Hammler v. Hernandez

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ALLEN HAMMLER, Case No.: 18cv259-CAB-MDD

11 Plaintiff, REPORT AND 12 v. RECOMMENDATION ON DEFENDANTS' MOTION FOR 13 J. HERNANDEZ, et al., TERMINATING SANCTIONS 14 Defendants. 15 [ECF No. 81] 16 17 This Report and Recommendation is submitted to United States 18 District Judge Cathy Anne Bencivengo pursuant to 28 U.S.C. § 636(b)(1) and 19 Local Civil Rule 27.1(c) of the United States District Court for the Southern 20 District of California. 21 For the reasons set forth herein, the Court RECOMMENDS 22 Defendants’ motion for terminating sanctions be GRANTED and this case be 23 DISMISSED WITH PREJUDICE. 24 I. INTRODUCTION 25 Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in 26 forma pauperis initiated this case by filing a civil rights complaint pursuant 1 Plaintiff’s sole remaining claim is a First Amendment retaliation claim 2 against J. Hernandez and A. Magallanes (collectively, “Defendants”). (ECF 3 No. 33). Plaintiff generally alleges that Defendants retaliated against him 4 for filing inmate grievances. (ECF No. 25 (“FAC”) at 3). Specifically, Plaintiff 5 alleges Defendants retaliated against him on November 7, 2016, November 6 15, 2016, November 17, 2016, November 29, 2016, and December 6, 2016 by 7 either acting violently toward Plaintiff or threatening violence. (FAC at 3- 8 25). 9 Presently before the Court is Defendants’ motion for terminating and 10 monetary sanctions for Plaintiff’s failure to participate in his deposition and 11 to comply with court orders. (ECF No. 81 (“Mtn.”)). Plaintiff filed a response 12 in opposition. (ECF No. 84 (“Oppo.”)). 13 II. RELEVANT BACKGROUND 14 On March 10, 2020, Defendants attempted to depose Plaintiff. (ECF 15 No. 58-1 at 4). Plaintiff refused to answer any question he felt was not 16 relevant to his claim. (Id. at 5). For example, Plaintiff refused to answer 17 whether he had ever used any aliases or other names in the past. (ECF No. 18 58-2 (“Pl. Mar. 10 Depo”) 5:14-6:3). Defendants’ Counsel (hereinafter, 19 “Counsel”) advised Plaintiff that he could lodge objections, but that he still 20 had to answer the questions. (Id.). Plaintiff still refused to answer the 21 questions. (Id.). The parties took several breaks in the hopes that Plaintiff 22 would cooperate afterward. (Id. at 13:24-14:7). Plaintiff still refused to 23 answer any questions unless the deposition proceeded on his terms. (See id. 24 at 20:9-16). 25 Plaintiff did not treat Counsel with civility. At one point, he called 26 Counsel a rookie and told her she was “out of water.” (Id. at 14:5). He also 1 deposition, threatened to end the deposition, and accused Counsel of 2 perjuring herself. (Id. at 22:16-18). Counsel suspended the deposition on the 3 grounds that Plaintiff failed to meaningfully participate in the deposition. 4 (Id. at 23:18-25). 5 On April 9, 2020, Defendants moved to compel Plaintiff’s deposition 6 testimony and for monetary sanctions in the amount of $3,880.78 for the 7 costs and fees associated with the attempted deposition. (ECF No. 58). On 8 April 16, 2020, the Court held a Mandatory Settlement Conference and 9 discussed the motion to compel. (ECF No. 63). The Court declined to impose 10 monetary sanctions because Plaintiff agreed to be re-deposed, but held the 11 motion in abeyance. (Id. at 1). The Court admonished Plaintiff that his 12 behavior was inappropriate. 13 On September 23, 2020, Plaintiff was re-deposed. (Mtn. at 7). At the 14 very beginning of the deposition, Plaintiff demonstrated displeasure at being 15 deposed. (See ECF No. 81-2 (“Pl. Depo.”) at 38:11-12) (responding to 16 Counsel’s “[g]ood morning” with “[i]t’s not.”). At one point, Counsel stated 17 that “[t]his [deposition] is going to go a lot easier for everyone if you just 18 answer my question.” (Id. at 115:5-6). Plaintiff responded that “I’m not 19 looking to make things easy for anyone, especially you.” (Id. at 115:11-12). 20 Plaintiff refused to answer Counsel’s first question after objecting to it. 21 After several minutes of discussing the matter with Plaintiff he provided an 22 evasive answer: 23 Q: Have you ever used any aliases or gone by any other names?

24 A: Irrelevant. 25 Q: Your objection is noted for the record. You can answer. 26 1 Q: Have you ever used a name other than Allen John Hammler? 2

3 A: Asked and answered.

4 Q: Mr. Hammler, you haven’t answered my question. Can you 5 please answer my question.

6 A: I have answered your question. If you refuse to accept my 7 answer, that’s not my problem. 8 (Id. at 38:20-39:8). Counsel then reminded Plaintiff that he was testifying 9 under oath and that this testimony could be used in court. (Id. at 39:9-25). 10 Plaintiff also indicated that he understood that his failure to answer 11 appropriate questions could result in sanctions, including dismissal of this 12 action. (Id. at 42:12). Counsel reiterated that “in a deposition you have the 13 right to object to my questions and put your objections on the record, 14 however, I am still entitled to your answer, even if you object to a question.” 15 (Id. at 43:1-4). Plaintiff stated that he “understood that completely.” (Id. at 16 43:9). After several minutes of back and forth between Counsel and Plaintiff, 17 Plaintiff answered the question. 18 The deposition transcript is replete with examples of bickering over 19 immaterial details about the procedure of the deposition and substance of 20 Plaintiff’s First Amended Complaint (“FAC”). (See e.g., id. at 43:11-44:20, 21 64:14-69:21, 79:15-82:8, 85:25-87:15, 177:10-180:10, 181:16-182:7, 183:14- 22 185:22). At times, Plaintiff became agitated, raised his voice, and used 23 profanity. However, the Court’s concern is with the substance and whether 24 Plaintiff answered appropriate questions about the allegations against 25 Defendants in his FAC. Specifically, the Court is concerned with Plaintiff’s 26 refusal to answer questions regarding Defendants’ involvement in the 1 Q: . . . [N]either Defendant Hernandez nor Defendant Magallanes were involved in [the October 20, 2016] incident, were they? 2

3 A: I don’t recall to what extent. As I’ve just said, there were a number of officers involved in all of these events. Yours, your 4 clients basically were involved in some of these events surrounding 5 these instances, as I recall. So right now I don’t believe that I can answer that and be 6 totally forthright in saying what parts they played in any of these 7 events.

8 Q: So today you can’t say whether or not Defendant Hernandez or 9 Defendant Magallanes had any role in the . . . October 20, 2016 incident? 10

11 A: To the extent that they are listed here, I believe that they are relevant for the simple fact that in the instances in this Complaint 12 alleging the difference that are alleged, they’re relevant for the 13 simple that your client at some point in time took place in these events, and be it that I don’t have actual notes of those events – 14 those events in front of me, I don’t want to speculate on the record 15 what parts they played.

16 Q: So today, as you sit here today you can’t tell me what, if any, 17 part Defendant Hernandez played in the October 20, 2016 incident, right? 18

19 A: I don’t have my notes in front of me.

20 Q: As you sit here today do you have notes of this incident that you 21 can refer to?

22 A: Not here before me, no. 23 Q: Do you have notes somewhere else? 24

25 A: I do.

26 Q: What notes do you have? 1 A: I keep notes of all events that occur with me inside of prison setting, and those notes are on record outside prison and inside 2 prison. I have copies of those notes, but those notes are my work 3 product and I don’t have to discuss them here and now. 4 (Id. at 83:1-84:14). Plaintiff responded in similar fashion when questioned 5 about Defendants’ involvement in the November 7, 2016 and November 28, 6 2016 incidents. (See id. at 87:16-89:6). 7 III. LEGAL STANDARD 8 Federal Rule of Civil Procedure 37(d) authorizes the court “to impose a 9 wide range of sanctions when a party fails to comply with the rules of 10 discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds 11 Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). The Court may sanction the 12 party by “prohibiting the disobedient party from supporting or opposing 13 designated claims or defenses, or from introducing designated matters into 14 evidence,” “staying further proceedings” until the party has complied with 15 discovery requirements, and “dismissing the action or proceeding in whole or 16 in part.” Fed. R. Civ. P. 37(d)(3) (incorporating sanctions from Fed. R. Civ. P. 17 37(b)(2)(A)(i)-(vi)). 18 Rule 37 allows for terminating sanctions that dismiss a plaintiff’s action 19 where there has been willfulness, bad faith, or fault. Fed. R. Civ. P. 20 37(b)(2)(A)(v); Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 21 640 (1976). “Disobedient conduct not shown to be outside the control of the 22 litigant is sufficient to demonstrate willfulness, bad faith, or fault.” 23 Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (internal quotation 24 marks omitted). Courts may consider not only the effect of sanctions on the 25 party being disciplined, but also the deterrent effect on future litigants and 26 their counsel. Nat’l Hockey League, 427 U.S. 639 at 643. 1 the public’s interest in expeditious resolution of litigation; (2) the Court’s 2 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 3 public policy favoring disposition of cases on the merits; and (5) the 4 availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 5 1423 (9th Cir. 1986). The amount of prejudice resulting from discovery 6 violations and the availability of less drastic sanctions are “key factors.” 7 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). 8 IV. DISCUSSION 9 Defendants contend that Plaintiff “was intentionally obstructionist and 10 antagonistic, and refused to answer appropriate questions” at the second 11 deposition. (Mtn. at 8). Accordingly, they request the Court issue 12 terminating sanctions in this case. (See generally, Mtn.). Plaintiff maintains 13 that he answered all questions unless the answers were privileged. (Oppo. at 14 2). He further argues that Counsel attempted to upset Plaintiff by asking 15 inflammatory questions, by making faces while asking questions, and by 16 attempting to assert authority over him.1 (Id. at 5-6, 12). 17 The Court agrees with Plaintiff that some of Counsel’s questions were 18 inflammatory and that Counsel did not have the authority to require Plaintiff 19 to act a particular way during the deposition. (See e.g, Pl. Depo. at 91:9- 20

21 1 Plaintiff contends the Court should not consider the video of his deposition or the 22 transcript because he did not receive the video and because the transcript was not properly served. (Oppo. at 7). However, Plaintiff does have the transcript and he cites to 23 it throughout his opposition. (See generally, Oppo.). Moreover, Plaintiff’s argument that 24 he was not permitted to make changes to the deposition prior to the filing of the instant motion is irrelevant because he does not assert that he intends to amend his testimony. 25 Accordingly, the Court considers the transcript. For purposes of this motion, the Court did not watch the video of the deposition. Plaintiff also argues the Court should not consider 26 Deputy Attorney General Carson Niello’s declaration because he did not know he attended the deposition. (Oppo. at 9). The Court did not rely on this declaration in deciding the 1 92:24; 177:19-180:10) (asking Plaintiff whether he is paranoid and 2 instructing Plaintiff to sit down for the deposition). As indicated previously, 3 the deposition transcript is replete with examples of inappropriate behavior 4 from both parties. However, the main concern here is Plaintiff’s failure to 5 answer questions about his own allegations in a case he chose to file. The 6 Court, therefore, declines to address the immaterial bickering between the 7 parties at the deposition. 8 A. Willfulness, Bad Faith, or Fault 9 The Court takes Defendants’ counsel’s allegations very seriously and 10 has once already admonished Plaintiff regarding his conduct at the March 10, 11 2020 deposition. The Court also recognizes that terminating sanctions are 12 considered when a party who has previously been admonished repeats the 13 conduct. See, e.g., Glas-Weld Sys., Inc. v. Boyle, No. 6:12-CV-02273-AA, 2013 14 WL 4828965, at *1 (D. Or., Sept. 6, 2013) (admonishing a pro se defendant 15 that further profanity, threats, and taunts may result in additional 16 sanctions); Scott v. Palmer, No. 1:09-CV-01329-LJO-SKO (PC), 2014 WL 17 6685813, at *3 (E.D. Cal., Nov. 26, 2014) (admonishing a state prisoner 18 proceeding pro se that use of profanity, abusive conduct, and 19 uncooperativeness at a deposition is grounds for terminating sanctions and 20 advising him pro se status does not “shield him from the consequences of 21 abusive behavior”); Block v. Snohomish Cty, No. C14-235RAJ, 2014 WL 22 6750475, at *10 (W.D. Wash., Dec. 1, 2014) (admonishing a plaintiff that the 23 court will impose monetary sanctions if she uses “profanity or abusive 24 invective” in communications with defense counsel). 25 Upon review of the deposition transcript, the Court finds that Plaintiff 26 was disobedient and that his conduct was within his control. See Jorgensen, 1 refused to act with civility. (See Pl. Depo. at 43:11-44:20, 64:14-69:21, 79:15- 2 82:8, 85:25-87:15, 177:10-180:10, 181:16-182:7, 183:14-185:22); (See also 3 Oppo. at 11) (conceding that he became emotional and used “curse words”). 4 While that conduct alone sufficiently shows bad faith, the Court instead 5 focuses on Plaintiff’s refusal to answer substantive questions about the 6 allegations in his FAC. Plaintiff’s failure to answer these questions 7 demonstrates willfulness, especially in light of the fact that the Court 8 admonished him at the Mandatory Settlement Conference. See Jorgensen, 9 320 F.3d at 912. 10 Moreover, Plaintiff testified that he has “[u]pwards of 20” civil rights 11 actions against correctional staff. (Pl. Depo. at 47:11-15). Plaintiff is subject 12 to a pre-filing order, which requires him to “seek and obtain leave of the 13 presiding judge of any appropriate Court, prior to filing any new actions, 14 against any defendant, in any forum in the State of California, based upon, or 15 related in any way, to lawsuits alleging civil rights violations, lawsuits 16 against prison officials, or federal habeas petitions.” Hammler v. Alvarez, No. 17 18cv326-AJB-WVG, ECF No. 63 at 7. As such, the Court is mindful that 18 imposing sanctions in this case may deter similar conduct in Plaintiff’s other 19 lawsuits. See Nat’l Hockey League, 427 U.S. at 643. 20 For these reasons, the Court finds that Plaintiff’s actions were willful. 21 B. Terminating Sanctions 22 Having found that Plaintiff’s conduct at his deposition was willful, the 23 Court evaluates the five-factors considered in the Ninth Circuit to determine 24 whether terminating sanctions are appropriate. 25 1. Public’s Interest in Expeditious Resolution of Litigation 26 “The public’s interest in expeditious resolution of litigation always 1 1999). This case has been pending since 2018 and has over 80 docket entries 2 in what should be a relatively straightforward First Amendment retaliation 3 claim. (See Docket). As such, this factor favors dismissal. 4 2. Court’s Need to Manage Its Docket 5 The second factor weighs in favor of dismissal where the Court is 6 required to address a litigant’s failure to comply with discovery obligations. 7 See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). This is 8 Defendants’ second motion for sanctions regarding Plaintiff’s deposition. 9 Moreover, Defendants’ motions were brought in good faith. Accordingly, this 10 factor favors dismissal. 11 3. Risk of Prejudice to Defendants 12 “To prove prejudice, a defendant must establish that plaintiff’s actions 13 impaired defendant’s ability to proceed to trial or threatened to interfere with 14 the rightful decision of the case.” Id. at 642 (citing Malone v. U.S. Postal 15 Serv., 833 F.3d 128, 131 (9th Cir. 1987)). Though the pendency of a lawsuit 16 on its own is insufficient prejudice to warrant dismissal, “[u]nnecessary delay 17 inherently increases the risk that witnesses’ memories will fade and evidence 18 will become stale.” Id. at 643 (citing Sibron v. New York, 392 U.S. 40, 57 19 (1968)). 20 Defendants contend they “cannot prepare a motion for summary 21 judgment—or even determine if such a motion is warranted—or prepare a 22 defense for trial” due to Plaintiff’s failure to meaningfully participate in his 23 deposition. (Mtn. at 13). Defendants are entitled to know the facts upon 24 which Plaintiff bases his claims and the documents which support his claims. 25 Instead of cooperating at his deposition, Plaintiff has engaged in dilatory and 26 obstructionist tactics. Plaintiff was warned that his failure to meaningfully 1 dismissal of this action. Nevertheless, Plaintiff refuses to comply.2 2 While Plaintiff indicated that everything he had was in the operative 3 complaint, his failure to be deposed in this action substantially hinders 4 Defendants’ ability to investigate and defend against his allegations. (See Pl. 5 Depo. at 182:18-183:13). A deposition is necessary for Defendants to question 6 Plaintiff with respect to the events alleged in the complaint, the 7 circumstances surrounding the events alleged in the complaint, any injuries 8 received, and what damages he is claiming. Instead, due to Plaintiff’s 9 conduct, Defendants have been forced to expend time and resources 10 attempting to secure his cooperation by scheduling two depositions and filing 11 two motions. The inability to fully defend the case or to move forward with 12 any potential dispositive motions, coupled with the delay, is prejudicial to 13 Defendants. As such, this factor also weighs in favor of dismissal. 14 4. Public Policy Favoring Disposition of Cases on Their 15 Merits 16 The fourth factor—public policy favoring disposition of cases on their 17 merits—is strong and weighs against dismissal. Pagtalunan, 291 F.3d at 18 643. However, this factor “lends little support” where the behavior of the 19 party against whom dismissal is sought impeded disposition on the merits. 20 In re: Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 21 (9th Cir. 2006); Sanchez v. Rodriguez, 298 F.R.D. 460, 472 (C.D. Cal. 2014) 22 (“While the fourth factor of the test generally tends to cut against dismissal 23 as a sanction, the public policy favoring the disposition of cases on their 24 25 26 2 Extending discovery and pretrial deadlines in this case would be futile because Plaintiff failed to meaningfully answer questions regarding allegations in his FAC even after the 1 merits is not furthered by litigants who . . . refuse to provide the defense with 2 critical discovery, thereby hindering the preparation of a defense on the 3 merits.”). 4 Plaintiff’s willful conduct has delayed the discovery process and has 5 prevented this case from progressing towards a resolution on the merits. By 6 failing to meaningfully participate in his deposition, Plaintiff has prevented 7 Defendants from ascertaining the necessary facts to defend against his 8 claims. In light of Plaintiff’s conduct, the Court finds that this factor does not 9 weigh against dismissal. 10 5. Consideration of Less Drastic Sanctions 11 A district court must consider the impact of a sanction and whether a 12 less severe sanction would adequately address a party’s failure to engage in 13 the discovery process. Malone, 833 F.2d at 131-32. The Court has considered 14 lesser sanctions, but no lesser sanction is warranted. Evidentiary sanctions 15 would be ineffective, as Plaintiff would still be able to testify to information 16 that he withheld from Defendants at the deposition and the Court would 17 have no practical way of excluding such testimony. Monetary sanctions are 18 also ineffective because of Plaintiff’s in forma pauperis status. He would 19 likely be unable to pay any monetary sanctions. 20 Additionally, the Court admonished Plaintiff about his discovery 21 obligations and warned him about the consequences of noncompliance, but 22 Plaintiff has indicated no intent to comply with any rulings or orders by the 23 Court. The Ninth Circuit has explained that “[a] district court need not 24 exhaust every sanction short of dismissal before finally dismissing a case, but 25 must explore possible and meaningful alternatives.” Henderson, 779 F.2d at 26 1424. The Court finds that there are no other, lesser sanctions that would be 1 6. Conclusion 2 Upon due consideration of the five factors, the Court finds dismissal of 3 this case warranted. 4 C. Reasonable Expenses 5 Defendants also request fees and costs associated with their two 6 attempts to take Plaintiff’s deposition and their two motions for sanctions. 7 (Mtn. at 16). Counsel declares that Defendants incurred $3,880.78 in fees 8 and costs associated with Plaintiff’s March 10, 2020 deposition and $2,410.60 9 in fees and costs for Plaintiff’s September 23, 2020 deposition. (ECF No. 81-2 10 (“Shryock Decl.”) ¶¶ 25-27). 11 Federal Rule of Civil Procedure 37 requires “the party failing to act . . . 12 to pay the reasonable expenses, including attorney’s fees, caused by the 13 failure, unless the failure was substantially justified or other circumstances 14 make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). 15 As noted, Plaintiff is proceeding in forma pauperis, which makes it 16 unlikely that he would be able to pay any monetary sanctions. As such, it 17 would be unjust to require Plaintiff to pay the reasonable expenses caused by 18 his failure to meaningfully participate in his deposition. 19 V. CONCLUSION 20 For the reasons set forth above, the Court RECOMMENDS that 21 Defendants’ motion for terminating sanctions be GRANTED and that this 22 case be DISMISSED WITH PREJUDICE. 23 IT IS ORDERED that no later than December 9, 2020, any party to 24 this action may file written objections with the Court and serve a copy on all 25 parties. The document should be captioned “Objections to Report and 26 Recommendation.” 1 filed with the Court and served on all parties no later than December 16, 9 2020. The parties are advised that failure to file objections within the 3 ||specified time may waive the right to raise those objections on appeal of the 4 ||Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1988). 5 IT IS SO ORDERED. Dated: November 17, 2020 Mitel by. [= Hon. Mitchell D. Dembin 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27