Farias v. Lopez

• Court: District Court, N.D. California
• Decided: March 6, 2023
• Docket: 5:21-cv-04167
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

11 JORGE ALBERTO FARIAS, Case No. 21-cv-04167 BLF 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 MOTION FOR SUMMARY v. JUDGMENT; STRIKING 14 “AMENDED COMPLAINT”; DENYING OTHER MOTION; 15 MATTHEW ATCHLEY, et al., DENYING DEFENDANTS’ MOTION TO DISMISS; GRANTING 16 Defendants. MOTION TO COMPEL 17 PLAINTIFF’S DEPOSITION

18 (Docket Nos. 26, 31, 32)

19 Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 20 U.S.C. § 1983 against prison staff at the Salinas Valley State Prison (“SVSP”). Dkt. No. 1. 21 On September 24, 2021, the Court screened the complaint and found it state cognizable 22 claims of excessive force, denial of his right of access to the courts, and an ADA claim. 23 Dkt. No. 11 at 10. The Court granted leave to amend with respect to remaining claims or, 24 in the alternative, to file notice that Plaintiff wishes to proceed on the cognizable claims 25 and strike all other claims from the complaint. Id. 26 When Plaintiff did not file a response in the time provided, the Court dismissed 27 1 non-cognizable claims and ordered the complaint served on Defendants on November 17, 2 2021, based on the cognizable claims. Dkt. No. 12. Then on January 19, 2022, Plaintiff 3 filed a first amended complaint. Dkt. No. 17. The Court granted Defendants’ motion to 4 strike the first amended complaint but with leave to amend. Dkt. No. 21. Plaintiff was 5 granted leave to file an amended complaint to attempt to correct the deficiencies with 6 respect to various claims. Id. at 3. Plaintiff was advised that failure to respond would 7 result in the matter proceeding solely on the cognizable claims. Id. at 3-4. 8 On April 8, 2022, Plaintiff filed a 2-page document titled, “motion to ‘amended 9 complaint’ (pursuant to paragraph 4) [sic].” Dkt. No. 22. The Court construed this motion 10 as notice that Plaintiff wished to proceed on the cognizable claims identified in paragraph 11 4 of the Court’s last order. Dkt. No. 23 at 2, citing Dkt. No. 21 at 3. Therefore, the Court 12 dismissed the non-cognizable claims and ordered Defendants to file a motion for summary 13 judgment or other dispositive motion with regard to the cognizable claims within ninety- 14 one days from the date the order was filed. Id. 15 While Defendants’ initial response was pending, Plaintiff filed a document titled 16 “motion for summary judgment” on June 13, 2022. Dkt. No. 26. Defendants filed an 17 opposition on July 11, 2022. Dkt. No. 27. Plaintiff did not file a reply. 18 On July 14, 2022, Defendants filed a motion for an extension of time to file their 19 dispositive motion based on their need to conduct further discovery and depose Plaintiff in 20 September 2022. Dkt. No. 28. The Court granted the motion, giving Defendants until 21 October 12, 2022, to file their dispositive motion. Dkt. No. 29 at 2. 22 On August 29, 2022, Plaintiff filed an “amended complaint,” Dkt. No. 30, and a 23 motion to compel Defendants’ response to his interrogatories, Dkt. No. 31. 24 On October 12, 2022, Defendants filed a motion for dismissal sanctions, citing 25 Plaintiff’s failure to cooperate in discovery, or in the alternative, an order to compel 26 Plaintiff’s deposition. Dkt. No. 32. Plaintiff did not file opposition to this motion. To 1 date, Plaintiff has had no further communication with the Court since his last filings in 2 August 2022. 3 The Court addresses the above pending matters below. 4 5 DISCUSSION 6 A. Plaintiff’s Motion for Summary Judgment 7 The Court found the complaint stated the following cognizable claims: “(1) 8 excessive force against Defendants Lopez, Gutierrez-Paricio, and Barrera-Negrete; (2) 9 denial of his right of access to the courts against Defendants Cortina and Ear; and (3) ADA 10 claims against Defendants Lopez, Gutierrez-Paricio, Barrera-Negrete, Cortina, and Ear.” 11 Dkt. No. 21 at 3. 12 On June 13, 2022, Plaintiff filed a document titled “Plaintiff’s motion for summary 13 judgment, pursuant to (FRCP) Rule 56(A)(C), (B)(1), (A)(B)(4), and proceed in paragraph 14 4 of Court’s last order.” Dkt. No. 26 at 1. This document opens with the statement, 15 “Plaintiff’s opposition to the dispositive motion is being filed with the above court, 16 pursuant to ‘FRCP Rule 56,’” and asserts that “the original was entirely in compliance to 17 civil complaint procedures.” Id. To this two-page brief, Plaintiff attached the following: 18 (1) a copy of page 2 of the “first amended complaint,” Dkt. No. 17 at 2, which the Court 19 struck on March 4, 2022 (Dkt. No. 21), id. at 4; (2) a list of the Defendants and his claims 20 against them, id. at 5-11; (3) “Exhibit K,” which is a list of interrogatories, id. at 12-16; (4) 21 a copy of the court order dismissing non-cognizable claims and setting briefing schedule 22 on cognizable claims (Dkt. No. 23), id. at 17-20; (5) a copy of Rules 55, 56, 57, and 58 of 23 the Federal Rules of Civil Procedure, id. at 21-23; (6) duplicative copies of the first few 24 pages of the original complaint, id. at 24-27, 29-31; and (7) a copy of the first page of the 25 stricken “first amended complaint” (Dkt. No. 17), id. at 28. 26 Defendants oppose Plaintiff’s motion based on the following: (1) Plaintiff does not 1 identify any claim on which he seeks summary judgment; (2) Plaintiff offers no evidence 2 to show he is entitled to judgment as a matter of law; and (3) Plaintiff’s motion does not 3 comply with Local Rule 7-4. Dkt. No. 27 at 4-6. 4 The Court notes that Plaintiff filed no reply in response to Defendants’ opposition. 5 It may simply be that Plaintiff did not intend to file a motion for summary judgment, as he 6 indicates that the filing was an “opposition.” See supra at 1. Plaintiff may have been 7 confused about the instructions in the court order setting briefing on his cognizable claims 8 which directed Defendants to file a motion for summary judgment or other dispositive 9 motion, and mistakenly believed that he needed to file an opposition right away, although 10 he titled his filing as a “motion.” Id. at 23. However, Plaintiff was only required to file an 11 opposition if Defendants first filed a summary judgment motion. Id. At the time Plaintiff 12 filed his “motion” or opposition on June 13, 2022, Defendants’ deadline to file their 13 dispositive motion had not yet expired. See Dkt. No. 29 at 25 at 2 (stating due date was 14 July 14, 2022). 15 Whatever the case may be, the Court will treat Plaintiff’s filing as a motion for 16 summary judgment. 17 1. Standard of Review 18 Summary judgment is proper where the pleadings, discovery and affidavits show 19 that there is “no genuine dispute as to any material fact and the movant is entitled to 20 judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary 21 judgment always bears the initial responsibility of informing the district court of the basis 22 for its motion, and identifying those portions of [the record] which it believes demonstrate 23 the absence of a genuine issue of material fact.” Celotex Corp. v. Cattrett, 477 U.S. 317, 24 323 (1986). A fact is material if it might affect the outcome of the lawsuit under governing 25 law, and a dispute about such a material fact is genuine “if the evidence is such that a 26 reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 1 Lobby, Inc., 477 U.S. 242, 248 (1986). 2 Generally, the moving party bears the initial burden of identifying those portions of 3 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 4 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 5 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 6 than for the moving party. But on an issue for which the opposing party will have the 7 burden of proof at trial, the moving party need only point out “that there is an absence of 8 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 9 to the motion is merely colorable, or is not significantly probative, summary judgment may 10 be granted. See Liberty Lobby, 477 U.S. at 249-50. The burden then shifts to the 11 nonmoving party to “go beyond the pleadings and by her own affidavits, or by the 12 ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts 13 showing that there is a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324 (citations 14 omitted); Fed. R. Civ. P. 56(e). 15 The Court’s function on a summary judgment motion is not to make credibility 16 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 17 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 18 The evidence must be viewed in the light most favorable to the nonmoving party, and the 19 inferences to be drawn from the facts must be viewed in a light most favorable to the 20 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 21 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 22 1996). The nonmoving party has the burden of identifying with reasonable particularity 23 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 24 the district court may properly grant summary judgment in favor of the moving party. See 25 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 26 (9th Cir. 2001). 1 2. Analysis 2 Defendants first assert that Plaintiff failed to identify any claim on which he seeks 3 summary judgment. Dkt. No. 27 at 3. Defendants are not entirely correct. Rather, 4 Plaintiff appears to assert that he is entitled to summary judgment on all the claims in his 5 complaint as he names all the Defendants and repeats the claims from his complaint. Dkt. 6 No. 26 at 5-11. However, Plaintiff’s brief 2-page memorandum fails to inform the Court 7 of the basis for his motion, nor does it identify those portions of the record which Plaintiff 8 believes demonstrate the absence of a genuine issue of material fact with respect to his 9 claims. Celotex Corp. v. Cattrett, 477 U.S. at 323. Without such an explanation, the Court 10 is unable to determine whether he is entitled to summary judgment on any claim. 11 Second, Defendants argue that Plaintiff offers no evidence to show he is entitled to 12 judgment as a matter of law. Dkt. No. 27 at 4. The Court agrees. It is obvious that no 13 discovery was conducted prior to filing this motion as Plaintiff relies solely on his 14 complaint and submits no evidence obtained through discovery or affidavits. Furthermore, 15 Plaintiff has included copies of interrogatories which clearly have yet to be answered by 16 Defendants. In the absence of any evidence in support of Plaintiff’s allegations, the record 17 is simply not sufficiently developed enough to support summary judgment in favor of 18 Plaintiff. Celotex Corp. v. Cattrett, 477 U.S. at 323. As such, it cannot be said that no 19 reasonable trier of fact could find other than for Plaintiff at this stage in the proceedings. 20 Id. at 325. 21 Lastly, Defendants assert that Plaintiff’s motion does not comply with Local Rule 22 7-4, which states in pertinent part, “a brief or memorandum of points and authorities filed 23 in support… to a motion must contain: … (3) A statement of the issues to be decided; (4) 24 A succinct statement of the relevant facts; and (5) Argument by the party, citing pertinent 25 authorities.” N.D. Cal. Civ. L.R. 7-4. The Court agrees. Plaintiff’s 2-page brief fails to 26 include any of these components. 1 Based on the foregoing, the Court finds Plaintiff has failed to meet his initial burden 2 of showing the absence of a genuine dispute of material fact with respect to any of the 3 claims he raises in the complaint. See Celotex Corp., 477 U.S. at 323. Accordingly, 4 Plaintiff’s motion for summary judgment is DENIED. Dkt. No. 26. The denial is without 5 prejudice to Plaintiff resubmitting a new summary judgment, (or cross-summary judgment 6 to Defendants’ summary judgment motion if one is filed), that complies with Local Rule 7- 7 4, after conducting discovery and submitting evidence sufficient to support such a motion. 8 B. Plaintiff’s “Amended Complaint” 9 On August 29, 2022, Plaintiff filed another document with a cover sheet that is 10 identical to the “first amended complaint” that he previously filed on January 19, 2022, 11 (Dkt. No. 17); this document was filed as an “Amended Complaint.” Dkt. No. 30. 12 However, as stated previously, the Court ordered that Plaintiff’s prior amended complaint 13 be stricken on March 4, 2022. Dkt. No. 21. Attached to this two-page “amended 14 complaint” are copies of various court orders and filings: Dkt. Nos. 29 (2 copies), 22, 21, 15 27. Plaintiff also attached another copy of his “Exhibit K,” i.e., his interrogatories. Id. at 16 19. It is not clear what Plaintiff hoped to accomplish through this filing as there is no 17 explanation or motion attached. Even if the Court construes this filing as a motion for 18 leave to file an amended complaint, there is no information in these papers to indicate what 19 claims Plaintiff seeks to amend. Accordingly, the Court orders this filing to be 20 STRICKEN as superfluous. Dkt. No. 30. 21 C. Plaintiff’s Motion to Compel 22 On the same date that he filed the above “amended complaint,” Plaintiff filed a 23 document titled, “Plaintiff’s motion request for courts to compel the parties to comply and 24 grant Plaintiff’s judgment.” Dkt. No. 31. Plaintiff asserts that Defendants and their 25 attorneys have “avoided to respond and answer all “interrogatory questions” under 26 Exhibits K-1 and K-3. Id. at 1. Plaintiff requests that Defendants first answer all his 1 interrogatories before he complies with the “notice of taking remote deposition” from 2 Defendants. Id. at 2. The Court notes that Plaintiff filed this motion on August 22, 2022, 3 which was two days before the deposition scheduled for August 24, 2022. Dkt. No. 31-1. 4 That notice was dated August 4, 2022. Id. at 2. Defendants did not file opposition to this 5 motion. 6 The motion must be denied because there is no indication that the parties met and 7 conferred to try to resolve any disagreement before Plaintiff sought court intervention. See 8 Fed. R. Civ. P. 37(a); N.D. Cal. Local Rule 37. Plaintiff must seek to meet and confer with 9 Defendants before he can seek an order to compel discovery. Where, as here, one of the 10 parties is a prisoner, the Court does not require in-person meetings and instead allows the 11 prisoner and defense counsel to meet and confer by telephone or exchange of letters. 12 Although the format of the meet-and-confer process changes, the substance of the rule 13 remains the same: the parties must engage in a good faith effort to meet and confer before 14 seeking court intervention in any discovery dispute. If defendants will not provide the 15 requested discovery, plaintiff should send them a letter stating that he intends to pursue a 16 motion to compel. The letter should state the specific discovery he seeks, and state the 17 reasons that plaintiff believes he is entitled to such discovery. Accordingly, Plaintiff’s 18 motion to compel is DENIED as premature. 19 D. Defendants’ Motion for Dismissal Sanctions 20 In lieu of a motion for summary judgment, Defendants filed a motion to dismiss on 21 the grounds that Plaintiff willfully refuses to participate in discovery and failed to appear 22 for properly noticed deposition. Dkt. No. 32. In support, Defendants submit the 23 declaration of their counsel, Deputy Attorney General Peter Nichols, along with Exhibits A 24 through J. Dkt. No. 32-1. Plaintiff has filed no opposition. 25 Defendants assert that they served a notice of deposition on Plaintiff, setting his 26 remote deposition for August 24, 2022, at 9:30 a.m. Dkt. No. 32-2 at 2; Dkt. No. 32-1 at 1 19-20 (Ex. C). On August 24, 2022, Mr. Nichols appeared via Zoom for the deposition of 2 Plaintiff and was advised by correctional staff that Plaintiff refused to attend the 3 deposition. Nichols Decl. ¶ 5, Dkt. No. 32-1 at 2. Correctional staff recorded Plaintiff’s 4 refusal on the same date. Id. at 23 (Ex. D). Defendants also submit a Certificate of Non- 5 Appearance. Id. at 25-30 (Ex. E). On August 24, 2022, Mr. Nichols also wrote a meet and 6 confer letter to Plaintiff explaining Defendants’ efforts to obtain Plaintiff’s deposition, the 7 potential consequences for failing to appear at the properly noticed deposition, and 8 Defendants’ intent to notice Plaintiff’s deposition a second time. Id. at 32-33 (Ex. F). 9 Defendants served a second notice of taking Plaintiff’s deposition on September 1, 10 2022, setting his remote deposition for September 13, 2022, at 9:30 a.m. Id. at 35-37 (Ex. 11 G). On September 13, 2022, Plaintiff did appear for the second properly noticed 12 deposition. Id. at 39-74 (Ex. H). When the matter of his failure to appear for the first 13 deposition was raised, Plaintiff claimed that correctional staff did not retrieve him for that 14 first deposition. Id. at 46-48 (Ex. H at pp. 7:16-9:7). Plaintiff then refused to answer 15 questions, stating that he could not participate in the second deposition without legal 16 counsel. Id. at 62-63 (Ex. H at pp. 23:8-24:1). Plaintiff repeatedly asked for a 17 postponement until he was able to obtain legal counsel through the aid of his family, 18 although he could not be sure how long that would take. Id. 19 Defendants now move for dismissal sanctions based on Plaintiff’s failure to 20 participate in discovery. However, the Court finds such a motion premature and that the 21 alternative Defendants seek is more appropriate, i.e., for an order compelling Plaintiff to 22 submit to a deposition. Dkt. No. 32-2 at 11. Although Plaintiff refused to answer any 23 substantive questions, he also stated that he wanted more time to obtain an attorney to 24 assist him in this matter. Since then, more than sufficient time has passed to allow Plaintiff 25 an opportunity to obtain counsel. If Plaintiff still refuses to comply with the court order, 26 Defendants can then move for dismissal sanctions. See, e.g., Fed. R. Civ. P. 37(b)(2)(c); 1 see also Computer Task Group v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). This is the 2 appropriate course of action as district courts must first implement lesser sanctions before 3 imposing such a substantial remedy, such as warning the offending party of the possibility 4 of dismissal, or considering alternative lesser sanctions. Id. at 1116. See, e.g., Leon v. IDX 5 Systems, 464 F.3d 951, 960-61 (9th Cir. 2006) (finding dismissal appropriate where party 6 acted in bad faith in despoiling evidence under five-part test). “Only ‘willfulness, bad 7 faith, and fault’ justify terminating sanctions.” Connecticut General Life v. Providence, 8 482 F.3d 1091, 1096 (9th Cir. 2007) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 9 (9th Cir. 2003)). 10 Plaintiff’s filings also indicate that his discovery requests are still pending with 11 Defendants, e.g., his interrogatories under “Exhibit K.” The Court notes Defendants did 12 not file an opposition to Plaintiff’s motion to compel nor do they address the requested 13 interrogatories in their motion. Defendants are reminded that they must also in good faith 14 comply with Plaintiff’s discovery requests in a timely manner. 15 Based on the foregoing, Defendants’ motion for dismissal sanctions is DENIED as 16 premature. Defendants’ alternative request for an order compelling Plaintiff to submit to a 17 deposition is GRANTED. Unless Plaintiff prefers the more severe sanction of dismissal of 18 this entire action for his refusal to be deposed under Rule 37(b)(2)(A)(v) of the Federal 19 Rules of Civil Procedure, he shall appear for and submit to a deposition to be properly 20 noticed by Defendants. Plaintiff is advised that he must in good faith participate fully in 21 the deposition, even if he has been unable to obtain legal counsel and must continue in pro 22 se. 23 24 CONCLUSION 25 For the reasons stated above, the Court orders as follows: 26 1. Plaintiff’s motion for summary judgment is DENIED without prejudice. 1 || Dkt. No. 26. 2 2. Plaintiff's “amended complaint” shall be STRICKEN. Dkt. No. 30. 3 3. Plaintiff's motion to compel is DENIED without prejudice for failing to 4 || satisfy the meet and confer requirement under Rule 37(a). Dkt. No. 31. 5 4. Defendants’ motion for dismissal sanctions is DENIED. Dkt. No. 32. 6 || Defendants’ alternative request for a court order compelling Plaintiff to submit to a 7 || deposition is GRANTED. /d. Plaintiff shall appear for and submit to a deposition when 8 || properly noticed by Defendants without further delay. Failure to comply with this Order g || may be grounds for dismissal of this entire lawsuit. 10 5. This action shall proceed under the following briefing scheduling. 11 || Defendants shall file a summary judgment motion or other dispositive motion no later 2 than fifty-six (56) days from the date this order is filed. E 13 Once Defendants file their motion, Plaintiff shall prepare and file an opposition to S 14 Defendants’ motion with the Court and serve it on Defendants no later than twenty-eight 3 15 || (28) days after Defendants’ motion 1s filed. 16 Defendants shall file a reply brief no later than fourteen (14) days after □□□□□□□□□□□ 5 17 || opposition is filed. 5 18 6. All relevant portions of the last court order setting briefing in this matter 19 shall remain in effect. Dkt. No. 23. 20 This order terminates Docket Nos. 26, 31, and 32. 21 IT IS SO ORDERED. 22 || Dated: — March 6,2023. fauinfhacnan BETH LABSON FREEMAN 23 United States District Judge 24 25 26 |] PROSHBLFCR 20416 arias denyMSKPD deny MID(De} OmherMor 27