(PC) Johnson v. Nelson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WAYNE JOHNSON, No. 2:20-cv-0967 WBS DB P 12 Plaintiff, 13 v. ORDER 14 AMY NELSON, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983. Plaintiff alleges that defendant was deliberately indifferent to his 19 serious medical needs in violation of the Eighth Amendment. Presently before the court is 20 defendant’s motion to compel and for sanctions. (ECF No. 39.) For the reasons set forth below, 21 the court will grant the motion to compel and deny the motion for sanctions. 22 I. Background 23 Plaintiff initiated this action by filing the original complaint alleging defendant failed to 24 provide adequate medical care in violation of his Eighth Amendment rights. (ECF No. 1.) By 25 order dated March 17, 2021 the undersigned determined plaintiff’s second amended complaint 26 stated a potentially cognizable deliberate indifference claim against defendant Amy Nelson. 27 (ECF No. 15.) Defendant was served and filed an answer. This action was referred to the court’s 28 Post-Screening ADR (Alternative Dispute Resolution) project. (ECF No. 26.) Defendant filed a 1 motion to opt-out of the ADR project. (ECF No. 29.) The motion was granted, and the 2 undersigned set forth a discovery and scheduling order (DSO) on September 13, 2021. (ECF No. 3 32.) 4 II. Defendant’s Motion, Plaintiff’s Opposition, and Defendant’s Reply 5 Counsel for defendant alleges that plaintiff refused to participate in a properly noticed 6 deposition by video conference on November 10, 2021. (ECF No. 39-1 at 2.) Defendant states 7 notice of the deposition was served by mail on October 19, 2021. (ECF No. 39-2 at 5-6.) 8 Defendant claims that plaintiff did not object to the deposition at any point between October 19, 9 2021 and November 10, 2021. Defendant seeks a court order compelling plaintiff to participate 10 in a deposition and monetary sanctions. 11 Plaintiff filed an opposition to defendant’s motion. (ECF No. 41.) In support of his 12 motion, he states that he is an indigent inmate, he has no funds in his prison trust account, and he 13 does not have a prison job. Thus, he argues he cannot pay sanctions. (Id. at 2.) Plaintiff also 14 states that he is willing to proceed with a deposition without a court order. 15 In the reply defendant argues that plaintiff should be ordered to attend a second deposition 16 and should be ordered to pay the expenses defendant incurred in seeking to depose plaintiff on 17 November 10, 2021 and preparing the instant motion to compel. (ECF No. 44.) 18 III. Plaintiff is Required to Participate in a Deposition 19 The Federal Rules of Civil Procedure require plaintiff to attend and meaningfully 20 participate in a properly noticed deposition see Fed. R. Civ. P. 30, 37, and the undersigned has 21 authority to compel a party to participate in a deposition, see 28 U.S.C. § 636(b)(1)(A); E.D. 22 Local Rule 302(c)(1). Additionally, the DSO states that defendant may depose plaintiff provided 23 that defendant provides the notice required by Federal Rule of Civil Procedure 30(b)(1) at least 24 fourteen days before the deposition. (ECF No. 32 at 5.) 25 Plaintiff acknowledged that he received notice of the November 10, 2021 deposition. 26 (ECF No. 39-2 at 23.) The undersigned has reviewed the transcript of the deposition provided as 27 an attachment. (ECF No. 39-2 at 8-48.) Therein, plaintiff indicated that he did not want to 28 participate in the deposition because he did not have the assistance of counsel. 1 The court notes that “[t]he Sixth Amendment provides for the right to effective assistance 2 of counsel, but it applies only for criminal cases, not civil cases.” Thomsen v. Sacramento 3 Metropolitan Fire Dist., No. 2:09-cv-01108 FCD/EFB, 2009 WL 8741960, at *11 (E.D. Cal. Oct. 4 20, 2009) (citations and quotations omitted). Additionally, lack of representation by counsel does 5 not excuse plaintiff from attendance at a properly noticed deposition. Simmons v. Pompey, No. 6 2:19-cv-2491 JDP (PC), 2021 WL 1315239 at *1 (E.D. Cal. Apr. 8, 2021). Accordingly, Plaintiff 7 will be compelled to participate in a rescheduled deposition. 8 IV. The Court Will Not Impose Monetary Sanctions 9 In addition to an order compelling plaintiff to participate in a deposition, defendant also 10 seeks the imposition of sanctions against plaintiff “in the amount of $1,498.88 to reimburse 11 defendant for the expenses incurred in attempting to take his deposition and bring this Motion.” 12 (ECF No. 39-1 at 1.) 13 In light of plaintiff’s in forma pauperis status, the court declines to impose monetary 14 sanctions. See e.g., Bumpus v. Nangalama, No. 2:12-cv-1102 GEB DAD P, 2015 WL 5435364, 15 at *5 (E.D. Cal. Sept. 15, 2015) (“Given that plaintiff is proceeding in forma pauperis, the court 16 declines to impose the requested monetary sanctions.”); Morrow v. Sacramento D.E.A., No. 2:13- 17 cv-2188 GEB KJN, 2014 WL 907349 at *3 (E.D. Cal. Mar. 7, 2014) (“[I]n light of plaintiff’s in 18 forma pauperis status, the court has little confidence that plaintiff would pay monetary sanctions 19 if they were imposed . . . .”); Jackson v. Cates, No. CIV S-10-2070 GEB EFB, 2011 WL 546316 20 at *2 (E.D. Cal. Nov. 7, 2011) (“Due to plaintiff’s in forma pauperis status, the court declines to 21 issue an award of monetary sanctions at this time.”). 22 The Ninth Circuit has stated that where a pro se prisoner attends a deposition, but refuses 23 to testify, he has not failed to appear. Estrada v. Rowland, 69 F.3d 405, 406 (9th Cir. 1995). The 24 court went on to state that “the proper remedy is a court order to testify under Rule 37(a).” Id. 25 Here, plaintiff appeared at the deposition by video conference, but refused to participate. Thus, 26 the appropriate remedy is an order compelling plaintiff to appear at a deposition, rather than the 27 imposition of monetary sanctions. 28 //// 1 As set forth above and pursuant to the Federal Rules of Civil Procedure, plaintiff is 2 || required to sit for a deposition and cooperate in discovery. He is advised that failure to cooperate 3 || in discovery may result in the imposition of sanctions, including dismissal as a potential sanction. 4 | See Fed. R. Civ. P. 37(b)(2)(A); Fed. R. Civ. P. 37(b)(2)(A)(v). Plaintiff is warned that failure to 5 | participate in a rescheduled deposition the court will recommend that this action be dismissed. 6 V. Conclusion 7 For the reasons set forth above, IT IS HEREBY ORDERED that defendant’s motion to 8 || compel and for sanctions (ECF No. 39) is granted in part and denied in part as follows: 9 a. Defendant’s motion for an order compelling plaintiff to participate in a deposition is 10 granted; and 11 b. Defendant’s motion for monetary sanctions is denied. 12 | Dated: January 11, 2022 13 14 1s ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 | pB:12 DB/DB Prisoner Inbox/Civil Rights/S/john0967.comp depo 22 23 24 25 26 27 28