1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:21-cv-00086-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS AGAINST 13 v. DEFENDANT’S ATTORNEY OF RECORD
14 MARTINEZ, (ECF No. 122)
15 Defendant. 16 17 Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have 19 consented to Magistrate Judge jurisdiction. (ECF No. 105.) This action proceeds on Plaintiff’s 20 claims against Defendant Martinez (“Defendant”) for retaliation in violation of the First 21 Amendment and deliberate indifference to risk of harm in violation of the Eighth Amendment. 22 The case is set for a jury trial commencing October 16, 2024, before the undersigned. 23 I. Plaintiff’s Motion for Sanctions 24 Currently before the Court is Plaintiff’s motion for sanctions against Defendant’s attorney 25 of record, Christopher H. Findley, pursuant to Federal Rules of Civil Procedure 11, 30, 41, and 26 the inherent power of the Court, filed August 26, 2024. (ECF No. 122.) Defendant has not yet 27 had an opportunity to file a response, but in light of the baseless nature of the claims, as discussed 28 herein, the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 1 230(l). 2 In his motion, Plaintiff asserts that Mr. Findley wrongfully initiated contact with inmate 3 witnesses, as the deadline to depose witnesses was on September 3, 2022, and Mr. Findley did 4 coerce, intimidate, harass, and wrongfully try to influence the inmate witnesses’ testimony 5 through the power of his government office. (ECF No. 122.) Plaintiff states that following the 6 August 13, 2024 pretrial conference, he made contact with proposed witness Inmate Johnathon 7 Lee Smith through his ex-wife, Audrey Vasquez.1 Plaintiff states that Inmate Smith, now housed 8 at New Folsom State Prison (now California State Prison, Sacramento), informed Ms. Vasquez 9 that Mr. Findley tried to coerce and intimidate him to change his testimony in his declaration. 10 When Mr. Findley was unable to do so, he then attempted to get Inmate Smith excluded as a 11 witness. Plaintiff asserts that Inmate Smith is a direct material and percipient witness to 12 Plaintiff’s life having been threatened. The power that a government official wields is relevant to 13 the objective inquiry of whether a reasonable person would perceive the official’s communication 14 as coercive. Plaintiff argues that through his position as a State Attorney General, Mr. Findley 15 was able to coerce and intimidate and thereby turn the inmate witnesses against Plaintiff, except 16 for Inmate Smith, who Mr. Findley then moved to exclude as a witness. Plaintiff contends that 17 Mr. Findley is guilty of obstructing justice by intimidating, influencing, or harassing a witness 18 before the witness testifies. Plaintiff concedes that while witness tampering as defined by 18 19 U.S.C. § 1512(b) does not provide a private right of action, conduct falling within the statute may 20 be sanctionable pursuant to the Court’s inherent power. (Id.) 21 Plaintiff further argues that Mr. Findley misinformed the Court as to Inmate Steven Moore 22 being housed in a cell and alleging that he would have to be cell extracted, when Mr. Findley 23 knew that Inmate Moore was housed in an 8-man dorm, not a cell. Thus, Mr. Findley’s 24 allegations that Inmate Moore would have to be cell extracted and forced to testify was a blatant 25 lie to the Court. Mr. Findley also coerced and intimidated Inmate Moore and caused him to 26 become fearful to testify as to his signed declaration under penalty of perjury. Plaintiff states he 27 1 Although not entirely clear from Plaintiff’s filing, it appears Audrey Vasquez is the ex-wife of Inmate Smith, rather 28 than Plaintiff. 1 is in the process of getting a declaration from Inmate Smith through Ms. Vasquez, but it will take 2 several weeks to obtain the declaration. Plaintiff has asked Inmate Smith to cooperate with the 3 Court should he be contacted. (Id.) 4 Plaintiff further argues that the time for Mr. Findley to conduct a deposition with inmate 5 witnesses in this case ended September 3, 2022.2 Mr. Findley not only initiated contact with the 6 witnesses in this case, but he questioned them about the specifics of the case, which Plaintiff 7 alleges is deposing a witness orally. Plaintiff argues that a party must give reasonable notice to 8 the other parties before deposing a witness orally. Furthermore, Mr. Findley must have obtained 9 leave of Court to depose a deponent confined in prison. Plaintiff cites to Wharton v. Calderon, 10 127 F.3d 1201, 1204 (9th Cir. 1997), a criminal case, in support of his argument that the only way 11 Mr. Findley could have initiated contact with the inmate witnesses was if the Court issued an 12 order granting Plaintiff an equal right and opportunity to interview the inmate witnesses. Plaintiff 13 argues that Calderon should apply to civil cases also. (ECF No. 122.) 14 Plaintiff requests that the Court conduct an evidentiary hearing due to the seriousness of 15 his allegations against Mr. Findley, and that Mr. Findley be sanctioned and not be allowed to 16 question or cross-examine the inmate witnesses during trial. (Id.) 17 II. Discussion 18 The Court does not find that an evidentiary hearing or sanctions are warranted based on 19 the arguments presented. 20 There is no indication that defense counsel improperly conducted depositions of any 21 inmate witnesses.3 Mr. Findley is permitted to initiate contact and speak with prospective 22 witnesses, including his own witnesses, whether incarcerated or unincarcerated, without 23 providing advance notice to Plaintiff. The fact that Mr. Findley asked the inmate witnesses 24 questions about the specifics of this case, without more, is not enough to convert a call or 25 interview with a prospective witness into a deposition. Mr. Findley did not state, nor does
26 2 Pursuant to the Court’s April 5, 2022 order granting Defendant’s motion to modify the discovery and scheduling order, the deadline for completion of all discovery was extended to November 2, 2022. (ECF No. 39.) 27
3 In addition, had Mr. Findley decided to depose an inmate witness before the close of discovery, the Court’s January 28 3, 2022 discovery and scheduling order provided the necessary authorization. (ECF No. 36, ¶ 3.) 1 Plaintiff allege, that any of the interviews with the inmate witnesses were conducted before an 2 “officer authorized to administer oaths” or that any testimony was taken under oath, as required 3 by Federal Rules of Civil Procedure 28 and 30 for the taking of depositions. 4 Further, Plaintiff has not identified any authority applicable to civil actions to support his 5 argument that he should have equal right and opportunity to interview inmate witnesses. To the 6 extent Plaintiff argues that he has not had the opportunity to communicate with the inmate 7 witnesses, the Court notes that inmates may correspond with one another if they obtain written 8 authorization from the appropriate prison officials. Cal. Code Regs., tit. 15 § 3139. Plaintiff does 9 not allege that he attempted to obtain the appropriate authorization with respect to any of the 10 prospective witnesses or was otherwise prevented from doing so.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:21-cv-00086-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS AGAINST 13 v. DEFENDANT’S ATTORNEY OF RECORD
14 MARTINEZ, (ECF No. 122)
15 Defendant. 16 17 Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have 19 consented to Magistrate Judge jurisdiction. (ECF No. 105.) This action proceeds on Plaintiff’s 20 claims against Defendant Martinez (“Defendant”) for retaliation in violation of the First 21 Amendment and deliberate indifference to risk of harm in violation of the Eighth Amendment. 22 The case is set for a jury trial commencing October 16, 2024, before the undersigned. 23 I. Plaintiff’s Motion for Sanctions 24 Currently before the Court is Plaintiff’s motion for sanctions against Defendant’s attorney 25 of record, Christopher H. Findley, pursuant to Federal Rules of Civil Procedure 11, 30, 41, and 26 the inherent power of the Court, filed August 26, 2024. (ECF No. 122.) Defendant has not yet 27 had an opportunity to file a response, but in light of the baseless nature of the claims, as discussed 28 herein, the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 1 230(l). 2 In his motion, Plaintiff asserts that Mr. Findley wrongfully initiated contact with inmate 3 witnesses, as the deadline to depose witnesses was on September 3, 2022, and Mr. Findley did 4 coerce, intimidate, harass, and wrongfully try to influence the inmate witnesses’ testimony 5 through the power of his government office. (ECF No. 122.) Plaintiff states that following the 6 August 13, 2024 pretrial conference, he made contact with proposed witness Inmate Johnathon 7 Lee Smith through his ex-wife, Audrey Vasquez.1 Plaintiff states that Inmate Smith, now housed 8 at New Folsom State Prison (now California State Prison, Sacramento), informed Ms. Vasquez 9 that Mr. Findley tried to coerce and intimidate him to change his testimony in his declaration. 10 When Mr. Findley was unable to do so, he then attempted to get Inmate Smith excluded as a 11 witness. Plaintiff asserts that Inmate Smith is a direct material and percipient witness to 12 Plaintiff’s life having been threatened. The power that a government official wields is relevant to 13 the objective inquiry of whether a reasonable person would perceive the official’s communication 14 as coercive. Plaintiff argues that through his position as a State Attorney General, Mr. Findley 15 was able to coerce and intimidate and thereby turn the inmate witnesses against Plaintiff, except 16 for Inmate Smith, who Mr. Findley then moved to exclude as a witness. Plaintiff contends that 17 Mr. Findley is guilty of obstructing justice by intimidating, influencing, or harassing a witness 18 before the witness testifies. Plaintiff concedes that while witness tampering as defined by 18 19 U.S.C. § 1512(b) does not provide a private right of action, conduct falling within the statute may 20 be sanctionable pursuant to the Court’s inherent power. (Id.) 21 Plaintiff further argues that Mr. Findley misinformed the Court as to Inmate Steven Moore 22 being housed in a cell and alleging that he would have to be cell extracted, when Mr. Findley 23 knew that Inmate Moore was housed in an 8-man dorm, not a cell. Thus, Mr. Findley’s 24 allegations that Inmate Moore would have to be cell extracted and forced to testify was a blatant 25 lie to the Court. Mr. Findley also coerced and intimidated Inmate Moore and caused him to 26 become fearful to testify as to his signed declaration under penalty of perjury. Plaintiff states he 27 1 Although not entirely clear from Plaintiff’s filing, it appears Audrey Vasquez is the ex-wife of Inmate Smith, rather 28 than Plaintiff. 1 is in the process of getting a declaration from Inmate Smith through Ms. Vasquez, but it will take 2 several weeks to obtain the declaration. Plaintiff has asked Inmate Smith to cooperate with the 3 Court should he be contacted. (Id.) 4 Plaintiff further argues that the time for Mr. Findley to conduct a deposition with inmate 5 witnesses in this case ended September 3, 2022.2 Mr. Findley not only initiated contact with the 6 witnesses in this case, but he questioned them about the specifics of the case, which Plaintiff 7 alleges is deposing a witness orally. Plaintiff argues that a party must give reasonable notice to 8 the other parties before deposing a witness orally. Furthermore, Mr. Findley must have obtained 9 leave of Court to depose a deponent confined in prison. Plaintiff cites to Wharton v. Calderon, 10 127 F.3d 1201, 1204 (9th Cir. 1997), a criminal case, in support of his argument that the only way 11 Mr. Findley could have initiated contact with the inmate witnesses was if the Court issued an 12 order granting Plaintiff an equal right and opportunity to interview the inmate witnesses. Plaintiff 13 argues that Calderon should apply to civil cases also. (ECF No. 122.) 14 Plaintiff requests that the Court conduct an evidentiary hearing due to the seriousness of 15 his allegations against Mr. Findley, and that Mr. Findley be sanctioned and not be allowed to 16 question or cross-examine the inmate witnesses during trial. (Id.) 17 II. Discussion 18 The Court does not find that an evidentiary hearing or sanctions are warranted based on 19 the arguments presented. 20 There is no indication that defense counsel improperly conducted depositions of any 21 inmate witnesses.3 Mr. Findley is permitted to initiate contact and speak with prospective 22 witnesses, including his own witnesses, whether incarcerated or unincarcerated, without 23 providing advance notice to Plaintiff. The fact that Mr. Findley asked the inmate witnesses 24 questions about the specifics of this case, without more, is not enough to convert a call or 25 interview with a prospective witness into a deposition. Mr. Findley did not state, nor does
26 2 Pursuant to the Court’s April 5, 2022 order granting Defendant’s motion to modify the discovery and scheduling order, the deadline for completion of all discovery was extended to November 2, 2022. (ECF No. 39.) 27
3 In addition, had Mr. Findley decided to depose an inmate witness before the close of discovery, the Court’s January 28 3, 2022 discovery and scheduling order provided the necessary authorization. (ECF No. 36, ¶ 3.) 1 Plaintiff allege, that any of the interviews with the inmate witnesses were conducted before an 2 “officer authorized to administer oaths” or that any testimony was taken under oath, as required 3 by Federal Rules of Civil Procedure 28 and 30 for the taking of depositions. 4 Further, Plaintiff has not identified any authority applicable to civil actions to support his 5 argument that he should have equal right and opportunity to interview inmate witnesses. To the 6 extent Plaintiff argues that he has not had the opportunity to communicate with the inmate 7 witnesses, the Court notes that inmates may correspond with one another if they obtain written 8 authorization from the appropriate prison officials. Cal. Code Regs., tit. 15 § 3139. Plaintiff does 9 not allege that he attempted to obtain the appropriate authorization with respect to any of the 10 prospective witnesses or was otherwise prevented from doing so. To the extent Plaintiff is 11 requesting a Court order to allow him to bypass these regulations, the request is denied on the 12 basis that the Court lacks jurisdiction over prison officials generally, Summers v. Earth Island 13 Inst., 555 U.S. 488, 491–93 (2009), and because the Court defers to prison officials’ expert 14 judgment in the adoption and execution of policies needed to maintain internal security in a 15 prison, Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). 16 The Court further does not find that Mr. Findley misrepresented any information to the 17 Court regarding Inmate Moore’s housing situation. Whether Inmate Moore is housed in an 8-man 18 dorm or in a cell does not alter the Court’s previous finding that Inmate Moore’s safety concerns 19 regarding providing in-person testimony would be appropriately alleviated by allowing him to 20 testify by video, thereby eliminating the possibility of violence during a “cell extraction.” (ECF 21 No. 120.) The Court further notes that it was the Court that raised its concern regarding the 22 possibility of a cell extraction for a recalcitrant incarcerated witness, and there is no record of Mr. 23 Findley representing any specifics as to Inmate Moore’s housing status during the pretrial 24 conference. 25 Finally, Plaintiff’s allegations as to any coercion, intimidation, or other forms of witness 26 tampering by Mr. Findley appear to be based purely on speculation and hearsay. As to Inmate 27 Moore, Plaintiff has no support, other than his own speculation, that Mr. Findley engaged in any 28 improper interactions with Inmate Moore. Plaintiff’s conclusions as to Inmate Smith are 1 apparently based on the hearsay statements of Audrey Vasquez, whose own account is based on 2 hearsay of Inmate Smith. The bare speculation and hearsay accounts presented are not sufficient 3 to warrant the evidentiary hearing and sanctions requested here. 4 The Court finds this motion baseless and without evidentiary support. Future filings of 5 this nature by Plaintiff may subject Plaintiff to sanctions pursuant to Federal Rule of Civil 6 Procedure 11, if they are similarly “frivolous, legally unreasonable, . . . without factual 7 foundation, or . . . brought for an improper purpose.” Estate of Blue v. Cty. of Los Angeles, 120 8 F.3d 982, 985 (9th Cir. 1997). Plaintiff is not exempt from the limitations of Rule 11 simply 9 because he is proceeding without counsel. See E.D. Cal. L.R. 183 (“Any individual representing 10 himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal 11 Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these 12 Rules apply to individuals appearing in propria persona.”). 13 III. Order 14 Based on the foregoing, Plaintiff’s motion for sanctions against Defendant’s attorney of 15 record, (ECF No. 122), is HEREBY DENIED. 16 IT IS SO ORDERED. 17
18 Dated: August 27, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19
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