(PC) Womack v. Gibbons

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RODNEY JEROME WOMACK, ) Case No.: 1:19-cv-00615-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) REGARDING DEFENDANTS’ MOTION FOR DISCOVERY SANCTIONS 14 W. GIBBONS, et al., ) ) (ECF No. 63) 15 Defendants. ) ) 16 ) ) 17 )

18 Plaintiff Rodney Jerome Womack is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Defendants’ motion for discovery sanctions, filed June 18, 2021. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants W. Gibbons, A. Gomez, E. Smith, and G. O’Brien 24 for excessive force and deliberate indifference to a serious medical need. 25 On June 5, 2020, Defendants Gibbons and Gomez filed an answer to the complaint. (ECF No. 26 30.) 27 On July 29, 2020, the Court issued the discovery and scheduling order. (ECF No. 44.) 28 1 On August 10, 2020, Defendants Smith and O’Brien filed a timely answer to the complaint. 2 (ECF No. 48.) 3 On August 11, 2020, the Court issued an order extending the discovery and scheduling order to 4 Defendants Smith and O’Brien. (ECF No. 49.) 5 On March 24, 2021, Defendants Gibbons and Gomez filed a motion to compel discovery 6 responses. (ECF No. 55.) 7 On March 29, 2021, Defendants Smith and O’Brien filed a motion to compel discovery 8 responses. (ECF No. 56.) Plaintiff did not file an opposition. 9 On May 3, 2021, the Court granted Defendants’ motion to compel, and Plaintiff was directed 10 to file responses to the outstanding requests for production of documents within thirty days. (ECF No. 11 57.) 12 On June 18, 2021, Defendants O’Brien and Smith filed the instant motion for discovery 13 sanctions. (ECF No. 63.) Plaintiff filed an opposition on July 7, 2021, and Defendants filed a reply on 14 July 14, 2021. (ECF Nos. 67, 69.) 15 On July 20, 2021, the Court ordered Defendants Gibbons and Gomez to provide a copy of any 16 discovery documents received by Plaintiff, and continued Defendants O’Brien and Smith’s motion for 17 discovery sanctions. (ECF No. 70.) 18 On July 26, 2021, Plaintiff filed a sur-reply, and a supplemental sur-reply on July 29, 2021. 19 (ECF Nos. 71, 72.) 20 On August 3, 2021, Defendants Gibbons and Gomez filed a response to the Court’s July 20, 21 2021, indicating that they never received any discovery documents from Plaintiff. (ECF No. 73.) 22 23 II. 24 LEGAL STANDARDS 25 “District courts have the inherent power to control their dockets. In the exercise of that power 26 they may impose sanctions including, where appropriate, default or dismissal.” Thompson v. Housing 27 Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1961) ). 28 1 A court may dismiss an action based on a party's failure to prosecute an action, failure to obey 2 a court order, or failure to comply with local rules. Fed. R. Civ. P. 16(f); Fed. R. Civ. P. 41(b); Local 3 Rule 110; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (citing United States v. Warren, 601 F.2d 4 471, 474 (9th Cir. 1979) ) (dismissal for noncompliance with local rule); Malone v. United States 5 Postal Serv., 833 F.2d 128, 134 (9th Cir. 1987) (dismissal for failure to comply with court order). 6 Moreover, the Federal Rules specifically contemplate dismissal as a potential sanction for a party's 7 failure to comply with an order compelling discovery, Fed. R. Civ. P. 37(b)(2)(A)(v), but “[o]nly 8 ‘willfulness, bad faith, and fault’ justify terminating sanctions,” Conn. Gen. Life Ins. Co. v. New 9 Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (quoting Jorgensen v. Cassiday, 320 10 F.3d 906, 912 (9th Cir. 2003) ). 11 [The Ninth Circuit has] constructed a five-part test, with three subparts to the fifth part, to determine whether a case-dispositive sanction under Rule 37(b)(2) is just: “(1) the public's 12 interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions.” The sub-parts of the 14 fifth factor are 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. 15 Id. (footnote citations omitted). “The most critical factor to be considered in case-dispositive sanctions 16 is whether a party's discovery violations make it impossible for a court to be confident that the parties 17 will ever have access to the true facts.” Id. (footnote citation and internal quotation marks omitted). 18 III. 19 DISCUSSION 20 Defendants O’Brien and Smith argue that this action should be dismissed based on Plaintiff’s 21 repeated refusals to comply with the Court’s discovery orders, including the initial discovery and 22 scheduling order, and the order compelling Plaintiff to serve and file responses to Defendants’ 23 discovery requests. 24 In his initial opposition, filed on July 7, 2021, Plaintiff contends that on or about June 23, 25 2021, he served discovery documents on Defendants Gibbons and Gomez, and he requested that a 26 copy of the documents be forwarded to Defendants O’Brien and Smith. (ECF No. 67.) Based on 27 Plaintiff’s response, on July 20, 2021, the Court ordered Defendants Gibbons and Gomez to serve a 28 1 copy of the discovery documents on Defendants O’Brien and Gomez within twenty days. (ECF No. 2 70.) However, on August 3, 2021, Defendants Gibbons and Gomez filed a response indicating that 3 they never received any discovery documents from Plaintiff. (ECF No. 73.) 4 Plaintiff contends that he forwarded Defendants Gibbons and Gomez the original and only 5 copy of his discovery documents because it would have been extremely difficult to copy as he is 6 housed in the administrative segregation house. (ECF No. 71 at 2.) Plaintiff further contends that he 7 has been diligently attempting to obtain copies of additional medical documents to provide to 8 Defendants and provides copies of Requests for Interviews. (ECF No. 71 at 3-4; ECF No. 72 at 2, 4- 9 5.) 10 Before imposing terminating sanctions, due process requires that a Court find that a litigant's 11 conduct was the result of “willfulness, bad faith, or fault.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 12 (9th Cir. 1994) (citing Wyle v. R.J. Reynolds Indus., 709 F.2d 585, 589 (9th Cir. 1983)). To find that a 13 litigant has acted with “willfulness, bad faith, or fault,” a court need only find that the failure to 14 participate in discovery was “disobedient conduct not shown to be outside the control of the litigant.” 15 Fjelstad, 762 F.2d at 1341. The willfulness standard simply requires that the “punished conduct [is] 16 within the litigant's control.” Id. On the other hand, if the failure to produce is the result of 17 circumstances outside of the recalcitrant party's control or an inability to fulfill the party's litigation 18 obligations, dismissal is not proper. United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 F.2d 19 1365, 1369 (9th Cir. 1980). 20 Here, as stated above, Defendants served requests for production of documents on Plaintiff, 21 and when he completely failed to serve any responses, Defendants moved to compel his responses. 22 (ECF No. 55, 56.) On May 31, 2021, the Court granted Defendants’ motions to compel, and ordered 23 Plaintiff to file responses to the requests for production of documents, without objection, within thirty 24 days. (ECF No. 57.) After no response was received, Defendants O’Brien and Smith filed the instant 25 motion for terminating sanctions, or alternatively, evidentiary sanctions because Plaintiff failed to 26 comply with the Court’s order compelling his responses. (ECF No. 63.) Plaintiff filed a response to 27 Defendants’ motion, but it is neither a substantive opposition to the motion, nor a response to 28 Defendants’ request for production of documents. (ECF No. 67.) Rather, Plaintiff simply contends 1 that on or about June 23, 2021, he sent 900 pages of unspecified medical records to Defendants 2 Gibbons and Gomez, and that he is in the process of obtaining additional medical and mental health 3 records from his institution. (Id.) On July 14, 2021, Plaintiff filed a notice of change of address 4 indicating that he was transferred to a new institution, and he is attempting to obtain “discovery 5 responses.” (ECF No. 68.) 6 Defendants Gibbons and Gomez filed a response on August 3, 2021 indicating that they never 7 received any discovery documents from Plaintiff. (ECF No. 73.) Thus, despite several warnings of 8 the consequences, Plaintiff has failed to comply with the Court’s orders. That is, Plaintiff has not 9 served and filed a response to Defendants’ request for production of documents in compliance with 10 Federal Rule of Civil Procedure 34(b)(2). More specifically, Plaintiff has failed to produce documents 11 relevant to his Eighth Amendment claims for excessive force and deliberate indifference to a serious 12 medical need; he has not produced documents to support his alleged damages; and most importantly, 13 he has not produced the signed witness statements that he identified at his deposition which he 14 acknowledged were located in his cell. (Longyear Decl. ¶¶ 3-4, ECF No. 55; Goodwin Decl. ¶ 9, ECF 15 No. 56.) Plaintiff’s response fails to address the specific set of documents requested by Defendants 16 and ordered by the Court to be produced. (ECF No. 57.) Plaintiff’s response also fails to address the 17 prejudice to Defendants based on his non-compliance with the discovery disclosures. Plaintiff's lack 18 of compliance with his discovery obligations and lack of adequate response to Defendants’ claim that 19 they have not received any discovery documents from him, support a finding that his actions were 20 willful and intentional, and that he has acted in bad faith. Further, Plaintiff's contention that he is not 21 able to make copies of documents because he is housed in the administrative segregation unit is 22 conclusory in nature and does not support his non-compliance with the discovery obligations. 23 The Court now turns to the five factors which it must consider when a party seeks terminating 24 sanctions. The first two factors, the public interest in expeditious resolution of litigation and the 25 Court’s need to manage its docket, weigh in favor of dismissal. Malone v. United States Postal 26 Service, 833 F.2d 128, 131 (9th Cir. 1987). The third factor also weighs in favor of dismissal because 27 Defendants have not received any discovery documents from Plaintiff, despite the prior discovery 28 requests and the Court’s order directing Plaintiff to provide such documents. Although Plaintiff 1 contends that on or about June 23, 2021, he provided 900 pages of medical documents to Defendants 2 Gibbons and Gomez, to date, they have not received such documents, and Plaintiff has not explained 3 why Defendants did not receive the documents. In fact, Plaintiff provides no other information as to 4 the service of the documents other than that he forwarded his original copy to Defendants on or about 5 June 23, 2021. Thus, it is clear that the lack of disclosure of the discovery documents has lead to 6 delay in this action which presumptively prejudices Defendants. See Henderson v. Duncan, 779 F.2d 7 1421, 1423 (9th Cir. 1986) (“Unreasonable delay creates a presumption of injury to the defense.”). 8 The risk of prejudice is obvious as Defendants have not had the benefit of Plaintiff’s discovery 9 responses to evaluate a potential dispositive motion, resulting in Defendants having to separately move 10 to modify the dispositive motion deadline. (ECF No. 74.) Defendants have also had to incur expenses 11 seeking the Court’s assistance to enforce its orders and Plaintiff’s discovery obligations. In addition, 12 discovery is now closed. Although dismissal is disfavored under the fourth factor, because public 13 policy strongly favors disposition on the merits, in this case, Plaintiff’s own conduct has delayed a 14 decision on the merits, and his willful defiance of the Court’s discovery orders necessitated a motion 15 to compel, a motion to modify the scheduling order, and the instant motion for sanctions. Thus, the 16 fourth factor—public policy favoring disposition of cases on their merits—is not compelling when it is 17 thwarted by Plaintiff's own actions. 18 As to the availability of lesser sanctions, the relevant questions are: “(1) Did the court 19 explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would 20 be inadequate? (2) Did the court implement alternative methods of sanctioning or curing the 21 malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the possibility of 22 dismissal before actually ordering dismissal?” Malone, 833 F.2d at 132. “The district court abuses its 23 discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and 24 the adequacy of less drastic sanctions.” Id. at 131-32 (quoting United States v. Nat'l Med. Enters., Inc., 25 792 F.2d 906, 912 (9th Cir. 1986)). A “[w]arning that failure to obey a court order will result in 26 dismissal can itself meet the ‘consideration of alternatives’ requirement.” Estrada v. Speno & Cohen, 27 244 F.3d 1050, 1057 (9th Cir. 2001); Malone, 833 F.2d at 132–33; Adriana Intern. Corp. v. Thoeren, 28 913 F.2d 1406, 1413 (9th Cir. 1990). Here, the Court has repeatedly warned Plaintiff of the 1 consequences for the failure to comply with his discovery obligations and compliance with court 2 orders. In the first informational order, Plaintiff was warned that he was required to comply with the 3 Federal Rules of Civil Procedure and that the failure to comply will be grounds for imposition of 4 sanctions, including dismissal. (ECF No. 7.) After Defendants answered the complaint, the Court 5 issued the discovery and scheduling order, which again warned Plaintiff that his failure to act in good 6 faith in discovery “may result in the payment of expenses pursuant to Federal Rule of Civil Procedure 7 37(a)(5) or other appropriate sanctions authorized by the Federal Rules of Civil Procedure or the Local 8 Rules.” (ECF No. 44.) These warnings suffice in demonstrating that lesser drastic sanctions are not 9 feasible. See Malone, 833 F.2d at 132 (warning a plaintiff that failure to obey a court order will result 10 in dismissal can suffice to meet the “consideration of alternatives” requirement). Furthermore, 11 monetary sanctions do not appear to be a sufficient deterrent as Plaintiff is proceeding in forma 12 pauperis and to date has not paid any of the filing fee. Thus, imposing monetary sanctions would be 13 meaningless. Moreover, giving Plaintiff yet another opportunity to comply with his discovery 14 obligations appears futile as he has not addressed the fact that Defendants have not received any 15 discovery documents. The Ninth Circuit has explained that “[a] district court need not exhaust every 16 sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful 17 alternatives.” Henderson v. Duncan, 779 F.2d at 1424. Accordingly, the Court finds that there are no 18 other, lesser sanctions that would be satisfactory or effective. Therefore, the Court finds this factor 19 favors terminating sanctions. 20 IV. 21 CONCLUSION AND RECOMMENDATIONS 22 Because the Court concludes that Plaintiff acted willfully by failing to comply with the court's 23 order and after the consideration of the five factors that support terminating sanctions, the Court finds 24 that Defendants’ motion to dismiss the action as a discovery sanction should be granted. See In the 25 Matter of Visioneering Const., 661 F.2d 119, 123 (9th Cir. 1982) (“Rule 37 provides for, inter alia, the 26 entering of a judgment by default for the failure of a party to attend a properly noticed deposition or 27 serve answers to interrogatories or respond to requests for inspection of documents.”); Hammond 28 Packing Co. v. Arkansas, 212 U.S. 322, 351 (1909) (dismissal does not offend due process, when, as 1 || here, the dismissal (or default) is a sanction for “the suppression or failure to produce the proof 2 || ordered, when such proof concerned the rightful decision of the cause”). 3 Based on the foregoing, it is HEREBY RECOMMENDED: 4 1. Defendants’ motion to dismiss this action be granted; and 5 2. The instant action be dismissed as a discovery sanction. 6 These Findings and Recommendations will be submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 8 || days after being served with these Findings and Recommendations, the parties may file written 9 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 || Findings and Recommendations.” The parties are advised that failure to file objections within the 11 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 12 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IS SO ORDERED. A (ee _ 15 Dated: _ September 2, 2021 IF 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28