The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Plaintiff's motion for sanctions (Doc. 293). This matter was addressed at the July 23, 2009, status conference, and order thereafter (Doc. 302).
The undersigned, after considering the motion for sanctions and the discussion at the status conference, ordered Defendant to appear and make herself available for a deposition, in Davis, California, on or before August 28, 2009, in order to avoid the imposition of fact establishing sanctions. The undersigned set forth specific dates the deposition could be held, and cautioned that Defendant's failure to appear and cooperate at a deposition as ordered would result in the imposition of sanctions, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(i), resulting in the facts alleged in the second amended complaint as to Defendant's liability being taken as established.
As ordered, on September 4, 2009, Plaintiff notified the court that Defendant had not appeared at her deposition. Plaintiff also provided the court with his proposed facts as alleged in the complaint establishing Defendant's liability.
Imposition of fact establishing sanctions under Rule 37(b)(2)(A)(i), are dispositive of her defense to liability. Such dispositive matters require a magistrate judge to enter a finding of fact and recommended disposition. See Fed. R. Civ. P. 72; Maisonville v. F2 America, Inc., 902 F.2d 746, 747-78 (9th Cir. 1990) (discussing magistrate jurisdiction over dispositive and nondispositive matters).
The undersigned finds issuance of fact establishing sanctions pursuant to Rule 37(b)(2)(A(i) are appropriate for Defendant's failure to appear at her deposition as ordered. Defendant was cautioned that such sanctions would be imposed if she failed to appear as ordered. See Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). This was Defendant's second failure to follow a court order directing her to appear at a deposition. Such actions on the behalf of the Defendant demonstrates that less drastic sanctions will not be availing. In March 2007, the Clerk of the Court entered Defendant's default pursuant to her failure to appear in this matter. For good cause shown, Defendant's default was set aside in August 2008, allowing her an opportunity to defend against this action. Her continued failure to act, and follow court orders, violates the public's interest in the expeditious resolution of this litigation, the court's need to manage its own docket efficiently, and the risk of prejudice to Plaintiff. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone, 833 F.2d at 130 (setting forth the five factors the court should weigh before imposing the harsh sanction of dismissal). Accordingly, the undersigned will recommend Plaintiff's motion for sanctions be granted, and the facts alleged in Plaintiff's complaint regarding Defendant's liability be taken as established. While these facts will establish liability, they do not establish the extent of Plaintiff's injuries or any resulting damages.
Accordingly, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(i), 37(d), the following facts should be deemed established:
1. On June 22, 2002, Defendant was on duty as a Medical Technical Assistant at High Desert State Prison, Susanville, California.
2. In Defendant's working capacity, she was responsible for the health care needs of inmates who received injuries in Administrative Segregation, referral of inmates to the emergency room, sick call rounds in the housing unit, dispensing of medication, collection of medical care request forms, and decontamination of inmates exposed to blood and basic inmate care needs.
3. At all times relevant to the events described herein, Defendant acted under color of state law.
4. At all times relevant, Plaintiff was incarcerated at High Desert State Prison, Susanville, California.
5. At all times relevant, Plaintiff's cellmate, Paul Magnan, was incarcerated at High Desert State Prison, Susanville, California.
6. On June 22, 2002, at approximately 1300 hours, after entering the exercise yard, Plaintiff and Magnan were assaulted. Magnan was assaulted by two inmates resulting in his loss of consciousness and bleeding from the head. Plaintiff was simultaneously assaulted by four inmates resulting in serious injuries to his body.
7. Immediately after the assault, Yard Gunner J. Delgado ordered Plaintiff to drag Magnan off the yard. Plaintiff had serious injuries and, thus, had difficulty dragging Magnan. However, Plaintiff complied with Yard Gunner Delgado's orders and managed to cross the threshold of the doorway. As Plaintiff dragged Magnan, ...