(PC) Bontemps v. Sotak et al, No. 2:2009cv02115 - Document 134 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/12/2018 RECOMMENDING defendants' 126 motion for terminating sanctions be granted and this case be dismissed with prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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(PC) Bontemps v. Sotak et al Doc. 134 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 13 14 No. 2:09-cv-2115-MCE-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS SOTAK, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He alleges that defendants Smith and Sotak provided inadequate medical care 19 during his incarceration at the Sacramento County Jail. ECF No. 24. Pending before the court is 20 defendants’ Joint Motion for Terminating Sanctions or Involuntary Dismissal (ECF No. 126). 21 Plaintiff has filed an opposition (ECF No. 130) and defendants have filed a reply (ECF No. 131). 22 For the reasons stated below, defendants’ motion should be granted. 23 I. Background 24 Defendants previously requested an order compelling plaintiff to: (1) attend and cooperate 25 in his deposition by providing truthful, complete, and non-evasive responses to defendants’ 26 questions; (2) produce documents requested by defendants in the deposition notice; and (3) pay 27 monetary sanctions in the amount of $4,438.25 based on his conduct during his first deposition. 28 ECF No. 112. That motion was granted in part based on the finding that plaintiff’s conduct at the 1 Dockets.Justia.com 1 first deposition was “combative and evasive,” inexcusable, and in violation of Rule 30(d)(2) of 2 the Federal Rules of Civil Procedure. ECF No. 121. The court ordered plaintiff to provide 3 responsive documents at a second deposition. In light of plaintiff’s incarceration and pro se 4 status, the court denied defendants’ request for monetary sanctions. However, plaintiff was 5 warned that continued failure to cooperate in a second deposition would result in a 6 recommendation that this case be terminated due to his failure to obey a court order. Id. at 4-5. 7 On September 14, 2018 defendants filed the instant motion for terminating sanctions. 8 ECF No. 126. Defendants state that they re-noticed plaintiff’s deposition, that plaintiff made no 9 objection prior to the deposition, yet once again refused to cooperate. ECF No. 126-2 ¶ 3; ECF 10 No. 126-3 at ¶ 4. At the beginning of the deposition, plaintiff announced that it could “not go 11 forward” because he had twice been “touched in an inappropriate manner” by CDCR physicians. 12 ECF No. 126-2, Ex. C at 5, 7-8. He added that he was in “severe pain” and that his hearing aids 13 were not working correctly. Id. at 8. When defense counsel attempted to speak, plaintiff 14 interrupted, declaring, “Excuse me, I’m not through yet.” Id. He went on to express his view that 15 CDCR was “covering up” the inappropriate touching by transferring him from prison to prison in 16 an effort to keep plaintiff from making his allegations public. Id. He concluded, “Now, so with 17 that said on the record, I’m out of here.” Id. at 9. Thereafter, when defense counsel attempted to 18 question plaintiff, he became hostile and aggressive in his manner and made it clear he was 19 leaving and would not cooperate with the deposition. Id. at 9-10; ECF No. 126-2 ¶ 5; ECF No. 20 126-3 ¶ 6. Despite the court’s order with respect to defendants’ motion to compel, plaintiff 21 produced no documents. ECF No. 126-2 ¶ 5. 22 Based on plaintiff’s conduct at his first deposition and his refusal to cooperate in the 23 second deposition, in direct violation of the court’s order, defendants argue it would be futile to 24 attempt a third deposition. ECF No. 126-1 at 4. To date, the costs incurred in defending against 25 plaintiff’s lawsuit exceed $100,000. ECF No. 126-2 ¶ 8; ECF No. 126-3 ¶ 7. 26 ///// 27 ///// 28 ///// 2 1 II. 2 Federal Rule of Civil Procedure 16(f) states: 3 4 5 Legal Standards On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party . . . fails to obey a scheduling or other pretrial order. Federal Rule of Civil Procedure 37(b)(2)(A) states: 6 The court . . . may issue further just orders. They may include the following: 7 ... 8 dismissing the action or proceeding in whole or in part . . . 9 10 The U.S. Court of Appeals for the Ninth Circuit has held that five factors are to be considered before imposing the sanction of dismissal, namely: 11 (1) the public’s interest in expeditious resolution of litigation; 12 (2) the court’s need to manage its docket; 13 (3) the risk of prejudice to the other party; 14 (4) the public policy favoring disposition of cases on their merits; 15 and 16 (5) the availability of less drastic sanctions. 17 Leon v. IDX Systems, 464 F.3d 951 (9th Cir. 2006) (upholding terminating sanctions for willful 18 destruction of evidence). When a court’s order is violated, the first two factors will militate in 19 favor of dismissal, while the fourth will weigh against. Adriana Intl. Corp. v. Lewis & Co., 913 20 F.2d 1406, 1412 (9th Cir. 1990); see also Yourish v. California Amplifier, 191 F.3d 983, 990 (9th 21 Cir. 1990) (“The public’s interest in expeditious resolution of litigation always favors 22 dismissal.”). As to the third factor, a party must establish that their adversary’s actions impaired 23 their ability to proceed to trial or threatened to interfere with the rightful decision of the case. 24 Malone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987). Finally, with regard to 25 the availability of lesser sanctions, the court must consider whether: 26 (1) the court explicitly discussed the feasibility of less drastic sanctions 27 and explained why alternative sanctions would be inappropriate; 28 (2) the court implemented alternative sanctions; and 3 1 (3) the court warned the disobedient party of the possibility of dismissal before 2 ordering the dismissal. 3 Adriana Intl. Corp., 913 F.2d at 1412-1413. 4 III. 5 On July 18, 2018, the court granted defendants’ motion to compel to the extent that (1) the 6 parties were directed to meet, confer, and agree on a date for plaintiff’s second deposition, and (2) 7 plaintiff was directed to provide documents responsive to defendants’ requests for production. 8 ECF No. 121 at 5-6. The order specifically warned that if plaintiff failed to cooperate at his 9 second deposition, this action could be terminated for failure to obey a court order. Id. at 4 n.2. 10 Analysis It is clear from defendants’ motion that plaintiff adamantly refused to participate in the 11 second deposition from the moment it began. Plaintiff offers no rational explanation and 12 certainly no justification for his unwillingness to cooperate. In his opposition, he claims that the 13 inappropriate touching he referenced at the second deposition (noticed on August 7, 2018 and 14 held on August 27, 2018) excuses his failure to cooperate. ECF No. 126-2 ¶¶ 2-3. It does not. 15 The allegation of misconduct has nothing to do with the claims in this case or with the deposition 16 itself. Even if it did, plaintiff could have promptly raised his objection after receipt of 17 defendants’ August 7, 2018 notice of deposition. See ECF No. 130 at 6 (suggesting that the first 18 instance of alleged misconduct occurred over seven months prior to the notice of second 19 deposition, on December 27, 2017); id. at 2 (alleging a second instance of misconduct on April 20 27, 2018, over three months prior to the second notice of deposition). He also could have 21 succinctly stated his objection on the record and then proceeded with the deposition. Instead, 22 after defendants had incurred the costs of hiring a court reporter and traveling to the prison a 23 second time for plaintiff’s deposition, plaintiff refused to cooperate, interposing this nonsensical 24 objection and preventing the deposition from being completed. ECF No. 131 at 2. 25 Plaintiff also objected at the second deposition citing “severe pain” and a defective 26 hearing aid. However, he fails to substantiate these objections with any evidence and abandons 27 these objections in his opposition. Instead, plaintiff claims for the first time, that he could not go 28 forward with the second deposition because of depression and post-traumatic stress disorder 4 1 caused by the alleged inappropriate touching. ECF No. 130 at 2-3. Again, these objections are 2 unsubstantiated. Further, plaintiff does not explain why he failed to voice these objections at the 3 second deposition or better yet, in advance of the second deposition. 4 In short, plaintiff fails to show how the alleged instances of inappropriate touching relieve 5 him from his discovery obligations. Plaintiff was warned that his continued failure to cooperate 6 with his deposition would result in dismissal. ECF No. 121 at 4 n.2. Nothing in his opposition 7 justifies his refusal to cooperate with the court’s order or excuses his non-compliance with 8 discovery. 9 The court does not lightly undertake the recommendation of terminating sanctions. 10 Nevertheless, they appear necessary in this case. Plaintiff has failed to comply with this court’s 11 discovery orders, thus the first two of the Ninth Circuit’s factors – the public’s interest in 12 expeditious resolution of litigation and the court’s need to manage its docket - are met. See 13 Adriana Intl. Corp., 913 F.2d at 1412. And defendants have adequately shown a risk of 14 prejudice. Unreasonably delaying the litigation by failing to produce documents and refusing to 15 be deposed, as ordered by the court, is sufficient to show prejudice. See In re: 16 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir. 2006). 17 While public policy does favor disposition of cases on the merits, courts have recognized 18 19 20 21 22 that: [A] case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits. Thus, we have also recognized that this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction. 23 Id. at 1228. Given that it is plaintiff’s conduct which has impeded the progress of this case, the 24 court finds that this factor does not weigh in favor of a lesser sanction. 25 Finally, the court has previously considered the less drastic sanction of monetary sanctions 26 to obtain plaintiff’s compliance and found it wanting. The less drastic sanction of evidentiary 27 sanctions would also be inadequate, as the allegations forming plaintiff’s Eighth Amendment 28 medical claims are quite vague. See ECF No. 24 (Fourth Amended Complaint). Defendants 5 1 cannot be expected to move forward without discovery specifying the basis for plaintiff’s claims 2 and clarifying when and where the alleged civil rights violations occurred. Further, the explicit 3 warning to plaintiff that his failure to comply with discovery orders would result in dismissal, was 4 ineffective. In the July 18, 2018 order on defendants’ motion to compel, the court wrote: 5 8 Plaintiff is an inmate proceeding pro se and in forma pauperis and is almost certainly unable to pay the monetary sanctions requested by defendants, a factor that is properly considered. Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994). If, however, plaintiff fails to appear at his second deposition or fails to cooperate in the same, the court will recommend that this action be terminated for failure to obey a court order. 9 ECF No. 121 at 4 n.2 (emphasis added). This passage also demonstrates that plaintiff was, in no 6 7 10 uncertain terms, warned about the possibility of terminating sanctions. 11 IV. 12 Based on the foregoing, it is RECOMMENDED that defendants’ motion for terminating 13 Conclusion sanctions (ECF No. 126) be GRANTED and this case be dismissed with prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: December 12, 2018. 22 23 24 25 26 27 28 6