United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR TERMINATING SANCTIONS BE DENIED
(ECF NO. 61) ORDER DENYING PLAINTIFF'S REQUEST FOR
APPOINTMENT OF PRO BONO COUNSEL (ECF NO. 64, AT P. 11) ORDER
DIRECTING CLERK TO DOCKET THE TRANSCRIPT OF PLAINTIFF'S
Rocky Nicklas (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
§ 1983. Now before the Court is Defendants' motion
for terminating sanctions on the grounds that Plaintiff
failed “to comply with a court order and participate in
a deposition.” (ECF No. 61, at p. 1).
October 24, 2019, Defendants Kokor and Mata filed a motion
for terminating sanctions. (ECF No. 61). Defendants claim
that “inmate-Plaintiff Steve Nicklas refused to answer
any questions after a little over one hour of deposition
testimony, and left Defendants' deposition. Plaintiff
unequivocally stated that he would not answer any more
questions unless he spoke to the judge. Then, when given the
opportunity to speak with the judge, he decided he did not
want to participate.” (ECF No. 61-1, at p. 1-2)
(internal footnote and citations omitted).
opposes Defendants' motion. (ECF No. 64). Plaintiff
states that he willingly attended the deposition and answered
questions for over sixty minutes. Plaintiff states that
“Mr. Lee let his emotions cloud his legal mind, and
resorted to unethical and incompetent abusive interrogation
tactics. . . .” (ECF No. 64, at p. 2). Plaintiff claims
that Mr. Lee raised his voice, spoke quickly, and repeated
questions that Plaintiff had already answered. Plaintiff
claims that prison officials should have provided him with
legal assistance at the deposition. Plaintiff claims that he
requested to speak with the Court, but Mr. Lee was not able
to reach the Court.
filed a reply. (ECF No. 65). Defendants claim that defense
counsel did not badger the witness, that Plaintiff was
frustrated about not having a legal representative,
“refused to state any objection justifying his
unwillingness to answer questions, ” and
“declined to speak with the judge.” (Id.
Ninth Circuit has provided the following guidance in
evaluating whether terminating sanctions are appropriate:
A terminating sanction, whether default judgment against a
defendant or dismissal of a plaintiff's action, is very
severe. . . . Only “willfulness, bad faith, and
fault” justify terminating sanctions.
We have constructed a five-part test, with three subparts to
the fifth part, to determine whether a case-dispositive
sanction under Rule 37(b)(2) is just: “(1) the
public's interest in expeditious resolution of
litigation; (2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” The sub-parts of the fifth factor are
whether the court has considered lesser sanctions, whether it
tried them, and whether it warned the recalcitrant party
about the possibility of case-dispositive sanctions. This
“test” is not mechanical. It provides the
district court with a way to think about what to do, not a
set of conditions precedent for sanctions or a script that
the district court must follow:
Like most elaborate multifactor tests, our test has not been
what it appears to be, a mechanical means of determining what
discovery sanction is just. The list of factors amounts to a
way for a district judge to think about what to do, not a
series of conditions precedent before the judge can do
anything, and not a script for making what the district judge
Connecticut General Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007)
Court's request, and pursuant to Local Rule 133(j),
Defendants lodged the transcript of Plaintiff's
deposition. The Court has reviewed the transcript in full,
and makes the following observations relevant to the issue of
appeared as scheduled at the deposition and answered many
questions without incident. This testimony included a
detailed description of the underlying incident. Plaintiff
answered all questions about that examination. Indeed, he
went through those details multiple times in response to
questions by defense counsel. Plaintiff also answered all
questions about the aftermath, including his allegations that
Defendant Kokor rescinded his medical accommodations
following the exam.
in the deposition, defense counsel began a line of
questioning where he read medical records to Plaintiff and
asked Plaintiff to identify any inaccuracies in those notes.
Defense counsel prefaces this portion of questioning by
stating “since you claim you can't read. I'll
read it for you.” Transcript of Plaintiff's
Deposition (“Tr.”) at 48:5-7. Some of these
medical notes were quite lengthy, lasting multiple deposition
pages. At one point, there is a notation “Reporter
Admonishment to Speak Slowly.” Tr. at 48:16. After each
medical record, defense counsel asks Plaintiff to confirm the
information in the record, by asking questions such as
“Does any of that ring a bell from May 5th,
2017, Mr. Nicklas?” See, e.g., Tr. at 48-50.
pages 59-60 of the transcript, defense counsel reads from one
particular medical record, dated February 9, 2018, after
which the following testimony takes place:
Q: Okay. Anything from the report that seems to be
A: He did not explain none of that to me.
Q: That's not my question. Anything that appears to be
inaccurate from your recollection of the appointment?
A: All I know with all due respect, I explained to Dr. Segal
what happened, and that's it.
Q: But you have no reason to doubt any of the other notes
that he's made?
A: With all due respect, I'm not going to respond to
Q: On what ground?
A: Grounds because they're fabricating a bunch of lies.
To me, they're fabricating a bunch of lies there.
Q: Okay. Are you claiming a privilege of some sort?
A: A privilege?
Q: I'm trying to understand the basis of your ...