Price v. Diaz

Full title: MICHAEL PRICE, Plaintiff, v. D. DIAZ, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 6, 2020

No. 1:18-cv-01146-DAD-EPG (PC) (E.D. Cal. Jul. 6, 2020)

Opinion

No. 1:18-cv-01146-DAD-EPG (PC)

07-06-2020

MICHAEL PRICE, Plaintiff, v. D. DIAZ, Defendant.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IMPOSING MONETARY SANCTIONS ON PLAINTIFF, AND DENYING DEFENDANT'S MOTION FOR DECLARATORY JUDGMENT

(Doc. Nos. 56, 57, 66)

Plaintiff Michael Price is a former prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On November 22, 2019, defendant filed a motion for terminating sanctions or, in the alternative, to compel plaintiff's appearance at deposition and for an award of monetary sanctions in the amount of $884.81 due to plaintiff's refusal to participate in a properly noticed deposition. (Doc. No. 56.) On November 25, 2019, plaintiff filed a motion for a declaratory judgment on the basis that defense counsel acted inappropriately. (Doc. No. 57.)

On May 5, 2020, the assigned magistrate judge issued findings and recommendations, recommending that:

1. Defendant's Motion for Terminating Sanctions or, in the Alternative, to Compel (ECF No. 56) be GRANTED IN PART AND DENIED IN PART;

2. Plaintiff be directed to pay Defendant's costs in the amount of $224.81 within thirty days of the order on these findings and recommendations;

3. Defendant be allowed to continue Plaintiff's deposition at another date, if he chooses to do so;

4. Defendant be allowed to renew this motion if Plaintiff fails to pay the monetary sanction, fails to participate in this case, or fails to obey any court orders; and

5. Plaintiff's motion for a declaratory judgment (ECF No. 57) be DENIED.

(Doc. No. 66 at 7) (footnote omitted). The findings and recommendations were served on the parties and contained notice that any objections were to be filed within fourteen (14) days of service. (Id.) No objections have been filed, and the time to do so has now passed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and proper analysis.

Accordingly:

1. The findings and recommendations issued on May 5, 2020 (Doc. No. 66), are adopted in full;

2. Defendant's motion for terminating sanctions or, in the alternative, to compel (Doc. No. 56) is granted in part;

a. Plaintiff is directed to pay to defendant costs associated with the failed deposition in the amount of $224.81 within thirty days of service of this order;

b. Notwithstanding the non-expert discovery cutoff established by the scheduling order in this case, defendant has sixty days from the date of service of this order to take and complete plaintiff's deposition;

3. Defendant may renew his motion for terminating sanctions if plaintiff either fails to pay the ordered monetary sanction, fails to participate in this case, or fails to

obey any court orders including this order authorizing the takin and completion of his deposition; and

4. Plaintiff's motion for a declaratory judgment (Doc. No. 57) is denied.

IT IS SO ORDERED.

Dated: July 6 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE