Pickens v. U.S. Department of Veterans Affairs

Filing 73

DISCOVERY ORDER: Granting in Part Denying in Part VAMC's Motion to Dismiss 68 . Pickens is directed to respond to the VAMC's Requests for Production by October 21, 2011 or the Court will dismiss this action. Signed on 9/22/2011 by Judge Garr M. King. (pc)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
DARRYL PICKENS,
Plaintiff(s),
vs.
THE HONORABLE ERIC K. SHINSEKI,
a Secretary of Veterans Affairs,
Defendant(s).

Darryl Pickens
c/o 8504 N. Woolsey Avenue
Portland, Oregon 97203
Pro Se Plaintiff
Dwight C. Holton
United States Attorney
District of Oregon

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3:09-CV-00704-KI
DISCOVERY ORDER

Sean E. Martin
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorney(s) for Defendant(s)

King, Judge:
Plaintiff Darryl Pickens alleges harassment, race discrimination, retaliation, and disability
discrimination from 2004 to 2008 while working at the Veteran’s Administration Medical Center
(the “VAMC”). The VAMC has filed a Motion to Dismiss [68] for Pickens’ failure to respond to
the VAMC’s Requests for Production by the court-imposed deadline. For the following reasons, I
grant in part and deny in part the motion.
BACKGROUND
On August 1, 2011, the Court held a hearing by telephone to discuss, among other things,
Pickens’ request for an extension of time to respond to the VAMC’s discovery requests. The
Court set a deadline of 30 days to respond to the VAMC’s discovery requests. Pickens
responded to the VAMC’s interrogatories but failed to respond to the VAMC’s Requests for
Production.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 41(b), the court may dismiss a case for failure to
prosecute, or for failure to comply with the rules of civil procedure or a court order.
Additionally, a court may sanction a party, including dismissing the case, for failing to comply
with a discovery order pursuant to Federal Rule of Civil Procedure 37(b). The court must weigh
five factors when imposing sanctions under either rule:
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(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 defendants; (4) the public
policy favoring the disposition of cases on their merits; and (5) the availability of
less drastic sanctions.
In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994); In re Phenylpropanolamine (PPA) Prods. Liabl.
Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). “Where a court order is violated, the first two factors
support sanctions and the fourth factor cuts against a default. Therefore, it is the third and fifth
factors that are decisive.” Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997). However,
under Rule 37, the court’s discretion to dismiss a case “is narrowed and the losing party’s
noncompliance must be due to willfulness, fault or bad faith.” Id.
DISCUSSION
The VAMC’s Requests for Production seek employment and medical records, or direct
Pickens to sign release forms for those employment and medical records. The VAMC also seeks
copies of recordings Pickens purportedly made at meetings with VA officials, as well as any
documents supporting his claims. The VAMC asserts these documents are necessary to their
defense of the action.
Faced with Pickens’ failure to respond to its Requests for Production, the VAMC
requests either: (1) a dismissal of Pickens’ action for Pickens’ failure to comply with the August
1, 2011 court order; (2) an order prohibiting Pickens from using any documents he failed to
disclose to the VAMC in supporting his claims or opposing the VAMC’s defenses; or (3) an
order staying all proceedings until Pickens responds to the VAMC’s Requests for Production.

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Pickens responds to the VAMC’s motion by calling government counsel a liar and
vehemently asserting that he already responded to the discovery requests. Pickens also contends
that counsel can get what he needs from officials who presumably work at the VA.
Given what appears to be Pickens’ confusion between the Interrogatories to which he
already responded and the VAMC’s separate Requests for Production, I decline to dismiss the
case. Pickens is directed to respond to the VAMC’s Requests for Production that are attached as
Exhibit A to the VAMC’s Memorandum in Support of Motion to Dismiss [69] by October 21,
2011. If he does not have any documents responsive to the request, he need only state that. If he
fails to disclose documents to the VAMC that he does have in his possession, he will be
precluded from using those documents to support his claims or to defend the VAMC’s
arguments. If Pickens fails to respond to the VAMC’s Requests for Production by October 21,
2011, the Court will dismiss this action.
CONCLUSION
For the foregoing reasons, the VAMC’s Motion to Dismiss [68] is granted in part and
denied in part. Pickens is directed to respond to the VAMC’s Requests for Production by
October 21, 2011 or the Court will dismiss this action.
IT IS SO ORDERED.
DATED this

22nd

day of September, 2011.

/s/ Garr M. King
Garr M. King
United States District Judge

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