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Pobursky v. Madera County

October 1, 2010


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


(Documents 206 and 207)

Defendants County of Madera, Richard Ackerman, James Adkins, Brian Cunnings, Karl Hancock, Chris Swanson and Jacob Tallmon ("Defendants") filed the instant motion for involuntary dismissal on August 12, 2010. On September 10, 2010, the Court referred the motion to the undersigned for the entry of Findings and Recommendations. The matter was heard on September 17, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. Plaintiffs James and Wanda Pobursky ("Plaintiffs") appeared on their own behalf. Valerie Velasco appeared on behalf of Defendants.


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. The action is proceeding on the following causes of action: (1) the first cause of action, alleging that Defendants County of Madera, Deputy Brian Dee Cunnings, Sergeant Karl E. Hancock, Deputy Tallmon, Deputy J. Adkins, and Deputy Swanson violated Plaintiffs' Fourth Amendment rights and conspired to violate Plaintiffs' Fourth Amendment rights; (2) the third cause of action to the extent Plaintiff Wanda Pobursky alleges that Defendant Sergeant Ackerman and two Doe Nurses caused a serious risk to her health by refusing to allow her to use a breast pump; and (3) the fourth cause of action alleging that Defendant Doc's Towing and Transport, Defendant Clifton Ginn, Defendant Madera County, Defendant Deputy Jacob Tallmon, and Defendant Deputy J. Adkins violated Plaintiffs' Fourth Amendment rights by stopping, searching and impounding Plaintiffs' van.

Pursuant to the April 29, 2010, order amending the Scheduling Conference Order, non-expert discovery must be completed by October 29, 2010. Expert discovery must be completed by November 19, 2010. Trial is currently set for May 4, 2011.

On August 12, 2010, Defendants filed the instant motion for involuntary dismissal. The Court denied Plaintiffs' request to continue the hearing and ordered an opposition filed by September 10, 2010. Plaintiffs did not file an opposition.


The discovery disputes in this action began with Defendants' July and August 2008 motions to compel further responses to written discovery propounded on Plaintiffs. In response to many interrogatories, Mrs. Pobursky stated that the question was "irrelevant" or referred Defendants to the Second Amended Complaint. Similarly, Mr. Pobursky objected to numerous interrogatories as requesting "privileged information" pursuant to his right to privacy. He also referred Defendants to the Second Amended Complaint*fn1 or previously answered interrogatories.

On September 9, 2008, the Court granted the motions to compel, 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 30 days.

Plaintiffs subsequently failed to adequately respond to discovery. Plaintiffs continued to withhold background information, reference other documents and provide incomplete responses.

Based on these inadequacies, Defendants filed their first motion for sanctions on January 16, 2009. Defendants sought to stay the action until Plaintiffs complied with the Court's September 2008 order.

On February 24, 2009, the Court denied the motion for sanctions without prejudice and ordered Plaintiffs to submit further discovery responses within 45 days. The Court explained that it would be more efficient to allow Plaintiffs 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). Plaintiffs confirmed that they understood this at the hearing. (emphasis in original). To prevent any confusion, the Court set forth the specific interrogatories and requests for production that required further responses. The Court also explained to Plaintiffs that failure to provide sufficient answers "will result in the preclusion of evidence, as described above." (emphasis in original).

Plaintiffs served their responses on April 13, 2009. On April 23, 2009, Defendants filed a motion for evidentiary sanctions, arguing that Plaintiffs continued to invoke their Fifth Amendment privilege to questions seeking basic background information and that Mr. Pobursky continued to refer to other documents in his responses rather than setting forth his contentions and supporting facts.

The Court granted the motion on June 4, 2009, and found that despite the Court's direction to answer each question at issue in a straightforward manner, Plaintiffs continued "to provide incomplete responses, refer to other documents, or stand by their prior answers." The Court prohibited Plaintiffs from introducing evidence that was not disclosed in response to the discovery at issue. Plaintiffs were not precluded, however, from "relying on facts provided in their verified first amended complaint filed on August 13, 2007, facts provided in Defendants' responses to discovery, facts provided in timely supplements to discovery, or facts disclosed during Plaintiffs' upcoming depositions."

On October 14, 2009, Defendants filed a motion to compel Plaintiffs to respond to deposition questions for which they continued to invoke their Fifth Amendment privilege. On November 23, 2009, the Court granted the motion to compel and imposed monetary sanctions. The Court explained:

Plaintiffs have refused to answer a myriad of deposition questions, ranging from those seeking basic background information to those directly related to the elements of Plaintiffs' claims. Specifically, Plaintiffs invoked their Fifth Amendment right against self-incrimination for questions related to the arrest warrant, the existence of probable cause, the alleged illegal entry, the alleged illegal vehicle stop and their alleged damages.

The responses to these questions, however, are critical to the elements of Plaintiffs' claims. For example, Plaintiffs refused to answer all questions relating to their daughter, Jami, yet whether Jami was in the car and/or van is a key issue. Similarly, they refused to answer any questions relating to Linda Bye, the owner of the ...

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