1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRAIG RICHARD, No. 2: 21-cv-0975 KJN P 12 Plaintiff, 13 v. ORDER 14 JOSEPH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for sanctions. (ECF No. 54.) 19 For the reasons stated herein, plaintiff’s motion for sanctions is denied. 20 Background 21 Plaintiff’s Claims 22 This action proceeds on plaintiff’s complaint against defendants Correctional Officer 23 Joseph and Sergeant Spaulding. Plaintiff alleges that during the months of August-October 2020, 24 defendant Joseph sexually harassed/assaulted plaintiff and defendant Spaulding failed to 25 intervene. 26 Plaintiff alleges that defendant Joseph propositioned plaintiff on several occasions and 27 made derogatory comments. Plaintiff alleges that on September 2, 2020, defendant Joseph 28 sexually harassed plaintiff at the officer’s desk while defendant Spaulding stood within earshot. 1 Plaintiff told defendant Joseph that he would report his conduct to defendant Spaulding if he did 2 not leave plaintiff alone. Defendant Joseph responded that he did not care. Plaintiff told 3 defendant Spaulding that defendant Joseph was harassing plaintiff in a sexual way. Defendant 4 Spaulding hollered at plaintiff that he heard plaintiff use profane language toward his officer and 5 plaintiff had nothing coming. Defendant Spaulding then told defendant Joseph to write plaintiff a 6 rules violation report for being out of bounds. Defendant Joseph escorted plaintiff to his cell, 7 making crude comments. Plaintiff alleges that this incident, which occurred between 4:00 and 8 4:30 p.m., was captured on the unit video camera. 9 Plaintiff alleges that between September 8-13, 2020, plaintiff entered the kitchen building 10 between 5-6:00 p.m. Defendant Joseph entered the kitchen building right after plaintiff. 11 Defendant Joseph made a lude comment and reached for plaintiff’s penis. 12 Plaintiff later approached defendant Joseph at his desk and asked defendant Joseph to 13 leave plaintiff alone. Defendant Joseph told plaintiff that he would only stop when he says so or 14 he gets what he wants. Plaintiff was so upset that he punched his cell wall, injuring his hand. 15 Plaintiff alleges that two mental health employees came to his cell and asked if he was alright. 16 Plaintiff alleges that the entire incident occurred on September 29, 2020, and was captured on 17 video. 18 Motion to Compel 19 On April 27, 2022, the undersigned granted in part and denied in part plaintiff’s motion to 20 compel further responses to request for production of documents nos. 1-7 and 9. (ECF No. 35.) 21 In request for production no. 3, plaintiff sought “Moving video footage/recording of CHCF unit 22 E1 kitchen pantry area on the 9th-13th day of September, 2020 between 5:00 p.m.-6:00 p.m.” 23 (Id. at 9.) In request for production no. 4, plaintiff sought, “Moving video footage/recording of 24 CHCF unit E1B officer’s desk and cell areas (all) on the 29th day of September, 2020 between 25 3:00-3:40 p.m.” (Id.) 26 Defendants responded to requests nos. 3 and 4 that, despite a diligent and reasonable 27 search, the requested video footage did not exist. (Id. at 10.) The undersigned ordered 28 defendants to supplement their response to request nos. 3 and 4 with sufficient detail on the 1 search efforts undertaken for the requested videos. (Id. at 11.) 2 Defendants filed supplemental briefing addressing the search efforts undertaken for the 3 requested videos. (ECF No. 40.) Defendants represented that the video footage plaintiff sought 4 did not exist because the CHCF camera did not capture the areas requested by plaintiff. (Id. at 3.) 5 In a declaration attached to defendants’ supplemental briefing, Litigation Coordinator Takehara 6 stated that the video footage did not exist because the areas from which plaintiff sought video 7 footage, i.e., the CHCF unit E1B Kitchen Pantry area and the CHCF Unit E1B officer’s desk and 8 cell areas, were not areas that were captured on cameras. (Id. at 2.) 9 On May 23, 2022, the undersigned denied plaintiff’s motion to compel regarding request 10 nos. 3 and 4 because the requested videos did not exist. (ECF No. 41.) 11 Plaintiff’s Motion for Sanctions (ECF No. 54) 12 Plaintiff’s motion for sanctions is brought pursuant to Federal Rules of Civil Procedure 11 13 and 37(c). (ECF No. 54 at 1.) 14 In the motion for sanctions, plaintiff contends that Litigation Coordinator Takehara’s 15 declaration stating that video footage of the requested areas does not exist because these areas are 16 not captured on cameras is false. Plaintiff contends that on June 21, 2022, he participated in a 17 settlement conference with Magistrate Judge Peterson in case 2:21-cv-1015 KJM DMC P. (Id. at 18 4.) Plaintiff alleges that during the settlement conference, Magistrate Judge Peterson showed 19 plaintiff video footage from CHCF Unit E1B in the same areas Litigation Coordinator Takehara 20 claimed were not captured on camera. (Id.) Plaintiff claims that Magistrate Judge Peterson 21 showed him video footage of cell 101-110 area, the kitchen pantry entrance area and partial 22 officers desk area. (Id. at 5.) 23 Plaintiff moves for sanctions against defendants for failing to preserve the requested 24 videos and for providing a false declaration regarding the existence of the videos. (Id. at 6-7.) 25 Plaintiff also moves for sanctions against Litigation Coordinator Takehara for providing a false 26 declaration. (Id. at 7.) 27 In the opposition, defendants argue that plaintiff is not entitled to sanctions pursuant to 28 Rule 11 on the following grounds. Defendants argue that Rule 11 does not apply to discovery 1 requests. (ECF No. 60 at 5-6.) Defendants argue, in any event, plaintiff failed to comply with the 2 notice requirements of Rule 11. (Id. at 5.) Defendants argue that Rule 11 does not apply to 3 Litigation Coordinator Takehara. (Id. at 6.) Defendants also argue that plaintiff failed to 4 establish that they violated Rule 11. (Id. at 6-7.) 5 Defendants are correct that Rule 11 does not apply to discovery requests. Fed. R. Civ. P. 6 11(d) (“This rule does not apply to disclosures and discovery requests, responses, objections, and 7 motions under Rules 26 through 37.”) However, defendants’ opposition does not address 8 plaintiff’s request for sanctions pursuant to Rule 37. Nevertheless, for the reasons stated herein, 9 the undersigned finds that sanctions are not warranted. 10 Plaintiff seeks sanctions under Rule 37(c)(1). (ECF No. 54 at 7.) In relevant part, Rule 11 37(c)(1) authorizes certain sanctions for failing to provide information or to supplement discovery 12 responses as required by Rule 26(a), (e). Rule 26(a) addresses initial disclosures which are not 13 applicable in this action. Fed. R. Civ. P. 26(a)(B)(iv). Rule 26(e) addresses the duty of parties to 14 supplement discovery disclosure. The pending request for sanctions does not concern defendants’ 15 alleged failure to supplement a previous discovery disclosure. For these reasons, Rule 37(c)(1) is 16 not applicable to the pending motion. 17 Rule 37(b)(2)(C) permits the award of attorneys’ fees for failure to comply with court 18 orders. Plaintiff is not entitled to attorneys’ fees under Rule 37(b)(2)(C) because he is a pro se 19 litigant. Miller v. City of Plymouth, 2011 WL 4601613, at *4 (N.D. Ind. May 5, 2011).
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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 CRAIG RICHARD, No. 2: 21-cv-0975 KJN P 12 Plaintiff, 13 v. ORDER 14 JOSEPH, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for sanctions. (ECF No. 54.) 19 For the reasons stated herein, plaintiff’s motion for sanctions is denied. 20 Background 21 Plaintiff’s Claims 22 This action proceeds on plaintiff’s complaint against defendants Correctional Officer 23 Joseph and Sergeant Spaulding. Plaintiff alleges that during the months of August-October 2020, 24 defendant Joseph sexually harassed/assaulted plaintiff and defendant Spaulding failed to 25 intervene. 26 Plaintiff alleges that defendant Joseph propositioned plaintiff on several occasions and 27 made derogatory comments. Plaintiff alleges that on September 2, 2020, defendant Joseph 28 sexually harassed plaintiff at the officer’s desk while defendant Spaulding stood within earshot. 1 Plaintiff told defendant Joseph that he would report his conduct to defendant Spaulding if he did 2 not leave plaintiff alone. Defendant Joseph responded that he did not care. Plaintiff told 3 defendant Spaulding that defendant Joseph was harassing plaintiff in a sexual way. Defendant 4 Spaulding hollered at plaintiff that he heard plaintiff use profane language toward his officer and 5 plaintiff had nothing coming. Defendant Spaulding then told defendant Joseph to write plaintiff a 6 rules violation report for being out of bounds. Defendant Joseph escorted plaintiff to his cell, 7 making crude comments. Plaintiff alleges that this incident, which occurred between 4:00 and 8 4:30 p.m., was captured on the unit video camera. 9 Plaintiff alleges that between September 8-13, 2020, plaintiff entered the kitchen building 10 between 5-6:00 p.m. Defendant Joseph entered the kitchen building right after plaintiff. 11 Defendant Joseph made a lude comment and reached for plaintiff’s penis. 12 Plaintiff later approached defendant Joseph at his desk and asked defendant Joseph to 13 leave plaintiff alone. Defendant Joseph told plaintiff that he would only stop when he says so or 14 he gets what he wants. Plaintiff was so upset that he punched his cell wall, injuring his hand. 15 Plaintiff alleges that two mental health employees came to his cell and asked if he was alright. 16 Plaintiff alleges that the entire incident occurred on September 29, 2020, and was captured on 17 video. 18 Motion to Compel 19 On April 27, 2022, the undersigned granted in part and denied in part plaintiff’s motion to 20 compel further responses to request for production of documents nos. 1-7 and 9. (ECF No. 35.) 21 In request for production no. 3, plaintiff sought “Moving video footage/recording of CHCF unit 22 E1 kitchen pantry area on the 9th-13th day of September, 2020 between 5:00 p.m.-6:00 p.m.” 23 (Id. at 9.) In request for production no. 4, plaintiff sought, “Moving video footage/recording of 24 CHCF unit E1B officer’s desk and cell areas (all) on the 29th day of September, 2020 between 25 3:00-3:40 p.m.” (Id.) 26 Defendants responded to requests nos. 3 and 4 that, despite a diligent and reasonable 27 search, the requested video footage did not exist. (Id. at 10.) The undersigned ordered 28 defendants to supplement their response to request nos. 3 and 4 with sufficient detail on the 1 search efforts undertaken for the requested videos. (Id. at 11.) 2 Defendants filed supplemental briefing addressing the search efforts undertaken for the 3 requested videos. (ECF No. 40.) Defendants represented that the video footage plaintiff sought 4 did not exist because the CHCF camera did not capture the areas requested by plaintiff. (Id. at 3.) 5 In a declaration attached to defendants’ supplemental briefing, Litigation Coordinator Takehara 6 stated that the video footage did not exist because the areas from which plaintiff sought video 7 footage, i.e., the CHCF unit E1B Kitchen Pantry area and the CHCF Unit E1B officer’s desk and 8 cell areas, were not areas that were captured on cameras. (Id. at 2.) 9 On May 23, 2022, the undersigned denied plaintiff’s motion to compel regarding request 10 nos. 3 and 4 because the requested videos did not exist. (ECF No. 41.) 11 Plaintiff’s Motion for Sanctions (ECF No. 54) 12 Plaintiff’s motion for sanctions is brought pursuant to Federal Rules of Civil Procedure 11 13 and 37(c). (ECF No. 54 at 1.) 14 In the motion for sanctions, plaintiff contends that Litigation Coordinator Takehara’s 15 declaration stating that video footage of the requested areas does not exist because these areas are 16 not captured on cameras is false. Plaintiff contends that on June 21, 2022, he participated in a 17 settlement conference with Magistrate Judge Peterson in case 2:21-cv-1015 KJM DMC P. (Id. at 18 4.) Plaintiff alleges that during the settlement conference, Magistrate Judge Peterson showed 19 plaintiff video footage from CHCF Unit E1B in the same areas Litigation Coordinator Takehara 20 claimed were not captured on camera. (Id.) Plaintiff claims that Magistrate Judge Peterson 21 showed him video footage of cell 101-110 area, the kitchen pantry entrance area and partial 22 officers desk area. (Id. at 5.) 23 Plaintiff moves for sanctions against defendants for failing to preserve the requested 24 videos and for providing a false declaration regarding the existence of the videos. (Id. at 6-7.) 25 Plaintiff also moves for sanctions against Litigation Coordinator Takehara for providing a false 26 declaration. (Id. at 7.) 27 In the opposition, defendants argue that plaintiff is not entitled to sanctions pursuant to 28 Rule 11 on the following grounds. Defendants argue that Rule 11 does not apply to discovery 1 requests. (ECF No. 60 at 5-6.) Defendants argue, in any event, plaintiff failed to comply with the 2 notice requirements of Rule 11. (Id. at 5.) Defendants argue that Rule 11 does not apply to 3 Litigation Coordinator Takehara. (Id. at 6.) Defendants also argue that plaintiff failed to 4 establish that they violated Rule 11. (Id. at 6-7.) 5 Defendants are correct that Rule 11 does not apply to discovery requests. Fed. R. Civ. P. 6 11(d) (“This rule does not apply to disclosures and discovery requests, responses, objections, and 7 motions under Rules 26 through 37.”) However, defendants’ opposition does not address 8 plaintiff’s request for sanctions pursuant to Rule 37. Nevertheless, for the reasons stated herein, 9 the undersigned finds that sanctions are not warranted. 10 Plaintiff seeks sanctions under Rule 37(c)(1). (ECF No. 54 at 7.) In relevant part, Rule 11 37(c)(1) authorizes certain sanctions for failing to provide information or to supplement discovery 12 responses as required by Rule 26(a), (e). Rule 26(a) addresses initial disclosures which are not 13 applicable in this action. Fed. R. Civ. P. 26(a)(B)(iv). Rule 26(e) addresses the duty of parties to 14 supplement discovery disclosure. The pending request for sanctions does not concern defendants’ 15 alleged failure to supplement a previous discovery disclosure. For these reasons, Rule 37(c)(1) is 16 not applicable to the pending motion. 17 Rule 37(b)(2)(C) permits the award of attorneys’ fees for failure to comply with court 18 orders. Plaintiff is not entitled to attorneys’ fees under Rule 37(b)(2)(C) because he is a pro se 19 litigant. Miller v. City of Plymouth, 2011 WL 4601613, at *4 (N.D. Ind. May 5, 2011). Rather, 20 fees to pro se litigants are awardable under the courts inherent power. Jacobs v. Scribner, 2011 21 WL 98585, at *1 (E.D. Ca. Jan. 12, 2011). Federal courts also have inherent power to impose 22 sanctions against both attorneys and parties for “bad faith” conduct in litigation or for “willful 23 disobedience” of a court order. Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). 24 Having established the authority for plaintiff’s motion for sanctions, the undersigned now 25 turns to the merits of plaintiff’s motion. 26 In the opposition, defendants argue that plaintiff failed to demonstrate that the cameras 27 captured the areas identified in his request for production of documents. (ECF No. 60 at 7.) 28 Defendants observe that in the pending motion, plaintiff claims that he saw video of the entrance 1 to the pantry. (Id.) Defendants argue that plaintiff does not describe what the term “entrance” 2 means or how that video relates to his allegations which allegedly occurred inside the pantry. 3 (Id.) 4 The undersigned agrees with defendants that plaintiff failed to demonstrate that video of 5 the entrance to the kitchen/pantry is the video sought in request no. 3. As discussed above, 6 plaintiff alleges that defendant Joseph sexually harassed and assaulted him inside the 7 kitchen/pantry. Plaintiff does describe the video of the entrance of the kitchen/pantry nor claim 8 that video of the entrance to the kitchen/pantry would capture the alleged incident between 9 plaintiff and defendant Joseph. Accordingly, plaintiff’s motion for sanctions based on 10 defendants’ alleged failure to provide him video of the entrance to the kitchen/pantry is denied. 11 In the opposition, defendants observe that plaintiff claims that video he saw during the 12 settlement conference of an unrelated incident “partially” captured the officer’s desk. (Id.) 13 Defendants argue that plaintiff does not describe what the term “partially” means or what he saw. 14 (Id.) 15 The undersigned finds that plaintiff has not demonstrated that the video he saw that 16 partially captured the officer’s desk demonstrates that defendants failed to provide him with the 17 requested video. In request no. 4, plaintiff sought video of the officer’s desk which would have 18 captured a discussion between plaintiff and defendant Joseph. In the motion for sanctions, 19 plaintiff dose not describe the part of the officer’s desk he observed in the video. Plaintiff does 20 not claim that the video he saw that partially captured the officer’s desk would have captured the 21 discussion between himself and defendant Joseph. Accordingly, plaintiff’s motion for sanctions 22 based on defendants’ alleged failure to provide him video that partially captured the officer’s desk 23 is denied. 24 Finally, in request for production no. 4, plaintiff sought, video footage of “…cell areas 25 (all) on the 29th day of September, 2020, between 3:00-3:40 p.m.” In his declaration, Litigation 26 Coordinator Takehara stated that ISU informed him that CHCF cameras do not capture these 27 areas. In the motion for sanctions, plaintiff now claims that he saw video from the cell 101-110 28 area at the settlement conference. Plaintiff claims that Litigation Coordinator Takehara’s 1 statement in his declaration that the cell areas requested by plaintiff were not captured on cameras 2 is false. 3 In the motion to compel, plaintiff did not specifically identify the cell areas for which he 4 sought video footage. Plaintiff’s request for video of “cell areas (all)” is overbroad and vague. 5 While plaintiff may have seen video from cells 101-110 during the settlement conference, he did 6 not specifically request video footage from this area in request no. 4. Moreover, plaintiff does not 7 claim that the video of cells 101-110 would have captured plaintiff inside of his cell punching the 8 wall, which is presumably the video plaintiff sought in request no. 4. For these reasons, 9 plaintiff’s motion for sanctions based on defendants’ failure to provide him with video from cells 10 101-110 is denied. 11 For the reasons discussed above, plaintiff’s motion for sanctions against defendants is 12 denied. 13 The undersigned also considers plaintiff’s motion for sanctions against Litigation 14 Coordinator Takehara. The Ninth Circuit has held that there are some situations in which the 15 district court does have the authority to sanction a nonparty under its inherent authority to curb 16 abusive litigation practices. Corder v. Howard Johnson & Co., 53 F.3d 225, 232 (9th Cir. 1994); 17 see In re Rainbow Magazine, Inc., 77 F.3d 278, 282 (9th Cir. 1996) (sanction imposed against a 18 nonparty for filing false statement). 19 The undersigned finds that sanctions against Litigation Coordinator Takehara are not 20 warranted because, for the reasons discussed above, plaintiff failed to demonstrate that defendant 21 Takehara’s declarations contains false statements. 22 Finally, in the pending motion for sanctions, plaintiff requests that his previous motions 23 for sanctions be “quashed.” (ECF No. 54 at 9.) The undersigned construes plaintiff’s request to 24 “quash” his previous motions for sanctions as a request to withdraw any pending requests for 25 sanctions. Therefore, to the extent plaintiff has unresolved requests for sanctions, the 26 undersigned finds that these requests are withdrawn. 27 //// 28 //// ] Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for sanctions (ECF No. 2 |} 54) is denied. 3 || Dated: January 23, 2023 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 Rich975.san 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28