1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS LEE GLEASON, JR., No. 2:20-cv-00775-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS CORRECTION & REHABILITATION, et 15 al., 16 Defendants. 17 18 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s First 20 Amendment retaliation and supplemental state law claims against defendant Romary, a 21 correctional officer at California State Prison-Solano, based on the confiscation and destruction of 22 plaintiff’s personal property on or about August 4, 2019. ECF No. 8 at 5 (screening order). 23 Currently pending before the court are plaintiff’s partial motion for summary judgment and 24 defendant’s motion for sanctions against plaintiff. The court will address each motion in turn. 25 I. Plaintiff’s Motion for Summary Judgment 26 Plaintiff seeks summary judgment “on[the] sole issue of the defendant J. Romary taking 27 the plaintiff’s personal property in the form of conversion.” ECF No. 30 at 1. According to 28 plaintiff, defendant admitted to taking his written materials. Id. at 4-5, 9 (Defendant Romary’s 1 Response to Request for Admission, Set One). In the motion, plaintiff seeks the return of his 2 manuscripts and movie scripts or monetary compensation if they cannot be returned to him. Id. at 3 5-6. 4 Defendant filed an opposition emphasizing that no state law conversion claim was ever 5 screened in by the court nor raised in plaintiff’s complaint. ECF No. 38 at 4. As a result, 6 plaintiff’s motion for summary judgment cannot resolve any material issue, or part of any 7 material issue, deemed cognizable by the court. Additionally, the time to amend plaintiff’s 8 complaint as of right has passed and plaintiff has not demonstrated good cause for the court to 9 grant plaintiff leave to amend at this stage of the proceedings. Id. 10 On May 9, 2022, defendant Romary submitted a corrected version of her Declaration in 11 Support of Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment. ECF No. 64. 12 The corrected declaration concerns the basis for defendant Romary’s search and confiscation of 13 plaintiff’s property on or about August 5, 2019. ECF No. 64-1. This prompted plaintiff to file a 14 motion requesting permission to file another motion for summary judgment arguing that 15 defendant is a liar and challenging her recollection of events.1 ECF No. 65. 16 The court first notes that plaintiff’s summary judgment motion is based on a state law 17 claim that is not before the court. Compare ECF No. 1 (complaint alleging a violation of 18 California Government Code § 815.6 for failing to discharge a statutory duty and the Bane Act) 19 with ECF No. 8 (screening order). Plaintiff’s complaint in this action never alleged any claim for 20 relief based on the conversion of his property by defendant Romary. The “purpose of summary 21 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 22 genuine need for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 23 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). In this 24 case, summary judgment is not appropriate on the issue of conversion because that is not one of
25 1 While the caption of plaintiff’s motion tacitly acknowledges this court’s limitation on his filings, the substance of the motion itself is yet another demand to settle this case based on defendant’s 26 asserted lies and falsehoods. ECF No. 65. For this reason, the court will strike the motion from 27 the docket as being filed in violation of a court order. Plaintiff is admonished that simply labeling a pleading as a request to file a motion will not suffice as an end-run around this court’s 28 December 28, 2021 order limiting all further filings. 1 the claims against defendant pending before this court. To the extent that the parties are 2 challenging each other’s credibility in their pleadings, the court emphasizes that the legal 3 mechanism for testing the veracity of the parties is a jury trial. It is not the duty of this court, 4 even at the summary judgment stage, to make credibility determinations or to choose between 5 two conflicting versions of the evidence. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th 6 Cir. 2009) (credibility determinations must be left to the factfinder and not decided by a judge on 7 a motion for summary judgment). For all these reasons, the undersigned recommends denying 8 plaintiff’s motion for summary judgment. 9 II. Defendant’s Motion for Sanctions 10 Defendant Romary seeks sanctions against plaintiff based on his numerous duplicative 11 motions; his abuse of the judicial process by sending “unprofessional and discourteous 12 communication” to opposing counsel for an improper purpose; and, his use of crude and insulting 13 remarks directed at defendant which plaintiff was warned against doing in another civil action in 14 this same district. ECF No. 59; see also Gleason v. Voong, et al., No. 2:19-cv-00621-WBS-JDP 15 (E.D. Cal.). Defendant requests terminating sanctions in the form of a dismissal with prejudice of 16 this case, or, in the alternative, monetary sanctions in the amount of $6,600. ECF No. 59-2 17 (proposed order). 18 On December 28, 2021, the court ordered plaintiff to show cause why defendant’s motion 19 for sanctions should not be granted. ECF No. 60. Before plaintiff was served with a copy of this 20 order, he filed an objection and opposition to defendant’s motion. ECF No. 62. Plaintiff also 21 filed a response to the court’s show cause order. ECF No. 63. The content of plaintiff’s 22 opposition as well as his response to the show cause is generally the same. First and foremost, 23 plaintiff admits his unprofessional conduct toward opposing counsel. He acknowledges that he 24 sent the letters to opposing counsel because he “did not think that it would jeopardize the 25 outcome of the case due to the fact the letters were not filed with the Court” and were not 26 threatening.” ECF No. 63 at 1-2. Plaintiff indicates that his responses were associated with his 27 mental health issues, but he does not provide any documentation to that effect. Id. Plaintiff also 28 states that he is unable to pay the requested monetary sanction of $6,600 and requests that the 1 court not dismiss his case as a further sanction. Id. at 3-4. According to plaintiff, he agrees to 2 “heed the courts warning not to write the defendant’s attorney venting any form of frustration.” 3 Id. at 4. 4 The court derives the power to impose sanctions on parties or their counsel from three 5 primary sources of authority: “(1) Federal Rule of Civil Procedure 11, which applies to signed 6 writings filed with the court, (2) 28 U.S.C. § 1927, which is aimed at penalizing conduct that 7 unreasonably and vexatiously multiplies the proceedings, and (3) the court's inherent power.” 8 Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). The court has inherent power to sanction 9 parties or their attorneys for improper conduct. Chambers v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS LEE GLEASON, JR., No. 2:20-cv-00775-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS CORRECTION & REHABILITATION, et 15 al., 16 Defendants. 17 18 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s First 20 Amendment retaliation and supplemental state law claims against defendant Romary, a 21 correctional officer at California State Prison-Solano, based on the confiscation and destruction of 22 plaintiff’s personal property on or about August 4, 2019. ECF No. 8 at 5 (screening order). 23 Currently pending before the court are plaintiff’s partial motion for summary judgment and 24 defendant’s motion for sanctions against plaintiff. The court will address each motion in turn. 25 I. Plaintiff’s Motion for Summary Judgment 26 Plaintiff seeks summary judgment “on[the] sole issue of the defendant J. Romary taking 27 the plaintiff’s personal property in the form of conversion.” ECF No. 30 at 1. According to 28 plaintiff, defendant admitted to taking his written materials. Id. at 4-5, 9 (Defendant Romary’s 1 Response to Request for Admission, Set One). In the motion, plaintiff seeks the return of his 2 manuscripts and movie scripts or monetary compensation if they cannot be returned to him. Id. at 3 5-6. 4 Defendant filed an opposition emphasizing that no state law conversion claim was ever 5 screened in by the court nor raised in plaintiff’s complaint. ECF No. 38 at 4. As a result, 6 plaintiff’s motion for summary judgment cannot resolve any material issue, or part of any 7 material issue, deemed cognizable by the court. Additionally, the time to amend plaintiff’s 8 complaint as of right has passed and plaintiff has not demonstrated good cause for the court to 9 grant plaintiff leave to amend at this stage of the proceedings. Id. 10 On May 9, 2022, defendant Romary submitted a corrected version of her Declaration in 11 Support of Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment. ECF No. 64. 12 The corrected declaration concerns the basis for defendant Romary’s search and confiscation of 13 plaintiff’s property on or about August 5, 2019. ECF No. 64-1. This prompted plaintiff to file a 14 motion requesting permission to file another motion for summary judgment arguing that 15 defendant is a liar and challenging her recollection of events.1 ECF No. 65. 16 The court first notes that plaintiff’s summary judgment motion is based on a state law 17 claim that is not before the court. Compare ECF No. 1 (complaint alleging a violation of 18 California Government Code § 815.6 for failing to discharge a statutory duty and the Bane Act) 19 with ECF No. 8 (screening order). Plaintiff’s complaint in this action never alleged any claim for 20 relief based on the conversion of his property by defendant Romary. The “purpose of summary 21 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 22 genuine need for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 23 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). In this 24 case, summary judgment is not appropriate on the issue of conversion because that is not one of
25 1 While the caption of plaintiff’s motion tacitly acknowledges this court’s limitation on his filings, the substance of the motion itself is yet another demand to settle this case based on defendant’s 26 asserted lies and falsehoods. ECF No. 65. For this reason, the court will strike the motion from 27 the docket as being filed in violation of a court order. Plaintiff is admonished that simply labeling a pleading as a request to file a motion will not suffice as an end-run around this court’s 28 December 28, 2021 order limiting all further filings. 1 the claims against defendant pending before this court. To the extent that the parties are 2 challenging each other’s credibility in their pleadings, the court emphasizes that the legal 3 mechanism for testing the veracity of the parties is a jury trial. It is not the duty of this court, 4 even at the summary judgment stage, to make credibility determinations or to choose between 5 two conflicting versions of the evidence. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th 6 Cir. 2009) (credibility determinations must be left to the factfinder and not decided by a judge on 7 a motion for summary judgment). For all these reasons, the undersigned recommends denying 8 plaintiff’s motion for summary judgment. 9 II. Defendant’s Motion for Sanctions 10 Defendant Romary seeks sanctions against plaintiff based on his numerous duplicative 11 motions; his abuse of the judicial process by sending “unprofessional and discourteous 12 communication” to opposing counsel for an improper purpose; and, his use of crude and insulting 13 remarks directed at defendant which plaintiff was warned against doing in another civil action in 14 this same district. ECF No. 59; see also Gleason v. Voong, et al., No. 2:19-cv-00621-WBS-JDP 15 (E.D. Cal.). Defendant requests terminating sanctions in the form of a dismissal with prejudice of 16 this case, or, in the alternative, monetary sanctions in the amount of $6,600. ECF No. 59-2 17 (proposed order). 18 On December 28, 2021, the court ordered plaintiff to show cause why defendant’s motion 19 for sanctions should not be granted. ECF No. 60. Before plaintiff was served with a copy of this 20 order, he filed an objection and opposition to defendant’s motion. ECF No. 62. Plaintiff also 21 filed a response to the court’s show cause order. ECF No. 63. The content of plaintiff’s 22 opposition as well as his response to the show cause is generally the same. First and foremost, 23 plaintiff admits his unprofessional conduct toward opposing counsel. He acknowledges that he 24 sent the letters to opposing counsel because he “did not think that it would jeopardize the 25 outcome of the case due to the fact the letters were not filed with the Court” and were not 26 threatening.” ECF No. 63 at 1-2. Plaintiff indicates that his responses were associated with his 27 mental health issues, but he does not provide any documentation to that effect. Id. Plaintiff also 28 states that he is unable to pay the requested monetary sanction of $6,600 and requests that the 1 court not dismiss his case as a further sanction. Id. at 3-4. According to plaintiff, he agrees to 2 “heed the courts warning not to write the defendant’s attorney venting any form of frustration.” 3 Id. at 4. 4 The court derives the power to impose sanctions on parties or their counsel from three 5 primary sources of authority: “(1) Federal Rule of Civil Procedure 11, which applies to signed 6 writings filed with the court, (2) 28 U.S.C. § 1927, which is aimed at penalizing conduct that 7 unreasonably and vexatiously multiplies the proceedings, and (3) the court's inherent power.” 8 Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). The court has inherent power to sanction 9 parties or their attorneys for improper conduct. Chambers v. Nasco, Inc., 501 U.S. 32, 43–46 10 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 11 991 (9th Cir. 2001). This “inherent power ‘extends to a full range of litigation abuses.’” Fink, 12 239 F.3d at 992 (quoting Chambers, 501 U.S. at 46–47). However, in order to sanction a litigant 13 under the court's inherent powers, the court must make a specific finding of “bad faith or conduct 14 tantamount to bad faith.” Fink, 239 F.3d at 994. 15 The court will limit its analysis of the motion for sanctions to the admittedly 16 unprofessional communications that plaintiff sent to opposing counsel. The court has already 17 limited plaintiff’s filings in this case due to his repetitious and vexatious motions. See ECF No. 18 60. Therefore, the court will not recommend imposing additional sanctions on plaintiff based on 19 these same filings. To the extent that defendant seeks sanctions against plaintiff based on his 20 failure to comply with an admonition issued by a different judge in a different case, the court 21 considers this information only for the purpose of establishing plaintiff’s knowledge that such 22 unprofessional communication is sanctionable behavior.2 As a result, the court finds that 23 plaintiff’s belief that he could engage in such insulting and belligerent communications with 24 opposing counsel without any consequence from the court to be wholly incredible. The prior 25 admonition to plaintiff also undercuts his assertion that he is willing to reform his behavior and 26 “heed the court’s warning.” ECF No. 63 at 4. While acknowledging plaintiff’s troubling pattern 27 2 The court grants defendant’s request to take judicial notice of the case of Gleason v. Voong, et 28 al., No. 2:19-cv-00621-WBS-JDP (E.D. Cal.). 1 of scurrilous name-calling in the course of litigation, the court does not consider the warning 2 issued to plaintiff in Gleason v. Voong, et al., No. 2:19-cv-00621-WBS-JDP (E.D. Cal.), to be 3 sufficient to impose sanctions for plaintiff’s similar conduct in this case.3 4 The court now turns to the last basis for defendant’s motion for sanctions: plaintiff’s 5 repetitious and abusive letters sent to opposing counsel as well as other staff at the California 6 Attorney General’s Office. While plaintiff’s excuse for writing the scurrilous letters is based on 7 his own mental health issues, the court notes, rather ironically, that defendant’s motion for 8 sanctions is based on plaintiff’s derogatory comments about defendant’s mental health. There is 9 simply no excuse for plaintiff’s derogatory and insulting comments toward defendant based 10 on her mental health, gender, or any other immutable characteristic. In Chambers v. 11 NASCO, Inc., 501 U.S. 31, 45-46 & n. 10 (1991), the Supreme Court emphasized that a court has 12 the inherent authority to sanction parties or counsel who have acted in bad faith, vexatiously, 13 wantonly, or for oppressive reasons, delaying or disrupting litigation, or have taken actions in the 14 litigation for an improper purpose.” The Ninth Circuit further defined “bad faith” as including “a 15 broad range of willful improper conduct,” including when a litigant is “motivated by 16 vindictiveness, obduracy, or mala fides….” Fink, 239 F.3d at 992 (citation omitted). In this case, 17 the court finds that plaintiff acted in bad faith in sending the letters in light of: 1) his knowledge 18 that such behavior is sanctionable by the court; and, 2) the lack of any legitimate purpose for 19 sending the letters demanding a settlement when the case had already been the subject of a failed 20 settlement conference. See ECF No. 21 (minutes of settlement conference). In this light, sending 21 the letters was done for an improper purpose. See Fink, 239 F.3d at 992. While such conduct 22 warrants sanctions under the court’s inherent authority, the court recommends, at this juncture, 23 issuing one, and only one, warning to plaintiff to cease any such further conduct for the 24 duration of this case. Should plaintiff be unwilling to conform his conduct to this court’s 25
3In Ewing v. GoNow Travel Club, LLC, 2019 WL 4688760 at *2 (S.D. Cal. Sept. 26, 2019), cited 26 by defendant, the district court imposed monetary sanctions against a frequent litigant who was 27 “cautioned many times by this Court and other judges to be courteous, civil, and not make misrepresentations.” The court does not read that case as standing for the proposition that 28 terminating sanctions can be ordered after plaintiff is admonished and warned in a different case. 1 directive, the undersigned will require plaintiff to show cause why sanctions, including the 2 dismissal of this case, should not then be imposed. It is further recommended that defendant’s 3 motion for sanctions be denied to the extent that it seeks terminating sanctions, or, in the 4 alternative, monetary sanctions against plaintiff. 5 III. Plain Language Summary for Pro Se Party 6 The following information is meant to explain this order in plain English and is not 7 intended as legal advice. 8 The court has reviewed your motion for summary judgment and recommends denying it 9 because there is no state law claim of conversion pending in this case. Although the court finds 10 that you engaged in bad faith by sending abusive letters to opposing counsel for an improper 11 purpose, it recommends denying defendant’s motion for terminating and monetary sanctions at 12 this juncture. Instead, the court recommends warning you against any further unprofessional and 13 insolent conduct directed toward opposing counsel or any party to this litigation. 14 If you disagree with any of these recommendations, you have 14 days to explain why they 15 are not correct. Label your explanation as “Objections to Magistrate Judge’s Findings and 16 Recommendations.” 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion to file another motion for summary judgment (ECF No. 65) is 19 stricken from the docket as being filed in violation of a court order. 20 2. Consistent with this court’s order of December 28, 2021, plaintiff is permitted to file 21 objections to these Findings and Recommendations within 14 days from the date of 22 service. 23 3. Any other pleadings filed by plaintiff shall be stricken from the docket. 24 4. Defendant’s request for judicial notice of Gleason v. Voong, et al., No. 2:19-cv- 25 00621-WBS-JDP (E.D. Cal.), is granted. 26 IT IS FURTHER RECOMMENDED that: 27 1. Plaintiff’s motion for summary judgment (ECF No. 30) be denied. 28 2. Defendant’s motion for sanctions (ECF No. 59) be denied to the extent that it seeks ] terminating sanctions, or, in the alternative, monetary sanctions against plaintiff. The 2 court recommends that the motion be granted to the extent that plaintiff be 3 ordered to cease all unprofessional, insulting, and abusive communications with 4 opposing counsel and any party to this litigation. 5 3. Counsel for defendant be directed to file a notice with the court along with a copy of 6 any communication received that appears to violate this court order. Upon receipt of 7 any such notice, the court will order plaintiff to show cause why sanctions should not 8 be imposed, including the possible dismissal of this action. 9 4. The dispositive motions deadline in this case be reset. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be served and filed within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: June 23, 2022 / hice fr fA. ? ” CAROLYNK.DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 || 12/glea0775.m4sanctionstmsj.CIRA 27 28