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Berry v. Yosemite Community College District

United States District Court, E.D. California

July 3, 2019

DEBRA BERRY Plaintiff,


         Plaintiff 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.

         For the 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 No. 68)

         I. BACKGROUND

         Plaintiff 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)

         1. Factual Allegations in Plaintiff's Complaint

         Plaintiff's 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.

         On 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 companions.

         Thereafter, 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.

         On or 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 scorn.

         At some 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.

         On 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 students.

         Plaintiff 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.

         On 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 No. 6)

         Notably, Plaintiff does not seek physical damages in this suit. As addressed below, Plaintiff does claim significant emotional distress damages.[1]

         2. 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 are illustrative:

Q. What type of treatment did you receive at South Bay Mental Health?
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 Health?
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 you?
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).

         Defendants 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. 2)[2]

         On 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)

         On 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.

         On 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 limited discovery:

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).

         A 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?
A. Yes.
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 understand that?
A. Absolutely.
Q. And you're refusing to answer ...

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