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Pobursky v. Madera County

April 5, 2010

JAMES S. POBURSKY, ET AL., PLAINTIFFS,
v.
MADERA COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR INVOLUNTARY DISMISSAL (Document 164) ORDER SETTING BRIEFING SCHEDULE

Defendants County of Madera, Richard Ackerman, James Adkins, Brian Cunnings, Karl Hancock, Chris Swansen and Jacob Tallmon ("Defendants") filed the instant motion for involuntary dismissal on December 29, 2009. On January 5, 2010, the motion was referred to the undersigned for Findings and Recommendations to the District Court. Defendants' motion was heard on March 26, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. Michael Linden appeared on behalf of Defendants. Plaintiff James Pobursky, appearing pro se, appeared by telephone. Plaintiff Wanda Pobursky, also appearing pro se, was present in the courtroom.

BACKGROUND

Plaintiffs filed the instant action on April 23, 2007. The allegations stem from an incident during which Plaintiffs were arrested and their children taken into custody of Child Protective Services. Specifically, Plaintiffs contend that on July 7, 2006, Sergeant Karl Hancock and Deputy Brian Cunnings, claiming to have a warrant for the arrest of their daughter, Jami Pobursky, approached James Pobursky in the front yard of a residence located on Sierra Lakes Drive in Oakhurst. Plaintiffs contend that the deputies violated Mr. Pobursky's Fourth Amendment rights by questioning him in the yard about his daughter, and further contend that he was subject to an unlawful arrest and the use of excessive force. Plaintiffs allege that the deputies then made a warrantless entry into their residence, without proper consent, and that Ms. Pobursky was arrested without probable cause. Mr. Pobursky also contends that he was subject to illegal vehicle stops on two occasions after this incident.

Defendants filed the instant motion for involuntary dismissal on December 29, 2009. Plaintiffs did not file a timely opposition. On January 25, 2010, Defendants filed a reply.

The hearing was originally scheduled for February 5, 2010, but was continued to March 12, 2010, due to Plaintiffs' notice of interlocutory appeal. The Court denied Plaintiffs' request to certify the appeal on February 4, 2010. The Court also allowed Plaintiffs additional time to file an opposition to the motion to dismiss.

On February 8, 2010, Mr. Pobursky, who is now incarcerated, filed an ex parte motion to "command" his appearance at the March 12 hearing. In its February 10, 2010, order, the Court explained that Mr. Pobursky could appear by phone. The Court also continued the hearing to March 26, 2010, and extended the time for Plaintiffs to file an opposition to March 12, 2010.

Plaintiffs did not file a timely opposition. Instead, on March 17, 2010, Mr. Pobursky filed a second motion to compel his attendance at the March 26 hearing. The Court denied this request in open court at the hearing on the motion and by separate order.

Defendants filed a second reply on March 18, 2010.

PRIOR DISCOVERY DISPUTES

On July 17, 2008, and August 1, 2008, Defendants moved to compel further responses to written interrogatories. The Court ruled on the motions on September 9, 2008, noting that the parties agreed that Plaintiffs would further respond to the discovery and Defendants would withdraw their request for monetary sanctions. Based on this agreement, the Court ordered Plaintiffs to provide further responses within thirty days.

Plaintiffs failed to comply with the order and Defendants filed their first motion for sanctions on January 16, 2009. On February 24, 2009, the Court ordered Plaintiffs to submit further discovery responses within 45 days and denied the motion for sanctions without prejudice. The Court explained that Plaintiffs would be given one final opportunity to provide proper responses, specifically stating:

As the Court explained during the hearing, Plaintiffs must set forth, in a STRAIGHTFORWARD manner, ALL FACTS THAT SUPPORT THEIR CLAIMS. IF PLAINTIFFS FAIL TO DO SO, ANY FACTS NOT FAIRLY DISCUSSED IN THEIR DISCOVERY RESPONSES WILL BE PRECLUDED FROM EVIDENCE IN A SUMMARY JUDGMENT MOTION AND/OR DURING TRIAL. Fed. R.Civ.Proc. 37(b)(2)(A)(ii).

To avoid any confusion, the Court set forth the specific discovery in dispute. At the hearing Plaintiffs confirmed that they ...


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