The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' May 1, 2012 motion to dismiss for plaintiff's failure to cooperate in discovery. (Dkt. No. 49.) Plaintiff has not opposed defendants' motion. For the reasons stated herein, defendants' motion should be granted. Background
On January 20, 2012, defendants filed a motion to compel plaintiff to cooperate and testify at his deposition. (Dkt. No. 43.) Defendants stated that plaintiff would not go forward with his deposition on January 13, 2012 because 1) he would not take his oath under penalty of perjury unless God Himself, or a representative of the Neterian Church, was present to swear him in; and 2) his name on the Notice of Taking Deposition was spelled in all capital letters as opposed to lower case letters. Plaintiff did not oppose defendants' motion to compel.
On March 22, 2012, the undersigned granted defendants' January 20, 2012 motion to compel. (Dkt. No. 48.) In this order, the undersigned noted that plaintiff refused to accept an alternative oath, stating that he would swear to tell the truth only if God or a representative of his church appeared at the deposition. The undersigned found this request to be unreasonable and that plaintiff had presented no evidence that his religion prevented him from taking an oath. The undersigned further found plaintiff's objection that his name was misspelled in documents related to the deposition because it was written in capital letters to be frivolous. The undersigned ordered that defendants could depose plaintiff within forty-five days and plaintiff was to cooperate and testify at the deposition. The undersigned also ordered plaintiff to pay defendants the cost of the court reporter ($271.95).
On March 27, 2012, defendants served plaintiff with an amended notice of taking deposition scheduled for April 20, 2012 at 9:30 a.m. (Dkt. No. 49-2 at 1.) On April 9, 2012, defense counsel received an envelope which he had sent to plaintiff marked "Return to Sender" and "Unopened and Rejected." (Id.) Defense counsel did not open the envelope. (Id.)
On April 10, 2012, defense counsel sent plaintiff a letter indicating that he had received an envelope which he had sent plaintiff and that failure to cooperate in discovery was unreasonable. (Id.) This letter told plaintiff that his deposition was scheduled for April 20, 2012 at 9:30 a.m. (Id.) This letter also told plaintiff that defense counsel had not received the $271.95 that plaintiff had been ordered to pay in the March 22, 2012 order. (Id.)
On April 11, 2012, defense counsel received an envelope which he had sent to plaintiff marked "rejected." (Id. at 2.) Defense counsel has not opened the envelope to determine what is inside. (Id.) The postmark on this envelope is March 27, 2012, i.e., the same date that plaintiff was served with defendants' Amended Notice of Taking Deposition. (Id.)
On April 18, 2012, defense counsel received another envelope he had sent to plaintiff marked "rejected." (Id.) Defense counsel has not opened the envelope to determine what is inside. (Id.)
On April 20, 2012, defense counsel went to California State Prison-Corcoran ("Corcoran"), where plaintiff is incarcerated. (Id.) The Corcoran Litigation Coordinator told defense counsel that plaintiff had already refused two orders to come out of his cell to attend the deposition. (Id.) Defense counsel went to the designated deposition location at Corcoran at the time the deposition was scheduled. (Id. at 3.) Plaintiff did not appear for the deposition. (Id.)
On May 1, 2012, defendants filed the pending motion.
On May 22, 2012, defendants' counsel filed a declaration stating that the motion to dismiss served on plaintiff was returned unserved with the envelope marked, "RTS--Inmate Refused Chrono on File." (Dkt. No. 50.) On May 24, 2012, the undersigned ordered plaintiff to show cause within fourteen days why this action should not be dismissed based on his failure to prosecute the action based on his refusal to accept defendants' motion. (Dkt. No. 51.) The undersigned warned plaintiff that his failure to respond to this order would result in the recommendation of dismissal of this action. (Id.)
Fourteen days passed and plaintiff did not respond to the May 24, 2012 order. Discussion
Federal Rule of Civil Procedure 37 permits the court to impose sanctions -- including dismissal -- on a party that fails to attend a properly noticed deposition. Fed. R. Civ. P. 37(d). Circumstances must "overcome the strong policy favoring disposition of cases on their merits" to justify terminating sanctions. U.S. for Use and Ben. Of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 605 (9th Cir. 1988). In addition, the "harsh sanction" of dismissal, even for "a party's repeated failure to appear for deposition," is only proper when the failure "is due ...