United States District Court, E.D. California
AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION
FOR SANCTIONS BE GRANTED TO THE EXTENT IT SEEKS TERMINATING
SANCTIONS AND DENIED TO THE EXTENT IT SEEKS ATTORNEYS'
FEES AND RECOMMENDING THAT PLAINTIFF'S MOTION FOR COUNTER
SANCTIONS BE DENIED (ECF NO. 67, 68)
Debra Berry proceeds pro se and in forma
pauperis in this civil rights action brought pursuant to
42 U.S.C. § 1983 and Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000(d). On May 3, 2019, Defendants
filed the instant “Motion for Sanctions for
Plaintiff's Discovery Abuse Violation of Court
Order” against Plaintiff. (ECF No. 67) The motion is
based upon Plaintiff's refusal to provide testimony
regarding her prior mental health treatment and information
about persons with whom she has lived within the past five
years after being directly ordered to provide such
information both in a written order and in a telephone
conference during her deposition.
following reasons, the Court recommends that Defendants'
Motion for Sanctions be granted in part and denied in part.
The Court recommends that Defendants' motion be granted
to the extent it seeks terminating sanctions and a dismissal
of Plaintiff's suit with prejudice. The Court recommends
denying Defendants' motion to the extent it seeks
attorneys' fees in addition to terminating sanctions. The
Court recommends denying Plaintiff's “Counter
Motion for Sanctions for Outrageous and Abusive Conduct
During Discovery and Violation of Court Order.” (ECF
filed this suit on March 25, 2016, against the Yosemite
Community College District (“YCCD”); Modesto
Junior College (“MJC”); Bryan Justin Marks,
individually and in his official capacity as an Administrator
and Associate Dean of Campus Life and Student Learning;
Jackie Jordan, individually and in her official capacity as
Administrator Librarian; and Granden McCarthy, individually
and in her official capacity as an Administrator and College
Campus Security Guard. (ECF No. 1)
Factual Allegations in Plaintiff's Complaint
Complaint generally alleges as follows. On September 22,
2015, from 12:00 p.m. to 12:45 p.m., Defendants Jordan,
Bambrosia, and Carol took photographs of Plaintiff and other
students of color without their consent and sent them to
coaches at MJC. The coaches confronted the students about
their disruptive behavior.
October 5, 2015, a white student worker told Plaintiff that
she had been sent by Defendants Jordan, Bambrosia, and Carol,
to watch the African American students. From 12:30 to 12:35
p.m., Defendants Jordan, Bambrosia, and Carol approached
Plaintiff and a group of students of color who were studying
quietly. Defendants accused the students of making noise and
stated that only five people could sit at the table.
Defendants ignored a nearby table of five white students that
were talking in the same quiet tone as Plaintiff and her
Defendant McCarthy issued Plaintiff a verbal citation for
being too loud and for having more than five students at the
table. The same citation was not issued to the table of white
students. McCarthy demanded Plaintiff's “W”
number and identification and issued Plaintiff and others
false charges of misconduct. These were intended to deter
Plaintiff and others from pursuing their education.
about October 6, 2015, Defendant Carol and a non-party
employee named Susan moved chairs from the general area where
African American students studied. Only two tables and three
chairs were left in the area. That same day, Defendant
Bambrosia approached a group of African American students
sitting quietly in a general studying area and told them that
only four students could be at the table. She ignored five
white students sitting at an adjacent table. Plaintiff
observed this conduct but apparently was not one of the
students initially approached. Bambrosia then asked Plaintiff
whether she had anything to say. Later that day, Plaintiff
observed Bambrosia harassing other African American students.
Also that day, Defendant Carol intentionally assaulted
Plaintiff by bumping into her chair hard without saying
“excuse me” and while looking at Plaintiff with
point in October, several students lodged complaints
regarding this behavior. It is unclear whether Plaintiff was
one such student. Defendant Marks responded to the complaints
by sending out “false notices” in an attempt to
intimidate Plaintiff and others. The notices stated that the
students had been reported for Disruptive Behavior and were
required to schedule a meeting with Marks. Absent such a
meeting, Marks would review the report and consider
disciplinary action without the students' input.
November 5, 2015, Plaintiff and others complained about a
poster of Modesto Library Rules that had been placed on the
wall. Plaintiff claims that the rules were intended to cover
up discrimination toward Plaintiff and other African American
later received a letter from Marks stating that she had been
reported for Disruptive Behavior and had failed to schedule a
meeting with Marks as requested. The letter stated that Marks
had determined that Plaintiff violated the Yosemite Community
College District Standards of Conduct and was therefore
suspended from use of the MJC Library Learning Center on the
MJC East Campus for approximately six weeks. Following the
suspension, Plaintiff would be placed on disciplinary
probation for one year. The notice outlined steps for
Plaintiff to take to resume use of the MJC Library Learning
Center following her suspension.
March 7, 2017, the Court screened the Complaint and found
that it stated the following cognizable claims: (1) a
Fourteenth Amendment Equal Protection claim against
Defendants Jordan, Bambrosia, Carol, McCarthy, and Marks in
their individual capacities and injunctive relief in their
official capacities; (2) a First Amendment retaliation claim
for compensatory and punitive damages against Defendant Marks
in his individual capacity; (3) a Title VI intentional
discrimination claim for injunctive relief and compensatory
damages against Yosemite Community College District and
Modesto Junior College; and (4) a Title VI retaliation claim
for injunctive and compensatory damages against Yosemite
Community College District and Modesto Junior College. (ECF
Plaintiff does not seek physical damages in this suit. As
addressed below, Plaintiff does claim significant emotional
Plaintiff's Failure to Obey Court Orders
Defendants first deposed Plaintiff on December 5, 2018, but
disagreement ensued over Plaintiff's refusal to answer a
variety of questions. Pertinent to this motion, Plaintiff
refused to provide information about her mental health
history and persons she lived with. The following examples
Q. What type of treatment did you receive at South Bay Mental
A. Objection, what type of treatment has nothing to do with
why I'm here today.
Q. How long did you receive treatment at South Bay Mental
A. Objection, I refuse to answer that question. It has
nothing to do with why I am here today. …
Q. How many people currently live with you?
A. Objection, personal question.
Q. What are the names of the people that currently live with
A. I object to that question, its personal. My personal life
has nothing to do with why I am here today.
(Debra Berry Deposition I, p. 39, ll. 15-20; p. 334, ll.
21-25; p. 335, ll. 1-3).
then filed a motion to compel further deposition testimony
from Plaintiff. (ECF No. 48) The Court heard argument on
January 25, 2019. The Court granted Defendants' motion in
part. It specifically ordered Plaintiff to, within 30 days of
the order, provide a “written statement as to whether
she claims emotional distress damages and, if so, the
specific basis of that claim.” (ECF No. 60 p.
February 15, 2019, Plaintiff filed her written response to
the Court's order. (ECF No. 62) She emphasized that she
had suffered “humiliation and mental distress from
being intentionally subjected to racial discrimination in
Education by each of the Defendants as alleged within her
civil rights complaint, ” and claimed, “damages
for substantial emotional distress and punitive damages from
her claims of sexual harassment and racial harassment.”
(Id. at p. 2-3) Plaintiff then cited numerous cases
in which high amounts of emotional distress damages were
awarded and argued that “uncapped emotional distress
damages are recoverable under the post-Civil War Civil Rights
Acts, 42 U.S.C. §§ 1981 and 1983.”
(Id. at p. 3)
March 1, 2019, Defendants filed a supplemental motion to
compel requesting, in part, that Plaintiff be compelled to
provide further testimony under oath regarding her claim for
emotional distress. (ECF No. 63) Specifically, Defendants
sought to “understand the specific distress that
Plaintiff has suffered from or is suffering from, how it has
affected her, information regarding the self-administered
‘spiritual treatment' she has undergone as a
result, information regarding any potential contributing
factors to her claim for emotional distress information
regarding her past mental health conditions and treatment,
and any other information that sheds light on the extent
and/or severity of Plaintiff's alleged emotional
distress.” (Id. at p. 4) Defendant also sought
information about persons Plaintiff currently lives with or
lived with at pertinent times, contending that such persons
might have observed changes in Plaintiff's demeanor,
sleep patterns, and emotions.
March 6, 2016, the Court issued an order holding that
Plaintiff, by alleging substantial emotional distress
damages, had waived the psychotherapist-patient privilege.
(ECF No. 64 p. 3) Balancing the relevance of Plaintiff's
emotional health with the need to ensure that discovery is
proportional to the needs of the case, the Court ordered
Thus, Defendants may obtain discovery pertaining to
Plaintiff's mental health. Nevertheless, the Court will
limit any such discovery to the treatments Plaintiff sought
and the conditions for which Plaintiff sought treatment
within the last five years only. In order to obtain
additional information regarding such damages, the Court will
permit Defendants to depose Plaintiff for no more than two
hours on the record. The deposition shall take place in
Modesto, California. The deposition shall be limited to the
following topics: Plaintiff's claim for emotional
distress (with the limitation described above regarding past
mental health care), any cases Plaintiff was involved in
within the last 10 years, and the persons Plaintiff has lived
with in the last 5 years.
(Id. p. 4-5).
second deposition was held on April 8, 2019. Plaintiff again
refused to divulge information about her mental health
treatment within the last five years and the persons she had
lived with in that timeframe:
Q. Have you ever seen a psychologist for any reason within
the last 5 years?
Q. And who have you seen, what psychologist or psychologists
have you seen within the last 5 years?
A. Objection. My medical history, my medical, my confidential
and medical information has no direct bearing on this matter.
Q. You were specifically ordered by the court to answer those
types of questions in connection with this deposition, do you
Q. And you're refusing to answer ...