(PC) Wolinski v. Lewis

Opinion

KRZYSZTOF F. WOLINSKI, No. 2:17-cv-0583 DC AC P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS J. LEWIS, et al.,

Defendants. Plaintiff is a state prisoner proceeding without an attorney in this civil rights action brought under 42 U.S.C. § 1983. Currently before the court are plaintiff’s motions for law library access and access to an ADA computer or to a loaner education laptop with the Canvas program, plaintiff’s motion for an extension of time, plaintiff’s request for an order referring this case to the court’s Voluntary Dispute Resolution Program, and defendants’ motion for terminating sanctions. ECF Nos. 96, 97, 100, 106, 120. For the reasons stated below, plaintiff’s motions and requests are denied, and the undersigned will recommend defendants’ motion be granted. A. Factual Allegations This court, on screening, determined that plaintiff’s second amended complaint (“SAC”) stated cognizable First and Eighth Amendment claims against defendants W. Golsch, J. Penaflorida, R. Longshore, R. Ward, R. Singh, and M. Gomez. ECF No. 75 at 3-5. In support of these claims, plaintiff provided the following factual allegations. After plaintiff filed a grievance against Golsch for sleeping on the job, Golsch retaliated by denying plaintiff food, special diet prescription, and medication. ECF No. 69 at. 4, 12. In peaceful protest to Golsch’s actions, plaintiff covered his cell windows. Id. at 4, 12. This led to defendants Golsch, Penaflorida, and Longshore entering plaintiff’s cell and assaulting him, even though he was already on the floor and in restraints. Id. at 12-13. Ward and Singh witnessed the attack but failed to intervene or protect plaintiff. Id. at 5, 15-16. Due to the assault, plaintiff’s front tooth was broken, he suffered internal bleeding and PTSD, he had multiple emergency repairs, and ultimately had to have his spleen removed. Id. at 4, 13. These are the claims and facts on which this case proceeds. B. Plaintiff’s Miscellaneous Motions Since the beginning of this case, plaintiff has filed multiple motions requesting access to the law library. In each, he has sought to have this court issue an order directing the wardens or other individuals, who are not defendants in this case, to grant plaintiff additional and/or expedited physical access to the prison law library. See ECF Nos. 19, 26, 31, 79, 96, 97, 100. The first three motions were denied based on lack of personal and subject matter jurisdiction. ECF Nos. ECF No. 20 at 1; ECF No. 27 at 2; ECF No. 32 at 8. In denying the second, the court also found that although “plaintiff’s past access to the prison law library has been significantly curtailed,” “the prison law library has provided plaintiff with over 9,800 legal copies since April 2017” and “plaintiff has been able to file several cogent pleadings in both state and federal court that are replete with citations to case and statutory law.” ECF No. 27 at 3. The court explained that these circumstances suggests that “plaintiff’s access to the prison law library is generally adequate for his needs.” Id. at 3-4. The order denying plaintiff’s third motion added that “plaintiff’s response to defendants’ motion for sanctions does not require legal research.” ECF No. 32 at 9. The fourth was accompanied by a motion for an extension of time to file objections to findings and recommendations, which was denied as moot because a prior motion for extension of time had already been denied and the district judge had already adopted the undersigned’s findings and recommendations. ECF No. 81 at 1. Now pending are plaintiff’s fifth, sixth, and seventh motions for access to the law library. ECF Nos. 96, 97, 100. These motions overlap to some extent. All three seek a court order directing the warden, principal, and/or the law librarian of the California Medical Facility (“CMF”) to provide plaintiff with expedited physical access to the law library and access to prison law library’s ADA computer or a loaner laptop with the Canvas program. ECF No. 96 at 3; ECF No. 97 at 3; ECF No. 100 at 3. The fifth motion also seeks (1) a court order granting the warden and his servants 30 days to comply with the order and plaintiff an opportunity “to respond and to plead in this case,” ECF No. 96 at 3, and (2) an “extension of time to file his pleading, and respond to oposed [sic] moving party, the courts findings and recommendations, etc.” ECF No. 96 at 1. The sixth and seventh motions also seek (1) a court order directing the principal and librarian of CMF to refrain from all further acts of obstruction to access the courts and discrimination under the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”), ECF No. 97 at 1; ECF No. 100 at 1, and (2) an “adequate extension of time to resolve this ‘[Un]constitutional’ Despoliation of Plaintiff’s fundamental Constitution[] rights, and A.D.A. Title II Rights . . . .” ECF No. 97 at 3; ECF No. 100 at 3. C. Defendants’ Motion For Terminating Sanctions i. Court’s Prior Order Granting Monetary Sanctions In January 2018, defendants moved for sanctions against plaintiff under Federal Rules of Civil Procedure 11(b) for making false misrepresentations to the Court and for “engaging in personal attacks that were designed to harass, cause unnecessary delay, and needlessly increase the cost of litigation.” ECF No. 29. Plaintiff did not oppose the motion or respond to this court’s subsequent order to show cause why sanctions should not be imposed, despite the court granting plaintiff a sixty-day extension to respond to the order to show cause. ECF Nos. 32, 34, 36. In granting sanctions, the court found that, among other things, plaintiff has consistently failed to adhere to court rules. ECF No. 36 at 6. The court warned that “[s]imilar actions taken by plaintiff in the future may result in a recommendation that this lawsuit be dismissed” and that “[p]laintiff is required to follow all rules and laws throughout these proceedings.” Id. at 6-7. The court indicated it would not recommend “the ultimate sanction of dismissal at this point,” however, this second formal warning “will be taken into consideration if, at a later date, the court must determine whether additional or more severe sanctions are necessary.” Id. at 7. The court further ordered plaintiff to pay $1,000 in monetary sanctions. See ECF Nos. 36 at 7; ECF No. 42. ii. Discovery and Noncompliance On December 12, 2023, the court issued a Discovery and Scheduling Order setting the litigation schedule for this case. ECF No. 93. On February 15, 2024, defendants served plaintiff with written discovery requests under Federal Rules of Civil Procedure 33 and 34, which consisted of six separate interrogatory requests and one request for production. See ECF No. 106 at 5; ECF No. 106-1 at 2, 82. The deadline to respond was April 3, 2024. See ECF No. 93 at 5 (forty-five days to respond to written discovery requests); Fed. R. Civ. P. 6(d) (when service is made by mail, three days are added to the deadline to act). Because plaintiff did not respond to defendants’ written discovery requests, defendants sent plaintiff a letter alerting him to the missed deadline, provided an additional copy of the discovery requests, and stated they were agreeable to extend the deadline to May 8, 2024, which would be after plaintiff’s scheduled deposition. ECF No. 106 at 5; ECF No. 106-1 at 84. When plaintiff again failed to meet the discovery response deadline, the parties met and conferred. ECF No. 106 at 5. Plaintiff indicated that he received the discovery requests and that he might need more time to draft and send responses. Id. Accordingly, the parties agreed to extend the deadline to June 30, 2024, if the court allowed the extension beyond the discovery cut off date. Id. Defendants moved the court to allow for the extended deadline. ECF No. 102. Consistent with the parties’ agreement, the court ordered plaintiff to serve his responses to defendants’ written discovery by June 30, 2024. ECF No. 103. The court warned that “No further extensions of this deadline shall be granted.” Id. at 2 (emphasis in original). Despite the court’s warnings, plaintiff did not provide any discovery responses by the deadline. Instead, two weeks after the deadline had passed, he filed a motion to extend the deadline. ECF No. 104. The court denied plaintiff’s untimely motion for lack of good cause. ECF No. 105.1 1 On motion for reconsideration, the district judge upheld the undersigned’s decision. ECF No. 113. On July 30, 2024, defendants filed the pending motion for terminating sanctions seeking dismissal of this case, or in the alternative an order that plaintiff respond fully to defendants’ discovery request without objection within fourteen days or risk termination of this case. ECF No. 106 at 6-10. Defendants argue that terminating sanctions are warranted because: (1) plaintiff has already been monetarily sanctioned and warned that failure to follow the rules and laws in these proceeding could result in a recommendation that this lawsuit be dismissed; and (2) plaintiff has failed to comply with his discovery obligations and has refused to comply with this court’s order directing him to respond to defendants’ written discovery requests, which were due, after several extensions, no later than June 30, 2024. Id. at 3. On September 16, 2024, after time to respond had long passed, the court sua sponte granted plaintiff twenty-one days to file an opposition and warned that “[n]o further extensions of time will be granted to plaintiff.” ECF No. 112 (emphasis in original). Instead of filing an opposition, plaintiff filed another motion for extension of time, and for the first time argued that he never received a copy of defendants’ motion for sanctions and that defense counsel failed to serve it on him. ECF No. 114 at 1. The undersigned rejected this argument because plaintiff did not make this statement under penalty of perjury, there was a certificate of service confirming service, and plaintiff had confirmed he received an August 2024 order that referred to the pending motion for terminating sanctions, so it could not be true that he did not learn about the motion until the undersigned’s September 16, 2024, order. ECF No. 117 at 1-2. The undersigned denied plaintiff’s motion and deemed the motion for terminating sanctions submitted on the papers. Id. at 2. That same day, the court received plaintiff’s untimely opposition to defendants’ motion for terminating sanctions. ECF No. 118. Plaintiff is currently seeking reconsideration of the undersigned’s decision denying plaintiff an extension of time to oppose the motion for terminating sanctions. See ECF No. 119.2 //// ////

2 The motion for reconsideration is currently pending before the district court judge. A. Plaintiff’s Miscellaneous Motions As with prior motions for law library access, the court denies plaintiff’s motions to direct the warden, principal, and law librarian of CMF, who are not defendants in this case, to provide plaintiff with expedited physical access to the law library and access to the prison law library’s ADA computer or loaner laptop with the Canvas program because the court lacks jurisdiction. See ECF No. 20 at 1; ECF No. 27 at 2; ECF No. 32 at 8; see also Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“[A] federal court may [only] issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”). The court further denies these motions because plaintiff’s responses to written discovery requests do not require legal research and despite plaintiff’s claims of lack of access to the law library or equipment needed to communicate with the court, plaintiff has been able to file these motions and other notices with the court. See ECF Nos. 96, 97, 100, 101. The court also denies plaintiff’s motion for a court order directing the principal and law librarian of CMF to refrain from all further acts of obstruction to access to the courts and discrimination under the ADA and RA for lack of jurisdiction. See Zepeda, 753 F.2d at 727. Additionally, to the extent plaintiff is attempting to amend his complaint to add new access to court, ADA, and/or RA claims, he cannot do so. See Fed. R. Civ. P. 15(a)(2) (After the filing of a responsive pleading, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.”). Even if he could, adding these new defendants and claims would not be appropriate. See Fed. R. Civ. P. 20(a)(2) (a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.”); see also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (unrelated claims against different defendants must be pursued in separate lawsuits). Finally, to the extent plaintiff is seeking an extension of time to respond to defendants’ discovery requests through a general extension time to proceed with this case, this request is denied as moot. See ECF No. 96 at 1 (plaintiff seeking a general extension time to proceed with this case); ECF No. 97 at 3 (same); ECF No. 100 at 3 (same). On June 3, 2024, the undersigned granted plaintiff an extension of time to serve responses to defendants’ written discovery requests by June 30, 2024. ECF No. 103. This request is also moot in light of the undersigned’s recommendation to grant terminating sanctions. B. Motion for Sanctions The Local Rules of the Eastern District provide wide latitude to the court with regard to sanctions—under Local Rule 110, the failure of a party to comply with any local rule or order of the court may result in the imposition of “any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” L.R. 110. Moreover, the Federal Rules of Civil Procedure specifically contemplate dismissal as a sanction for failing to comply with an order compelling discovery. Federal Rule of Civil Procedure 37(b)(2)(A)(v) permits a court to “dismiss[] the action or proceeding in whole or in part” if a party fails to comply with a discovery order. Fed. R. Civ. P. 37(b)(2)(A)(v). Similarly, under Federal Rule of Civil Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). It is within the discretion of a district court to order dismissal sanctions. Olivia v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (citing Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990)). However, because “dismissal is a harsh penalty . . . it should only be imposed in extreme circumstances.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (emphasis in the original) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)); Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (“Only ‘willfulness, bad faith, and fault’ justify terminating sanctions” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003))). The court must consider five factors “before resorting to the penalty of dismissal: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’” Hernandez, 138 F.3d at 399 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The fifth factor is comprised of three subparts, which include “whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.” Conn. Gen. Life Ins., 482 F.3d at 1096 (citation omitted). Not all factors must cut in favor of dismissal for terminating sanctions to be imposed. Malone v. U.S. Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 1987); see also Ferdik, 963 F.2d at 1263 (“Even if the prejudice factor as well as the fifth factor regarding the public policy favoring disposition on the merits both weighed against dismissal, they would not outweigh the other three factors that strongly support dismissal here.” (citation omitted)). Here, the five factors weigh in favor of and justify dismissal of this case. i. Public Interest in the Expeditious Resolution of Cases “[T]he public’s interest in expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Plaintiff commenced this case almost eight years ago. Despite this, the parties have not completed discovery. This is in large part due to plaintiff’s repeated requests for extensions of time and failure to comply with federal law and this courts rules and orders. See docket, generally. Most recently, plaintiff’s failure to participate in discovery has delayed the expeditious resolution of this case, particularly where discovery responses were originally due nine months ago. The public interest in efficient resolution of cases has thus been thwarted by plaintiff’s refusal to participate in the discovery process, and this factor therefore weighs in favor of dismissal. ii. The Court’s Need to Manage Its Docket Plaintiff’s continued failure to cooperate in discovery and follow the court’s orders has already consumed a considerable amount of limited judicial time and resources. The Eastern District of California has one of the heaviest caseloads in the country, and plaintiff’s behavior, which has caused unnecessary delays, has already resulted in monetary sanctions and is now the basis for the instant motion for terminating sanctions. Despite defendants’ efforts to resolve the discovery issue without court intervention, plaintiff’s behavior and noncompliance have repeatedly demanded this court’s attention, time, and resources. Considerations of judicial economy weigh strongly in favor of terminating sanctions. Ferdik, 963 F.2d at 1261 (finding that it was necessary “to preserve the district courts’ power to manage their dockets without being subject to the endless vexatious noncompliance of litigants”). iii. Risk of Prejudice to the Defendant “While [the mere pendency of a lawsuit] may be prejudicial, it cannot, by itself, be considered prejudicial enough to warrant dismissal.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). Rather, “[i]n determining whether a defendant has been prejudiced, we examine whether the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere with the rightful decision of the case.” Malone, 833 F.3d at 131 (citation omitted). The risk of prejudice is considered in relation to plaintiff’s reason for defaulting. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Yourish, 191 F.3d at 991). Plaintiff has, after first failing to respond by the original deadline and the extended deadline to defendants’ discovery requests, failed to comply with the court’s order directing him to provide responses by June 30, 2024. Without factual and evidentiary information, defendants are unable to fully assess the claims against them and defend themselves. Because defendants are entitled to have their discovery requests answered, plaintiff’s complete failure to respond is decidedly prejudicial to defendants. The prejudice to defendants is not counterbalanced by any legitimate reason for plaintiff’s default. Even if the court considers plaintiff’s untimely opposition to terminating sanctions, which it has no obligation to do, plaintiff’s stated reasons for defaulting are unpersuasive. Plaintiff claims to have not been served a copy of the motion, and states that he first learned about the motion after the court’s September 16, 2024, order. ECF No. 118 at 1. Defendants filed a certificate of service (ECF No. 107), however, and plaintiff himself has previously acknowledged receiving the “Proposed Order Granting Defendants Motion to Vacate Deadline to File Motion for Summary Judgment Pending Order on Motion for Terminating Sanctions,” which was filed and served on August 19, 2024. See ECF No. 114 at 1. The court granted defendant’s motion to vacate the summary judgment deadline pending resolution of the motion for terminating sanctions, and that order was served on plaintiff on August 22, 2024. ECF No. 109. On this record, plaintiff’s claim that he was unaware of the motion for sanctions is not credible. As for the outstanding discovery, plaintiff contends that he could not respond to defendants’ requests because he did not have adequate access to the law library and had been transferred or had his property, including his typewriter, withheld for periods of time. ECF No. 118 at 2-3. It is clear from plaintiff’s own statements that there were periods of time between February 15, 2024 and June 30, 2024—specifically between April 4 and June 12, 2024—when he did have access to the law library. Id. at 4-5. It is apparent that plaintiff could have responded to interrogatories and requests for production at that time but chose not to. This is further evidenced by plaintiff’s ability to file multiple documents with the court in April and May of 2024. See ECF Nos. 96, 97, 100, 101. Furthermore, the court notes that plaintiff did not need to engage in legal research to respond to the discovery requests, which were all factual questions he should be able to answer regarding his claims. Lastly, to the extent plaintiff now claims that he did not think he needed to respond to the interrogatories because of a conversation he had with opposing counsel on May 24, 2024, the court is not persuaded for several reasons. First, defendants’ letter to plaintiff extending the deadline to respond to the written discovery requests by May 8, 2024, after his initially scheduled deposition, indicated that responses to written discovery would still be necessary even after the deposition. ECF No. 106-1 at 84. Second, on May 30, 2024, after plaintiff’s deposition, the defendants filed and served on plaintiff their unopposed motion to extend the time for plaintiff to respond to defendants’ written discovery requests. ECF No. 102. This would have clarified any genuine misunderstanding. And third, on June 3, 2024, the court ordered plaintiff to serve his responses to defendants’ written discovery requests on defendants by June 30, 2024. ECF No. 103. On this record, plaintiff’s claim of an innocent misunderstanding is not credible. Because defendants have been prejudiced by plaintiff’s failure to comply with his discovery obligations and this court’s order, and plaintiff has not provided a justifiable reason for his default, this factor also strongly favors dismissal. //// iv. Public Policy Favoring Merits Resolution The general policy favoring disposition of cases on their merits weighs generally against terminating sanctions. Yourish, 191 F.3d at 992 (citation and internal quotation marks omitted). That said, this policy alone is not sufficient to outweigh the other factors discussed here. Leon v. IDX Sys. Corp., 464 F.3d 951, 960-61 (9th Cir. 2006) (citation omitted). Additionally, where a case “is stalled or unreasonably delayed by a party’s failure to comply with deadlines and discovery obligations” and “cannot move forward toward resolution on the merits” because of this party’s failure—which is the case here—this factor does not weigh in favor of disposition on the merits. See In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217 (9th Cir. 2006). v. Availability and Effectiveness of Lesser Sanctions The court finds that no other, lesser sanctions would be satisfactory or effective. The court has tried lesser sanctions, including monetary sanctions and warnings that failure to comply with federal laws and court rules could result in dismissal of this action. See ECF Nos. 36, 42; see also Ferdik, 963 F.2d at 1262 (citing Malone, 833 at 132-33; Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)) (The “court’s warning to a party that his failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ requirement.”). Nonetheless, plaintiff has continued to disregard this court’s rules, orders, and deadlines. There is no reason to believe he will start complying now, almost eight years into the litigation. For these reasons, the court finds that lesser sanctions would be ineffective and insufficient to address plaintiff’s behavior, and this factor therefore favors dismissal. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff’s motions for law library access and access to an ADA computer or loaner laptop with the Canvas program (ECF Nos. 96, 97, 100) are DENIED; and 2. In light of the findings and recommendations, plaintiff’s request for a referral to this court’s Voluntary Dispute Resolution Program (ECF No. 120) is DENIED without prejudice. Should the assigned district judge decline to adopt the undersigned’s findings and recommendations, plaintiff can, if appropriate, renew his motion at a later date.° Further, IT IS RECOMMENDED that: 1. Defendants’ motion for terminating sanctions (ECF No. 106) be GRANTED; and 2. This action be dismissed, with prejudice, for failure to comply with this court’s orders. See Fed. R. Civ. P. 37(b)(2)(A); Fed. R. Civ. P. 41(b); L-R. 110. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). DATED: January 16, 2025 ~ Aten —Chare ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE %6 > Plaintiff is advised that he should not file a document with the title “Stipulation for an Order to Elect Referral of Action to Voluntary Dispute Resolution Program (VDRP) Pursuant to Local Rule 271” unless all parties have stipulated to referral. See L.R. 271(c)(3). Plaintiff is further advised that although he can file a request for referral to the VDRP at any time, the court will not order referral unless defendants also voluntarily agree to it. L.R. 271(b)(4). 12