Opinion
CV-20-00761-PHX-DLR (JZB)
09-07-2021
Asia Lynn, Plaintiff, v. Arizona Department of Corrections, et al., Defendants.
REPORT & RECOMMENDATION
John Z. Boyle United States Magistrate Judge
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT JUDGE:
This is a civil rights action brought under 42 U.S.C. § 1983 by Arizona Department of Corrections (“ADOC”) prisoner Asia Lynn (“Plaintiff”), who alleges excessive force and threat-to-safety claims against certain ADOC officials. (Doc. 6.) Before the Court is Defendants' Motion to Dismiss for Lack of Prosecution and For Discovery Violations for Plaintiff's failure to cooperate with the deposition process in good faith in contravention of the Court's April 1, 2021 Order (doc. 21). (Doc. 31.) Plaintiff has failed to act in good faith during the discovery process and has failed to comply with the Court's August 4, 2021 Order directing Plaintiff to respond to Defendants' Motion to dismiss this action. Accordingly, the Court will recommend that Defendants' Motion be granted, and that the case be dismissed with prejudice.
Plaintiff self-identifies as a transgender person whose gender is female. (See Doc. 20 at 1 n.1.)
I. Plaintiff's Claims.
On June 1, 2020, Plaintiff filed an Amended Prisoner Civil Rights Complaint. (Doc. 6.) On June 10, 2020, the Court screened the complaint and held that Plaintiff stated an excessive force claim against Defendants Banfill and Hamilton (Count Two) and threat-to-safety claims against Defendant Brown (Counts Three and Six). (Doc. 7 at 10.) All other claims and Defendants were dismissed. (Id. at 12.) The Court summarized the specific claims against Defendants Banfill, Hamilton, and Brown as follows:
In Count Two, Plaintiff asserts an excessive force claim, alleging that Defendant Banfill struck h[er] from behind while [s]he was handcuffed and being held on either side by two non-party officers, Sergeant North and Sergeant Golder. ([Doc. 6] at 7.) Sergeant North allegedly told Plaintiff that he would “properly document” Defendant Banfill's unnecessary use of force, but Plaintiff later overheard Defendant Hamilton instruct North to document Banfill's actions in a report regarding necessary force that was being prepared in connection with a separate incident. (Id.) According to Plaintiff, Hamilton's instruction constituted a violation of policy and an attempt to cover up Banfill's attack on Plaintiff, which occurred while Plaintiff was “restrained and compliant.” (Id.) After “failing to investigate this incident properly, ” Defendants Scott, Swayne, Kepney, and Shinn excused Banfill's purported use of excessive force. (Id.) As a result of Defendant Banfill's conduct, Plaintiff continues to suffer neck pain.
Plaintiff asserts another threat-to-safety claim in Count Three, claiming that h[er] Eighth and Fourteenth Amendment rights were violated when [s]he was housed with an inmate who sexually assaulted h[er]. (Id. at 8.) Plaintiff sent several letters to Defendant Robertson about “being attacked repeatedly as well as being the victim of sexual harassment and sexual assault, ” but “nothing was done to protect [her] from further abuse.” (Id.) Defendants Robertson and Diaz took no action to protect Plaintiff. (Id.) Instead, Plaintiff was moved to the Stiner Detention Unit, where Defendant Brown told Plaintiff that he was “concerned” about the person he was going to house Plaintiff with, Inmate Klering. (Id.) Plaintiff stated that if Brown was concerned, [s]he was concerned, and therefore did not feel safe housing with Klering. (Id.) Brown housed Plaintiff with Klering anyway, and on January 5, 2020, Klering assaulted Plaintiff. (Id.) Plaintiff sent Defendant Davis an inmate letter reporting the assault, but Davis “did nothing to help [her].” (Id.) On January 6, 2020, Plaintiff reported the assault as a Prison Rape Elimination Act (PREA) violation, was taken to the hospital, and was then returned to the Stiner Detention Unit. (Id.) Plaintiff asked Defendant
Smearbeck for an Inmate Informal Resolution form so [s]he could document the incident, but Smearbeck refused, telling Plaintiff that it was not a matter for the grievance process and that it “was CIU's job to deal with PREAs.” (Id.)
[ . . . ]
In Count Six, Plaintiff asserts another threat-to-safety claim against Defendant Brown based on Brown's alleged failure to protect Plaintiff from Inmate Klering. (Id. at 12.) Plaintiff claims that [s]he asked to be removed from protective custody because [s]he had been assaulted repeatedly there, but h[er] request was denied and [s]he was told that [s]he could not appeal the decision. (Id.) Brown later told Plaintiff that he knew there would be a problem if he placed Plaintiff in a cell with Inmate Klering, but he housed Plaintiff with Klering anyway. (Id.) Two days later, Klering exposed his penis to Plaintiff and tried to force Plaintiff to perform oral sex. (Id.) Plaintiff suffered an injury to h[er] hand while defending h[er]self from Klering. (Id.) Plaintiff states that [s]he is “actively” in danger because inmates who have attacked h[er] in the past are being allowed near h[er] to “further threaten and intimidate h[er].” (Id.)(Doc. 7 at 4-6 [brackets added, internal brackets omitted].)
II. Defendants' Motion to Dismiss.
On July 30, 2021, Defendants moved to dismiss the action under Rule 37(b)(2)(A) and Rule 41(b) of the Federal Rules of Civil Procedure (“Rules”) for Plaintiff's failure to cooperate in good faith during depositions. (Doc. 31.) Defendants deposed Plaintiff twice and state that both depositions were “utterly useless” on account of Plaintiff's recalcitrance and refusal to answer questions related to her claims. (Id.) Defendants argue that Plaintiff's conduct is in violation of the Court's April 1, 2021 Order in which it ordered Plaintiff to “cooperate in good faith with the deposition process by answering questions truthfully and fully.” (Doc. 21) In that same Order, the Court warned Plaintiff that if she failed to do so, she could face sanctions “up to and including the dismissal of [her] action.” (Id.)
On August 4, 2021, the Court issued an order noticing Plaintiff that Defendants had filed a Motion to Dismiss Plaintiff's action pursuant to Rule 37(b) and Rule 41(b) of the Federal Rules of Civil Procedure, and directing Plaintiff to file a response to Defendant's Motion on or before August 20, 2021. (Doc. 32.) In that same order, the Court warned Plaintiff that “You must timely respond to all motions. The Court may, in its discretion, treat your failure to respond to Defendant(s) Motion to Dismiss as consent to the granting of that Motion without further notice, and the Court may enter judgment dismissing this action pursuant to LRCiv 7.2(i).” (Doc. 32 at 2.) To date, Plaintiff has not responded to Defendants' Motion.
III. Legal Standards.
Rule 37(b) and Rule 41(b) both authorize dismissal as a sanction for certain misconduct. See Fed. R. Civ. P. 37(b)(2)(A)(v) (authorizing dismissal where a party fails to comply with a discovery order); Fed.R.Civ.P. 41(b) (authorizing dismissal where a plaintiff fails to prosecute or comply with any court order or the Fed. R. Civ. P.). “[W]here a party's noncompliance with a discovery order is the asserted basis for dismissal as a sanction, the court must employ the discovery-specific Rule 37 rather than relying on Rule 41(b).” Sanchez v. Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014) (citing Societe Internationale Pour Participations Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197, 207 (1958)). To dismiss an action under Rule 37(b)(2)(A), the Court must find that the party's noncompliance was “due to willfulness, fault, or bad faith.” Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993). Further, the Court must consider the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
IV. Discussion.
The Court will recommend that Defendants' Motion be granted because Plaintiff willfully disobeyed this Court's April 1, 2021 Order and acted in bad faith in doing so, as explained below. What is more, Plaintiff also failed to comply with another Court order by failing to respond to Defendants' Motion to Dismiss. Accordingly, Defendants' Motion should be granted and the case dismissed pursuant to Rule 37(b)(2)(A)(v) and Rule 41(b).
A. First Deposition - January 27, 2021.
On January 27, 2021, Defendants deposed Plaintiff via telephone. (Doc. 20 at 2; see Doc. 31-1 [Transcript].) Defendants summarized the events of this deposition as follows:
Before the deposition even began, Plaintiff argued at length with the court reporter about taking the oath. When the court reporter attempted to say something, Plaintiff spent several minutes arguing that the court reporter had rudely interrupted Plaintiff. When counsel then attempted to say something about this exchange on the record, Plaintiff tried to insist that the parties were not on the record. It took until page 12 of the transcript just to get to the defense's first question (which Plaintiff refused to answer).
During the rest of her testimony, Plaintiff randomly asserted the Fifth Amendment privilege to some questions but not to others. Further, despite this lawsuit in which she accuses an officer of knowingly placing her into a cell where she was sexually assaulted, Plaintiff refused to answer questions about the alleged assault because, “I don't like revisiting the details of that.” She also inexplicably asserted the Fifth Amendment to random questions about the sexual assault.(Doc. 20 at 2.) A review of the transcript from the deposition corroborates Defendants' summary of it and reveals multiple instances where Plaintiff did not evidence good faith participation in the deposition process. (See Doc. 31-1.) The Court provides a non-exhaustive summary of those instances below.
Plaintiff told the court reporter, “I don't swear and I don't swear under God for religious purposes. If you have an issue with that that's not, that sounds like a personal problem.” (Doc. 31-1 at 4.) Plaintiff further stated, “So that whole church and state shit is not going to really like go over well with me.” (Id.)
In response to a question regarding what Defendant Banfill had said to her at the time of the alleged incident, Plaintiff stated that she was unable to “translate” what Defendant Banfill had said because “I don't speak asshole.” (Id. at 7.) When asked to explain what she meant, Plaintiff reaffirmed, “I do not speak asshole, A-S-S-H-O-L-E. I don't speak that language, so if [Defendant Banfill] was saying anything to me I couldn't be able to translate that for you.” (Id.) Similarly, she stated that she would not respond to anything Defendants said to her at the time of the incident “because I don't respond to bullshit.” (Id.) Again, she affirmed, “I don't really speak asshole so that's not really relevant to me.” (Id.) Further, when counsel questioned her about her claims, Plaintiff stated, “I know you have my case file, so it would behoove you not to be lazy.” (Id. at 10.)
Plaintiff also testified that she does not use “derogatory, degrading, or disrespectful” language. (Doc. 31-1 at 7.)
Moreover, Plaintiff refused to answer questions regarding the alleged sexual assault on her by an inmate named “Klering” - the subject of Count Six (doc. 6 at 12) - on Fifth Amendment grounds. (Doc. 31-1 at 9.) Although the Fifth Amendment right against self-incrimination can be asserted in a civil proceeding, including a deposition, a deponent may only assert that right when she “reasonably believes” that her response to a particular question “‘could be used in a criminal prosecution or could lead to other evidence that might be so used.'” United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) (quoting Kastigar v. United States, 406 U.S. 441, 444-45 (1972)). It is not clear that a response to this question would have required an incriminating response from Plaintiff; as such, the Court concludes that Plaintiff's Fifth Amendment objection was groundless.
B. Second Deposition - May 12, 2021.
Given Plaintiff's recalcitrance at the January 27, 2021 deposition, Defendants moved for leave to take a second deposition of Plaintiff, this time, through written questions administered by a court reporter without counsel present. (Doc. 20 at 1.) In an April 1, 2021 Order, the Court granted this unopposed request and ordered Defendants to serve their written deposition questions on Plaintiff by April 16, 2021. (Doc. 21.) Therein, the Court also ordered Plaintiff to “cooperate in good faith with the deposition process by answering questions truthfully and fully” and warned Plaintiff that if she “fail[ed] to comply with this order, the Court may impose sanctions up to and including the dismissal of Plaintiff's action.” (Id., emphasis added.)
On April 16, 2021, Defendants served their written deposition questions on Plaintiff. (Doc. 23.) On May 12, 2021, a court reporter verbally administered the questions to Plaintiff and recorded Plaintiff's verbal responses. (Doc. 31 at 2-3; see Doc. 31-2 [Transcript].) A review of the transcript from this deposition reveals multiple instances where Plaintiff willfully disobeyed the Court's April 1, 2021 Order in bad faith. (See Doc. 31-2.) The Court provides a non-exhaustive summary of those instances below.
The date and time for this deposition had been changed multiple times. (See Docs. 24-27.) In the interim, on May 7, 2021, Plaintiff moved for leave to mail in her answers to Defendants' questions in lieu of having them recorded, stating that “prior appointments weren't kept by whomever was supposed to record my answers.” (Doc. 28.) Defendants responded, stating that the court reporter retained to take Plaintiff's deposition “had several complications in completing it” and that “two occasions on which counsel requested a court reporter to complete the deposition ended without the deposition even commencing.” (Doc. 29.) Defendants did not elaborate on the specific nature of the “complications.” On May 19, 2021, the Court denied Plaintiff's May 7, 2021 Motion as moot. (Doc. 30.)
Plaintiff testified she was unable to “recall” virtually anything about the November 24, 2019 incident - the subject of the excessive form claims of Count Two (doc. 6 at 7) - including whether she was instructed to return to her assigned housing, whether a supervisor was requested when she allegedly did not, what Defendant Banfill had said to her, and what she said to Defendant Banfill. (Doc. 31-2 at 4-5.) Plaintiff further testified that she could not “recall” whether she had been handcuffed during the November 24, 2019 incident (id. at 4), despite alleging in her Amended Complaint that “[o]n November 24th, 2019 [Defendant] Banfill attacked and struck me from behind while I was handcuffed and being held by [other prison officers]” (doc. 6 at 7).
Further, Plaintiff testified to having no knowledge of a November 22, 2019 altercation between her and the prison librarian, an incident which allegedly gave rise to the November 24, 2019 incident between her and Defendant Banfill. (Doc. 31-2 at 3-4.) According to Defendants, Plaintiff was placed on a 72-hour lockdown following an altercation between her and the prison librarian on November 22, 2019. (Doc. 31 at 3.) At the time of the November 24, 2019 incident with Defendant Banfill, Plaintiff was outside of her cell in violation of the lockdown order and refusing to return to her cell despite Defendant Banfill's orders. (Id.) Despite testifying to having no knowledge of the November 22, 2019 incident or being under a 72-hour lockdown (doc. 31-2 at 3-4), Plaintiff testified that the November 22, 2019 incident and the November 24, 2019 incident “were two completely separate incidents” that should have been reported “[a]s two separate incidents.” (Id. at 5.)
Plaintiff also refused to answer questions solely on account of counsel's spelling and grammar. For instance, Plaintiff refused to answer questions regarding the allegation in Count Six that an inmate by the name of “Searls” was “allowed near [her] after attacking [her]” (doc. 6 at 12). (Doc. 31-2 at 6.) According to Plaintiff, counsel apparently misspelled the name of this inmate; therefore, she refused to answer any questions regarding him. (See, e.g., id. [“Mr. Singh might want to actually read the complaint so he knows the proper pronunciation, spelling, because I don't know anybody by the name of Searies. That's Asia helping him do his job. Next question.”].) Notwithstanding any de minimis errors in spelling or pronunciation of this inmate's name in counsel's written deposition questions, Plaintiff could reasonably infer whom counsel was referring to in those questions based on their content and relation to other questions as well as the similarity of the name to the individual named in Plaintiff's complaint. (Compare Doc. 6 at 10-12 with Doc. 31-2 at 6.) Plaintiff's refusal to answer questions regarding this inmate and his actions as they relate to the claims of Count Six solely because of purported spelling and grammar issues unnecessarily and unjustifiably frustrated the deposition process. Similarly, Plaintiff's refusal to answer whether she had been relocated to different housing following the alleged assault by this inmate because it was “vague” (doc. 31-2 at 6) was not justified. Again, given the content and context of the question in relation to the preceding questions, it was not vague, and therefore Plaintiff's objection was improper.
C. Conclusion.
Plaintiff's conduct at both depositions was willful and done in bad faith, and Plaintiff's conduct at the May 12, 2021 deposition violated the Court's April 1, 2021 Order because Plaintiff did not answer relevant questions “truthfully and fully” and did not act in good faith as ordered. As explained below, dismissal under Rule 37(b) is an appropriate sanction for this noncompliance.
Although public policy favors disposition of cases on their merits, “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.” Products Liab. Litig., 460 F.3d at 1228. Therefore, “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.” Id. (internal quotation marks and citation omitted); see also Id. at 1251 (“Although public policy favors trying cases on their merits, it also favors the principle that litigants should be ready to prosecute claims when brought[.]”). Here, Plaintiff, as the plaintiff, is responsible for moving her case toward resolution on the merits. However, Plaintiff has impeded progress in that direction by unjustifiably and unnecessarily delaying the discovery process multiple times by failing to cooperate in good faith during multiple depositions. This, in turn, has also negatively affected the public's interest in expeditious resolution of litigation and the Court's ability to efficiently manage its docket to ensure such by causing unnecessary and repeated delays that require the Court's intervention..
Moreover, the Court's prior attempts to cure the malfeasance have proved ineffective. Plaintiff's failure to cooperate in the deposition process in good faith continues despite changing the form of the deposition and despite this Court's order to cooperate in good faith and its express warning that failing to do so could result in sanctions, up to and including dismissal of her case. See Id. at 1229 (“Warning that failure to obey a court order will result in dismissal can itself meet the ‘consideration of alternatives' requirement.”); Malone v. United States Postal Service, 833 F.2d 128, 132 (9th Cir. 1987) (“Alternative sanctions include: a warning[.]”) (internal quotation marks and citation omitted).
Plaintiff has made it clear, through her remarks and conduct at prior depositions, that she simply will not comply with the deposition process, even when ordered by this Court to do so, and even when threatened with the possibility of dismissal of her case. As such, the Court concludes that under these circumstances, dismissal of the action pursuant to Rule 37(b)(2)(A)(v) is appropriate.
Fed.R.Civ.P. 37(b)(2)(C) requires the Court to order a party sanctioned under Rule 37(b) to pay “reasonable expenses, including attorney's fees” to the moving party “unless . . . circumstances make an award of expenses unjust.” Given that Plaintiff is incarcerated and proceeding in forma pauperis, the Court concludes that ordering Plaintiff to pay expenses would be unjust in this case and therefore declines to order such.
IT IS THEREFORE RECOMMENDED that Defendants' Motion to Dismiss (doc. 31) be granted and that Plaintiffs Amended Complaint (doc. 6) be dismissed with prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.