United States District Court, E.D. California
is a former state prisoner proceeding without counsel in an
action brought under 42 U.S.C. § 1983. The matter was
referred to a United States Magistrate Judge as provided by
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
January 17, 2017, the magistrate judge filed findings and
recommendations, which were served on all parties and which
contained notice to all parties that any objections to the
findings and recommendations were to be filed within fourteen
days. Plaintiff has filed objections to the findings and
recommendations and defendants have filed a response thereto.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, this court has conducted a
de novo review of this case. Having reviewed the
file, the court adopts the magistrate judge's findings
but declines to adopt at this time the recommendation that
the action be dismissed.
action is proceeding on Eighth Amendment claims raised in
plaintiff's original complaint, filed April 15, 2013. ECF
No. 1. The allegations supporting the claims have been
described by the magistrate judge as follows:
[Plaintiff] alleges that, on May 6, 2009, defendant
correctional officers subjected him to excessive force in
violation of the Constitution when they forcefully removed
him from his cell, restrained his hands and feet, and
injected him with a psychiatric medication that had been
ordered but to which plaintiff was allergic. [ECF No. 1] at
11-12. Plaintiff alleges that defendant Roth orchestrated the
cell extraction. Id. at 12. Some of the defendants
slammed plaintiff down and banged his cranium against the
concrete floor. Id. Defendant Swett stomped hard on
plaintiff's bare feet with his boot. Id.
Defendant Miranda stepped on plaintiff's neck.
Id. Defendant Carpenter banged plaintiff's head.
Id. Defendant Perry observed, but did nothing.
ECF No. 28 at 1-2.
October 30, 2015, defendants filed a motion to compel
responses to discovery and to modify the scheduling order.
ECF No. 69. By order filed May 18, 2016, the magistrate judge
granted the motion and ordered plaintiff to serve responses
to several discovery requests. ECF No. 80 at 5. On June 30, 2016,
defendants filed the motion to compel and request for
terminating sanctions, ECF No. 82, that resulted in the
findings and recommendations now before the court. Relying on
seven categories of information they seek, defendants contend
plaintiff has failed to respond adequately, sometimes at all,
as required by the May 18, 2016 order. See ECF No.
82-1 at 3-9. The information includes: (1) statements from
plaintiff's witnesses; (2) plaintiff's personal diary
entries about the May 6, 2009 incident; (3) petitions for
writ of habeas corpus regarding the cell extraction or a
clear statement that he did not seek habeas corpus relief;
(4) plaintiff's failure to make a reasonable inquiry to
determine if there are documents other than the video of the
incident which would show racial motivation; (5) documents
regarding past and future pain and suffering; (6) documents
concerning future and present expenses; and (7) documents
related to injuries sustained as a result of each
defendant's action and documents that support
plaintiff's claim that each individual defendant's
conduct was racially motivated. Id.
magistrate judge recommends defendants' motion be granted
and recommends that this action be dismissed as a sanction
for plaintiff's failure to comply with May 18, 2016 order
or to “meaningfully fulfill his discovery
obligations.” ECF No. 88 at 4. The magistrate judge
addresses plaintiff's failure to respond to the request
for (1) statements from plaintiff's witnesses; (2)
plaintiff's personal diary entries about the May 6, 2009
incident; (3) documents regarding past and future pain and
suffering; and (4) documents related to injuries sustained as
a result of each defendant's action. Id. at 3-4.
The findings and recommendations do not address the remaining
three categories described above. In recommending dismissal
as a sanction, the magistrate judge finds unavailable less
drastic sanctions and, in particular, that “evidentiary
sanctions against plaintiff in this instance is tantamount to
dismissal.” Id. at 5.
interposes several specific objections to the findings and
recommendations. After review of the record, the court agrees
with the magistrate judge's findings concerning the
inadequacy of plaintiff's discovery responses. The court
concludes, however, that evidentiary sanctions with respect
to the four categories discussed by the magistrate judge are
an appropriate and available alternative sanction that must
be imposed instead of dismissal at this time.
record shows that defendants have plaintiff's prison
medical records, see ECF No. 82-1 at 6, and
therefore have information about the nature of any alleged
injuries identified by prison medical staff at the time of
the alleged incident and any sequelae to those injuries of
which plaintiff complained, or for which he was treated,
while he was incarcerated. Plaintiff can, and will, be
subject to an order precluding him from offering any evidence
of post-incarceration medical treatment for his alleged
injuries. Similarly, plaintiff can, and will, be subject to
an order precluding him from offering evidence of “past
or future expenses” resulting from the incident, if
any. Additionally, sanctions will be imposed for
plaintiff's failure to make a reasonable inquiry to
determine whether there is other evidence that would support
his claim of racial motivation in the form of an order
precluding plaintiff from offering any evidence that the acts
or omissions of any defendant was racially motivated, other
than the video already provided. Finally, plaintiff can, and
will, be precluded from offering witness statements, other
than his own, or calling witnesses at trial, and from
offering any diary entries made concerning the May 6, 2009
incident. This preclusion order does not require dismissal of
plaintiff's claims, because plaintiff's own testimony
would still be available for his case in chief if the case
the court also concludes that plaintiff's response to
defendants' request for production of any petitions for
writ of habeas corpus plaintiff may have filed concerning the
May 6, 2009 incident is sufficient. Plaintiff objected to the
request as irrelevant, but also responded that he
“could not file any Habeas Corpus is [sic] as he was
denied his constitutional right and wishes to access the
library and the courts.” ECF No. 82-2 at 7. Although
the rest of plaintiff's response to this request is less
focused, the court finds plaintiff has adequately responded
that he did not file any petition for writ of habeas corpus
concerning this incident.
court “‘“abuses its discretion if it
imposes a sanction of dismissal without first considering the
impact of the sanction and the adequacy of less drastic
sanction.”'” In re Phenylpropanolamine
(PPA) Products Liability Litigation, 460 F.3d 1217, 1228
(9th Cir. 2006) (quoting Malone v. U.S. Postal
Service, 833 F.3d 128, 132-33 (9th Cir. 1987) (internal
citation omitted)). The court agrees with the magistrate
judge's finding that plaintiff failed to comply in large
part with the May 18, 2016 order, and that failure to comply
with court orders can warrant the sanction of dismissal.
Given that evidence preclusion is an available sanction that
would not equate with dismissal of the action, the court will
not dismiss this action at this time.
their motion, defendants request additional time to depose
plaintiff before filing a dispositive motion. Good cause
appearing, that request will be granted and defendants will
be granted thirty days from the date of this order in which
to notice plaintiff's deposition. Plaintiff shall appear
at, and cooperate fully in, a deposition noticed as
authorized by this order. Plaintiff is further informed that
his failure to appear at, or to cooperate fully in, his
deposition will result in the dismissal of this action.
Because this court is issuing this order, any motion based on
plaintiff's alleged failure to cooperate in his
deposition should be made to this court, which will retain