The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION ISSUING TERMINATING SANCTIONS BASED UPON PLAINTIFF'S KNOWING SUBMISSION OF FALSIFIED EVIDENCE TO THE COURT
Plaintiff claims that on April 2, 2010, he approached Defendant Brandon based upon his contention that Brandon went through his legal papers and threw his Bible on the cell floor and poured coffee on it. He claims that when he confronted her, she used excessive and unreasonable force on him.
On June 26, 2012, Defendants filed their motion for summary judgment. (Doc. 35) Attached to the motion were declarations prepared by counsel after meeting with inmates Norberto Medina (Doc. 35-2 at 47-48) and Miguel Palenzuela (Doc. 35-2 at 50-51). In his declaration, Medina asserted that he did not see Defendant Brandon use any force against Plaintiff nor did he see Brandon touch Plaintiff in any way. (Doc. 35-2 at 47-48) Likewise, Palenzuela asserted that he did not see Defendant Brandon use any force against Plaintiff and, in fact, he was not on the same housing yard as Plaintiff so he could not have seen any interaction between Brandon and Plaintiff. (Doc. 35-2 at 50-2 51) 3
In opposition to Defendants' motion for summary judgment, Plaintiff submitted declarations of Noberto Medina (Doc. 38 at 61) and Miguel Palenzuela (Doc. 38 at 62) which predated those 5 proffered by Defendants. In his declaration, Medina asserted that Defendant Brandon "was acting as 6 if she was under the influence of some kind of drugs, with very sporadic speech and behavior." (Doc. 7 38 at 61) Medina asserted that Plaintiff "was not doing anything" but Brandon had Plaintiff "lined up 8 against the 6-yard gym outter [sic] doors '(roll-up),' [and] for no reason at all," she was "harassing 9 inmate Newman." Id. The declaration ends with the assertion that "I am a witness to these facts which I do declare to be true and correct." Id.
Palenzuela's declaration asserts that Brandon "was harassing inmate Newman #V-179771 on the 6-yard." (Doc. 38 at 62) Palenzuela asserted that Brandon "had Inmate Newman up against the outter [sic] 'roll-up gym doors of the 6-yard gym with her hand in Inmate Newmans [sic] back. '(lower back area.)'"
Given these wildly different accounts, the Court ordered an evidentiary hearing to be held. (Doc. 44) Notice of the hearing was given to Plaintiff and counsel for Defendants. Id. Indeed, counsel for Defendants reported that they spoke with Plaintiff days before the hearing and he indicated an awareness of the hearing and stated that he intended to be present. Nonetheless, the Court conducted the evidentiary hearing on October 9, 2012 but Plaintiff failed to appear.
II. The evidentiary hearing
At the hearing, both inmates, Medina and Palenzuela, denied having seen the content of the declarations proffered by Plaintiff before being presented with them by counsel for Defendants. Mr. Medina testified that on April 2, 2010, he was housed on the "6 yard" which is the same yard on which Plaintiff was assigned. On that date, all 6-yard inmates were required to go to the exercise yard to allow inspection of their cells. When they returned, Mr. Medina saw that Plaintiff's bunk had a "mess" on it. He saw Plaintiff speak to Defendant Brandon who provided Plaintiff a 602 form. Mr. Medina saw Plaintiff complete the form and asked him to be "his witness." Mr. Medina said he signed a declaration that Plaintiff provided though Plaintiff did not permit him to review it. He denied that he saw Brandon push Plaintiff or use any force on him at all. He denied that Brandon appeared to be 2 under the influence of drugs. He affirmed that the information contained in the declaration prepared 3 by the attorney for Defendants (Doc. 35-2 at 47-48) was accurate and the declaration provided by 4
Plaintiff (Doc. 38 at 61) was not. 5
Mr. Palenzuela testified though the signature on the declaration was his, he had no explanation 6 for how it came to be on the declaration. He testified that he was housed on the "5 yard" on April 2, 7 2010 which was an entirely different yard from the "6 yard" where Plaintiff was housed. He reported 8 that he did not witness any of the events on April 2, 2010 that gave rise to this litigation, including any 9 interaction between Plaintiff and Defendant Brandon. Indeed, Mr. Palenzuela testified that he had never asserted to anyone that he was a witness to the events on April 2, 2010. He affirmed that the information contained in the declaration prepared by the attorney for Defendants (Doc. 35-2 at 50-51) was accurate and the one provided by Plaintiff (Doc. 38 at 62) was not.
Finally, Litigation Coordinator John Buck testified and verified that Plaintiff was housed on the "6 yard" on April 2, 2010 and that Mr. Palenzuela was housed on the "5 yard" on that date. He presented the "Offender/Movement History" for Palenzuela which further demonstrated this fact.
Based upon all this evidence, it appears clear that the declarations submitted by Plaintiff purporting to be the sworn statements of inmates Medina and Palenzuela are false and that Plaintiff knowingly filed ...