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Gary H. Brush v. J. Woodford

October 31, 2011

GARY H. BRUSH,
PLAINTIFF,
v.
J. WOODFORD, ET AL.,
DEFENDANTS.



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

ORDER FOLLOWING ORDER TO SHOW CAUSE HEARING, IMPOSING SANCTIONS, AND DISMISSING ACTION, WITH PREJUDICE (ECF No. 191, 200, 202)

I. Procedural History

Plaintiff Gary H. Brush ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on July 16, 2007. (ECF No. 1.) On August 14, 2008, an order issued finding service of the complaint appropriate and the order directing service issued on September 29, 2008. (ECF Nos. 25, 30.) Defendants filed an answer and discovery opened on July 15, 2009. (ECF No. 80.) Following resolution of Defendants' motion for summary judgment, filed September 16, 2010, this action is proceeding on the first amended complaint against Defendants J. Harper, Lee, Jasso, Rangel, Gonzales, Cano, N. Greene, King, and Catalano. (ECF No. 123.)

On April 6, 2011, the second scheduling order issued setting this action for trial on August 29, 2011. (ECF No. 124.) Plaintiff filed pretrial motions, including a motion for the attendance of incarcerated witnesses, which was partially granted on June 13, 2011. (ECF No. 133.) Plaintiff filed a motion for reconsideration of the order partially granting his motion for the attendance of incarcerated witnesses on July 5, 2011. (ECF No. 139.) At the request of the parties, this action was reassigned to the undersigned on July 19, 2011. (ECF No. 149.) Due to the reassignment, the trial date was vacated and reset for November 1, 2011. (ECF No. 161.) On August 8, 2011, an order issued partially granting Plaintiff's motion for the attendance of incarcerated witnesses, and the transportation writs for Plaintiff and inmates Vaifanua, Abeyta, Cagadas, Washington, Serrano, Umanzor, Reeder, and Villiers were issued on September 7, 2011. (ECF No. 162, 177-185.)

On September 16, 2011, the Court received a letter from Vaifanua stating that he did not prepare an affidavit for this action and did not witness any of the events that occurred. (ECF No. 190.) On September 19, 2011, the Court received a letter from Reeder stating that he does not have any recollection of ever being housed at the same institution as Plaintiff and has no knowledge of the incidents in this action. (ECF No. 189.) On September 27, 2011, an order issued setting an order to show cause hearing, and the parties were granted an opportunity to file a responsive pleading. (ECF No. 191.) Upon notifying Defendants of the order to show cause hearing, defense counsel informed the Court that Serrano should also be transported for the hearing. On September 29, 2011, a letter was received from Umanzor stating that due to inconsistencies in the affidavit that he did not prepare he requested to be excluded from testifying in this action. (ECF No. 199.) Defendants filed a response to the order to show cause on October 7, 2011, and Plaintiff filed a response on October 13, 2011. (ECF Nos. 200, 202.)

A hearing on the order to show cause was held on October 19, 2011, to allow Plaintiff the opportunity to be heard. During the hearing, the Court heard testimony from Correctional Officer Cano, Vaifanua, Reeder, Umanzor, Serrano, and Plaintiff. The Court issues the instant order finding that terminating sanctions should be imposed upon Plaintiff for filing false affidavits in support of his motion for the attendance of incarcerated witnesses.

II. Legal Standard

A. Sanctions

Federal courts have broad powers to impose sanctions against parties or counsel for improper conduct in litigation. The Court derives the power to impose sanctions on parties or their counsel from three primary sources of authority, "(1) Federal Rule of Civil Procedure 11, which applies to signed writings filed with the court, (2) 28 U.S.C. § 1927, which is aimed at penalizing conduct that unreasonably and vexatiously multiplies the proceedings, and (3) the court's inherent power." Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001).

1. Rule 11

Rule 11(b) of the Federal Rules of Civil Procedure provides that "[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;. . . [and] (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. . . ." Rule 11 imposes an objective standard of reasonableness, which applies to pro se litigants. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 892 F.2d 802, 811 (9th Cir. 1989).

Rule 11(c) provides for the imposition of appropriate sanctions for a violation of Rule 11(b) on any attorney, law firm or party that has violated the rule or is responsible for the violation committed. Any sanction imposed must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. Fed. R. Civ. P. 11(c)(4). Whether to impose sanctions is determined by the reasonableness of the inquiry into the law and facts. G.C. & K.B. Investments v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003). "An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction." Fed. R. Civ. P. 11(c)(6).

2. Inherent Power

The Court has inherent power to sanction parties or their attorneys for improper conduct. Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). This includes the "inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice." Anheuser-Busch, Inc. V. Natural Beverage Distrib., 69 F.3d 337, 348 (9th Cir. 1995) (quoting Wyle v. R. J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983)); see Combs v. Rockwell Intern. Corp., 927 F.2d 486, 488 (9th Cir. 1991) ("Dismissal is an appropriate sanction for falsifying deposition"). Because dismissal is such a harsh penalty, it should only be used in extreme circumstances. Wyle, 709 F.3d at ...


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