The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff, a state prisoner, brings this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.
On September 25, 2009, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
In her objections to the magistrate judge's findings and recommendations, Defendant argues that it is inappropriate to grant facts establishing sanctions while she has a motion for summary judgment pending, and that such severe sanctions are inappropriate. She also argues that the facts being established will mislead the jury, are contrary to law, and/or are irrelevant.
As to her argument that establishing the facts is inappropriate while she has a motion for summary judgment pending and that such severe sanctions are inappropriate, the court finds Plaintiff's arguments unavailing. The magistrate judge has recommended these sanctions due to Defendant's behavior in failing to follow court orders and to cooperate with Plaintiff taking her deposition. Therefore, issuing sanctions while her motion is pending is not inappropriate. Similarly, the magistrate judge discussed the availability of lesser sanctions, and found Plaintiff's behavior and the court's prior warnings demonstrates that less drastic sanctions would not be availing. Nothing in Defendant's argument persuades the court otherwise.
Similarly, Defendant's argument that the facts Plaintiff sets forth for establishment are contrary to law, misleading to the jury, and/or irrelevant, are also unavailing. The law Defendant cites as being contrary to her alleged duties, specifically that she was responsible for decontaminating inmates, does not support her contention that decontamination was outside her abilities as a Licensed Vocation Nurse, or Medical Technical Assistant. While the law she cites does not specifically list decontamination as a duty, it also does not specifically limit her ability to do so. In addition, as Plaintiff points out, she admitted this was one of her duties in her answer by admitting the first and second sentences of the fourth paragraph in the Second Amended Complaint.*fn1 Therefore, the facts she now objects to she has already admitted, and are not contrary to law. To the extent she claims the facts established will mislead the jury, particularly the establishment of Plaintiff's injuries as "serious" or "severe," any confusion can be addressed by jury instruction. Establishing Plaintiff's injuries as "serious" is required to establish liability. As the magistrate judge indicated, however, this is not intended to establish the seriousness of Plaintiff's injury for damages. The severity of Plaintiff's injuries as a means to calculate damages will be established by the trier of fact. Finally, Defendant's objection to alleged irrelevant facts are unpersuasive. If the facts are irrelevant, they will have no bearing on Plaintiff's damages.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 25, 2009, are adopted in full;
2. Plaintiff's motion for sanctions (Doc. 293) is granted;
3. Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(i), 37(d), the following facts are deemed established:
a. On June 22, 2002, Defendant was on duty as a Medical Technical Assistant at High Desert State Prison, Susanville, California.
b. 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, ...