The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTIONS FOR SANCTIONS AND MOTION TO STAY (ECF Nos. 145, 155, 156, 186)
ORDER DISCHARGING ORDER TO SHOW CAUSE (ECF No. 177)
Plaintiff Daniel Manriquez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 22, 2010, an order issued opening discovery in this action. (ECF No. 42.) Plaintiff filed motions to compel on January 24 and 27, 2011, and February 14 and 22, 2011. (ECF Nos. 49-53.) On March 22, 2011, Plaintiff filed a motion for sanctions. (ECF Nos. 59, 60.) On May 9, 16, and 20, 2011, Plaintiff filed motions to compel. (ECF Nos. 73-77, 79, 80.) On June 6, 2011, Plaintiff filed motions to compel. (ECF Nos. 97, 99, 100). On July 27, 2011, an order issued granting in part and denying in part Plaintiff's first motion to compel; denying Plaintiff's second, third, fourth, and fifth motions to compel; denying Plaintiff's motion to determine the sufficiency of objections; denying Plaintiff's motion that admissions be deemed admitted; denying Plaintiff's motion for sanctions, and denying Defendants' motion for a protective order. (ECF No. 131.) On August 26, 2011, Defendants were granted a forty five day extension of time to comply with the order on the motions to compel. (ECF No. 140.) On September 6, 2011, Plaintiff lodged a first amended complaint. (ECF No. 143.) On September 22, 2011, Plaintiff filed a motion for sanctions. (ECF No. 145.) On October 25, 2012, an order issued requiring Plaintiff to either file an amended complaint or notify the Court that he wished to proceed on the claims found to be cognizable in the first amended complaint. (ECF No. 152.)
On November 11, 2011, Plaintiff filed a motion for Rule 11 sanctions and a motion to stay ruling on his motion until Plaintiff filed an amended complaint. (ECF Nos. 155, 156.) On November 22, 2011, Plaintiff lodged a second amended complaint and filed a seventh and eighth motion to compel. (ECF Nos. 162, 163, 164.) On November 28, 2012, Plaintiff filed a ninth motion to compel. (ECF No. 165.) On December 15, 2012, Plaintiff's second amended complaint was screened. This action is now proceeding on the second amended complaint against Defendants Munoz, Clausing, and Omos for excessive force in pepper spraying Plaintiff; Defendants Hutchins, Reynoso, Hacker, and Roberson for ordering that Plaintiff's property be removed and he be placed back into his contaminated cell without a means to decontaminate from the pepper spray; and Defendants Morse and Paz for placing Plaintiff in the contaminated cell.
On January 13, 2012, an order issued denying Plaintiff's sixth, seventh, eighth, and ninth motions to compel and Plaintiff's motion to determine sufficiency of objections, and the parties were ordered to file a statement of discovery needed. (ECF No. 181.) On January 19, 2012, an order for Defendants to show cause why sanctions should not be imposed for the failure to pay sanctions as ordered issued. (ECF No. 177.) On January 27, 2012, Defendants filed a response to the order to show cause. (ECF No. 182.) Plaintiff filed a statement of discovery needed on February 14, 2012. (ECF No. 184.) On March 19, Plaintiff filed a motion for sanctions. (ECF No. 186). On April 26, 2012, Plaintiff filed a motion for summary judgment. (ECF Nos. 191-194.) On June 18, 2012, Plaintiff filed a motion to compel.*fn1 (ECF Nos. 207, 208.)
II. Motions for Sanctions
Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that if a party fails to obey an order to provide or permit discovery, the court may issue further just orders, which may include the imposition of sanctions upon the disobedient party, including dismissal of the action or proceeding in whole or in part. Fed. R. Civ. P. 37(b)(2)(A). "[T]he court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C).
In the Ninth Circuit, sanctions are appropriate only in "extreme circumstances" and where the violation is "due to willfulness, bad faith, or fault of the party." Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002.) (quoting United States v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir.1988) (citations omitted)). Disobedient conduct not shown to be outside the litigant's control meets this standard. Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir.1994). In North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986), the Ninth Circuit held that "[b]elated compliance with discovery orders does not preclude the imposition of sanctions. Fair Housing of Marin, 285 F.3d at 905 (also citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778 (1976) (per curiam); G-K Props. v. Redevelopment Agency of the City of San Jose, 577 F.2d 645, 647-48 (9th Cir.1978)).
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 589.
B. September 22, 2011 Motion for Sanctions
Plaintiff alleges that Defendants failed to pay the discovery sanctions as ordered in the July 27, 2011 order. In response to the order to show cause, Defendants reply that they received an extension of time on August 26, 2011 to comply with the July 27, 2011 order. On September 23, 2011, Defendants mailed Plaintiff a check for $23.04, which has been cashed. Since Defendants did receive an extension of time to comply with the order to pay sanctions and the sanctions were paid within the ...