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Arellano v. Blahnik

United States District Court, S.D. California

June 28, 2019

RAUL ARELLANO, Plaintiff,
v.
BLAHNIK, Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE REGARDING DEFENDANT'S MOTION FOR DISCOVERY SANCTIONS [ECF No. 97]

          Honorable Michael S. Berg United States Magistrate Judge

         Raul Arellano, a state prisoner proceeding pro se and in forma pauperis, filed a complaint on September 23, 2016, pursuant to 42 U.S.C. section 1983. (ECF No. 1.) He alleged a single cause of action for the constitutional violation of his access to the courts against Blahnik, the law librarian at R. J. Donovan Correctional Facility (“RJD”) based on events that occurred in 2014. (Id. at 13.) Arellano claims that Blahnik refused Arellano access to the law library and copy machine, and then intentionally lost Arellano's legal documents, which he needed to support his state habeas petition. (Id. at 8-11.)

         Presently before the Court is “Defendant's Motion for Discovery Sanctions for Failure to Respond to Written Discovery and Failure to be Deposed, ” filed on January 17, 2019. (See ECF No. 97.) Plaintiff filed his response in opposition on February 11, 2019. (See ECF No. 99.) Defendant replied on February 25, 2019. (See ECF No. 100.) Plaintiff filed a sur-reply on March 18, 2019. (See ECF Nos. 105, 106.) This Report and Recommendation is submitted to the Honorable Cathy Ann Bencivengo United States District Judge pursuant to the provisions of 28 United States Code section 636.

         I. RELEVANT PROCEDURAL AND FACTUAL HISTORY

         This case has an extensive litigation history, which the Court will briefly describe, focusing on the most relevant developments.

         Between the Plaintiff's filing of his Complaint on September 23, 2016, and March 13, 2018, the parties litigated Defendant's Motion to Dismiss and Plaintiff's motion for leave to file an amended complaint.[1] (See ECF Nos. 6, 8, 9, 13, 14, 15, 16, 19, 21, 27, 29, 31, 38, 40, 41, 45, and 46.) On October 23, 2017, over a year after Plaintiff filed his Complaint, the Court held a Case Management Conference and thereafter issued a Scheduling Order. (ECF Nos. 24, 25.) The Scheduling Order required Plaintiff to make initial disclosures pursuant to Rule 26(a)(1) by November 30, 2017, and set a discovery cut-off date of June 22, 2018. (ECF No. 25 at 1-2.) On February 21, 2018, Defendant filed an ex parte motion to take Plaintiff's deposition, which the Court granted the same day. (See ECF Nos. 42, 43.) On March 14, 2018, Plaintiff moved the Court to order Defendant's counsel to provide at least thirty (30) days advance notice of his deposition date to allow him to prepare. (See ECF No. 49.) On March 26, 2018, the Court granted Plaintiff's motion in part, and ordered Defendant to provide Plaintiff with at least fifteen (15) days' written notice of his deposition date. (See ECF No. 53 at 2.)

         Defendant first served Plaintiff with interrogatories and requests for production of records on March 30, 2018. (ECF No. 97-2 at ¶ 2.) At the same time, Defendant noticed Plaintiff's deposition for May 16, 2018. (Id.) On April 9, 2018, the Court accepted (nunc pro tunc to April 5, 2018) Plaintiff's ex parte letter dated April 3, 2018, requesting an extension of time to respond to discovery deadlines, including his deadline to respond to Defendant's interrogatories, and requesting appointment of counsel. (See ECF No. 55.) In support, Plaintiff explained that he was in the infirmary awaiting transfer to a mental hospital after an unsuccessful suicide attempt and that he remained suicidal. (Id. at 1.) The Court denied Plaintiff's request to extend the discovery deadlines without prejudice, noting that he had failed to explain when the interrogatories were due, why he was unable to answer them within thirty days, whether he had requested an extension from Defendant's counsel, and whether he had been diligently litigating his case. (See ECF No. 56 at 1-2.) The Court denied the request for appointment of counsel, noting that Plaintiff had not demonstrated extraordinary circumstances in light of his evident ability to represent himself based on his filings to date and the lack of complexity to his case. (Id. at 3.)

         Plaintiff subsequently moved the Court for appointment of counsel and an extension of discovery deadlines on May 11, 2018, which the Court received on May 14, 2018, and accepted on discrepancy on May 23, 2018.[2] (See ECF Nos. 57, 58.) In his motion, Plaintiff explained his vision was impaired because he injured his head during a recent suicide attempt, and requested appointment of counsel and a 60-day extension of the discovery schedule. (ECF No. 58 at 1.) He supported his motion with some medical records that showed the nature of the incident, that he had a chrono for blindness/vision impairment, and that he had an upcoming follow up visit with his primary care practitioner to get a referral to ophthalmology to rule out pathology versus functional vision loss. (Id. at 1, 5-6, 8.)

         Defense counsel appeared at RJD with a court reporter on May 16, 2018 for Plaintiff's scheduled deposition, but Plaintiff refused to go forward with the deposition. (ECF No. 97-3 at 8.) At the time of his refusal, Mr. Arellano explained that he had lost 80% of his vision on April 12, 2018, after suffering a concussion, and he was unable to read. (Id. at 6.) He further explained that he had been in a crisis bed from March 22 to April 19, 2018, and had lacked access his legal papers since that time. (Id.) Defendant's counsel re-served Plaintiff with interrogatories and requests for production the same day. (ECF No. 67-1 at ¶ 6.)

         On May 24, 2018, defense counsel submitted a status report[3] to the Court regarding Plaintiff's injury, available treatment, prognosis, and available accommodations. (See ECF No. 59.) The status report indicated that both Plaintiff's doctor and optometrist had examined him during the month of May and found that he had blurry, very poor vision that was not corrected with lenses, and he was scheduled to see an ophthalmologist on May 22, 2018, as the cause was unknown and the treatment and prognosis uncertain. (Id. at 3-4.) Defense counsel included a declaration from the Associate Warden at RJD, who listed a number of accommodations available to assist vision-impaired inmates, including Plaintiff, to read and write. (See ECF 59-2 at ¶¶ 8-12.) Based on the information before the Court, the Court denied the appointment of counsel on May 29, 2018, but continued the discovery cut-off from June 22 to August 24, 2018, and continued other pretrial dates by sixty days. (ECF No. 62 at 2-3.) In doing so, the Court specifically cited the following: Plaintiff had engaged in a conversation regarding relevant legal authority with defense counsel on May 16, 2018; Plaintiff sent defense counsel a five-page, single spaced letter discussing the issues in the case to Defendant's counsel on May 18, 2018; and Plaintiff had been designated as “prisoner with disability placement impacted vision, ” which gave him access to special accommodations. (Id. at 2.) On May 30, 2018, defense counsel re-noticed Plaintiff's deposition for July 12, 2018. (ECF No. 97-2 at ¶5; ECF No. 97-3 at 25-27.)

         On June 22, 2018, the Court filed nunc pro tunc to June 20, 2018 Plaintiff's motion for, among other things, reconsideration of the Court's denial of appointment of counsel and for a further 45-day extension of time. (See ECF No. 65.) This motion was ostensibly written by another inmate named “Albert, ” who explained that he was making an exception to his policy of not assisting others with their legal cases only for purposes of the instant motion, because he believed that Plaintiff's vision impairment was an exceptional circumstance that should warrant the appointment of counsel. (Id. at 2.) In the motion, Albert argued that the accommodations described by the Associate Warden and relied upon by the Court when previously denying counsel, were either not available to, or not effective for, Plaintiff. (Id. at 4-5.) Albert also explained that Plaintiff had twice attempted suicide in April of 2018, arguing that his psychological impairment also interfered with his ability to litigate this case. (Id. at 7.)

         During a phone call on July 3, 2018, Plaintiff told defense counsel that because of his vision problems, he had not responded to written discovery and would not be prepared to sit for his July 12, 2018 deposition, but he agreed to a four-month continuance of the remaining dates in the scheduling order. (See ECF No. 67-1 at ¶¶8-9.) On July 5, 2018, Defendant filed an ex parte motion to modify the scheduling order. (ECF No. 67.) In the motion, Defendant requested either that the discovery cut-off and trial-related dates be continued by four months, or that proceedings be stayed, because “[g]ood cause exists for amending the scheduling order because Defendant has not been able to obtain discovery responses from plaintiff or depose Plaintiff, and it does not appear Defendant will be able to do so under the current schedule because of plaintiff's claimed medical condition.” (Id.) Defense counsel notified Plaintiff in writing on July 6, 2018 that she agreed to extend his deadline for responding to written discovery to July 27, 2018, and included a Second Amended Deposition Notice, setting Plaintiff's deposition for August 7, 2018. (See ECF No. 97-2 at ¶¶6-7; ECF No. 97-3 at 30-34.) In her letter, defense counsel told Plaintiff that if he refused to engage in discovery, she would file a motion for terminating sanctions. (ECF No. 97-3 at 30.) The Court granted Defendant's motion on July 9, 2018, and continued discovery cut-off and trial-related dates by four months. (ECF No. 69.)

         Defendant's counsel received a letter on July 12, 2018, that was written by another inmate, “Quijas, ” on Plaintiff's behalf. The letter states that due to Plaintiff's inability to see, and by extension read and write, Plaintiff cannot review his discovery and case law to respond to discovery or sit for a deposition. (ECF No. 97-2 at ¶8; ECF No. 97-3 at 37.) The letter explained that other letters or filings that Plaintiff has prepared did not require legal research or document review. (ECF No. 97-3 at 37.) Defense counsel responded to Plaintiff the following day, July 13, arguing that Plaintiff did not need to analyze case law to respond to discovery about the facts of his case and again informing Plaintiff that she would move for terminating sanctions if Plaintiff failed to engage in discovery. (Id. at 39.) Nevertheless, the Court having granted Defendant's application to continue deadlines by four months on July 9, 2018 (see ECF No. 69), Defendant extended Plaintiff's deadline to respond to written discovery to August 24, 2018 and re-noticed Plaintiff's deposition for September 20, 2018. (ECF No. 97-3 at 39, 41-43.)

         On August 9, 2018, the United States Court of Appeal received Plaintiff's appeal of the District Judge's order partially dismissing Plaintiff's claim. (See ECF No. 80; see also ECF Nos. 16, 21.) Between August 9 and August 14, 2019, the Court received three more motions from Plaintiff, requesting appointment of counsel, extensions of time, and other miscellaneous relief. (See ECF Nos. 73-78.) In support of his repeated requests for appointment of counsel or leave to appeal the Court's denial of the same, Plaintiff (sometimes with the assistance of other inmates) discussed how his blindness prevented him from reading and writing, and explained that many of the accommodations and resources relied upon by the Court to support its denial of counsel on July 3, 2018 were either unavailable or insufficient to permit Plaintiff to represent himself, most urgently with the discovery process. (Id.) In response to these motions, Defendant stated he did not oppose extending the deadlines in the scheduling order, and Defendant would extend the deadline for written discovery responses and the date of the deposition if the Court granted such an extension. (ECF No. 79 at 1-2.) Defendant's counsel submitted exhibits “for the Court to consider in deciding whether Plaintiff is able to litigate when provided additional time, ” including Plaintiff's opening brief filed August 7, 2018, and the Ninth Circuit's July 18, 2018 order denying appointment of counsel in Ninth Circuit Case No. 18-55610 (appeal from US[DC]-SD Cal. Case No. 14-cv-2401-MMA-JLB). (ECF No. 79 at 2, 4-23, 25.)

         On August 21, 2018, the Court again denied Plaintiff's motions for appointment of counsel, noting that Plaintiff's claimed inability to proceed with discovery was insufficient in light of his failure to demonstrate likelihood of success on the merits and that the complexity of his claims were causing him difficulty litigating his case, particularly in light of the Ninth Circuit's “recent denial of plaintiff's motion for appointment of counsel based on his alleged vision impairment, and . . . [D]efendant's willingness to extend the deadline to complete discovery and other deadlines as an accommodation to [P]laintiff's claimed medical condition.” (ECF No. 81 at 2-3.) The Court continued Plaintiff's deadline to respond to written discovery to November 23, 2018, and ordered Defendant to set Plaintiff's deposition in December, with a discovery cut-off date of March 22, 2019. (Id. at 3.) On August 27, Defendant re-noticed Plaintiff's deposition for December 13, 2018. (ECF No. 97.2 at ¶10, ECF No. 97-3 at 46-48.)

         Plaintiff submitted another motion for reconsideration regarding appointment of counsel, for appointment of counsel on new facts, and for leave to appeal the denial of counsel, which the Court filed nunc pro tunc to September 11, 2018, the date the Court received it. (See ECF Nos. 84, 85.) The Court denied the motions on September 25, 2018. (ECF No. 87.) Plaintiff also continued to challenge the issues he had lost in this case, filing a “Motion for D.C. to Use the Proper and Controlling Case Law in Order to Allow[] Plaintiff to Proceed Under 42 U.S.C. 1983 Ple[a]ding ‘[W]rongful[]

         Incar[c]erat[ion' as a Relief” [ECF No. 90] on October 12, 2018, and an objection to the Magistrate Judge's Order on Motion for Reconsideration [ECF No. 91] on October 16, 2018, both of which were denied. (See ECF Nos. 92, 93.) In denying Plaintiff's objection to the Magistrate Judge's denial of the appointment of counsel, the District Court noted “Plaintiff's health issues do not appear to hinder his ability to litigate, as he has recently filed numerous motions in this case, as well as in the other six cases he currently has pending in the United States District Court for the Southern District of California.” (ECF No. 93 at 2 (listing cases).)

         Defendant went to RJD to take Plaintiff's deposition as noticed on December 13, 2018. (ECF No. 97-2 at ¶11.) Though he had not provided Defendant's counsel with notice, Plaintiff again refused to sit for his deposition. (Id.) Prior to going on the record, Plaintiff represented that he would not be deposed because he had not been appointed counsel. (Id. at ¶12.) Once on the record, Plaintiff explained that he remained unable to see sufficiently to read and write because of his head injury, and therefore, he had not been able to prepare for his deposition. (See ECF No. 97-3 at 56-58.) On December 20, 2018, Plaintiff submitted to the Court a document entitled “Replying to Objection of Defendants, and Am[]ending my Request for Documents Request so I Can Cure Discrepanc[ies] Defendant Contends on Objections, ” which appear to be meet and confer correspondence to Defendant regarding Plaintiff's written discovery requests. (See ECF Nos. 95, 96.)

         While still awaiting responses to his written discovery, Defendant brought the instant “Motion for Discovery Sanctions for Failure to Respond to Written Discovery and Failure to be Deposed” on January 17, 2019, based on Plaintiff's failure to respond to interrogatories and requests for production of documents and refusal to participate in his deposition. (ECF Nos. 97, 97-2 at ¶13.) Arguing that lesser sanctions will be ineffective, Defendant asks this Court to dismiss Plaintiff's case. (ECF 97-1 at 4.) If the Court does not dismiss the action, Defendant requests evidence preclusion and monetary sanctions, and that the Court order Plaintiff to respond to discovery and sit for his deposition. (Id. at 15-16.) Plaintiff filed his opposition on February 11, 2019, which included responses to written discovery. (ECF No. 99.) Defendant replied on February 25, 2019. (ECF No. 100.) Finally, the Court accepted Plaintiff's Sur-reply on discrepancy, nunc pro tunc to March 18, 2019. (ECF Nos. 105, 106.)

         II. DISCUSSION

         A. Legal Standard for Rule 37(d) Sanctions

         Federal Rule of Civil Procedure 37(d) authorizes the court to issue sanctions when a party fails to appear at a properly noticed deposition or fails to serve answers to properly served interrogatories or requests for inspection of documents. Fed.R.Civ.P. 37(d)(1)(A). The Court may impose a broad range of sanctions, including “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence, ” “staying further proceedings” until the party has complied with discovery requirements, and “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(d)(3) (incorporating sanctions from Fed. R. Civ. Proc. 37(b)(2)(A)(i)-(vi)); see also, e.g., Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (“Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery.”) (internal citations omitted).

         “Dismissal is a harsh penalty and is to be imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). More specifically, dismissal may only be imposed where the behavior being sanctioned was “due to willfulness, fault, or bad faith.” Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1337 (1985) (internal quotation and citation omitted). Courts may consider not only the effect of sanctions on the party being disciplined, but also the deterrent effect on future litigants and their counsel. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). Moreover, when considering whether to impose a sanction of dismissal, courts must weigh five factors:

(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their ...

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