(PC) Smith v. Weiss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, No. 1:18-cv-00852-NONE-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF 13 v. MAGISTRATE JUDGE’S RULING AND RENEWED MOTION FOR PROTECTIVE 14 WEISS, et al., ORDER 15 Defendants. (Doc. No. 41) 16 17 I. Procedural History 18 Plaintiff Lawrence Christopher Smith is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 On May 23, 2018, the assigned magistrate judge issued findings and recommendations in 21 Smith v. Chanelo (“Smith I”), Case No. 1:16-cv-01356-NONE-BAM (PC), recommending that: 22 (1) the action proceed on plaintiff’s first amended complaint only as to his excessive force claim 23 against defendants Sotelo, P. Chanelo, D. Wattree, K. Hunt, L. Castro, A. Gonzalez, E. Ramirez, 24 and R. Rodriguez, on March 13, 2013; (2) the Court sever the misjoined claims, into three 25 separate cases and such cases be opened, for excessive force with respect to the alleged incidents 26 of: September 9, 2013 against defendant D. Knowlton; November 15, 2013 against defendants E. 27 Weiss, O. Hurtado, and F. Zavleta; and February 6, 2014 against defendants D. Gibbs and D. 28 Hardy; (3) plaintiff’s improperly joined claims of February 4, 2015, February 25, 2015, and 1 September 2, 2015 be dismissed without prejudice to their re-filing; and (4) plaintiff’s remaining 2 claims and defendants be dismissed for failure to state a cognizable claim. Smith I, Doc. No. 16. 3 The Court adopted those findings and recommendations in full on June 20, 2018, and plaintiff’s 4 misjoined claims were opened as separate actions. (Doc. No. 2.) Accordingly, the instant action 5 was opened as Smith v. Weiss, Case No. 1:18-cv-00852-NONE-BAM (PC), and proceeds against 6 Defendants E. Weiss, O. Hurtado, and F. Zavleta with respect to the alleged excessive force 7 incident of November 15, 2013. 8 On July 8, 2019, Defendants Hurtado, Weiss, and Zavleta filed an answer to the 9 complaint. (Doc. No. 19.) The magistrate judge then issued a discovery and scheduling order on 10 July 15, 2019. (Doc. No. 21.) On September 26, 2019, plaintiff moved to amend the complaint 11 and lodged a second amended complaint. (Doc. No. 25.) The magistrate judge denied the motion 12 to amend on October 1, 2019, finding that it was brought in bad faith. (Doc. No. 27.) 13 On August 29, 2019, plaintiff filed a motion for a protective order seeking to quash his 14 video deposition. (Doc. No. 23.) On October 15, 2019, plaintiff filed a motion for relief from 15 judgment/order challenging the magistrate judge’s order denying plaintiff’s motion amend by 16 which he sought to file a second amended complaint. (Doc. No. 28.) On March 2, 2020, the 17 magistrate judge denied the two motions and directed the parties to meet and confer, and agree on 18 a date for plaintiff’s deposition, to be taken on or before April 30, 2020. The discovery deadline 19 was extended to April 30, 2020, and the dispositive motion was extended to July 1, 2020. (Doc. 20 No. 38.) 21 On March 30, 2020, plaintiff filed the instant motion seeking reconsideration of the 22 magistrate judge’s March 2, 2020 order, and a renewed his motion for protective order to quash 23 or stay his deposition pending the court’s resolution of his motion for reconsideration. (Doc. No. 24 41.) Defendants have not yet had an opportunity to file a response, however, the Court finds a 25 response is unnecessary. Plaintiff’s pending motions are deemed submitted. Local Rule 230(l). 26 II. Motion for Reconsideration 27 Pursuant to Local Rule 303, a party may seek reconsideration of a magistrate judge’s 28 ruling by filing a request for reconsideration by a Judge and serve the request on the magistrate 1 judge and all parties, specifically designating the ruling, or part thereof, objected to and the basis 2 for that objection. Local Rule 303(c). The applicable standard of review for such a request is the 3 “clearly erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(b)(1)(A). See Fed. R. 4 Civ. P. 72(a). 5 A. Denial of Motion for Protective Order 6 In his motion for reconsideration, plaintiff contends that the magistrate judge’s denial of 7 his motion for protective order, which requested that defendants be barred from taking plaintiff’s 8 deposition absent a showing of good cause, constitutes clear error. Primarily, plaintiff argues that 9 a deposition in this matter is futile, as he is entitled to summary judgment as a matter of law based 10 on his pleadings and a “Crime Report” regarding the November 15, 2013 incident placed at issue 11 in this action. Plaintiff therefore argues that his deposition is unnecessary and merely a fishing 12 expedition, meant to harass him and to force him to continue being housed at California State 13 Prison – Corcoran, all of which constitutes good cause for the issuance of the protective order he 14 requests. (Doc. No. 41, pp. 3–4.) 15 The magistrate judge originally construed plaintiff’s motion as an argument that he should 16 not be required to participate in his deposition because he did not have his legal files to produce 17 the documents requested or to prepare for his deposition, rather than a wholesale refusal to 18 engage in his deposition. (Doc. No. 38, p. 4.) However, as set forth in his motion for 19 reconsideration, plaintiff now appears to be refusing to participate in any deposition, on the 20 ground that he is entitled to summary judgment on the pleadings, and that any discovery 21 conducted in this action would therefore be futile. (Doc. No. 41.) 22 Plaintiff is obviously incorrect. Plaintiff’s belief that the allegations presented in his 23 pleadings, without more, should result in the granting of summary judgment in his favor, does not 24 relieve him of the obligation to participate in discovery as required by the Federal Rules of Civil 25 Procedure. Plaintiff brought this civil action and defendants are clearly entitled to take his 26 deposition. Plaintiff is simply unreasonably refusing to cooperate in that regard. Although 27 plaintiff should be provided with his legal documents to allow him to adequately prepare for his 28 deposition, there is no indication in the instant motion that a lack of legal documentation or 1 preparation prevented plaintiff from being deposed. Instead, plaintiff argues, without any 2 support, that the taking of his deposition would be futile and constitute harassment. The court 3 rejects that argument in its entirety. If plaintiff continues to fail to cooperate with discovery, this 4 action may be subject to terminating sanctions due to plaintiff’s failure to obey a court order and 5 failure to cooperate in discovery. See Fed. R. Civ. P. 37(b)(2)(a)(v). 6 Plaintiff’s mere disagreement with the magistrate judge’s ruling on his request for the 7 issuance of a protective order, as discussed above, is similarly not sufficient to meet the “clearly 8 erroneous or contrary to law” standard set forth in 28 U.S.C. § 636(c). Plaintiff’s request for 9 reconsideration of this ruling will therefore be denied. 10 B. Denial of Motion for Relief from Judgment/Order 11 In support of his request for reconsideration of the magistrate judge’s denial of his motion 12 for relief from judgment/order, plaintiff raises two main arguments. First, plaintiff contends that 13 both the district judge and the magistrate judge assigned to this case are biased and should not 14 preside over the instant action. Plaintiff then argues that any deficiencies in his pleadings are a 15 result of the actions of defendants and their counsel in obstructing his access both to the courts 16 and to adequate nutrition. (Doc. No. 41.) 17 On these grounds, plaintiff requests relief in the form of a protective order prohibiting 18 defendants from conducting any deposition of him, by video or otherwise, and granting plaintiff 19 permission to lodge a first amended complaint to include a viable claim of conspiracy against 20 defendants pursuant to Federal Rule of Civil Procedure 22(a). (Id. at 6.) 21 1. Alleged Bias of Assigned Judges 22 In this motion, plaintiff appears to argue that U.S. District Judge Lawrence J. O’Neill, the 23 district judge previously assigned to the instant action, was prohibited from adjudicating this 24 action (in addition to Smith v. Chanelo and the subsequent severed actions, discussed above) due 25 to his bias against plaintiff and pursuant to 18 U.S.C. § 451.1 Plaintiff claims that Judge O’Neill 26 1 The Court notes that there is no 18 U.S.C. § 451. Plaintiff may have intended to cite to 28 27 U.S.C. § 455 regarding “[d]isqualification of justice, judge, or magistrate judge,” however the lack of an accurate citation to statutory authority does not change the Court’s analysis of this 28 issue. 1 was a witness to alleged misconduct by defense counsel in one of plaintiff’s prior actions, and 2 therefore was privy to disputed material facts that were relevant to plaintiff’s later cases. (Doc. 3 No. 41, p. 5.) 4 Plaintiff further argues that U.S. Magistrate Judge Barbara A. McAuliffe is also biased, 5 and alleges that the referral of his severed actions to her and Judge O’Neill were retaliatory, as 6 evidenced by Judge McAuliffe’s rulings in the severed actions. Plaintiff contends that Judge 7 McAuliffe has repeatedly been made aware, through plaintiff’s pleadings, of the conspiracy 8 between defendants and their counsel to deny and violate plaintiff’s rights, but has nonetheless 9 repeatedly failed to act and has even gone so far as to act as counsel for defendants on several 10 occasions in the various actions. Plaintiff argues that this establishes a bias by Judge McAuliffe 11 that is in violation of federal law. (Id.) 12 A magistrate judge must disqualify himself or herself if their “impartiality might be 13 reasonably questioned,” 28 U.S.C. § 455(a), or if the magistrate judge “has a personal bias or 14 prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the 15 proceeding,” 28 U.S.C. § 455(b)(1). “[J]udicial rulings or information acquired by the court in its 16 judicial capacity will rarely support recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th 17 Cir. 2010) (citing Liteky v. United States, 510 U.S. 540, 555 (1994)). The objective test for 18 determining whether recusal is required is whether a reasonable person with knowledge of all the 19 facts would conclude that the judge’s impartiality might reasonably be questioned. Johnson, 610 20 F.3d at 1147 (quotation marks and citation omitted); Pesnell v. Arsenault, 543 F.3d 1038, 1043 21 (9th Cir. 2008). “Adverse findings do not equate to bias,” Johnson, 610 F.3d at 1147. 22 To the extent plaintiff is requesting recusal of District Judge O’Neill, that request is 23 denied as moot, since Judge O’Neill is no longer an active district judge nor is he now presiding 24 over this action. 25 As to Judge McAuliffe, as discussed above, plaintiff’s primary objection to Judge 26 McAuliffe’s assignment to this action is that she has repeatedly issued orders ruling against him. 27 However, this is not sufficient to show personal bias or prejudice by the assigned judicial officer. 28 Plaintiff’s belief that Judge McAuliffe is biased against him and that she has acted as counsel on 1 behalf of defendants does not make recusal either necessary or appropriate under § 455. Clemens 2 v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005) (noting that 3 speculative allegations of bias are not sufficient to warrant recusal). As such, any request for 4 recusal with respect to Magistrate Judge McAuliffe will also be denied. 5 2. Access to Courts and Adequate Nutrition 6 Plaintiff next argues that it is a fact that defendants and their counsel have repeatedly 7 obstructed his access to the courts by either actively participating in the destruction of his legal 8 property or allowing prison staff to repeatedly deny him access to the prison law library. Further, 9 plaintiff alleges that his cognitive reasoning ability has been impaired by denials of adequate 10 nutrition and medical care, and therefore any deficiencies in his complaint pursuant to Federal 11 Rule of Civil Procedure 15 and 22(a) regarding defendants’ conspiracy to deny and violate his 12 constitutional rights is excusable neglect on his part. (Id. at 5–6.) Plaintiff alleges that he became 13 extremely sick while housed at CSP-Corcoran, and as a result he continues to suffer from an 14 extreme inability to fully concentrate. (Id. at 7.) 15 The Court finds no merit to these allegations advanced by plaintiff. Exhibits attached to 16 plaintiff’s complaint reveal that he filed an inmate administrative appeal on November 4, 2019, 17 alleging that he had been denied physical access to the facility law library since his arrival at the 18 institution on June 28, 2019. (Id. at 8.) However, in the First Level response to his appeal, it 19 appears that the law library records revealed that plaintiff was granted physical access to the law 20 library on September 18, September 25, and October 2, 2019, but that plaintiff refused the access 21 offered to him. Thereafter, plaintiff physically attended the law library on November 20 and 22 December 11, 2019, and January 8, 2020. (Id. at 11.) Aside from plaintiff’s unsupported 23 allegations to the contrary, it appears to the Court that plaintiff has not been denied access to the 24 law library at his institution of confinement. 25 Plaintiff has also attached patient education materials regarding “Anemia, Nonspecific,” 26 apparently in support of his contention that he has been denied access to adequate nutrition, thus 27 impairing his ability to litigate this action. (Id. at 14–15.) However, the attached document does 28 not specify the cause of plaintiff’s anemia (at least nine common causes of anemia are listed, only 1 one of which references nutrition). Moreover, plaintiff’s health conditions, which are being 2 raised by him for the first time in the instant motion, do not provide a basis for a finding that the 3 magistrate judge’s ruling was “clearly erroneous or contrary to law.” 4 III. Motion for Protective Order or Stay of Discovery 5 Finally, plaintiff renews his motion for a protective order, or for a stay of discovery (his 6 deposition) on the grounds that his motion for reconsideration is pending before the court for 7 decision. (Doc. No. 41, p. 17.) Plaintiff states that on March 11, 2020, pursuant to the magistrate 8 judge’s order, defense counsel contacted plaintiff via telephone and notified plaintiff of counsel’s 9 intent to conduct a deposition of plaintiff on April 16, 2020. Plaintiff informed defense counsel 10 of his intent to file a motion for a protective order. Defense counsel offered to assist in locating 11 plaintiff’s legal documents for forwarding to plaintiff’s current institution of confinement, also as 12 directed by the magistrate judge’s order, but plaintiff instructed counsel that this would be futile, 13 because plaintiff had been informed by prison officials that he would be sent back to Pelican Bay 14 State Prison, where plaintiff’s legal documents are apparently already located. Plaintiff informed 15 defense counsel that he would prefer to address this issue once he was back at Pelican Bay and, if 16 needed, plaintiff would request defense counsel’s assistance from there. Defense counsel agreed, 17 at plaintiff’s request, to immediately forward to him a conformed copy of the “Crime Report” 18 generated on November 15, 2013. (Id. at 21.) 19 Because the Court is resolving plaintiff’s motion for reconsideration in this order, 20 plaintiff’s request for a protective order or for a stay of discovery on the basis that his motion 21 remains pending before the court for decision will be denied as moot. 22 Plaintiff further argues that the issuance of a protective order is warranted because the 23 Ninth Circuit has previously found good cause to deny discovery where a complaint did not raise 24 factual issues that required discovery for its resolution, citing Rae v. Union Bank, 725 F.2d 478, 25 487 (9th Cir. 1984). To the extent plaintiff is again arguing that defendants should not be 26 permitted to take his deposition on the ground that his pleadings provide sufficient evidence to 27 warrant the granting of summary judgment in his favor, the Court remains unpersuaded. The 28 cited case is inapplicable to the instant action. In Rae the Ninth Circuit concluded that a stay of 1 | discovery was appropriate where the district court ultimately found that the plaintiff’s federal 2 | claims were wholly insubstantial and frivolous and dismissed them without leave to amend. Rae, 3 | 725 F.2d at 479. At this juncture, in this case, a ruling of summary judgment solely on the basis 4 | of the pleadings would be premature since discovery is warranted in light of the factual 5 | allegations of the complaint. 6 | IV. Conclusion 7 As the magistrate judge warned in the order denying plaintiff’s motions for a protective 8 | order and for relief from judgment/order, plaintiff’s repetitive, misnamed, overlapping, and 9 | otherwise harassing filings waste this court’s limited resources and delay the resolution of this 10 action. The instant motion, wherein plaintiff is again attempting to abdicate his responsibility to 11 | participate in discovery and to renew his repeatedly rejected request to file a further amended 12 | complaint in this action, is no exception. Plaintiff is once again warned that the filing of 13 | additional baseless motions, including motions for reconsideration which merely repeat 14 | arguments already raised before the magistrate judge, will likely subject him to the imposition of 15 || sanctions, up to and including terminating sanctions. Furthermore, plaintiff’s failure to cooperate 16 | in the taking of his deposition may also result in the imposition of terminating sanctions, due to 17 | plaintiff's failure to obey a court order and failure to cooperate in discovery. 18 For the reasons stated above, IT IS HEREBY ORDERED as follows: 19 1. Plaintiff's motions for reconsideration and motion for protective order, (Doc. No 41), 20 are DENIED; 21 2. Plaintiffs deposition shall be taken on or before April 30, 2020; and 22 3. This matter is referred back to the assigned magistrate judge for further proceedings 23 consistent with this order. 24 | IT IS SO ORDERED. me □ 25 ft ff ja £3 Dated: _ April 3, 2020 eee Te — 26 UNITED STATES DISTRICT JUDGE 27 28