The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTIONS FOR SANCTIONS (ECF Nos. 132, 135) ORDER S T R I K I N G P L A I N T I F F ' S SUPPLEMENTAL REPLY FROM THE RECORD (ECF No. 140) ORDER REOPENING LIMITED DISCOVERY FOR PLAINTIFF THIRTY-DAY DEADLINE
Plaintiff George H. Robinson ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint against Defendants David, Miranda, Melo, Garcia, Mendoza, Martinez, and Masiel for use of excessive force in violation of the Eighth Amendment; Defendants Adams and Ruiz for failure to protect in violation of the Eighth Amendment; and state law claims of assault and battery.*fn1 (ECF No. 33.)
Following resolution of Plaintiff's motion to compel, the Court issued a protective order and ordered discovery be provided to Plaintiff. (ECF No. 130.) On April 4, 2012, and May 2, 2012, Plaintiff filed motions for sanctions alleging that Defendants had failed to comply with the orders requiring them to provide discovery. (ECF Nos. 132, 135.) Defendants filed an opposition to the motions for sanctions on June 1, 2012. (ECF No. 137.) Plaintiff filed a reply on June 14, 2012, and a supplemental reply on June 20, 2012. (ECF Nos. 138, 140.) At the direction of the Court, Defendants filed a supplemental opposition on July 11, 2012. (ECF No. 141.)
Federal courts have the inherent authority to sanction conduct abusive of the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123 (1991). However, because of their very potency, inherent powers must be exercised with restraint and discretion. Chambers, 501 U.S. at 44 (quotation marks omitted). To be sanctionable under the Court's inherent power, the conduct must have constituted, or been tantamount to, bad faith. Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455 (1980); Save the Peaks Coalition v. U. S. Forest Service, 683 F.3d 1140, 1142-43 (9th Cir. 2012); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001); Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001). Recklessness, when combined with an additional factor such as frivolousness, harassment, or an improper purpose, may support sanctions, Vernon, 255 F.3d at 1134; Fink, 239 F.3d at 994, but mere negligence or recklessness will not suffice, In re Lehtinen, 564 F.3d 1052, 1058 (9th Cir. 2009).
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).
B. April 4, 2012 Motion for Sanctions
Plaintiff alleges that following the in camera review and order for
Defendants to produce discovery, Defendants failed to produce all
inmate appeals that have been filed against them. Plaintiff
claims that he has filed several appeals that were not part of the
discovery provided. (Plaintiff's Motion for Sanctions 1,*fn2
ECF No. 132.) Plaintiff states that inmates Holcomb and Lara
were assaulted and filed appeals against Defendants Miranda and David.
Inmate Holcomb filed an appeal and lawsuit. Plaintiff claims that he
met inmate Lara and wrote down the details of an assault on an appeals
form which was given to Correctional Officer Villa-Lopez to mail to
the Appeals Coordinator. Finally, Plaintiff allegedly observed
Defendant David pepper spray an inmate without justification and this
inmate filed an appeal. (Id. at 2.) In support of his motion,
Plaintiff submits a declaration from inmate Holcomb stating that he
was assaulted by Defendants David and Miranda on October 2, 2006. (Id.
at 4-6.) Plaintiff requests a hearing to call these witnesses to show
that Defendants have failed to provide all discovery. (Id. at
Defendants argue that they have produced all inmate appeals and no other documents responsive to the request exist. Additionally, Plaintiff has failed to produce any evidence that responsive documents exist. (Supplemental Opposition 2, ECF No. 141.)
Defendants state that they acted within a few days of the Court's order and all responsive documents were provided to Plaintiff. Defendants did not provide documents from Plaintiff's own files because he already has copies and access to his central file. Accordingly, Defendants request the motion for sanctions be denied. (Id.)
While Plaintiff alleges that inmates Holcomb and Lara each filed inmate appeals he offers no evidence to support this allegation. The declaration from inmate Holcomb does not state that he filed an inmate grievance, and the court documents show that the defendants in the case moved to dismiss his complaint because he failed to exhaust administrative remedies. Additionally, although Plaintiff alleges that he helped inmate Lara author an appeal and give it to Officer Villa-Lopez for submission to the appeals coordinator, there is no information regarding whether the appeal was accepted, returned to the inmate, rejected, or withdrawn. There is no evidence that such an appeal was properly filed and processed.
Finally, while Plaintiff claims to have observed an inmate being pepper sprayed by a defendant, Plaintiff fails to offer any evidence that this inmate filed a grievance. Plaintiff's allegations that Defendants failed to provide all responsive documents is based on speculation and conjecture. There is no basis for ...