(PC) Hammler v. Hernandez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00616 SKO (PC) 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 13 v. MOTION FOR TERMINATING SANCTIONS FOR WILLFUL FAILURE 14 J. HERNANDEZ, TO PARTICIPATE IN DEPOSITION 15 Defendant. (Doc. 64) 16 17 18 I. RELEVANT PROCEDURAL HISTORY 19 This Court issued a Discovery and Scheduling Order on November 2, 2022. (Doc. 57.) 20 On March 24, 2023, the Court issued its Order Granting Defendant’s Motion for Extension of 21 Time to Depose Plaintiff and to File Dispositive Motion. (Doc. 60.) The discovery cut off 22 deadline was extended from April 2, 2023 to June 5, 2023, to allow for Plaintiff’s deposition to be 23 rescheduled. The dispositive motion deadline was also extended from June 5, 2023 to August 4, 24 2023, to allow for the completion of Plaintiff’s deposition and evaluation and drafting of any pre- 25 trial dispositive motion. (Id. at 2.) 26 On May 31, 2023, Defendant Hernandez filed a motion for terminating sanctions for 27 Plaintiff’s willful failure to participate in a deposition. (See Doc. 64.) More than 21 days passed 28 without Plaintiff having filed an opposition or statement of non-opposition to Defendant’s 1 motion. The Court issued an Order To Show Cause Why Action Should Not Be Dismissed For 2 Failure To Obey Court Orders. (Doc. 65.) 3 On July 6, 2023, Plaintiff filed a motion for a 30-day extension of time. (Doc. 66.) 4 On July 7, 2023, the Court issued its Order Discharging Order To Show Cause and Order 5 Partially Granting Extension Of Time Within Which To File Opposition To Motion For 6 Terminating Sanctions. (Doc. 67.) Plaintiff was granted an extension of 21 days from the date of 7 service within which to file his opposition to Defendant’s motion. (Id. at 2.)1 8 On August 3, 2023, Plaintiff filed an opposition to the motion for terminating sanctions 9 (Doc. 71) and Defendant filed a reply on August 17, 2023 (Doc. 71). Plaintiff filed a “Motion to 10 File Sur-Reply” (Doc. 72) which was denied by the Court (Doc. 73). 11 II. DISCUSSION 12 A. The Parties’ Positions 13 1. Defendant’s Motion 14 Defendant moves for terminating sanctions for Plaintiff’s willful failure to participate in 15 his deposition. (Doc. 64.) The motion includes the declaration of Ari J. Sheps and exhibits. (Doc. 16 64-2) Defendant also filed a 314-page Request for Judicial Notice. (Doc. 64-1.) 17 Defendant contends Plaintiff’s refusals to be deposed on January 9, 2023, and April 18, 18 2023, were not outside his control and were therefore willful. (Doc. 64 at 14.) When Plaintiff 19 refused to participate due to “technical issues with obtaining video,” institutional “staff were still 20 working on fixing the issue so that a video connection would be established.” (Id. at 15.) Had the 21 video issues persisted, defense counsel was willing to conduct the deposition “by means of audio 22 alone.” (Id.) Defendant contends Plaintiff is “an experienced litigant who has filed dozens of 23 lawsuits” and “has been admonished by multiple courts that he must attend and participate in 24 properly noticed depositions.” (Id.) Defendant asserts Plaintiff’s conduct at the January 2023 and 25 April 2023 depositions “is consistent with a pattern of abusive litigation tactics in which Plaintiff 26 regularly engages.” (Id.) These tactics include claims of chest pain and suicidal ideation. (Id. at 27 28 1 The Court’s July 7, 2023, order was returned by the United States Postal Service marked “Undeliverable, 1 15-16.) 2 Defendant further contends Plaintiff “has directly stated that he will not allow Defendant 3 another opportunity to depose him” and that if this Court were to order his deposition, he is “’not 4 going to do it and [he’s] going to basically come up with some kind of way to oppose it and make 5 this judge looked biased.’” (Doc. 64 at 16.) Defendant contends the public’s interest in the 6 expeditious resolution of cases and the court’s need to manage its docket weigh in favor of 7 dismissal. (Id. at 16-17.) Defendant states he is severely prejudiced by Plaintiff’s refusal to attend 8 the properly noticed deposition (id. at 17-18), the public policy favoring resolution on the merits 9 does not weigh in favor of a litigant who hinders a defense on the merits (id. at 18-19), and there 10 are no available lesser alternative sanctions (id. at 19-20). Defendant asks this Court to compel 11 Plaintiff “to sit for what will be Defendant’s third attempt to depose Plaintiff” if the motion for 12 terminating sanctions is not granted. (Doc. 64 at 20-21.) 13 In his supporting declaration, defense counsel states that on April 18, 2023, at 9 a.m., the 14 institution was unable to establish a video connection for the Zoom deposition. (Doc. 64-2, ¶ 2.) 15 At 9:05 a.m., counsel could hear Plaintiff “yelling in an aggressive tone in the background.” (Id.) 16 Counsel was advised by a correctional officer the computer would be restarted and they would try 17 again. (Id.) Shortly after 9:30 a.m., the officer called defense counsel and informed him Plaintiff 18 stated he was having chest pains and was being evaluated by medical staff. (Id.) Defense counsel 19 asked the officer to call back after the medical examination. (Id.) After approximately thirty 20 minutes, the officer informed counsel that Plaintiff demanded to be returned to his cell, had 21 declared himself suicidal, and was currently in his cell being observed by staff. (Id.) Counsel 22 terminated the deposition (id.) and arranged for an in-person deposition on May 17 and 18, 2023, 23 allowing for the two-and-a-half-hour time limit for in-person depositions at the institution. (id., ¶ 24 3). Counsel also scheduled a phone call with Plaintiff to “discuss the previous deposition 25 attempts” and obtain Plaintiff’s cooperation. (Id.) 26 During an April 26, 2023, telephone call, Plaintiff was hostile and stated “’I know who 27 you are, what do you want’” when counsel identified himself. (Id., ¶ 4.) When counsel advised 28 Plaintiff that he wanted to talk about the deposition and before counsel could identify the date, 1 Plaintiff stated “in a very loud and angry voice said ‘I know the date! It’s not my responsibility to 2 hang around and wait, it’s only my responsibility to show up! So I’ll ask again what the hell do 3 you want?’” (Id., ¶ 5.) After asking Plaintiff to treat him with respect, Plaintiff replied “in a 4 louder and angry tone ‘I am speaking to you with respect! But I can say whatever the hell I want! 5 As long as I’m not naming you. So why did you want this phone call?’” (Id., ¶ 6.) When defense 6 counsel responded “’Well I wanted to talk to you about how we should proceed, because I know 7 you’ve dealt with this issue in your other cases,” Plaintiff interrupted stating “’Take it up with the 8 court Sheps, I don’t have time for you,’” ending the call. (Id., ¶ 7.) Because the phone call lasted 9 less than two minutes, defense counsel was unable to inform Plaintiff of the scheduled in-person 10 deposition or to discuss his willingness to participate in the deposition before filing the instant 11 motion. (Id., ¶¶ 8-9.) Counsel states given “Plaintiff’s attitude and hostility, it became clear that 12 [Plaintiff] would not willingly cooperate in a third deposition attempt” and therefore counsel 13 asked the litigation coordinator to cancel the in-person deposition. (Id., ¶ 10.) 14 Defense counsel states he received an unexpected call from Plaintiff on May 17, 2023, at 15 2:43 p.m. (Doc. 64-2, ¶ 11.) “Plaintiff was markedly more respectful and courteous” and they had 16 a productive discussion regarding defense counsel’s intention to continue using audio for the 17 deposition if a video connection could not be established. (Id.) Plaintiff advised defense counsel 18 he “would not have allowed an audio only deposition” to take place. (Id.) Defense counsel notes 19 Plaintiff mentioned his alleged chest pains during the last deposition but did not mention suicidal 20 ideation. (Id.) During the conversation Plaintiff advised defense counsel that the discovery 21 requests Plaintiff served on April 26, 2023, were no longer needed because Plaintiff would be 22 filing a motion for summary judgment “later that evening.” (Id., ¶ 13.) Defense counsel states that 23 given Plaintiff’s demeanor during the telephone conversation, he “made the mental decision to 24 file the instant motion as a Motion to Compel, rather than a Motion for Terminating Sanctions.” 25 (Id., ¶ 14.) 26 When Plaintiff asked defense counsel his intention regarding Plaintiff’s deposition given 27 the looming discovery deadline, defense counsel advised he would be filing a motion to compel 28 Plaintiff’s deposition. (Id., ¶ 15.) Plaintiff “replied to the effect of ‘If the judge says I have to let 1 you depose me I will not comply.’” (Id., ¶ 16.) When defense counsel asked Plaintiff “to confirm 2 that if the court were [to] grant Defendant’s motion to compel he would not comply, Plaintiff 3 replied verbatim ‘If the judge says that I have to let you guys depose me, I’m not going to do it 4 and I’m going to basically come up with some way to oppose it and make this judge look 5 biased.’” (Id., ¶ 17.) Plaintiff stated the Court’s previous rulings were improper and biased against 6 him. (Id.) Counsel and Plaintiff discussed “various topics, including the case history, previous 7 deposition attempts in this matter, and Plaintiff’s frustrations with certain CDCR staff members.” 8 (Id., ¶ 18.) 9 Defense counsel stated he has reviewed Plaintiff’s litigation history that reveals Plaintiff is 10 listed in “sixty-six District Courts dockets and twenty-four Ninth Circuit Court of Appeals 11 dockets,” although some are duplicative. (Doc. 64-2, ¶ 19.) Defense counsel attached six exhibits 12 in support of his declaration, including notices regarding the January 9 and April 18, 2023 13 depositions, transcripts and statements of non-appearance, a copy of a letter counsel received 14 from Plaintiff following the April 26, 2023 telephone call, and a copy of a CDCR 128B General 15 Chrono form dated April 18, 2023, that he received from the litigation coordinator at Plaintiff’s 16 institution. (Id., ¶¶ 20-25; Doc. 64 at 22-52.) 17 2. Plaintiff’s Opposition 18 Plaintiff filed an opposition to Defendant’s motion (see Doc. 70 at 3-20) that includes 19 numerous exhibits2 (id. at 21-48). Plaintiff contends the only relevant events concern the April 18, 20 2023 deposition. (Doc. 70 at 3.) He contends defense counsel blames him for “systemic failures 21 of technology and or the ignorance of correctional staff.” (Id. at 4.) Plaintiff asserts defense 22 counsel “acted to factually lie to this Court” regarding the events of April 18, 2023, because body 23 camera footage “of at least six correctional officers” will show a supervising lieutenant directing 24 Correctional Officers Sanchez and Phillips “to stop trying to connect to the Zoom link” after 45 25 minutes. (Id.) Plaintiff contends defense counsel “refused to speak with Plaintiff” that morning, 26 citing to Sanchez’s body camera. (Id. at 5.) He contends defense counsel directed Sanchez to 27 28 2 The Court has reviewed the exhibits containing copies of documents related to the rules violation report, 1 “keep Plaintiff there in the holding cage” and that he (Plaintiff) informed Sanchez that defense 2 counsel “had no authority to order C/Os to ‘hold’ him anywhere,” and stating Sanchez and 3 defense counsel argued as a result. (Id.) Plaintiff contends he told Sanchez he wanted to leave but 4 Sanchez ignored him. (Id.) When Plaintiff advised Phillips that “he’d be suing them for false 5 imprisonment,” Sanchez asked if Plaintiff was refusing. (Id.) Plaintiff noticed “the entrapment in 6 the question that if answered yes to would allow him to be said to have willfully obstructed the 7 deposition, rather than the technical troubles being rightfully acknowledged.” (Id. at 5-6.) When 8 asked again if he was refusing, Plaintiff said, “’No, y’all aint gonna blame me, and tell the judge I 9 refused because you too dumb to work the system.’” (Id. at 6.) Plaintiff contends he was left in a 10 holding cage for about five minutes before “becoming upset “at the sound of the C/Os in the 11 hallway acting as if it were a social hour.” (Id.) He called them but they “ignored him” so he” 12 began kicking the cage door” to get their attention. (Id. at 7.) While doing so, he began to 13 experience chest pains from a pre-existing heart condition. When a correctional officer and 14 Sergeant Baker approached to advise he would be returned to his cell, Plaintiff complained of the 15 chest pains, “explaining it was a result of his having to kick the cage to get their attention.” (Id.) 16 Plaintiff asserts that when Correctional Officer Pohovich arrived in response to emergency 17 protocols initiated by Sergeant Baker, Pohovich “began to taunt Plaintiff as she had been doing 18 all morning, prior to that instance, and acts to do in any instance she can gain opportunity to 19 interact with Plaintiff.” (Id. at 7-8.) Plaintiff admits to “calling Pohovich a ‘stinking pussy bitch,’ 20 but alleges that this did not happen at a time where the deposition was taking place.” (Id. at 8.) 21 Plaintiff contends the rules violation report issued to Plaintiff from Pohovich concerns an earlier 22 comment rather than the “’stinking…’” comment he made at 10:30 a.m. (Id.) 23 Plaintiff states it is not the “Court’s place to discipline prisoners for their alleged bad 24 conduct, no matter how much it finds the behavior deplorable” where the conduct did not occur 25 during “events related to the Court’s business.” (Doc. 70 at 9.) Plaintiff states he and Pohovich 26 “had been reproaching each other all morning and Plaintiff had been calling her ‘stinking …’ all 27 morning,” but she only issued the rules violation report “for him stating ‘get off my door dumb 28 bitch.’” (Id.) He contends there is body camera footage to support his assertion “of that selective 1 enforcement” and Phillip’s “false declaration.” (Id.) Plaintiff contends “Phillip’s claims Pohovich 2 made the radio call where Baker did, he claims language like ‘please’ was used but [body 3 cameras] proves he lied.” (Id. at 10.) Plaintiff states he was inside his cell when he reported he 4 was suicidal and “at the point in time that Plaintiff reported chest pains the proceedings related to 5 the deposition had concluded.” (Id.) When Plaintiff “reported suicidal” the deposition had already 6 concluded. (Id. at 10-11.) Plaintiff contends defense counsel is ”bootstrapping” by seeking to 7 “have the Court deviate” from letting prison officials handle internal matters. (Id. at 11.) Plaintiff 8 alleges that despite “Dr. Wilson’s alleging Plaintiff had falsely reported [suicidal ideation], over 9 30 times” in 2023, Plaintiff “has not been issued 30 RVRs,” nor one on April 18, 2023. (Id. at 10 12.) He contends this “Court must assume that Plaintiff had not violated” a regulation if the 11 absence of an RVR. (Id.) 12 Plaintiff alleges defense counsel seeks to have matters “unrelated to his deposition 13 dovetailed thereto” to “render Plaintiff amenable to termination sanction, and that’s only if he is 14 found to have acted to obstruct the proceeding. Plaintiff did not.” (Doc. 70 at 13.) Plaintiff 15 contends defense counsel is lying to the Court by asserting he arranged for an in-person 16 deposition on May 17 and 18, 2023, because it was a scheduled “visit” not a deposition. (Id. at 17 13-14.) Plaintiff contends in-person depositions are conducted in committee rooms not in visiting 18 rooms. (Id. at 14.) Without referencing any date, Plaintiff asserts he was taken to the visiting 19 rooms and was “informed that it was ‘only a visit’” and that defense counsel “was to be visiting.” 20 (Id.) Plaintiff notes the correctional officer referred to defense counsel “’Ari’ as ‘she,’” telling 21 Plaintiff “who had been waiting for Sheps for over 20 minutes ‘she’s running late,’ etc.” (Id.) Ten 22 to fifteen minutes later, Plaintiff was advised defense counsel had “cancelled and rescheduled for 23 ‘tomorrow.’” (Id.) Plaintiff immediately called defense and asked what defense counsel wanted, 24 “hoping to prevent Sheps from lying about some not yet known reason for the visit where 25 Plaintiff had in a letter told Sheps not to call him, but knowing he had to confer.” (Id. at 15.) 26 Plaintiff contends defense counsel gave no reason for cancelling the May 17, 2023, deposition. 27 (Id. at 16.) Plaintiff told defense counsel that if counsel “blamed him for the failings of C/Os to 28 operate Zoom” on April 18, 2023, “he’d have to deal with the consiquences [sic]” because the 1 reason the deposition did not proceed was due to “technical errors.” (Id.) Plaintiff also contends 2 defense counsel “has not shown any prejudice to the would-be defenses,” and that he would have 3 participated but defense counsel “failed to ensure that the video set-up(s) on past dates were 4 troubleshot ahead of time as is obviously needed, but he has neglected to do so anticipating issues 5 occurring that he could call found and garner a win thereby, where he knows he can’t win in trial 6 due to the state of the evidence already known to him.” (Id. at 18-19.) 7 Finally, Plaintiff asks the Court to order defense counsel to provide the Court with the 8 video and audio recordings for the events of April 18, 2023, “as it can be seen and heard that the 9 Lt. had concluded the deposition prior to Plaintiff’s reporting chest pains or other, and the 10 conclusion was not a result of Plaintiff’s actions but a direct and proximate result of technical 11 troubles, and C/O(s) ignorant to working the equipment.” (Id. at 19-20.) Plaintiff requests that 12 Defendant’s motion be denied because defense counsel did not provide “video/audio readily 13 available” that would refute Defendant’s claims in the motion, forcing this Court to “enter a 14 determination of his credibility against Plaintiff’s in hope that the Court will believe his lies, but 15 all that would do is parlay this into another state lawsuit against Shep’s Office and C/O Phillips 16 for slander/libel, and abuse of process.” (Id. at 20.) 17 3. Defendant’s Reply 18 Defendant contends Plaintiff acknowledges he acted disorderly at the deposition, “and 19 provides even more information regarding his disorderly conduct of which Defendant was not 20 previously aware.” (Doc. 71 at 1.) Defendant notes “aggressive conduct is not permitted for 21 inmates, and while Plaintiff attempts to frame it as reasonable, repeatedly kicking a door is not 22 only not acceptable, routine, or tolerable heavier in prison, it is also unacceptable behavior 23 outside of prison and would not be tolerated in any deposition.” (Id. at 2.) 24 Defendant asserts that had Plaintiff remained without kicking, yelling and using foul 25 language, “and repeating his pattern of making false health claims,” and had staff not been 26 focused on Plaintiff’s conduct to the detriment of fixing the technical issues, “no terminating 27 sanctions would be sought.” (Doc. 71 at 2.) Defendant notes the technical issues may have been 28 resolved on April 18, 2023, but “we will never know, because Plaintiff’s aggressive and hostile 1 conduct prevented officers from working on the problem.” (Id.) Moreover, Defendant contends 2 Plaintiff directly stated he would not comply with a court order compelling his deposition and that 3 Plaintiff has not denied making that statement, justifying the sanction sought. (Id.) 4 Defendant acknowledges technical difficulties happen, but notes that had Plaintiff 5 remained calm and waited appropriately for either a solution to the difficulties or for the staff to 6 determine a solution was not possible, “the deposition may have went forward. Instead, after only 7 a brief period of time, Plaintiff lashed out and became hostile as he has a noticed tendency 8 (reinforced by his own evidence) to do.” (Doc. 71 at 3.) Defendant notes lesser sanctions are not 9 available and requests this Court impose terminating sanctions “as they are appropriate and 10 justified.” (Id.) 11 In a supporting declaration, defense counsel states he received an unexpected call from 12 Plaintiff on June 5, 2023. (Doc. 71-1, ¶ 2.) Plaintiff asked defense counsel whether he would be 13 filing a motion for extension of time, a motion to compel, or a motion for terminating sanction as 14 discussed in a previous phone call. (Id., ¶ 7.)3 When defense counsel stated he had filed a motion 15 for terminating sanctions on May 30, 2023, Plaintiff “began a long tirade regarding why such a 16 Motion would be a mistake stating that he had interviewed Officers on their body cameras 17 regarding the incident” and advising defense counsel that he “should recant the motion” and 18 informing counsel that if counsel did not do so Plaintiff may bring a lawsuit against him. (Id., ¶ 19 9.) Plaintiff stated that “he was working with Officers on drafting 128B chronos which would 20 prove that the disruption and disorder wasn’t his fault, but that he was brought back to his cell 21 after Officers got frustrated with the technical difficulties.” (Id., ¶ 10.) 22 4. Defendant’s Request for Judicial Notice 23 Defendant asks this Court to take judicial notice of the following: 24 1. In Hammler v. Hernandez, No. 3:18-cv-00259-CAB-MDD, an action filed in the 25 United States District Court for the Southern District of California: 26 a. A report and recommendation issued November 17, 2020, to grant defendant’s 27 motion for terminating sanctions and dismiss the action due to Plaintiff’s 28 1 failure to participate in his deposition and to comply with court orders (Exhibit 2 1); 3 b. The order adopting the report and recommendation, granting terminating 4 sanctions and dismissing the action with prejudice, issued December 21, 2020 5 (Exhibit 2); 6 c. The defendants’ motion for terminating sanctions filed October 23, 2020 7 (Exhibit 7); 8 2. In Hammler v. Franklin, No. 2:18-cv-05525-JGB-SP, an action filed in the United 9 States District Court for the Central District of California: 10 a. An order issued September 9, 2021, finding Plaintiff “impeded, delayed and 11 frustrated his deposition in several ways,” and granting defendant’s request for 12 the imposition of sanctions (Exhibit 3); 13 b. A report and recommendation issued September 29, 2022, to grant defendant’s 14 motion for terminating sanctions and to dismiss the action due to Plaintiff’s 15 failure to comply with the court’s order to cooperate with his deposition 16 (Exhibit 4); 17 c. The order adopting the report and recommendation, granting the motion for 18 terminating sanctions and dismissing the action with prejudice, issued January 19 18, 2023 (Exhibit 5); 20 d. An order granting defendant’s motion to compel Plaintiff’s deposition 21 testimony and denying sanctions, issued September 9, 2021 (Exhibit 8); 22 e. A transcript of Plaintiff’s March 26, 2021 deposition and the Declaration of 23 Deputy Attorney General Thai regarding the deposition, filed April 21, 2021 24 (Exhibit 9); 25 3. In Hammler v. Wright, No. 2:15-cv-01645-TLN-EFB, an action filed in the United 26 States District Court for the Eastern District of California, Sacramento Division: 27 a. An order dismissing the action with prejudice for Plaintiff’s refusal to board 28 the transport van to his trial, and failure to comply with court orders, issued 1 February 21, 2020 (Exhibit 6). 2 (Doc. 64-1 at 1-3.) 3 The Court takes judicial notice of the court records noted above. Fed. R. Evid. 201(b); 4 United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) (recognizing that under Federal Rule of 5 Evidence 201, “a court may take judicial notice of its own records in other cases”); Bias v. 6 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (Courts “may take notice of proceedings in other 7 courts, both within and without the federal judicial system, if those proceedings have a direct 8 relation to matters at issue”). 9 B. Applicable Legal Standards 10 On motion, the Court may order sanctions against a party for failure, after being served 11 with proper notice, to appear for that person's deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Such 12 sanctions may include prohibiting the disobedient party from supporting or opposing designated 13 claims or defenses, or from introducing designated matters in evidence. Fed. R. Civ. P. 14 37(b)(2)(A). The Court also may dismiss the action or proceeding in whole or in part. Id. 15 Dismissal and default are such drastic remedies, they may be ordered only in extreme 16 circumstances—i.e., willful disobedience or bad faith. In re Exxon Valdez, 102 F.3d 429, 432 (9th 17 Cir. 1996). Even a single willful violation may suffice depending on the circumstances. Valley 18 Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1056 (9th Cir. 1998) (dishonest concealment of 19 critical evidence justified dismissal). 20 The court may consider a party's pro se status in evaluating the willfulness of discovery 21 violations and in weighing the other factors regarding dismissal, but lack of a lawyer does not 22 excuse intentional noncompliance with discovery rules and court orders. See Castillo v. Johnson, 23 2021 WL 2165204, at *4 (C.D. Cal. May 25, 2021), adopted, 2021 WL 2165206 (C.D. Cal. May 24 26, 2021); Dettmanti v. Davies, No. CV 13-3484-MWF (JPR), 2016 WL 649530 at *3 (C.D. Cal. 25 Sept. 28, 2016) (citing Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000)) (affirming 26 sanction of dismissal and holding that “[a] pro se litigant is bound by the litigation rules as is a 27 lawyer, particularly here with the fulfilling of simple requirements of discovery”); Gordon v. 28 Cnty. Of Alameda, No. CV-06-02997-SBA, 2007 WL 1750207 at *5 (N.D. Cal. June 15, 2007) 1 (“pro se plaintiffs must abide by the rules of discovery, and when they fail to do so in bad faith 2 dismissal is warranted”). District courts also have the inherent power to control their dockets and 3 “[i]n the exercise of that power they may impose sanctions including, where appropriate, ... 4 dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 5 The Ninth Circuit has identified five factors that a court must consider before imposing 6 the sanction of dismissal: “(1) the public's interest in the expeditious resolution of litigation; (2) 7 the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 8 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 9 sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). The Ninth Circuit has 10 stated that when considering “case-dispositive sanctions, the most critical factor is not merely 11 delay or docket management concerns, but truth...[and] regarding risk of prejudice and of less 12 drastic sanctions...whether the discovery violations ‘threaten to interfere with the rightful decision 13 of the case.’” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th 14 Cir. 2007) (quoting Valley Eng'rs v. Electric Eng'g Co., 158 F.3d 1051, 1057 (9th Cir.1998); see 15 also Wanderer v. Johnston, 910 F2d 652, 656 (9th Cir. 1990) (the amount of prejudice resulting 16 from the discovery violations and the availability of less drastic sanctions are said to be “key 17 factors”). “A terminating sanction, whether default judgment against a defendant or dismissal of a 18 plaintiff's action, is very severe,” and “[o]nly willfulness, bad faith, and fault justify terminating 19 sanctions.” Conn. Gen. Life Ins., 482 F.3d at 1096. 20 C. Analysis 21 Defendant contends this action should be terminated for Plaintiff’s repeated failures to 22 comply with discovery obligations and to litigate in good faith (Doc. 64 at 14), and that all 23 applicable factors weigh in favor of dismissal (Id. at 16-20). Although Plaintiff’s conduct was 24 willful, all applicable factors do not weigh in favor of dismissal. 25 1. Willfulness Finding 26 The January 9, 2023, and the April 18, 2023 depositions were properly noticed. (See Doc. 27 64 at 28-30 [1/9/23] & 33-37 [4/18/23].) The January 9, 2023 deposition notice, originally served 28 by mail on November 15, 2022, was returned to the Attorney General’s Office marked “’RTS IM 1 Refused’” on November 30, 2022. (See Doc. 64 at 27.) The notice was re-served to Plaintiff on 2 December 5, 2022. (Doc. 64 at 27, 31.) 3 On January 9, 2023, Plaintiff was to appear at his deposition scheduled for 8 a.m. (See 4 Doc. 64 at 28-30.) At 8:32 a.m., defense counsel Anthony Corso canceled the deposition and 5 made a record of Plaintiff’s non-appearance. (Id. at 23-25.) After experiencing technical 6 difficulties with video, an officer advised defense counsel that Plaintiff “was refusing to appear 7 and the officer provided a recording to the court reporter.” (Id. at 24-25.) Officer Ehlers at 8 California State Prison, Sacramento noted that while staff was trying to connect for the video 9 deposition, Plaintiff “’lost his patience and decided to return to his cell.’” (Id. at 25.) 10 On April 18, 2023, Plaintiff was to appear at his deposition scheduled for 9 a.m. (See Doc. 11 64 at 33-36.) The transcript for the statement of non-appearance notes the court reporter and 12 defense counsel Ari J. Sheps and Sarah Singer were present between 8:55 a.m. and 10:18 a.m. via 13 Zoom. (Id. at 42-43.) Mr. Sheps noted he was informed by correctional staff that Plaintiff “was 14 initially present for his deposition,” but difficulties arose establishing a video connection, 15 although an audio connection was established. (Id. at 43-44.) Defense counsel noted he was 16 prepared to conduct the deposition by audio but was unable to offer that alternative because 17 Plaintiff became “frustrated and has decided to leave the room.” (Id. at 44.) 18 Defense counsel asked Correctional Officer Phillips for his account of the events. (Id.) 19 C/O Phillips stated Plaintiff “was agitated” and was asked to “please be patient for just a couple 20 of minutes while” staff tried to establish the connection. (Id.) Plaintiff then stated he “had chest 21 pains.” (Id.) A treatment triage nurse responded, “cleared him, and on the way back to his 22 housing he claimed he was suicidal.” (Id.) Phillips advised that a mental health doctor would be 23 responding, and that Plaintiff was being observed in his cell. (Id.) Defense counsel asked Phillips 24 what Plaintiff’s demeanor was like prior to leaving the room and Phillips stated Plaintiff “was 25 agitated, yelling obscenities at female officers and myself. I can’t go into detail exactly what he 26 was saying, yeah. Unpleasant.” (Id. at 44-45.) Defense counsel noted this was the second attempt 27 to take Plaintiff’s deposition, the second time video connection difficulties arose, and the second 28 time Plaintiff left the deposition. (Id. at 45.) 1 After the unsuccessful second deposition attempt, defense counsel scheduled an in-person 2 deposition to be held May 17, 2023, and May 18, 2023, at Plaintiff’s institution. (Doc. 64-2, ¶ 3.) 3 However, following a telephone conversation in late April between defense counsel and Plaintiff, 4 and a letter from Plaintiff received by defense counsel on May 1, 2023, the in-person deposition 5 planned for mid-May was cancelled because Plaintiff was hostile and unwilling to cooperate. 6 (Doc. 64 at 8-9.) During a telephone call on May 17, 2023, Plaintiff advised defense counsel that 7 even if the Court ordered Plaintiff to be deposed, he would not comply with the Court’s order. 8 Plaintiff stated he was “’not going to do it’” and that he was “’going to basically come up with 9 some kind of way to oppose it and make this judge look biased.’” (Id. at 9.) 10 “Disobedient conduct not shown to be outside the control of the litigant is sufficient to 11 demonstrate willfulness, bad faith, or fault.” Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 12 2003). Here, Plaintiff’s disobedient conduct was within his control. 13 The Court finds Plaintiff acted willfully. While the record demonstrates technical issues 14 concerning a video connection during the second attempt to take Plaintiff’s deposition, Plaintiff’s 15 actions—unrelated to the technical issues—were problematic. Plaintiff was disrespectful to 16 correctional staff, used derogatory and profane language, raised his voice in anger, and displayed 17 aggressive behavior by kicking the holding cage. Plaintiff also manipulated and obstructed efforts 18 to take his deposition by claiming he was suffering from chest pains, and later claiming to be 19 suicidal. The Court notes Plaintiff has a documented history of claiming suicidal ideation to avoid 20 various circumstances and obligations, including having his deposition taken and recanting his 21 claim. (See Doc. 64-1 at 36-37.) 22 2. Consideration of Factors Warranting Dismissal 23 Finding Plaintiff’s behavior willful, the Court considers whether dismissal is an 24 appropriate sanction. 25 First, the Court considers the public’s interest in the expeditious resolution of this 26 litigation. The Ninth Circuit has explained that “[t]he public’s interest in expeditious resolution of 27 litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 28 This case has been pending since May 2019, proceeding on a single First Amendment claim 1 against Defendant Hernandez. The Court issued its Discovery and Scheduling order in November 2 2022. Defendant has attempted to take Plaintiff’s deposition on two occasions without success, 3 due in part to technological issues and also due to Plaintiff’s behavior. Defendant is entitled to 4 examine Plaintiff regarding the facts on which Plaintiff bases his claims. Here, the public’s 5 interest in the expeditious resolution of this litigation weighs in favor of dismissal. 6 Second, the Court considers the need to manage its docket. This factor focuses on whether 7 a particular case has “consumed large amounts of [a district] court’s valuable time that it could 8 have devoted to other major and serious criminal and civil cases on its docket.” See Ferdik v. 9 Bonzelet, 963 F.2d 1261 (9th Cir. 1992). This action has been pending for more than four years. 10 Following screening and service of the operative complaint, the Court denied Plaintiff’s motion 11 for injunctive relief (Docs. 47 & 53) and motion for summary judgment (Doc. 56). Discovery 12 commenced more than eleven months ago (Doc. 57), and the deadline for the completion of 13 discovery was extended to accommodate Defendant’s need to depose Plaintiff after the January 14 2023 attempt to depose him was unsuccessful (Doc. 60). Plaintiff’s unacceptable conduct 15 continues to require the Court to expend its limited resources to address this matter. Thus, the 16 factor also weighs in favor of dismissal. 17 Third, the Court considers the risk of prejudice to the Defendant. “A defendant suffers 18 prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to 19 interfere with the rightful decision of the case.” In re Phenylpropanolamine (PPA) Products 20 Liability Litigation, 460 F.3d 1217, 1227 (9th Cir. 2006) (quoting Adriana Int’l Corp. v. 21 Thoerren, 913 F.2d 1406, 1412 (9th Cir. 1990)). Here, Plaintiff’s actions continue to impair 22 Defendant’s ability to obtain information regarding the circumstances of his claim and the 23 damages he is claiming. Plaintiff’s willful refusal to participate in a deposition also continues to 24 delay the trial in this case. Thus, this factor too weighs in favor of dismissal. 25 Fourth, the Court considers the public policy favoring disposition of this action on its 26 merits. This factor usually weighs against dismissal because public policy favors disposition on 27 the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends 28 little support to a party whose responsibility it is to move a case toward disposition on the merits 1 but whose conduct impedes progress in that direction.” In re PPA, 460 F.3d at 1228. Here, 2 Plaintiff’s behavior, exhibited in the January and April 2023 deposition efforts, impedes progress 3 in this action. This factor weighs in favor of dismissal. 4 Finally, the Court considers the availability of less drastic sanctions. A district court must 5 consider the impact of a sanction and whether a less severe sanction would adequately address a 6 party’s failure to engage in the discovery process. Malone v. U.S. Postal Serv., 833 F.2d 128, 7 131-32 (9th Cir. 1987). And as noted above, when “deciding whether to impose case-dispositive 8 sanctions, the most critical factor is not merely delay or docket management concerns, but truth. 9 What is most critical for case-dispositive sanctions, regarding risk of prejudice and of less drastic 10 sanctions, is whether the discovery violations threaten to interfere with the rightful decision of the 11 case.” Conn. Gen. Life Ins. Co., 482 F.3d at 1097 (quotation marks omitted). The Ninth Circuit 12 stated this factor includes three subparts, including “whether the court has considered lesser 13 sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility 14 of case-dispositive sanctions.” Id. at 1096. 15 The Court finds a less drastic sanction is available. Here, the Court has issued a Discovery 16 and Scheduling Order addressing Plaintiff’s required participation in a properly noticed 17 deposition (see Doc. 57 at 2). However, Defendant has not sought an order compelling Plaintiff to 18 participate in a deposition, and the Court has not ordered him to attend a deposition following 19 issuance of the Discovery and Scheduling Order. Because compelling Plaintiff’s deposition 20 amounts to a less drastic sanction and this Court has not warned Plaintiff about the possibility of 21 case-dispositive sanctions, the Court will order Plaintiff to participate in a deposition to be 22 scheduled by Defendant. 4 23 The Court will afford Plaintiff one final opportunity to meet his discovery obligation. The 24 Court will direct Plaintiff to participate in a deposition within a certain time and will direct 25 Plaintiff shall avoid disruptive, disrespectful or assaultive behavior, and the use of any profane 26 language. See, e.g., Glas-Weld Sys., Inc. v. Boyle, No. 6:12-CV-02273-AA, 2013 WL 4828965, at 27 4 The Court finds evidentiary sanctions would be ineffective as Plaintiff would be able to testify to 28 information he has not provided at the deposition. Monetary sanctions are also ineffective because Plaintiff 1 *1 (D. Or., Sept. 6, 2013) (admonishing a pro se defendant that further profanity, threats, and 2 taunts may result in additional sanctions); Scott v. Palmer, No. 1:09-CV-01329-LJO-SKO (PC), 3 2014 WL 6685813, at *3 (E.D. Cal., Nov. 26, 2014) (admonishing a state prisoner proceeding pro 4 se that use of profanity, abusive conduct, and uncooperativeness at a deposition is grounds for 5 terminating sanctions and advising him pro se status does not “shield him from the consequences 6 of abusive behavior”); Block v. Snohomish Cty, No. C14-235RAJ, 2014 WL 6750475, at *10 7 (W.D. Wash., Dec. 1, 2014) (admonishing a plaintiff that the court will impose monetary 8 sanctions if she uses “profanity or abusive invective” in communications with defense counsel); 9 Bledsoe v. Martinez, No. 2:18-cv-2710 JAM KJN P, 2021 WL 463598, at *6 (E.D. Cal. Feb. 9, 10 2021) (denying defendant’s motion for terminating sanctions, ordering pro se plaintiff to attend 11 his deposition, and admonishing plaintiff that “he cannot demand defense counsel produce 12 documents or witnesses, nonparty or otherwise, at plaintiff’s deposition”). 13 III. CONCLUSION AND ORDER 14 For the reasons stated above, IT IS HEREBY ORDERED that: 15 1. Defendant’s motion for terminating sanctions (Doc. 64) is DENIED in PART and 16 GRANTED in PART; 17 2. Defendant’s motion for terminating sanctions in the form of dismissal of this action is 18 DENIED; 19 3. Defendant’s request the Court order Plaintiff to participate in a deposition is 20 GRANTED. Plaintiff SHALL participate in a properly noticed deposition to be 21 noticed no later than October 23, 2023, and held no later than December 1, 2023; 22 a. In the event an in-person deposition is not sought and the third attempt to 23 depose Plaintiff results in any technological difficulties at commencement or 24 during the proceedings, each party shall allow sufficient time to allow for 25 correctional staff and/or technology staff to remedy any such difficulty; 26 b. In the event a video connection cannot be obtained or maintained, the 27 deposition SHALL commence via audio only; 28 c. Plaintiff SHALL avoid disruptive, disrespectful or assaultive behavior, and 1 shall avoid the use of profane language directed at either correctional staff, 2 technology staff, or defense counsel; 3 d. Plaintiff is ADVISED that in the event he fails to participate and cooperate 4 during the deposition, such a failure will warrant a dismissal of this action; and 5 4. Defense counsel SHALL file a status report no later than November 1, 2023, 6 advising the Court of the efforts to reschedule Plaintiff’s deposition in accordance 7 with this order. 8 IT IS SO ORDERED. 9 10 Dated: October 5, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28