DeVan v. Corrections Corporation of America et al

Filing 53

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Defendants Motion to Dismiss for Lack of Prosecution (Dkt. 39 ) is GRANTED. 2. Defendants Motion to Modify Scheduling Order (Dkt. 41 ) is DENIED as MOOT. 3. Defendants Motion to Dismiss for Failure to State a Claim (Dkt. 35 ) is DENIED as MOOT. 4. Plaintiffs Third Amended Complaint (Dkt. 48) is STRICKEN. 5. Plaintiffs entire case is DISMISSED with prejudice for failure to comply with discovery and Court orders, as set forth above. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EVIN DeVAN,
Plaintiff,

Case No. 1:15-cv-00432-EJL

vs.

MEMORANDUM DECISION AND
ORDER

CORRECTIONS CORPORATION OF
AMERICA (CCA), JASON ELLIS,
JOHNATHAN MELDRUM, C/O
KELLY, C/O KELLY, JUAN
IBARRA, C/O GOINDACKER, JOHN
AND JANE DOES I-XX,
Defendants.

Pending before the Court in this prisoner civil rights action are Defendant CCA’s
Motion to Dismiss for Failure to State a Claim (Dkt. 35), Motion to Dismiss for Lack of
Prosecution (Dkt. 39), and Motion to Amend/Correct Order (Dkt. 41). The motions are
now fully briefed. Having considered the parties’ arguments and reviewed the record in
this matter, the Court enters the following Order.
BACKGROUND
1. History of the Case
10/30/13

Plaintiff was assaulted by Inmate Allen, after Plaintiff had pressed
his emergency security button about 15 times over 10 minutes with
no response from ICC correctional officers. (Dkt. 48, p. 4.)

MEMORANDUM DECISION AND ORDER - 1

09/17/2015

Plaintiff filed his original Complaint in this action, asserting that
ICC officials failed to protect him from a known-dangerous inmate
after Plaintiff attempted to articulate his concerns about his safety
and officials ignored him. The inmate assaulted Plaintiff, and he
suffered “significant injury.”

12/09/2015

Judge Dale issued an Initial Review Order requiring Plaintiff to file
an amended complaint to state more specific facts about who did
what and when.

01/07/2016

Plaintiff filed an Amended Complaint.

06/13/2016

Judge Dale issued an Order on the Amended Complaint, concluding
that Plaintiff had failed to follow the instructions for amendment,
but, because he may not have had access to the information he
needed to amend the Complaint, the Court would allow him to
proceed against CCA, the entity, for failure to respond to Plaintiff’s
emergency call immediately (contrary to a written CCA policy),
although the Court explained that the claim against CCA might not
survive summary judgment. (Dkt. 14.)

07/06/2016

CCA attorneys appeared in the case.

08/15/2016

CCA filed an Answer to the combined Complaint and Amended
Complaint (Dkts. 23, 3, 13.)

09/13/2016

Plaintiff provided an initial disclosure statement to Defendant, along
with 29 pages of exhibits. (Dkt. 49, p. 3.)

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10/17/2016

The Court issued an order containing deadlines for amendment and
discovery. Amended pleadings were due no later than December 12,
2016. Disclosures, depositions, and discovery were to be completed
no later than February 17, 2017. Amended pleadings were due no
later than December 12, 2016.

11/09/2016

Defendant CCA served Plaintiff with a first set of discovery
requests. To date, Plaintiff has not responded to the discovery
requests.

12/12/2016

Deadline for filing amended pleadings. By or near this time,
Defendant had disclosed over 2,000 pages of documents to Plaintiff,
along with audio or video recordings (Dkt. 52; also referenced in
Dkt. 35-1.)

12/15/2016

Plaintiff filed his Second Amended Complaint (timely per the
mailbox rule).

12/29/2016

Defendant filed a Motion to Dismiss for Failure to State a Claim.
(Dkt. 35.)

01/19/2017

Counsel for Defendant made an effort to meet and confer with
Plaintiff to settle the discovery dispute, but Plaintiff did not respond
to the correspondence sent to him.

02/08/2017

Plaintiff did not file a response to the Motion to Dismiss, but filed a
Motion to Stay or Appoint Counsel. (Dkt. 37.)

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02/10/2017

Plaintiff’s deposition was scheduled for 10:00 a.m. Plaintiff was
uncooperative and the deposition was not held, though counsel and
the court reporter traveled to the prison to take it.

02/17/2017

Deadline for completing all discovery. (Dkt. 30.) Plaintiff still had
not responded to Defendant’s discovery requests.

03/01/2017

Defendant filed a Motion to Dismiss for Failure to Prosecute. (Dkt.
39.)

04/01/2017

Plaintiff failed to respond to the Motion to Dismiss for Failure to
Prosecute within 30 days.

04/04/2017

Defendant filed a Motion to Amend/Correct Order. (Dkt. 41.)

04/18/2017

The Court ordered that, no later than June 2, 2017, Plaintiff must file
a response to Defendant CCA’s Motion to Dismiss the Second
Amended Complaint for failure to state a claim upon which relief
can be granted (Dkt. 35) and Motion for Dismissal for Lack of
Prosecution (Dkt. 39), which is based on Plaintiff’s failures to
cooperate with Defendant’s discovery requests and deposition, no
later than June 2, 2017. Plaintiff was issued a first warning that
failure to respond could result in a Rule 41(b) dismissal. The case
was reassigned to the District Court. (Dkt. 44.)

05/01/2017

Plaintiff notified the Court that a document entitled “Amended
Complaint” (Dkt. 17) should have been filed in a different case. This
is of no consequence in the timeline, because Plaintiff had filed a

MEMORANDUM DECISION AND ORDER - 4

superseding Second Amended Complaint on December 15, 2016.
(Dkt. 34.)
05/23/2017

The Court issued another Order that Plaintiff must file a response to
CCA’s pending dismissal motions no later than June 2, 2017. The
Court issued a warning to Plaintiff that the failure to respond to
discovery requests and failure to cooperate with depositions could
result in dismissal without further notice pursuant to Rule 41(b).
(Dkt. 46.)

06/05/2017

Plaintiff filed a Response to the two Motions to Dismiss. Plaintiff
also filed a Third Amended Complaint beyond the amendment
deadline, which was December 15, 2016.

MOTION TO DISMISS FOR LACK OF PROSECUTION
Federal district courts have broad discretion to “impose a wide range of sanctions
when a party fails to comply with the rules of discovery or with court orders enforcing
those rules.” Wyle v. R.J. Reynolds Industries, 709 F.2d 585, 589 (9th Cir. 1983); Fed. R.
Civ. P. 37. The following factors must be considered when evaluating whether to enter
terminal discovery sanctions of dismissal or default: “(1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to the other party; (4) the public policy favoring the disposition of cases on
their merits; and (5) the availability of less drastic sanctions.” Malone v. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987).

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1. Plaintiffs’ Arguments Regarding Discovery Responses
On June 5, 2017, when Plaintiff finally filed his response to the Motion to Dismiss
for Failure to Prosecute, he still had not provided any written responses to Defendant’s
discovery requests that were propounded on November 9, 2016. Plaintiff provides
various excuses why he has not responded to the discovery, but none shows that Plaintiff
could not have responded to at least some of the discovery requests in a timely manner,
while objecting to others, especially given the fact that the discovery requests came with
extensive, detailed instructions. (Dkt. 39-3.) Plaintiff says he could not respond because
the discovery requests “require[d] comprehensive review of evidence and discovery.”
(Dkt. 49, p. 3.) However, even after all the materials provided by Defendant, Plaintiff still
has not responded to the discovery.
While it is true that Plaintiff had a bout of difficulty using the phones because of
trouble with his phone code on January 19, 2017, that does not provide an excuse for him
to fail to respond in writing to any request in December 2016, to fail to object in writing
to any request in December 2016, or to send a letter in lieu of the phone call to discuss
discovery disputes in January 2017. Even after Defendant filed the Motion to Dismiss,
Plaintiff did not respond to it in a timely manner, nor did he provide responses to any
discovery request.
Plaintiff also states that Defendant did not provide “crucial interviews and reports
substantiating Plaintiff’s primary claim.” (Dkt. 49, p. 3.) He cites the audiotape of
Investigator Chris Smith’s interview with Mr. Allen, the perpetrator, as key evidence
underlying his claims. (Id.) Defendant responds that Smith has made a good faith effort to
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search for the audio of that interview, and has been unable to find it. (This is one of the
problems that often occurs when complaints are filed years after the incident has
occurred.) Further, CCA never itself had custody of Smith’s audio-recording, but Mr.
Smith has provided his report and contemporaneous notes of the interview, both of which
CCA disclosed to Plaintiff. (Dkt. 52, p.3 n.2.)
Plaintiff has not explained how his lack of the audiotape has caused him to be
unable to respond to discovery; in fact, this excuse appears groundless. The Court finds
Defendant’s reply persuasive—“Plaintiff has failed to even partially answer
interrogatories and requests for admission that could presumably be answered based
solely on his own knowledge and experience, and that do not require any review or
production of documents.” (Dkt. 52, p. 2.)
Furthermore, Defendant’s failure to disclose is a separate issue from Plaintiff’s
failure to respond to discovery. Plaintiff does not provide written correspondence from
him to Defendant’s counsel attempting to resolve his discovery dispute, nor has he
brought such a dispute to the Court’s attention in a motion to compel. Defendant
responds that it has provided everything available. Parties cannot be compelled to provide
what they do not have. Plaintiff has provided no evidence showing that any additional
documents relevant to the claims at hand exist.
2. Plaintiff’s Refusal to Cooperate with Deposition
Plaintiff’s deposition was set for 10:00 a.m. on February 10, 2017, by written
deposition notice. (Dkt. 39-5.) Plaintiff alleges that the visitation sergeant notified

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Plaintiff that Mr. Naylor had called to schedule the deposition for 9:30 a.m.; however,
depositions must be scheduled by written notice, not phone calls, and Plaintiff has
submitted nothing corroborating this allegation.
Mr. Naylor and the court reporter arrived at 9:50 a.m. Plaintiff alleges that he left
his cell at 9:00 a.m., when movement was permitted; waited for some time; and then left
the deposition area between 10:15 and 10:30, when movement was permitted again.
However, Plaintiff does not state that he made any effort to determine what was
happening with the deposition during the time period he was waiting.
Plaintiff left before the deposition could be started, but then returned to the
deposition area when correctional officers told him it was going to proceed. Therefore,
regardless of any time mix-up, as alleged by Plaintiff, he could have participated in the
deposition.
Plaintiff then obstructed the deposition by refusing officers’ command to tuck in
his shirt to comply with prison rules. He states that he had been given “several frivolous
orders”; however, he does not state what they were, and, regardless, inmates are required
to obey officers’ orders, whether the inmates deem them frivolous or not. He was then
taken to segregation, successfully disrupting the deposition. Defendant’s counsel had
planned to further discuss the lack of discovery responses with Plaintiff at the deposition,
but was unable to do so. In addition, because Plaintiff did not return any responses before
the deposition, Defendant’s ability to prepare for the deposition was obstructed,
regardless of whether Plaintiff had provided some disclosures by that point.

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3. Analysis of Whether Sanction of Dismissal is Appropriate
The Court considers the four factors relevant to whether a sanction of dismissal
should be imposed upon an uncooperative plaintiff. The first factor, the public’s interest
in expeditious resolution of litigation, favors dismissing Plaintiff’s case. See Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). From the start of the litigation,
Plaintiff has been unwilling to provide the who, what, and when of the facts of his case. It
seems he is more on a fishing expedition than on a quest to right a wrong based on clear
and definite facts. There is no path to an expeditious resolution of litigation in this matter,
or, for that matter, any resolution, because Plaintiff refuses to cooperative with discovery,
which is a necessary prerequisite to having the merits of the claim heard.
The second factor is the Court’s need to manage its docket. A court must have the
ability to manage its docket without being subject to routine noncompliance of litigants.
See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Plaintiff’s case has been
pending for two years, and yet Plaintiff has obstructed all forms of discovery, causing the
case to remain at a standstill instead of moving forward toward resolution. See Yourish,
191 F.3d at 990 (“Plaintiffs’ failure . . . had allowed the ‘Plaintiffs to control the pace of
the docket rather than the Court.’”). Here, Plaintiff’s obstruction has caused the Court to
spend undue time on his case, while other prisoner civil rights cases—where the plaintiffs
are implementing case management plans without problems—wait in the queue behind
Plaintiff’s case. Plaintiff also failed to respond to the pending Motion for Dismissal in
this case in a timely manner, causing the Court to have to issue an Order warning

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Plaintiff of the possibility of dismissal under Federal Rule of Civil Procedure 41(b). (Dkt.
46.)
The third factor, risk of prejudice to the other party, is high. The alleged harms
occurred in 2013. It is now late 2017. Defendant still does not know exactly what
Plaintiff is alleging against whom. Minds and memories dim as time marches on.
Defendant was unable to prepare for depositions properly without Plaintiff’s timely
responses to discovery. Defendant is unable to preserve evidence if they do not know
exactly what Plaintiff’s claims are. Plaintiff’s actions have impaired Defendant’s ability
to proceed to trial. See Malone v. United States Postal Service, 833 F.2d 128, 131 (9th
Cir. 1987).
Further, Defendant has also suffered the loss of paying their attorney and the court
reporter for the failed deposition; it takes extra time and expense for a court reporter to
travel to the prison, rather than simply to counsel’s office. Attorney fees and costs for the
deposition alone were $471.48. The Court has no confidence that, should it allow the
action to proceed and Plaintiff to be re-deposed, that he will not obstruct the deposition a
second time, causing an equal or greater loss of fees and costs for Defendant. In addition,
Plaintiff’s actions have caused Defendant to incur other attorney fees in this action to
attempt to coerce Plaintiff’s compliance with the Federal Rules of Civil Procedure.
The Court finds that the fourth factor, the public policy favoring the disposition of
cases on their merits, weighs slightly against dismissal. Public policy generally favors
reviewing the merits of a litigant’s claims, rather than disposing of claims on procedural

MEMORANDUM DECISION AND ORDER - 10

grounds. However, because Plaintiff’s operative pleading (Dkt. 34) is still extraordinarily
vague, there appears to be little merit to Plaintiff’s claims.
Plaintiff’s decision to file his Third Amended Complaint outside the time limits
ordered by the Court is another example of his refusal to follow Court Orders and his
disregard for Defendant’s efforts to defend against his allegations of wrongdoing. Indeed,
Plaintiff’s lack of effort to pare down his Third Amended Complaint despite instructions
to include only plausible claims is reflective of his general position to make this litigation
larger and more difficult, rather than pointed and streamlined.
Because the Third Amended Complaint is too late, and Plaintiff does not have
adequate excuse for the lateness, the Court will strike it from the record.
The fifth and final factor is the availability of less drastic sanctions. Plaintiff has
continued to obstruct discovery. He also asks the Court to grant him special privileges
contrary to prison rules regarding the taking of a deposition. There is nothing in the
record that suggests Plaintiff will comply with either a Court order to flesh out the facts
of his claims or Defendant’s efforts to learn those facts through discovery under the
Federal Rules of Civil Procedure. Therefore, lesser alternative sanctions would not be
appropriate.
The Court twice previously warned Plaintiff, in writing, that failure to provide
responses to Defendant’s discovery would result in dismissal of this case. Yet, Plaintiff
has chosen to ignore the Court’s warnings, and he has provided only groundless excuses
for his continuing refusal to cooperate with discovery. In Yourish, the Ninth Circuit
Court approved of use of dismissal as a sanction in another case where the court had
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given an oral, rather than a written, warning. 191 F.3d at 987 (citing In Henry v. Sneiders,
490 F.2d 315 (9th Cir. 1974).) Here, the Court will not award Defendant the fees and
costs for the deposition, as Defendant requested, but will dismiss Plaintiff’s entire case.
ORDER
IT IS ORDERED:
1. Defendant’s Motion to Dismiss for Lack of Prosecution (Dkt. 39) is GRANTED.
2. Defendant’s Motion to Modify Scheduling Order (Dkt. 41) is DENIED as MOOT.
3. Defendant’s Motion to Dismiss for Failure to State a Claim (Dkt. 35) is DENIED
as MOOT.
4. Plaintiff’s Third Amended Complaint (Dkt. 48) is STRICKEN.
5. Plaintiff’s entire case is DISMISSED with prejudice for failure to comply with
discovery and Court orders, as set forth above.

September 20, 2017

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