovery concerning the remaining claims. Given
the broad and sustained conspiracy alleged by Mr. Carbajal, the testimony of Mr.
Carbajal constitutes a crucial part of the evidence. The defendants arranged to take the
testimony of Mr. Carbajal, but Mr. Carbajal willfully refused to provide his testimony.
The willful refusal of Mr. Carbajal to give deposition testimony visited substantial
expense on the defendants. That prejudice is significant per se . As expatiated below,
there is no realistic hope that Mr. Carbajal will reimburse the defendants for these
expenses. Given the context of this case, however, the prejudice cause by Mr. Carbajal
extends much further. After much effort and expense by the defendants to defend this
case and to narrow the claims of Mr. Carbajal, he willfully refused to permit the
defendants to take his testimony to develop further their defenses to the remaining
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claims. This willful refusal to testify hijacked the efforts of numerous defendants to bring
this case to a resolution consistent with the seminal principles of Fed. R. Civ. P. 1.
In his response to the Order To Show Cause [#594], Mr. Carbajal contends that
the “degree of actual prejudice to the defendant is little to none, in that the Defendants
have an additional opportunity to conduct Mr. Carbajal’s deposition.” Response [#596],
p. 4. Of course, this ignores the costs exceeding 12,000 dollars imposed on the
defendants by Mr. Carbajal when he wilfully refused to be deposed. Later in the same
paragraph, Mr. Carbajal contends that the defendants will be able to collect the
expenses previously awarded against Mr. Carbajal even though “Mr. Carbajal is
presently unable to pay these sanctions in the time provided . . . .” Id. Mr. Carbajal fails
to address the fact that he will be incarcerated for the rest of his life without any realistic
prospect of paying the monetary sanction previously awarded.
The estimated parole eligibility date for Mr. Carbajal is September 18, 2090, when
he would be 109 years old.3 More than 76 years must pass before Mr. Carbajal is
eligible for parole, yet his life expectancy is about 45 years.4 He claims to be indigent
and, as a result, he claims it is unfair to impose monetary sanctions on him. No doubt, it
is both fair and appropriate to impose monetary sanctions on Mr. Carbajal for his refusal
to be deposed. However, there is no realistic hope that Mr. Carbajal will provide the
defendants with any significant compensation for the costs he improperly and willfully
caused the defendants.
Given the expense this case has imposed on the defendants and the other

3

This information was obtained from the Colorado Department of Corrections website,
http://www.doc.state.co.us/oss/. I take judicial notice of this information. See Fed R. Evid 201.
4

See, e.g., the mortality table at §13-25-103, C.R.S.

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burdens borne by a defendant in a civil suit, I find that the refusal of Mr. Carbajal to
attend his deposition imposed a high degree of actual and irreparable prejudice on all the
defendants. Further delay and significant expense are the two primary forms of
prejudice imposed by Mr. Carbajal.
B. Amount of Interference with the Judicial Process
In a similar way, the intransigence of Mr. Carbajal has caused substantial
interference with the judicial process. Like defense counsel, the court has expended
much time and effort refining the claims of Mr. Carbajal and fashioning a procedure to
refine and resolve the claims that have not been dismissed. In this effort, the magistrate
judge has held numerous hearings and has issued numerous detailed orders and
recommendations. With his willful refusal to be deposed, Mr. Carbajal essentially
brought the case to a stand-still without good reason. His disaffected behavior required
the court to hold at least one hearing and resolve several motions unrelated to the merits
of his claims but necessary to address his intransigence. Mr. Carbajal has effectively
deprived the many defendants of a means by which they can obtain and examine
evidence that is particularly important – the testimony of Mr. Carbajal. That recusant act
interferes substantially with the judicial process because it halts the key effort to develop
evidence to support or demonstrate a lack of support for factual contentions, claims, and
defenses. These are the fundamental steps necessary to resolve a case on the merits.
C. Culpability of the Litigant
The defendants and the magistrate judge made every effort to arrange and
conduct a deposition of Mr. Carbajal, but he willfully refused to cooperate. Mr. Carbajal
is the only litigant culpable for the cancellation of his deposition.
D. Warning in Advance That Dismissal Is a Likely Sanction for Non-Compliance
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Mr. Carbajal has been warned repeatedly that dismissal is a likely sanction for his
failure to meet his discovery obligations in this case. At minimum, he was warned in two
orders issued by the magistrate judge [#553 & #584], and he was warned yet again in
the Order To Show Cause [#594].
E. Efficacy of Lesser Sanctions
A lesser sanction can be considered to have a reasonable possibility of efficacity
only if that sanction is likely to motivate Mr. Carbajal to cooperate with efforts to conduct
his deposition and to comply otherwise with his discovery obligations. Short of that, a
lesser sanction cannot be considered to be efficacious.
In an order [#583] addressing the expenses, including attorney fees, to be paid by
Mr. Carbajal, the magistrate judge summarized the sanctions a court must impose and
may impose when a party willfully fails to comply with discovery obligations. When a
party willfully fails to comply with discovery obligations, monetary sanctions are
mandatory.
(T)he Court must “require the party failing to act . . . to pay the reasonable
expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(d)(3). This mandatory award of
expenses may stand as its own sanction or be imposed in addition to any
other permissible sanction. Id.
Order [#583], p. 7. The court may impose additional sanctions, which include: (1)
“directing that the matters embraced in the order or other designated facts be taken as
established for purposes of the action, as the prevailing party claims”; (2) “prohibiting the
disobedient party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence”; (3) “striking pleadings in whole or in part”;
(4) “staying further proceedings until the order is obeyed”; (5) “dismissing the action or

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proceeding in whole or in part”; and (6) “rendering a default judgment against the
disobedient party.” FED. R. CIV. P. 37(b)(2)(A)(i)-(vi). I consider each possible sanction in
turn.
In considering sanctions other than dismissal, the nature of the claims remaining
in this case is a relevant consideration. Still pending are claims of malicious prosecution
and conspiracy to maliciously prosecute Mr. Carbajal. The alleged conspiracy spans the
years 2005 to 2010 and concerns multiple criminal prosecutions against Mr. Carbajal.
The complaint also contains claims of excessive force, unlawful search, and other
claims. Nineteen defendants remain in this case.
1. Additional Monetary Sanctions. Mr. Carbajal has demonstrated that monetary
sanctions have no efficacy. Mr. Carbajal is incarcerated and will be incarcerated for the
rest of his life. His estimated parole eligibility date is September 18, 2090, when he
would be 109 years old. More than 76 years must pass before Mr. Carbajal is eligible for
parole, yet his life expectancy is about 45 years. He claims credibly to be indigent, and,
as a result, he claims it is unfair to impose monetary sanctions on him. No doubt, it is
both fair and appropriate to impose monetary sanctions on Mr. Carbajal for his refusal to
be deposed, but, given his circumstances, there is no likelihood that monetary sanctions
will prove to be efficacious presently or prospectively.
Of course, requiring Mr. Carbajal to pay the expenses of the defendants, including
attorney fees and costs, is meant to sanction his willful refusal to attend his deposition.
In addition, the imposition of such a monetary sanction is intended to compensate the
defendants for the costs unjustly imposed on them by Mr. Carbajal. However, well
intentioned, there is no realistic hope that the defendants will be compensated by Mr.
Carbajal.
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2. Directing that Certain Facts Be Taken As Established. The testimony of Mr.
Carbajal is key to the support of all of his remaining claims. To the extent there is other
evidence of the broad conspiracy alleged by Mr. Carbajal, only he can specify the
evidence on which he relies. His refusal to be deposed has deprived the defendants of
access to this critical evidence. If this potential sanction for the refusal of Mr. Carbajal to
be deposed is tailored to the claims and defenses adversely affected by his refusal to be
deposed, then an order directing that certain facts be taken as established would
establish facts in opposition to the facts alleged by Mr. Carbajal. Ultimately, this sanction
would be tantamount to the dismissal of the remaining claims of Mr. Carbajal.
3. Prohibiting Mr. Carbajal from Supporting Certain Claims or Introducing Certain
Evidence. Similar to the second potential sanction, if this potential sanction for the
refusal of Mr. Carbajal to be deposed is tied to the claims and defenses adversely
affected by his refusal to be deposed, then this sanction will undermine fatally all of the
remaining claims of Mr. Carbajal. This is true because the testimony of Mr. Carbajal is
essential to all of his remaining claims.
4. Striking Pleadings In Whole or In Part. Like the second and third potential
sanctions, if this potential sanction is tailored to the claims and defenses adversely
affected by the refusal of Mr. Carbajal to be deposed, then this sanction will undermine
fatally all of the remaining claims of Mr. Carbajal. Striking each claim tied closely to
evidence only Mr. Carbajal can provide or to which he can point would result in striking
all of the remaining claims of Mr. Carbajal.
5. Staying Further Proceedings Until the Order Is Obeyed. In his response to the
Order To Show Cause [#594], Mr. Carbajal contends that the “degree of actual
prejudice to the defendant is little to none, in that the Defendants have an additional
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opportunity to conduct Mr. Carbajal’s deposition.” Response [#596], p. 4. Of course,
this contention ignores the costs that have been incurred already by the defendants by
the willful refusal of Mr. Carbajal to attend his deposition and the additional costs that will
be incurred to facilitate his deposition. In essence, Mr. Carbajal asserts that he is willing
to be deposed by the defendants. In this case, the past is perhaps the best predictor of
the future. Mr. Carbajal willfully refused to be deposed when the opportunity arose
initially. In his papers, he claims he will participate in a deposition conducted by the
defendants. However, he provides little credible assurance that he will behave differently
if a second deposition is scheduled.
6. Dismissing the Action or Proceeding In Whole or In Part. Like the second,
third, and fourth potential sanctions, if this potential sanction is tailored to the claims and
defenses adversely affected by the refusal of Mr. Carbajal to be deposed, then this
sanction likely will undermine fatally all of the remaining claims of Mr. Carbajal. A
dismissal of some, but not all, of the claims of Mr. Carbajal would permit Mr. Carbajal
serendipitously to continue to prosecute claims adversely affected by the willful refusal of
Mr. Carbajal to be deposed. Mr. Carbajal has presented nothing that demonstrates that
dismissal of some of his claims, but not all, would be effective to remedy his
intransigence.
7. Rendering Default Judgment Against the Disobedient Party. Of course, this
sanction is tantamount to dismissal.
8. Contempt of Court. Potentially, Mr. Carbajal could be found to be in contempt
of court based on his willful failure to be deposed. The resulting penalties are likely to be
monetary sanctions or, possibly, incarceration. As discussed earlier, monetary sanctions
will have no effect in this case. There is no reasonable hope that imposing additional
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incarceration on Mr. Carbajal is likely to be effective. Again, his estimated parole
eligibility date is more than 76 years in the future while his life expectancy is about 45
years. In this context, the imposition of an additional, consecutive term of incarceration
as a penalty for contempt of court will not be efficacious.
III. CONCLUSION & ORDERS
Mr. Carbajal has placed himself in a position where he is incarcerated and
indigent. Thus, sanctions – costs and incarceration – which are effective against most
litigants are not effective against Mr. Carbajal. Thus, Mr. Carbajal has created for himself
a situation where the range of practical and efficacious sanctions which can be used to
enforce his duty to fulfill his discovery obligations and his duty to comply with the orders of
the court is extremely limited. Though the available sanctions may be limited, it is the
obligation and duty of this court to use the sanctions which are available to enforce both
the duty of a party to fulfill discovery obligations and to comply with the orders of this
court. The fact that Mr. Carbajal has created this situation is not a license for him to
ignore contumaciously these important responsibilities.
In addressing the willful failure of Mr. Carbajal to attend his deposition and granting
the motion of the defendants for the imposition of sanctions, the magistrate judge stated
munificently that Mr. Carbajal would be given one last chance to comply with his
discovery obligations. Order [#553], p. 7. Given that statement, the record in this case,
and the extremely limited array of efficacious sanctions available to the court, I conclude
that Mr. Carbajal should be sanctioned by staying all activity in this case until Mr. Carbajal
fulfills his duty to attend and participate fully in depositions where all remaining
defendants have a reasonable opportunity to depose Mr. Carbajal. Thus, I will direct that
this case be closed administratively to be re-opened only after Mr. Carbajal provides a
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timely, bona fide assurance that he will attend and participate in properly noticed
depositions by the defendants.
I will specify in this order the specific steps Mr. Carbajal must take (1) to certify that
he will attend all properly noticed depositions at which his testimony is sought; (2) to
cooperate with efforts to take his deposition; and (3) to cause the stay and closure of this
case to be lifted. This sanction will provide Mr. Carbajal the last chance he was
promised, will minimize additional prejudice to the defendants, and will permit the
defendants to obtain the information they need to defend against the claims of Mr.
Carbajal. This sanction will prevent Mr. Carbajal from taking any further action in this
case that will impose any additional burden on the defendants, until Mr. Carbajal fulfills
his duty to cooperate fully in the taking of his depositions.
Mr. Carbajal is warned that dismissal of this case with prejudice remains a sanction
which may be imposed, and which the court will impose, if Mr. Carbajal fails to fulfill his
discovery obligations and to comply with the orders of this court.
THEREFORE, IT IS ORDERED as follows:
1. That the Order To Show Cause [#594] filed February 13, 2014, is
DISCHARGED;
2. That under D.C.COLO.LCivR 41.2, this case is CLOSED
ADMINISTRATIVELY;
3. That on or after May 1, 2014, but before May 15, 2014, the plaintiff, Dean
Carbajal, MAY SEEK TO REOPEN this case by complying with the requirements stated in
the following paragraphs;
4. That if the plaintiff wishes to request that this case be re-opened, he SHALL

FILE with the court, no sooner than May 1, 2014 and no later than May 15, 2014, a
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motion to re-open this case;
5. That any motion to re-open by the plaintiff SHALL INCLUDE a written
statement by the plaintiff, signed and verified under penalty of perjury, stating that the
plaintiff will participate voluntarily and cooperate fully in any and all depositions of the
plaintiff, Dean Carbajal, properly noticed by the defendants;
6. That any motion to re-open filed by the plaintiff SHALL BE DENIED summarily
if the motion does not include a written statement of the plaintiff as specified in paragraph
five (5) above;
7. That within 20 days after the court enters an order granting a motion to re-open
filed by the plaintiff, any defendant who wishes to depose Mr. Carbajal SHALL SERVE a
notice of deposition on Mr. Carbajal under the procedures established in the Federal
Rules of Civil Procedure and the Local Rules of Practice of the United States District
Court for the District of Colorado - Civil;
8. That within 20 days after the plaintiff has been fully deposed in all depositions
properly noticed by the defendants, the plaintiff SHALL FILE a written statement of the
plaintiff, signed and verified under penalty of perjury, indicating that he has been fully
deposed in each and every deposition properly noticed by any defendant in this case and
that he has cooperated fully in each and every such deposition;
9. That any written statement filed by the plaintiff under the terms of paragraph
nine (9) of this order SHALL SPECIFY (a) each defendant or defendant group who
properly noticed a deposition of the plaintiff; and (b) the date or dates on which each such
defendant or defendant group conducted a deposition of the plaintiff;
10. That within 20 days after the plaintiff files any statement as specified in
paragraphs eight (8) and nine (9) above, any defendant MAY FILE a response to the
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statement;
11. That pending further order re-opening this case, all action in this case is
STAYED;
12. That if the plaintiff fails to comply with any one or more of the requirements
stated in this order, the court SHALL DISMISS this case with prejudice as a sanction for
the willful refusal of the plaintiff to give deposition testimony and/or the failure of the
plaintiff to abide by the orders of this court;
13. That other failures by the plaintiff to fulfill his discovery obligations or to comply
with the orders of this court MAY SUBJECT the plaintiff to sanctions, including dismissal
of this case with prejudice; and
14. That under D.C.COLO.LCivR 41.2, the clerk is DIRECTED to close this civil
action administratively, subject to reopening for good cause.

Dated March 27, 2014, at Denver, Colorado.
BY THE COURT:

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