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Nicklas v. Kokor

United States District Court, E.D. California

November 20, 2019

W. KOKOR and MS. MATA, Defendants.


         Steve 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).

         I. Background

         On 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).

         Plaintiff 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.

         Defendants 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. at 2).

         II. Legal Standards

         The 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 does appeal-proof.

Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (footnotes omitted).

         III. Plaintiff's Deposition

         At the 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 terminating sanctions.[1]

         Plaintiff 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.

         Later 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.

         At 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 inaccurate?
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 that.
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 ...

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