United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING CROSS-MOTIONS
FOR SANCTIONS (ECF NOS. 118, 120, 122, 123)
Daniel Masterson is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
This case proceeds against Defendants Killen, Hampson, Hall,
Fisher, Rodriguez, Santoro, and Tolson for retaliation in
violation of the First Amendment, and against Defendants
Killen, Hampson, Hall, Rodriguez, Santoro, and Tolson for
conspiracy to retaliate against Plaintiff. This matter was
referred to the undersigned pursuant to 28 U.S.C. §
636(1)(B) and Local Rule 302.
before the Court are the parties' cross-motions for an
order to show cause why sanctions should not be imposed. (ECF
Nos. 118, 123.) The Court held an evidentiary hearing on this
matter on February 15, 2017. (ECF No. 139.) Plaintiff
appeared pro se, and Misha D. Igra appeared on behalf of
Defendants. Plaintiff testified on his own behalf. Jaymes
Thomas McCollum and Michelle M. Mayer testified on behalf of
procedural history of this matter leading up to the February
15, 2017 hearing is set forth in detail in this Court's
January 16, 2017 order. The Court assumes familiarity with
that order and the prior proceedings, and only briefly
summarizes them here.
10, 2016, Defendants filed a motion for summary judgment in
this case. (ECF No. 90.) On September 19, 2016, Plaintiff
filed an opposition, with support. (ECF Nos. 100, 101, 102,
December 2, 2016, Defendants filed a reply to Plaintiff's
opposition. (ECF No. 117.) Among the arguments in their reply
brief, Defendants assert that Plaintiff submitted forged and
fraudulent declarations in support of his opposition. (ECF
No. 117, pp. 2, 12-13.) Defendants moved to strike the
allegedly false and fraudulent declarations.
December 14, 2016, Defendants moved for an order requiring
Plaintiff to show cause why he should not be sanctioned for
preparing and filing the allegedly false declarations.
Defendants further requested a show cause hearing. (ECF No.
118.) Former Deputy Attorney General Michelle M. Mayer, who
was defense counsel at that time, submitted a declaration in
support of the motion for an order to show cause. (ECF No.
118-2.) Defendants argue that, pursuant to Federal Rules of
Civil Procedure 11 and 56(h), Local Rule 110, and the
inherent authority of the Court, Plaintiff's action
should be terminated as a sanction, and Defendants should
further be awarded monetary sanctions against Plaintiff as
reimbursement for certain fees and costs.
December 14, 2016 Plaintiff filed a motion to stay the
proceedings in this matter to resolve the dispute regarding
the declarations, which he contends were not false or
fraudulent. (ECF No. 120.) On December 21, 2016, Defendants filed
a response to Plaintiff's motion, agreeing that the
issues regarding the declarations should be resolved before
the case proceeds. (ECF No. 121.)
January 3, 2017, Plaintiff filed a motion for an order to
show cause why sanctions should not be imposed and requesting
a show cause hearing, asserting that Ms. Mayer submitted a
false declaration in this matter. (ECF No. 123.) Plaintiff
argues that Defendants' motion for summary judgment
should be denied in full as a sanction for Ms. Mayer's
other submission by the parties on these matters, on January
26, 2017, the Court set this matter for an evidentiary
hearing. (ECF No. 28.) The Court also required defense
counsel to provide certain evidence for in-camera review in
advance of the hearing, (ECF No. 28, at p. 5), which was
lodged with the Court on February 6, 2017, (ECF No. 132). As
noted above, the evidentiary hearing was held on February 15,
2017. (ECF No. 139.)
Rule of Civil Procedure 11 sanctions are justified if a party
or their attorney submits a pleading to the court which is
submitted for an improper purpose, is frivolous, has no
evidentiary support or not warranted by the evidence. A party
moving for Rule 11 sanctions bears the burden to show why
sanctions are justified. See Tom Growney Equip., v.
Shelley Irr. Dev., Inc., 834 F.2d 833, 837 (9th Cir.
1987). The Ninth Circuit has stated that Rule 11 sanctions
are “an extraordinary remedy, one to be exercised with
extreme caution.” Operating Eng'rs Pension
Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988).
Rule of Civil Procedure 56 concerns motions for summary
judgment or partial summary judgment. Rule 56(h) provides as
If satisfied that an affidavit or declaration under this rule
is submitted in bad faith or solely for delay, the
court-after notice and a reasonable time to respond-may order
the submitting party to pay the other party the reasonable
expenses, including attorney's fees, it incurred as a
result. An offending party or attorney may also be held in
contempt or subjected to other appropriate sanctions.
Fed. R. Civ. P. 56(h). “Bad faith in the context of
Rule 56(h) requires a deliberate or knowing act f an improper
purpose.” Raher v. Fed. Bureau of Prisons,
Case No. 3:09-CV-00526-ST, 2011 W 4832574, at *8 (D. Or. Oct.
12, 2011). See also Caron v. QuicKutz, Inc., Case
No. CV-09-0260 PHX-NVW, 2012 WL 5497869, at *20 (D. Ariz.
Nov. 13, 2012), aff'd sub nom. Caron v.
Lifestyle Crafts, LLC, 528 F. App'x 993 (Fed. Cir.
2013) (striking declaration under Rule 56(h) for containing
statements not based upon personal knowledge and statements
intended to mislead the court, b denying request for
courts have the inherent authority to sanction conduct
abusive of the judicial process Chambers v. NASCO,
Inc., 501 U.S. 32, 43-45 (1991). Local Rule 110 of this
district also provides that the “[f]ailure of counsel
or of a party to comply with these Rules or with any order of
the Court may be grounds for imposition by the Court of any
and all sanctions authorized by statute or Rule within the
inherent power of the Court.”
of their very potency, inherent powers to sanction must be
exercised with restraint an discretion. Chambers,
501 U.S. at 44 (quotation marks omitted). To be sanctionable
under the Court inherent power, the conduct must have
constituted, or been tantamount to, bad faith. Roadway
Express, Inc. v. Piper, 447 U.S. 752, 767 (1980);
Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Ci 2001);
Fink v. Gomez, 239 F.3d 989, 993-94 (9th Cir. 2001).
Recklessness, when combined with a additional factor such as
frivolousness, harassment, or an improper purpose, may
support sanction 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).
dismissal of a lawsuit . . . is a particularly severe
sanction, yet is within the court's discretion.”
Chambers, 501 U.S. at 45 (citation omitted).
“[C]ourts have 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.” Wyle v. R.J. Reynolds Industries,
Inc., 709 F.2d 585, 589 (9th Cir.1983) (citation
omitted). The Ninth Circuit has held that falsifying evidence
is a ground for imposing the sanction of dismissal. See
Combs v. Rockwell Int'l Corp., 927 F.2d 486, 488
(9th Cir.1991) (affirming dismissal as appropriate sanction
for falsifying ...