United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS, RE: DKT.,
DONATO United States District Judge
plaintiff Shove is a state prisoner suing under 42 U.S.C.
§ 1983. Defendants have moved to dismiss under Federal
Rule of Civil Procedure 41(b) effectively as a termination
sanction for Shove's failure to appear for a deposition.
The request is denied.
material facts are not in dispute. On December 22, 2017, in
response to the Court ordering that a motion for summary
judgment be filed, defendants served a deposition notice on
plaintiff for January 5, 2018. Dkt. No. 97-1, Ex. 2. On
January 2, 2018, Shove had a phone call with defense counsel
and said he had not had enough time to prepare and that the
scope of the deposition should be limited. Id. Ex.
Counsel agreed to move the deposition to January 11, 2018.
Id. Defense counsel sent plaintiff a letter stating
the new deposition date and that defendants would move for
sanctions, including dismissal, if plaintiff did not provide
testimony. Id. Shove sent a letter back to counsel
on January 7, 2018, which said that he could not be deposed
because he had broken a dental bridge and could not talk.
Id. Ex. 4. Plaintiff also sought a stay on all
discovery issues, which presumably included the deposition.
counsel received Shove's letter the day before the
deposition, but nevertheless appeared as scheduled and
initiated the deposition. Id. Ex. 5. Plaintiff also
appeared, spoke for several minutes before going on the
record, was sworn in by the court reporter, responded to
general deposition instructions, and then interrupted the
examination to read a prepared statement. Id.
Plaintiff then declared the deposition over. Id.
counsel renoticed the deposition on January 25, 2018.
Id. Ex. 6, 7. Defense counsel noted that plaintiff
had twice referred to an agreement to hold the deposition
after January 22. Id. Ex. 5 at 9:9-11; 11:25-12:2,
Ex. 6. On January 18, 2018, plaintiff sent a letter stating
that he could not participate in the deposition because of
his medical situation, and accused counsel of ordering
medical staff to delay his treatment. Id. Ex. 8.
Defense counsel sent plaintiff a letter noting that plaintiff
had failed to present any evidence of a medical problem or
attempts to seek treatment. Id. Ex. 9. Defense
counsel also stated that plaintiff was able to speak clearly
on January 11, 2018, and did not appear to be in discomfort.
Id. Defense counsel stated that he intended to
proceed with the deposition and would seek sanctions,
including dismissal of the case, if Shove did not cooperate.
counsel arrived at the prison on January 25, but plaintiff
refused to participate. Id. Ex. 10. A correctional
officer reported that Shove would not leave his cell.
Id. Defense counsel asked the officer to advise
plaintiff that counsel would file a motion to dismiss the
case. Id. Plaintiff stayed in his cell. Id.
counsel obtained plaintiff's medical records. On December
3, 2017, plaintiff submitted a healthcare request stating,
“I have a bridge permanent  fallen out. I need to get
it fixed as soon as possible. I also need to get a couple of
teeth pulled.” Id. Ex. 11 at 13. Plaintiff was
seen by a dentist on December 22. Id. at 9. On the
intake form, plaintiff circled “No” in response
to the question “Are you in pain now?”
Id. at 2. Plaintiff also indicated on a second
intake form that he was not in pain. Id. at 7. The
dentist found that plaintiff misdiagnosed the issue.
Id. at 9. The dentist wrote that he
“[d]idn't see any signs of bridge falling out.
Bridge seems stable.” Id. The dentist
discussed various treatment options with plaintiff and
recorded that plaintiff, “was happy with the bridge the
way it is now and does not want to do anything with bridge
now . . .” Id.
submitted another healthcare request on January 6, 2018.
Reply, Fisher Decl. Ex. 1 at 8. Plaintiff was seen again by a
dentist on January 24, 2018. Id. at 2, 4. He
indicated he was in moderate pain that was lessened by
Acetaminophen, and that the dental issue had only a limited
impact on his daily functioning. Id. at 4. Plaintiff
stated that he had sensitivity when consuming hot or cold
liquids. Id. at 2. The dentist reported that
plaintiff “does not want anything done today as his not
feeling well. He thinks he has a cold or the flu.”
Id. at 2.
Shove's conduct is not acceptable, it does not warrant
the drastic sanction of termination at this time. The motion
(Docket No. 97) is DENIED without prejudice.
Shove is advised that defendants are entitled to examine him
under oath about his claims and allegations. The parties are
directed to set a date for the deposition within 45
days of this order. The Court expects Shove to sit
for the deposition and answer defendants' questions as
required under the Federal Rules of Civil Procedure. If Shove
does not do that, the Court will impose an appropriate
sanction. Sanctions may take the form of issue or claim
preclusion, evidentiary preclusion or outright dismissal of
IS SO ORDERED.
undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, ...