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Meeks v. Nunez

United States District Court, S.D. California

March 8, 2017

BRANDON MEEKS, Plaintiff,
v.
A. NUNEZ, et al., Defendant.

          ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION FOR TERMINATING SANCTIONS AND DENYING PLAINTIFF'S MOTION TO SUPPRESS HIS DEPOSITION [DKT. NOS. 158, 195.]

          HON. GONZALO P. CURIEL United States District Judge.

         Plaintiff Brandon Meeks (“Meeks”), a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983, alleging constitutional violations for an incident occurring on April 25, 2011 at the Richard J. Donovan Correctional Facility (“RJDCF”). (Dkt. No. 1.) On November 9, 2016, the Magistrate Judge filed a report and recommendation (“R&R”) that Defendants Correctional Officers A. Nunez and T. Scott's (collectively “Defendants”) motion for terminating sanctions be denied but that the Court issue an alternative sanction precluding Plaintiff from offering his testimony at trial, and that Plaintiff's motion to suppress his deposition be denied. (Dkt. No. 207.) Defendants filed an objection to the R&R on November 23, 2016. (Dkt. No. 210.) After being granted leave to file a late objection, Plaintiff filed an objection to the R&R on March 2, 2017. (Dkt. No. 232.) After a thorough review of the record, the parties' arguments and the applicable law, the Court DECLINES to ADOPT the report and recommendation and GRANTS Defendants' motion for terminating sanction and DENIES Plaintiff's motion to suppress his deposition.

         Procedural Background

         Almost four years ago, on April 23, 2013, Plaintiff filed a complaint against Defendants Correctional Officers A. Nunez and T. Scott, Correctional Sergeant J. Wilborn, and Registered Nurse M. Estrada alleging constitutional violations for an incident on April 25, 2011. (Dkt. No. 1.) After the Court ruled on Defendants' motion for summary judgment for failure to exhaust and subsequent motion to dismiss, (Dkt. Nos. 47, 48, 76), there remains but one cause of action of excessive force against Defendants Correctional Officers Nunez and Scott as pled in the first amended complaint. (Dkt. No. 74, FAC) Meeks alleges Nunez and Scott used excessive force against him by brutally attacking him which required emergency transport to TriCity Medical Center. (Id. at 5.) He claims that the “the excessive force was not applied in a good faith effort to maintain or restore order, but was done maliciously and sadistically for the purpose of causing harm by inflicting pain and suffering.” (Id. at 7.)

         On June 20, 2016, Defendants filed a motion for an order imposing terminating sanctions for Plaintiff's failure to comply with the Court's orders filed on February 29, 2016, (Dkt. No. 132), May 4, 2016, (Dkt. No. 145), and May 19, 2016, (Dkt. No. 151). (Dkt. No. 158.) Plaintiff filed an opposition on October 5, 2016. (Dkt. No. 198.) A reply by Defendants were filed on October 7, 2016. (Dkt. No. 201.) The Magistrate Judge filed a report and recommendation on November 9, 2016. (Dkt. No. 207.) Defendants Nunez and Scott filed their objection to the R&R on November 23, 2016. (Dkt. No. 210.) Plaintiff filed an objection to the R&R on March 2, 2017. (Dkt. No. 232.)

         Factual Background

         On January 14, 2016, Defendants attempted to take the deposition of Plaintiff but he refused to appear at the deposition. (Dkt. No. 158-2, Pattison Decl. ¶ 1.) On January 19, 2016, Defendants filed an ex parte motion to compel Plaintiff's deposition with the Magistrate Judge. (Dkt. No. 124.) On January 20, 2016, the court received an objection by Plaintiff to his deposition notice. (Dkt. No. 126.) Plaintiff objected on the grounds that Defendants had not responded to his discovery requests and because he had not been provided access to the law library. (Id. at 2.) On February 29, 2016, after considering Plaintiff's objections, the Magistrate Judge issued an order granting Defendants' motion to compel. (Dkt. No. 132.) The Magistrate Judge concluded that Plaintiff's objections were not sufficient reasons to refuse to answer a deposition question but instead “Plaintiff was required to note his objections on the record, but proceed with the deposition. Fed.R.Civ.P. 30(c)(2).” (Id. at 4.) The Magistrate Judge also noted that Defendants had not sought leave from the Court to depose Plaintiff as required by the Federal Rules of Civil Procedure (“Rule”) 30(a)(2). (Id. at 4-5.) Although Plaintiff had not objected on that basis, the court acknowledged that he would have been within his right to do so. (Id. at 4.) Notwithstanding, the Magistrate Judge determined that its order would satisfy the requirement for leave of court to take Plaintiff's deposition, and compelled Plaintiff to participate in the deposition. (Id. at 5.) In conclusion, the order granting Defendants' motion to compel stated, “Defendants need not seek a further court order for Plaintiff's deposition, as this order will satisfy the requirements of Federal Rule 30(a)(2).” (Id.)

         On April 20, 2016, Plaintiff filed an objection to the Magistrate Judge's February 29, 2016 Order granting Defendants' motion to compel his deposition. (Dkt. No. 141.) In that objection, Plaintiff argued that Defendants did not obtain leave of court to take his deposition. (Id. at 3-4.) He further stated that he “is not required to attend the the (sic) deposition on Jan. 14, 2016 or any other time because he ‘filed a timely objection.' (ECF No. 129 at 2).” (Dkt. No. 141 at 3.)

         Subsequent to the Magistrate Judge's order, Defendants attempted to take Plaintiff's deposition on April 19, 2016, and Plaintiff again refused to attend. (Dkt. No. 158-2, Pattison Decl. ¶ 5.) Defense counsel was informed by Correctional Officer Mendoza who was on the telephone with Correctional Officer Scalia at Plaintiff's housing unit that Plaintiff was refusing to appear at the deposition. (Dkt. No. 124-1, Pattison Decl. ¶ 5.) After confirming Plaintiff's refusal, defense counsel provided a statement on the record that Plaintiff was refusing to appear at the deposition. (Dkt. No. 124-1, Pattison Decl., Ex. B.) Defendants then filed a motion for terminating sanctions on April 25, 2016 due to Plaintiff's refusal to attend his deposition. (Dkt. No. 142.)

         On May 4, 2016, this Court issued an order overruling Plaintiff's objections to the Magistrate Judge's February 20, 2016 order granting Defendants' motion to compel and denied Defendants' motion for terminating sanctions. (Dkt. No. 145.) The Court explained that while Defendants failed to obtain leave of court to take the January 14, 2016 deposition, the Magistrate Judge did not err by construing its order as granting Defendants' leave to depose Plaintiff. (Id. at 5.) In conclusion, the Court ordered Plaintiff to appear for his deposition, stating:

Plaintiff shall comply with the deposition notice and if there are objections, he shall state the objections on the record. If Plaintiff fails to comply, Defendants may refile a motion for an order imposing termination sanctions and Plaintiff's first amended complaint may be subject to dismissal.

(Dkt. No. 145 at 7 (emphasis in original).) Following this order, on May 9, 2016, the Magistrate Judge issued another scheduling order setting May 24, 2016 to be the deadline to take Plaintiff's deposition. (Dkt. No. 146.)

         On May 9, 2016, Defendants attempted to take the deposition of Plaintiff, but he again refused to appear. (Dkt. No. 158-2, Pattison Decl. ¶ 8.) Correctional Officer Gallegos placed a statement on the record that Plaintiff refused to appear at his deposition and did not provide a reason for refusing. (Dkt. No. 149-2, Pattison Decl., Ex. A.) On May 16, 2016, Defendants filed a motion with the Court seeking terminating sanctions and dismissal of the action due to Plaintiff's refusal to appear at his deposition. (Dkt. No. 149.) On May 19, 2016, the Court issued an order summarily denying the motion for terminating sanctions, noting that Defendants only provided Plaintiff with two days' notice of the deposition which was not “reasonable written notice” as required by the Rules. (Dkt. No. 151 at 3.) The Court directed Defendants to wait until sufficient time passed to allow Plaintiff to receive the Court's order prior to noticing another deposition. (Id. at 4.) The Court reiterated its prior order directing Plaintiff to comply with the deposition notice and “[o]nce reasonable notice of his deposition is provided to Plaintiff and he fails to comply, Defendants may refile a motion for order imposing termination sanctions and Plaintiff's first amended complaint may be subject to dismissal.” (Id.) Following the Court's order, a second amended scheduling order was filed on May 19, 2016 directing that Plaintiff's deposition be completed by June 30, 2016. (Dkt. No. 152.)

         On June 2, 2016, Plaintiff filed an objection to the Court's May 19, 2016, order in which he stated that he would not attend any deposition because he considered the order unlawful and he was under no obligation to comply with it. (Dkt. No. 157.) Plaintiff relied primarily on his argument that Defendants had not obtained leave of court pursuant to Rule 30(a)(2). (Id.) On January 19, 2017, the Court overruled Plaintiff's objections, inter alia, to the Court's May 19, 2016 order. (Dkt. No. 217.) The Court noted there are no provisions to object to an order of the district judge; therefore, it construed Plaintiff's objections as a motion for reconsideration. (Id. at 1-2.)

         On May 27, 2016, Defendants served Plaintiff with a notice of deposition setting his deposition on June 13, 2016. (Dkt. No. 158-3, Soto Vancil Decl. ¶¶ 5, 6, Ex. A.) On June 13, 2016, Defendants attempted to take the deposition of Plaintiff. (Dkt. No. 158-2, Pattison Decl. ¶ 11.) This time Plaintiff appeared but refused to participate. (Id.) The relevant portions of Plaintiff's deposition testimony[1] are as follows:

Q: Thank you. Are you taking any medications currently?
A: I object to the question, and I object to the deposition in its entirety. I, plaintiff Brandon Meeks, hereby move to terminate this deposition on the grounds that it's been - it is being conducted in bad faith for purposes to harass. The noticed deposition by Richard Pattison under Federal Rules of Civil Procedure 30 is procedurally defective as defendants did not obtain leave of court as required to conduct plaintiff's deposition, as he's currently incarcerated at the California Men's Colony. The order by the Magistrate Judge, Bernard G. Skomal, and the district judge, Gonzalo P. Curiel was not entered in compliance with rules, and any subsequent notice, including this notice dated May 27, 2016 by Richard Pattison, defendants' attorney, is procedurally defective as noticed under Federal Rules of Civil Procedure 30 because the rule in question was not followed by the defendants. The Plaintiff hereby moves to terminate this deposition on grounds that it's being conducted in bad faith and for purposes to harass the plaintiff.
Q: So you're refusing to participate?
A: Well, I'm moving to terminate this deposition. I have already filed objections with the court, and a motion to terminate will be filed regarding this proceedings. I'm here for the purpose of - for the sake of legal argument only.
Q: So you're simply here to place your objection on the record and you're refusing to continue?
A: On the grounds that objections have been filed with the court regarding the court's previous order dated May 4th and May 19th by Gonzalo P. Curiel and on the amended scheduling order by the magistrate judge. Objections have been filed with the court regarding those orders, and a motion to terminate these proceedings is also underway. So that is my objection for the purpose of this procedurally defective noticed deposition. And I'm requesting a copy of this plaintiff's objections on the record from the reporter.
Mr. Pattison: Well, Mr. Meeks, since you're refusing to continue, I guess we're concluded. Thank you.

(Dkt. No. 201-2, Pattison Decl., Ex. 1 at 6-7; Dkt. No. 232, Ps' Obj, Ex. 1 at 19-20 (same).)

         On June 20, 2016, Defendants filed the instant motion for terminating sanctions against Plaintiff for violating court orders by his refusal to participate in the deposition. On November 9, 2016, the Magistrate Judge recommended that the motion for terminating sanctions be denied but that the Court issue an alternative sanction of “precluding Plaintiff from offering his testimony at trial.” (Dkt. No. 207 at 12.) On November 23, 2016, Defendants objected to the R&R to the extent that it recommended sanctions instead of dismissal as the Magistrate Judge did not fully take into account the prejudice to them. (Dkt. No. 210.) On March 2, 2017, Plaintiff filed an objection arguing that the R&R is contrary to law and clearly erroneous and that this Court abused its discretion when it allowed Defendants to circumvent the Rule requirement that they seeks leave of court prior to deposing Plaintiff. (Dkt. No. 232.)

         A. Standard of Review of Magistrate Judge's Report and Recommendation

         The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court “shall make a de novo determination of those portions of the report . . . to which objection is made, ” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed.R.Civ.P. 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).

         B. Standard of Review of Magistrate Judge's Discovery Order

         Under Federal Rule of Civil Procedure 72(a), aggrieved parties may file objections to the rulings of a magistrate judge in non-dispositive matters within fourteen days. Fed.R.Civ.P. 72(a). In reviewing a magistrate judge's order, the district judge “must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). A magistrate judge's legal conclusions are reviewable de novo to determine whether they are “contrary to law” ...


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