3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ASHENAFI ABERHA, Case No. 3:20-cv-00060-MMD-CSD
7 Plaintiff, ORDER v. 8 D. JONES, 9 Defendant. 10 11 I. SUMMARY 12 Plaintiff Ashenafi Aberha, who is incarcerated in the custody of the Nevada 13 Department of Corrections (“NDOC”) at Ely State Prison (“ESP”), is proceeding on a civil 14 rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 4), specifically on a single claim 15 for violation of his Eighth Amendment rights against Defendant Dawn Jones for deliberate 16 indifference to Aberha’s serious medical needs based on Aberha’s allegations that Jones 17 knew that the doctor had prescribed medication for the spreading rash on Aberha’s lower 18 body but unreasonably chose not to ensure that the prescription was filled and provided 19 to Aberha as soon as possible (ECF No. 3 at 9-10). Before the Court is the Report and 20 Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge Craig 21 S. Denney, recommending the Court dismiss this case with prejudice as a sanction for 22 Aberha’s failure to appear at a settlement conference. (ECF No. 61.) Aberha filed an 23 objection. (ECF No. 63 (“Objection”).) Aberha also filed another currently pending motion 24 that the Court denies in this order. (ECF No. 66.)1 As further explained below, the Court 25 will accept and adopt the R&R in full, and dismiss this case with prejudice because Aberha 26 failed to appear for a court-ordered settlement conference and Judge Denny found his 27 28 1Jones filed a response to this motion. (ECF No. 67.) Jones did not file a response 2 Judge Denney. 3 II. BACKGROUND 4 Aberha agreed to settle this case at a video Early Mediation Conference held by 5 Mediator Paul Lamboley following screening back in January 2021. (ECF No. 7.) But 6 Aberha changed his mind and refused to sign a settlement agreement, so Jones filed a 7 motion to enforce the settlement agreement they had reached. (ECF No. 8.) 8 United States Magistrate Judge William G. Cobb eventually held a hearing on the 9 motion to enforce settlement agreement and related briefing and denied it at that hearing, 10 returning the case to the normal litigation track. (ECF No. 24.) 11 Next, Judge Cobb granted Aberha’s motion to proceed in forma pauperis and 12 directed service of Aberha’s complaint. (ECF No. 25.) Jones accepted service (ECF No. 13 26) and answered (ECF No. 27). The case proceeded to discovery. 14 In April 2022, following Judge Cobb’s retirement, the Court referred this case to 15 another settlement conference, this time before Judge Denney. (ECF No. 47.) The Court 16 granted Plaintiff’s motion for an interpreter to be present at that settlement conference, 17 procuring funds for the interpreter from the Court’s Attorney Admissions Fund. (ECF No. 18 50.) Judge Denney set the settlement conference for June 22, 2022. (ECF No. 52.) Judge 19 Denney also denied a motion requesting a jury trial that Aberha had filed in the interim 20 without prejudice to refiling after the settlement conference. (ECF No. 53.) 21 Aberha did not appear for the settlement conference. (ECF No. 54.) Sue Chilson 22 from ESP told Judge Denney that Aberha had refused to attend the settlement 23 conference. (Id.) Judge Denney accordingly stated he would issue an order to show 24 cause why Aberha should not be sanctioned for his nonappearance and set a show cause 25 hearing for July 28, 2022. (Id.) Judge Denney issued the written order to show cause later 26 that same day. (ECF No. 55.) 27 Aberha filed several documents in response to the order to show cause contending 28 in pertinent part that he did not appear for the settlement conference because three 2 searched him, but then refused to bring him to the videoconference room at ESP. (ECF 3 No. 61 at 3.) Aberha and two of those guards who allegedly did not bring him to the 4 settlement conference, Caldwell and Rowney, testified at the show cause hearing. (ECF 5 No. 62.) 6 In the R&R, Judge Denney explains that he found Caldwell and Rowney, but not 7 Aberha, credible at the show cause hearing. (ECF No. 61 at 5.) He found that Caldwell 8 and Rowney’s testimony corroborated what Chilson had said on the day of the settlement 9 conference—that Aberha simply refused to appear for it. (Id.) Judge Denney further found 10 that dismissal was an appropriate sanction under the circumstances. (Id.) To support his 11 Recommendation of the dismissal sanction, Judge Denney discusses the five applicable 12 factors and concludes they all favor dismissal. (Id. at 5-7.) Judge Denney recommends 13 the dismissal be with prejudice. (Id. at 7.) 14 In his Objection, Aberha reiterates his version of events that he presented at the 15 show cause hearing and the filings leading up to it—that he was willing to appear for the 16 settlement conference, but Caldwell and Rowney (and another officer who did not testify, 17 Searle) refused to bring him. (ECF No. 63 at 2-3.) Aberha otherwise asserts that Caldwell 18 and Rowney lied at the hearing. (Id. at 2.) Aberha concludes by asking the Court to set 19 another settlement conference where he could bring his own witnesses. (Id. at 4.) 20 After filing his Objection, Aberha filed another motion titled “request to bring 21 witnesses.” (ECF No. 64.) Judge Denney construed this motion as a motion for 22 reconsideration of the R&R and denied it. (ECF No. 65.) Judge Denney found in that order 23 that Aberha did not demonstrate that the inmate witness statements and/or testimony that 24 he wanted to present at another hearing before Judge Denney were newly discovered or 25 could not have been discovered earlier through due diligence. (Id. at 2.) Judge Denney 26 instead found he failed to provide the statements with his briefing in support of the show 27 cause hearing and did not request the video footage prior to the hearing. (Id.) Judge 28 Denny accordingly denied the motion. (Id. at 3.) 2 noting that Jones did not file a response to his Objection, again asking Judge Denney to 3 reconsider, and asking for another chance to attend a settlement conference, indicating 4 he is willing to settle. (ECF No. 66 at 2-3.) As noted, Jones filed a response to this motion. 5 (ECF No. 67.) In that response, Jones argues that Aberha provides no basis for the court 6 (presumably Judge Denney) to revisit its decision for a second time. (Id. at 2-3.) 7 III. LEGAL STANDARD 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, then the Court is 11 required to “make a de novo determination of those portions of the [report and 12 recommendation] to which objection is made.” Id. The Court’s review is thus de novo as 13 to the portions of the R&R Aberha objects to because Aberha filed his Objection. (ECF 14 No. 63.) 15 IV. DISCUSSION 16 Aberha primarily directs his Objection at Judge Denney, asking him to reconsider 17 findings that Judge Denney made at the show cause hearing. (ECF No. 63.) But the 18 arguments Aberha presents in his Objection are substantially similar to the arguments 19 Aberha presented to Judge Denney in his subsequent motion (ECF No. 64) that Judge 20 Denney denied (ECF No. 65). Thus, Judge Denney has already addressed and rejected 21 the arguments Aberha raises in his Objection. 22 Moreover, in his Objection, Aberha does not explicitly argue that Judge Denny 23 erred in the R&R, by, for example, arguing that Judge Denney incorrectly evaluated or 24 applied the dismissal factors that Judge Denney determined weighed in favor of 25 dismissing this case with prejudice in the R&R.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ASHENAFI ABERHA, Case No. 3:20-cv-00060-MMD-CSD
7 Plaintiff, ORDER v. 8 D. JONES, 9 Defendant. 10 11 I. SUMMARY 12 Plaintiff Ashenafi Aberha, who is incarcerated in the custody of the Nevada 13 Department of Corrections (“NDOC”) at Ely State Prison (“ESP”), is proceeding on a civil 14 rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 4), specifically on a single claim 15 for violation of his Eighth Amendment rights against Defendant Dawn Jones for deliberate 16 indifference to Aberha’s serious medical needs based on Aberha’s allegations that Jones 17 knew that the doctor had prescribed medication for the spreading rash on Aberha’s lower 18 body but unreasonably chose not to ensure that the prescription was filled and provided 19 to Aberha as soon as possible (ECF No. 3 at 9-10). Before the Court is the Report and 20 Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge Craig 21 S. Denney, recommending the Court dismiss this case with prejudice as a sanction for 22 Aberha’s failure to appear at a settlement conference. (ECF No. 61.) Aberha filed an 23 objection. (ECF No. 63 (“Objection”).) Aberha also filed another currently pending motion 24 that the Court denies in this order. (ECF No. 66.)1 As further explained below, the Court 25 will accept and adopt the R&R in full, and dismiss this case with prejudice because Aberha 26 failed to appear for a court-ordered settlement conference and Judge Denny found his 27 28 1Jones filed a response to this motion. (ECF No. 67.) Jones did not file a response 2 Judge Denney. 3 II. BACKGROUND 4 Aberha agreed to settle this case at a video Early Mediation Conference held by 5 Mediator Paul Lamboley following screening back in January 2021. (ECF No. 7.) But 6 Aberha changed his mind and refused to sign a settlement agreement, so Jones filed a 7 motion to enforce the settlement agreement they had reached. (ECF No. 8.) 8 United States Magistrate Judge William G. Cobb eventually held a hearing on the 9 motion to enforce settlement agreement and related briefing and denied it at that hearing, 10 returning the case to the normal litigation track. (ECF No. 24.) 11 Next, Judge Cobb granted Aberha’s motion to proceed in forma pauperis and 12 directed service of Aberha’s complaint. (ECF No. 25.) Jones accepted service (ECF No. 13 26) and answered (ECF No. 27). The case proceeded to discovery. 14 In April 2022, following Judge Cobb’s retirement, the Court referred this case to 15 another settlement conference, this time before Judge Denney. (ECF No. 47.) The Court 16 granted Plaintiff’s motion for an interpreter to be present at that settlement conference, 17 procuring funds for the interpreter from the Court’s Attorney Admissions Fund. (ECF No. 18 50.) Judge Denney set the settlement conference for June 22, 2022. (ECF No. 52.) Judge 19 Denney also denied a motion requesting a jury trial that Aberha had filed in the interim 20 without prejudice to refiling after the settlement conference. (ECF No. 53.) 21 Aberha did not appear for the settlement conference. (ECF No. 54.) Sue Chilson 22 from ESP told Judge Denney that Aberha had refused to attend the settlement 23 conference. (Id.) Judge Denney accordingly stated he would issue an order to show 24 cause why Aberha should not be sanctioned for his nonappearance and set a show cause 25 hearing for July 28, 2022. (Id.) Judge Denney issued the written order to show cause later 26 that same day. (ECF No. 55.) 27 Aberha filed several documents in response to the order to show cause contending 28 in pertinent part that he did not appear for the settlement conference because three 2 searched him, but then refused to bring him to the videoconference room at ESP. (ECF 3 No. 61 at 3.) Aberha and two of those guards who allegedly did not bring him to the 4 settlement conference, Caldwell and Rowney, testified at the show cause hearing. (ECF 5 No. 62.) 6 In the R&R, Judge Denney explains that he found Caldwell and Rowney, but not 7 Aberha, credible at the show cause hearing. (ECF No. 61 at 5.) He found that Caldwell 8 and Rowney’s testimony corroborated what Chilson had said on the day of the settlement 9 conference—that Aberha simply refused to appear for it. (Id.) Judge Denney further found 10 that dismissal was an appropriate sanction under the circumstances. (Id.) To support his 11 Recommendation of the dismissal sanction, Judge Denney discusses the five applicable 12 factors and concludes they all favor dismissal. (Id. at 5-7.) Judge Denney recommends 13 the dismissal be with prejudice. (Id. at 7.) 14 In his Objection, Aberha reiterates his version of events that he presented at the 15 show cause hearing and the filings leading up to it—that he was willing to appear for the 16 settlement conference, but Caldwell and Rowney (and another officer who did not testify, 17 Searle) refused to bring him. (ECF No. 63 at 2-3.) Aberha otherwise asserts that Caldwell 18 and Rowney lied at the hearing. (Id. at 2.) Aberha concludes by asking the Court to set 19 another settlement conference where he could bring his own witnesses. (Id. at 4.) 20 After filing his Objection, Aberha filed another motion titled “request to bring 21 witnesses.” (ECF No. 64.) Judge Denney construed this motion as a motion for 22 reconsideration of the R&R and denied it. (ECF No. 65.) Judge Denney found in that order 23 that Aberha did not demonstrate that the inmate witness statements and/or testimony that 24 he wanted to present at another hearing before Judge Denney were newly discovered or 25 could not have been discovered earlier through due diligence. (Id. at 2.) Judge Denney 26 instead found he failed to provide the statements with his briefing in support of the show 27 cause hearing and did not request the video footage prior to the hearing. (Id.) Judge 28 Denny accordingly denied the motion. (Id. at 3.) 2 noting that Jones did not file a response to his Objection, again asking Judge Denney to 3 reconsider, and asking for another chance to attend a settlement conference, indicating 4 he is willing to settle. (ECF No. 66 at 2-3.) As noted, Jones filed a response to this motion. 5 (ECF No. 67.) In that response, Jones argues that Aberha provides no basis for the court 6 (presumably Judge Denney) to revisit its decision for a second time. (Id. at 2-3.) 7 III. LEGAL STANDARD 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, then the Court is 11 required to “make a de novo determination of those portions of the [report and 12 recommendation] to which objection is made.” Id. The Court’s review is thus de novo as 13 to the portions of the R&R Aberha objects to because Aberha filed his Objection. (ECF 14 No. 63.) 15 IV. DISCUSSION 16 Aberha primarily directs his Objection at Judge Denney, asking him to reconsider 17 findings that Judge Denney made at the show cause hearing. (ECF No. 63.) But the 18 arguments Aberha presents in his Objection are substantially similar to the arguments 19 Aberha presented to Judge Denney in his subsequent motion (ECF No. 64) that Judge 20 Denney denied (ECF No. 65). Thus, Judge Denney has already addressed and rejected 21 the arguments Aberha raises in his Objection. 22 Moreover, in his Objection, Aberha does not explicitly argue that Judge Denny 23 erred in the R&R, by, for example, arguing that Judge Denney incorrectly evaluated or 24 applied the dismissal factors that Judge Denney determined weighed in favor of 25 dismissing this case with prejudice in the R&R. It is accordingly unclear to the Court 26 whether Aberha is objecting to anything in the R&R other than the ultimate 27 recommendation of dismissal with prejudice. 28 /// 2 Judge Denney should not have believed Caldwell and Rowney over him at the show 3 cause hearing because they lied. (ECF No. 63 at 2-4.) Said otherwise, Aberha is perhaps 4 asking the Court to reject Judge Denney’s credibility determination. However, even on de 5 novo review, the Court may not simply reject Judge Denney’s adverse credibility 6 determination as to Aberha. See, e.g., United States v. Ridgway, 300 F.3d 1153, 1157 7 (9th Cir. 2002) (“a district court errs when it does not conduct a de novo evidentiary 8 hearing if it rejects the credibility finding of a magistrate judge who recommends the 9 granting of a motion to suppress.”). And the Court declines to reject Judge Denney’s 10 credibility determination because he made the determination after an evidentiary hearing 11 and Aberha provides no reason for the Court to question Judge Denney’s determination 12 other than asking the Court to believe him instead. Indeed, and as noted, Aberha made 13 the same argument he makes in his Objection to Judge Denny (ECF No. 64), giving Judge 14 Denney the opportunity to reconsider his decision, but Judge Denney denied Aberha’s 15 request (ECF No. 65). Thus, the Court would effectively have to reject a credibility 16 determination that Judge Denney reaffirmed to grant Aberha the relief he may be seeking. 17 The Court has no reason to do so. After all, Judge Denney had the opportunity to view 18 and question Aberha and the witnesses from ESP. Judge Denney did not find Aberha 19 credible. 20 In addition, the Court agrees with Judge Denney’s analysis of the factors governing 21 a court’s decision whether to dismiss a pro se plaintiff’s action under Rule 41(b). (ECF 22 No. 61 at 5-7.) In most pertinent part, the Court agrees with Judge Denney that no lesser 23 sanction than dismissal would be effective here. Aberha was given multiple opportunities 24 to settle this case, see supra, but still chose to violate the court’s orders, and then Judge 25 Denney found him not credible at a hearing regarding his non-appearance at the second 26 settlement conference. The Court also procured special funding for an interpreter to be 27 present at the settlement conference (ECF No. 50) at Aberha’s request (ECF No. 40) that 28 Aberha apparently did not want or need (ECF No. 61 at 3). Overall, the Court agrees with 2 follow the Court’s orders when he litigates in federal court. 3 In sum, the Court will accept and adopt the R&R and overrule Aberha’s Objection. 4 The Court will also deny Plaintiff’s motion (ECF No. 66) redundant of his Objection 5 because Judge Denney already addressed and rejected the arguments in it, and the 6 Court agrees with Judge Denney that dismissal is an appropriate sanction here. 7 Moreover, the Court agrees with Judge Denney that dismissal with prejudice is 8 appropriate because Aberha missed the settlement conference and Judge Denney found 9 his subsequent explanation for why he missed it not credible—twice. (ECF Nos. 61, 65.) 10 See also Dickinson v. Ocwen Loan Servicing, LLC, 466 F. App’x 567, 568 (9th Cir. 2012) 11 (“The district court did not abuse its discretion by dismissing Dickinson’s action with 12 prejudice where Dickinson did not file an opposition to defendants’ motion to dismiss, did 13 not appear at the hearing on that motion or notify the district court of his absence, and 14 subsequently gave the district court misleading answers concerning various aspects of 15 his action.”). 16 V. CONCLUSION 17 The Court notes that the parties made several arguments and cited to several 18 cases not discussed above. The Court has reviewed these arguments and cases and 19 determines that they do not warrant discussion as they do not affect the outcome of the 20 issues before the Court. 21 It is therefore ordered that the Report and Recommendation of United States 22 Magistrate Judge Craig S. Denney (ECF No. 61) is accepted and adopted in full. 23 It is further ordered that Aberha’s motion for request for relief (ECF No. 66) is 24 denied as specified herein. 25 It is further ordered that this case is dismissed, in its entirety, with prejudice, as 26 explained herein. 27 /// 28 /// 1 The Clerk of Court is directed to enter judgement accordingly and close this case. 2 DATED THIS 4" Day of October 2022.
4 Oe MIRANDA M. DU 5 CHIEF UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28