# (PC) Hammler v. Lyons

> District Court, E.D. California · January 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10050107

## Case

- **Court:** District Court, E.D. California
- **Decided:** January 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10050107

## How later opinions describe it (automated extraction)

- holding that standards for Rules 16(f) and Rule 37(b)(2) are “basically 18 the same”
- stating that same criteria 19 apply to dismissals under Rules 41(b) and 16(f)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10

11 ALLEN HAMMLER, 1:19-cv-01650-AWI-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT
13 vs. LUCAS’S MOTION FOR TERMINATING
AND MONETARY SANCTIONS BE
14 LYONS, et al., DENIED

15 Defendants. (ECF No. 57.)

16 OBJECTIONS DUE WITHIN
FOURTEEN DAYS
17

18
19
20
21 I. BACKGROUND
22 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
23 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s
24 First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals
25 Coordinator) (“Defendant”) for retaliation and violation of freedom of speech under the First
26 Amendment.1 (ECF No. 12.)
27
28 1 On July 27, 2021, the court dismissed all other claims from this case based on
Plaintiff’s failure to state a claim. (ECF No. 36.)
1 On March 4, 2022, Defendant Lucas filed a Motion for Terminating and Monetary
2 Sanctions for Plaintiff’s Willful Failure to Participate in Deposition (“Motion for Sanctions”).
3 (ECF No. 57.) On May 24, 2022, Plaintiff filed an opposition to the motion. (ECF No. 68.) On
4 June 10, 2022, Defendant filed a reply to the opposition. (ECF No. 70.) Defendant Lucas’s
5 Motion for Sanctions is now before the court. Local Rule 230(l).
6 II. LEGAL STANDARDS
7 Rule 16(f) of the Federal Rules of Civil Procedure allows the court, on motion or its own,
8 to “issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party . .
9 . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1), (f)(1)(C). Rule
10 37(b)(2) provides that if a party “fails to obey an order to provide or permit discovery, including
11 an order under [Rule 37(a)], the court . . . may issue further just orders[,]” including the sanction
12 of dismissal. Id. Rule 37(b)(2)(A)(v); see also id. Rule 37(d)(1)(A) (permitting court to order
13 sanctions if a party fails to attend its own deposition). Under Rule 41(b), “If the plaintiff fails to
14 prosecute or to comply with [the Federal Rules] or a court order, a defendant may move to dismiss
15 the action or any claim against it.” Id. Rule 41(b). The standards governing dismissal under
16 Rules 41(b), 16(f), and 37(b)(2) are essentially the same. Malone v. U.S. Postal Serv., 833 F.2d
17 128, 130 (9th Cir. 1987) (holding that standards for Rules 16(f) and Rule 37(b)(2) are “basically
18 the same”); Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986) (stating that same criteria
19 apply to dismissals under Rules 41(b) and 16(f)). “Dismissal is a harsh penalty and is to be
20 imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
21 1986).
22 A district court must weigh five factors in determining whether to dismiss a case
23 for failure to comply with a court order: (1) the public’s interest in expeditious resolution of
24 litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice to the party seeking
25 sanctions, (4) the public policy favoring disposition of cases on their merits, and (5) the
26 availability of less drastic sanctions. Malone, 833 F.2d at 130. It is preferred but not required
27 that a district court make explicit findings to show that it has considered these factors. Ferdik v.
28 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). These factors “are not a series of conditions
1 precedent before the judge can do anything,” but a “way for a district judge to think about what
2 to do.” Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). “The first
3 two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against
4 a . . . dismissal sanction. Thus[,] the key factors are prejudice and availability of lesser sanctions.”
5 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990); see also Adriana Int’l Corp. v. Thoeren,
6 913 F.2d 1406, 1412 (9th Cir. 1990).
7 III. DEFENDANT LUCAS’S MOTION
8 Defendant Lucas moves for an order under Rules 37 and 41 of the Federal Rules of Civil
9 Procedure imposing terminating and monetary sanctions on Plaintiff for his failure to attend and
10 participate in his properly noticed deposition, and for failure to comply with the Court’s
11 Discovery and Scheduling Order.
12 A. Request for Judicial Notice (ECF No. 60.)
13 Defendant Lucas requests the Court to take judicial notice of the following:
14 1. Civil Docket Hammler v. Kirkland, Case No. 34-2016-00197599-CL-PO-GDS
15 (Sacramento County Superior Court). Attached as Exhibit 1 is the Minute Order issued on
16 February 21, 2017 declaring Plaintiff a vexatious litigant pursuant to California Code of Civil
17 Procedure section 391(b)(1).
18 2. Civil Docket Hammler v. Wright, No. 2:15-cv-01645-TLN-EFB (E.D. Cal.
19 terminated February 21, 2020). Attached as Exhibit 2 is the Order issued on February 11, 2021,
20 denying Plaintiff’s request to re-open the case after it was dismissed because Plaintiff failed to
21 board the transport van to his own trial.
22 3. Civil Docket Hammler v. Hernandez, No. 3:18-cv-00259-CAB-MDD (S.D. Cal.
23 terminated December 21, 2020). Attached as Exhibit 3 is the defendants Hernandez and
24 Magallanes’ motion for terminating and monetary sanctions. Attached as Exhibit 4 is the Report
25 and Recommendation to grant Defendant’s Motion for Termination Sanctions and dismiss action
26 due to plaintiff’s failure to participate in his deposition and to comply with court orders, issued
27 on November 17, 2020.
28 ///
1 4. Civil Docket Hammler v. Franklin, No. 2:18-cv-05525-JGB-SP (C.D. Cal. filed
2 June 21, 2018). Attached as Exhibit 5 is Deputy Attorney General Thai’s Declaration in support
3 of defendant Franklin’s motion, and the accompanying transcript. Attached as Exhibit 6 is the
4 Order issued on September 9, 2021, finding that Plaintiff “impeded, delayed and frustrated his
5 deposition in several ways,” and granting Defendant Franklin’s motion to compel plaintiff’s
6 deposition testimony.
7 5. Civil Docket Hammler v. Gooch, No. 1:19-cv-00653-AWI-EPG (E.D. Cal. filed
8 May 14, 2019). Attached as Exhibit 7 is the defendants Gooch, Burnes and Salcedo’s motion for
9 discovery sanctions.
10 “Courts may only take judicial notice of adjudicative facts that are not subject to
11 reasonable dispute.” United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003) (citing Fed.
12 R. Evid. 201(b)). “Facts are indisputable, and thus subject to judicial notice, only if they either
13 ‘generally known’. . . or capable of accurate and ready determination by resort to sources whose
14 accuracy cannot be questioned[.]” Id. at 909.
15 Courts may take judicial notice of records and filing of other court proceedings. Tellabs,
16 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285
17 F.3d 801, 802 n.2 (9th Cir. 2002). Documents that are part of the public record may be judicially
18 noticed to show, for example, that a judicial proceeding occurred or that a document was filed in
19 another court case, but a court may not take judicial notice of findings of facts from another case.
20 Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006) aff’d in part, 393 F. App’x
21 513 (9th Cir. 2010) (citing see Wyatt v. Terhune, 315 F.3d 1108, 1114 & n. 5 (9th Cir. 2003);
22 Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); U.S. v. Jones, 29 F.3d 1549, 1553
23 (11th Cir. 1994).
24 The five documents submitted by Defendant for judicial notice are matters of public
25 record whose authenticity is not disputed, and the court will take judicial notice of them.
26 B. Relevant Background
27 Defendant reports that Plaintiff has filed more than fifty lawsuits and court appeals while
28 incarcerated, currently maintains at least twelve lawsuits other than this one in the federal courts,
1 and has been declared a vexatious litigant by the Sacramento County Superior Court since 2017.
2 (Defendant’s Request for Judicial Notice, RJN, No. 1, Exh. 1.) Plaintiff also has accumulated at
3 least three strikes in federal courts and had numerous actions dismissed for failure to state a claim
4 or for frivolousness, most of which occurred after the filing of this instant lawsuit: See Hammler
5 v. Director of CDCR, No. 1:17-cv-00097-NJV (N.D.Cal. terminated Apr. 2017) (screened out
6 for failure to state a cognizable claim, and Plaintiff did not amend the complaint); see also
7 Hammler v. Kernan et al., No. 3:18-cv-01170 (S.D.Cal. terminated December 10, 2018)
8 (dismissed for failure to state a claim and as frivolous); see also Hammler v. Hudson, No. 2:16-
9 cv-01153-JAMEFB (E.D.Cal. terminated May 2019) (failure to state a claim was apparent on the
10 face of the complaint); see also Hammler v. Hough, No. 3:18-cv-01319-LAB-BLM (S.D.Cal.
11 terminated May 2019) (dismissed as frivolous); see also Hammler v. Director of CDCR et al.,
12 No. 2:17-cv-01949-MCE-DB (E.D.Cal. terminated Mar. 2020) (dismissed as frivolous); see also
13 Hammler v. Baughman et al., No. 2:19-cv-00245 (E.D.Cal. terminated May 2020) (dismissed for
14 failure to state a claim); see also Hammler v. Peterson, No. 2:19-cv-00524-MCE-CKD (E.D.Cal.
15 May 2020) (same); see also Hammler v. Alvarez et al., No. 3:18-cv-00326-AJB-WVG (S.D.Cal.
16 terminated Oct. 2020) (same); see also Hammler v. State of California, No. 1:19-cv-00784-
17 BAMDAD (E.D.Cal. terminated Nov. 2020) (same); see also Hammler v. Oliviera, No. 1:19-cv-
18 00417-JLT (E.D.Cal. terminated Jun. 2020) (screened out for failure to state a cognizable claim,
19 and Plaintiff did not amend the complaint). Defendant also reports that Plaintiff has had at least
20 three appeals certified as frivolous and not taken in good faith: See Hammler v. Alvarez, et al.,
21 No. 19-56094 (9th Cir. 2020); see also Hammler v. Hough et al., No. 19-55732 (9th Cir. 2020);
22 see also Hammler v. Kernan, No. 20-56421 (9th Cir. 2020).
23 The instant case, filed on December 21, 2018, Plaintiff alleges that Defendant retaliated
24 against Plaintiff and violated Plaintiff’s right to free speech when he screened out Plaintiff’s
25 prison appeal that contained the word “bullshit.” (ECF No. 12.) Before the close of discovery,
26 Defendant noticed Plaintiff’s deposition for January 21, 2022 at California State Prison-SAC,
27 where Plaintiff is incarcerated. The notice was served on Plaintiff who did not make any
28 ///
1 objection to having his deposition taken. (Thai Declaration, ECF No. 59 at 1 ¶3.) Defendant
2 alleges that thereafter Plaintiff refused to attend his properly noticed deposition.
3 1. Plaintiff Refused to Attend the Properly Noticed Deposition
4 Special efforts were made to ensure Plaintiff could attend the deposition for this case. It
5 was challenging because of a statewide modified program that severely restricted movement of
6 staff and inmates in an effort to reduce exposure to Covid-19; and due to Plaintiff’s custody status
7 Plaintiff requires supervision by two correctional officers during the entire deposition. (Id. at ¶¶
8 3-6.)
9 On January 21, 2022, Plaintiff appeared at the deposition. (Id. at 2 ¶7.) However, before
10 the record began, Plaintiff stated that he was not going to sit for the deposition because he did
11 not have a pen. (Id.) Defense counsel explained that the court reporter would transcribe the
12 deposition, but Plaintiff insisted that he had a right to have a pen and refused to proceed. (Id.)
13 Defense counsel attempted to explain to Plaintiff that he could put his objections on the record
14 but he must sit for the deposition, but Plaintiff stood up and left the room without saying a word.
15 (Id.) Believing that Plaintiff intended to terminate the deposition, defense counsel terminated it.
16 (Id. at 2 ¶8.) Plaintiff returned; however, based on Plaintiff’s conduct in this case and in previous
17 cases, defense counsel decided to terminate the deposition and seek sanctions. (Id. at 2-3 ¶8.)
18 2. Similar Behavior in Other Cases
19 Defendant Lucas describes Plaintiff’s similar behavior in other cases in which Plaintiff
20 interfered with his deposition or trial and was warned by several courts but showed no indication
21 that he would change his behavior. In Hammler v. Wright, No. 2:15-cv-01645-TLN-EFB (E.D.
22 Cal.). Plaintiff refused to board the transport van to his jury trial. (Defendant’s RJN No. 2, Exh.
23 2 at 2.)
24 In Hammler v. Hernandez, No. 3:18-cv-00259-CAB-MDD (S.D. Cal.), Plaintiff failed to
25 participate in two depositions In the first one, Plaintiff repeatedly refused to answer any question
26 that he did not deem relevant, and refused to participate unless he could describe what he alleged
27 occurred during his escort to the deposition, which was not relevant to the claims in that case.
28 (RJN No. 3, Exh. 3 at 6.) At a settlement conference after the deposition, Plaintiff was advised
1 by Magistrate Judge Dembin that his behavior at the deposition was not appropriate, and was
2 reminded that his failure to cooperate at the second deposition may result in terminating
3 sanctions. (Id.)
4 Despite the warning by Magistrate Judge Dembin, Plaintiff again refused to participate
5 in the second deposition in September 2020. (Id. at 8.) At the second deposition, Plaintiff refused
6 to answer questions, gave non-responsive narrative answers, spoke profanely, and refused to act
7 with civility. (RJN No. 3, Exh. 4 at 8-9.) When defense counsel redirected Plaintiff to only
8 answer the questions posed and reminded Plaintiff of the court’s admonishment, Plaintiff
9 “became angry, stood up, and yelled into the camera and swore, ‘You know you’re not in any
10 fucking position to tell me what you appreciate.’” (Id. at 8-9.) Plaintiff also threatened to end
11 the deposition and repeatedly raised his voice at defense counsel. (Id. at 9.) Eventually, defense
12 counsel suspended the deposition. (Id.) Before leaving the deposition room, Plaintiff stated that
13 defense counsel “needs mental health.” (Id. at 10.)
14 The court in Hernandez found that Plaintiff’s conduct “show[ed] bad faith.” After
15 balancing the five-factors outlined by the Ninth Circuit, the court terminated the action, in hopes
16 that “sanctions in [that] case may deter similar conduct in Plaintiff’s other lawsuits.” (see RJN
17 No. 3, Exh. 4 at 9: 17-19).
18 Despite sanctions in the form of termination of the action, Plaintiff continued to litigate
19 in bad faith. (Id.) In Hammler v. Franklin, No. CV 18-5525 JGB (SP) (C.D. Cal., filed June 21,
20 2018), Plaintiff failed to participate in his own deposition three times. (Thai Declaration, ECF
21 No. 59 at 3-4 ¶12.) At the first one, Plaintiff refused to go on the record, repeatedly spoke over
22 defense counsel, and walked to the door multiple times in attempts to terminate the deposition.
23 When told the record would begin, Plaintiff packed up his case files and walked out of the room,
24 then walked back inside once the video recording began. While on record, Plaintiff directed
25 questions at a non-party and non-witnesses, and attempted to conduct his own deposition. He
26 improperly attempted to terminate the deposition when the non-party, non-witness correctional
27 officer did not answer Plaintiff’s questions. (RJN No. 4, Exh. 5 at 14-18.) Plaintiff was
28 ///
1 admonished that if he continued to disrupt discovery or failed to comply with the court’s
2 directives and rules, he may face terminating sanctions.
3 Despite court admonishments, Plaintiff willfully failed to attend the next two depositions
4 on October 18 and November 4, 2021. On both occasions, when Plaintiff was scheduled to be
5 deposed, he reported suicidal ideation, only to immediately recant his reports upon inquiries and
6 evaluation by mental health staff. Since Plaintiff’s reports of suicidal ideation appear
7 disingenuous, Plaintiff’s failure to attend the noticed depositions was willful.
8 C. The Court Should Terminate this Action for Plaintiff’s Repeated Failure to
9 Comply with Court Orders
10 Defendant argues that Plaintiff’s failure to attend the properly noticed deposition in this
11 case was willful, and that an analysis of the five Malone factors shows that dismissal is warranted:
12 1. Willful Interference
13 Defendant argues that Plaintiff’s refusal to sit for the deposition in this case on January
14 21, 2022 was not outside of Plaintiff’s control, and therefore his refusal was willful for the
15 following reasons. See Fjelstad v. American Honda Motor Co., Inc, 762 F.2d 1334, 1341 (9th
16 Cir. 1985): (1) Plaintiff’s belief that he “had a right” to have a pen is not grounded in any legal
17 authority, (2) Plaintiff was previously admonished by another court that he could put objections
18 on the record, but that he must still answer questions at a deposition. (See RJN No. 4, Exh. 6 at
19 6.); (3) Plaintiff is an experienced litigant who has filed more than fifty lawsuits, and who has
20 been admonished by multiple courts that he must attend and participate in properly noticed
21 depositions; (4) Plaintiff was explicitly cautioned by this Court that “the failure of Plaintiff to
22 attend, be sworn, and answer appropriate questions may result in sanctions . . . includ[ing]
23 dismissal of the action . .” (Discovery & Scheduling Order, ECF No. 41 at 3:13-15); and (5) Yet
24 Plaintiff continued to refuse to participate in his own deposition, and asserted the “right” to have
25 a pen during his own recorded and transcribed deposition. Defendant asserts that Plaintiff’s
26 conduct at the January deposition is consistent with the pattern of abusive litigation tactics in
27 which Plaintiff regularly engages. Just as Plaintiff improperly threatened to end the deposition
28 in Hernandez, Plaintiff also improperly terminated the deposition in this case by standing up and
1 leaving the deposition room as defense counsel was speaking. Just as Plaintiff willfully failed to
2 comply with the court’s order in Wright and failed to attend his own jury trial in a case he
3 initiated, Plaintiff also willfully failed to comply with this court’s order to “attend, be sworn, and
4 answer appropriate questions” in this case. Just as Plaintiff failed to comply with the court’s
5 order in Gooch and failed to provide discovery to the defendants, Plaintiff also failed to comply
6 with this Court’s order in this case and failed to provide discovery to Defendant.
7 2. Fair Warning
8 Defendant asserts that Plaintiff was warned more than once throughout his cases that his
9 failure to comply with the Federal Rules of Civil Procedure and the Court’s orders could result
10 in sanctions, including termination. In Hammler v. Hernandez, defense counsel admonished
11 Plaintiff that his failure to answer questions could result in sanctions. At a settlement conference
12 after the deposition, Plaintiff was advised by the Magistrate Judge that his behavior at the
13 deposition was not appropriate and was reminded that his failure to cooperate at the second
14 deposition may result in terminating sanctions. In the instant case, Hammler v. Lyons, Plaintiff
15 refused to let counsel read him any admonishment, but his conduct at the deposition was found
16 to have “impeded, delayed and frustrated his deposition.” (RJN No. 4, Exh. 6 at 4.) The Court
17 advised Plaintiff that “[a] deponent may refuse to answer a question only under very limited
18 circumstances.” (Id. at 6.) (emphasis in original).
19 3. The Public’s Interest in Expeditious Resolution of Litigation and the
20 Court’s Need to Manage its Docket Weigh in Favor of Dismissal
21 Defendant argues that the first factor, the public’s interest in expeditious resolution of
22 cases, weighs in favor of dismissal, especially because Plaintiff caused Defendant to terminate
23 the deposition and seek extensions to obtain Plaintiff’s testimony, delaying the speedy resolution
24 of this case. The second factor, the Court’s need to manage its docket, weighs in favor of
25 dismissal because Plaintiff’s behavior in this case caused the Court to address Plaintiff’s failure
26 to comply with discovery obligations.
27 ///
28 ///
1 4. Defendant is Severely Prejudiced by Plaintiff’s Failure to Attend the
2 Properly Noticed Deposition
3 Defendant argues that the third factor also weighs in favor of dismissal because prejudice
4 is presumed from unreasonable delay, and Plaintiff’s willful misconduct caused unnecessary
5 delay in this action. Also, Defendant suffered undue prejudice because he could not defend
6 against Plaintiff’s claims when Plaintiff deliberately refused to participate in his depositions.
7 Next, Plaintiff’s failure to appear for his deposition also placed an undue financial burden on
8 Defendant. Not only did Defendant have to prepare for and pay for the cost of the deposition,
9 Defendant’s counsel had to spend time and resources to conduct legal research and prepare the
10 Motion for Sanctions. Finally, Plaintiff cannot provide a non-frivolous excuse for his delay
11 because not having a pen cannot be a legitimate reason for refusing to sit for a deposition.
12 5. Public Policy Favoring Merits-Based Resolution Does Not Weigh in
13 Favor of a Litigant who Hinders the Defense on the Merits
14 Defendant argues that the fourth factor generally weighs against dismissal. However, as
15 here, this factor “lends little support” where the behavior of the party against whom dismissal is
16 sought impeded disposition of the case on its merits. In re: Phenylpropanolamine (PPA) Prods.
17 Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006); Sanchez v. Rodriguez, 298 F.R.D. 460, 472
18 (C.D.Cal 2014.) (“While the fourth factor of the test generally tends to cut against dismissal as
19 a sanction, the public policy favoring the disposition of cases on their merits is not furthered by
20 litigants who . . . refuse to provide the defense with critical discovery, thereby hindering the
21 preparation of a defense on the merits.”) Defendant also cites Rio Properties, Inc. v. Rio Int’l
22 Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002), which holds that this factor does not preclude
23 dismissal where the other factors weigh in favor of dismissal.
24 6. No Lesser Alternative Sanctions Are Available
25 Here, Defendant asserts that Plaintiff has been warned that failure to comply with
26 discovery obligations and failure to comply with a court’s order may result in dismissal of the
27 action. (See RJN Nos. 2-4.)
28 ///
1 Defendant argues that monetary sanctions will not suffice because Plaintiff is proceeding
2 in forma pauperis; and evidentiary sanctions would also be ineffective, as Plaintiff would still be
3 able to testify to information he effectively withheld from Defendant, and the Court would have
4 no practical way of excluding such testimony. Defendant also argues that Plaintiff has already
5 shown that no amount of judicial admonishment would deter him from future misconduct.
6 Plaintiff already had at least one other case dismissed for his failure to participate in a deposition,
7 (RJN No. 3), and one other case dismissed for his failure to board the transport van to his trial,
8 (RJN No. 2.) Defendant therefore concludes that no sanction other than dismissal will suffice,
9 and this factor weights in favor of dismissal.
10 1V. DISCUSSION
11 The Court must consider five factors “before resorting to the penalty of dismissal.”
12 Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir.
13 2007). In considering Defendant’s motion for terminating sanctions, the court acknowledges the
14 applicability of Rules 37(b)(2)(A)(v) and 41(b) and Local Rule 110 in this matter and that they
15 all support the sanction of dismissal for failure to cooperate in discovery and failure to comply
16 with a court order. However, Defendant’s arguments do not support the conclusion that the delay
17 in the proceedings caused by Plaintiff was a willful failure to participate in the deposition, even
18 if Plaintiff was sufficiently warned that his case could be dismissed for failure to attend a
19 deposition. The Court has considered the five Malone factors as the law requires. Hoffmann v.
20 Price, No. 2:15-cv-1527 DB P, 2019 U.S.Dist.LEXIS 21104, at *19 (E.D.Cal. Feb. 8, 2019.)
21 Willful Interference
22 A terminating sanction, whether default judgment against a defendant or dismissal of a
23 plaintiff’s action, is very severe . . . Price v. Diaz, No. 118CV01146DADEPGPC, 2020 WL
24 2126779, at *2 (E.D. Cal. May 5, 2020), report and recommendation adopted, No.
25 118CV01146DADEPGPC, 2020 WL 3802691 (E.D. Cal. July 7, 2020) (citing Connecticut
26 General Life Ins. Co., 482 F.3d at 1096.) Only “willfulness, bad faith, and fault” justify
27 terminating sanctions. Id. (quoting Connecticut General Life Ins. Co, at 1096).
28 ///
1 In opposition to Defendant’s argument that Plaintiff willfully interfered with the
2 deposition in Plaintiff’s case Hammler v. Franklin, Plaintiff asserts that he reported suicidal
3 ideation because he was adhering to his psychologist’s instructions in his Mental Health Safety
4 Plan. He also alleges that correctional officers and other prison staff, including the Psych. Techs,
5 sought to cause him distress by giving him the wrong medication and contaminating his pills.
6 Plaintiff claims that he was not seeking to avoid the deposition, and he told Sergeant Olivas “to
7 inform [Litigation Coordinator] Williams not to cancel the deposition, because [he would] be
8 able to attend in a short time once his medication issue had been sorted.” (ECF No. 68 at ¶10.)
9 Plaintiff reports that he was told that defense counsel Thai wanted to reschedule even if informed
10 that [Plaintiff] would be attending. (Id.)
11 Thus, Plaintiff argues that his failure to attend the deposition in Franklin was not willful.
12 Nevertheless, Plaintiff’s refusal to attend his deposition in Franklin is not comparable to his
13 behavior at the deposition in the instant case, Lyons. Here, Plaintiff delayed the start of the
14 deposition because, as he asserts, he did not have his Bic pen, which he had retrieved and thought
15 he had brought to the deposition, but when he arrived at the deposition his pen was missing.
16 Plaintiff alleges that he believed his pen had been illegally confiscated by a correctional officer
17 and he asked to be taken to his cell to retrieve another pen. Plaintiff argues that he did not intend
18 to end the deposition, and after he retrieved his pen he tried to turn and go back to the deposition
19 but was stopped by a correctional officer and told he could not go back. (ECF No. 68 at 10 ¶14.)
20 Plaintiff argues that he did not willfully stop the deposition, and he should have been told he
21 could not return to the deposition before he left to retrieve his pen. (Id.) Defense counsel Thai
22 declares that she did not believe Plaintiff intended to return to the deposition and so Thai canceled
23 it. (Thai Declaration, ECF No. 59 at 2 ¶8.)
24 Defense counsel Thai declared as follows:
25 “On the date of the deposition [January 21, 2022], Plaintiff was present in
26 a secure room with two other correctional officers. The court reporter and I
27 appeared remotely on video conference. I greeted Plaintiff, and attempted to start
28 the record. However, before the record began, Plaintiff informed me that he
1 would not sit for the deposition because he did not have a pen. I attempted to
2 explain that the court reporter would transcribe the deposition, and that he did not
3 need a pen. Plaintiff insisted that he “had a right” to have a pen, and refused to
4 proceed. I attempted to explain that he could put his objections on the record, but
5 that he must sit for the deposition; however, I was unsuccessful as Plaintiff stood
6 up and walked out of the room as I was speaking to him. He did not say anything
7 as he left. I did not know whether and when Plaintiff was going to come back, and
8 whether he would cooperate. I believed that Plaintiff intended to terminate the
9 deposition, so I terminated the deposition. I was informed after I had terminated
10 the deposition that Plaintiff had returned. However, based on Plaintiff’s conduct
11 in this case, and in previous cases, I believed that he did not intend to cooperate
12 unless he could dictate the manner and the order of the deposition. I determined
13 that it was best to terminate the deposition and seek sanctions.”
14 (Declaration of Quyen V. Thai, ECF No. 59 at ¶¶7, 8.)
15 There is no evidence that Plaintiff did not intend to come back to the deposition after he
16 retrieved his pen. Defense counsel declares that Plaintiff did not say anything as he left, but
17 Plaintiff’s silence is not the same as confirmation that he did not intend to return, and his attempt
18 to return to the deposition shows that he expected to return. The court finds that while Plaintiff
19 willfully left the deposition in search of a pen, causing a delay, there is no showing that he
20 willfully terminated the deposition. Had defense counsel delayed the decision to terminate the
21 deposition and waited, in what appears to have been just minutes, or started it over when she
22 realized Plaintiff intended to return, the deposition may have proceeded without further incident.
23 Instead, defense counsel immediately terminated the deposition. Defense counsel admits that
24 she wanted to terminate the deposition and seek sanctions. It was defense counsel who willfully
25 terminated the deposition, not Plaintiff. This factor weighs against dismissal.
26
27 Fair Warning
28 Plaintiff was warned in the Court’s Discovery and Scheduling Order that:
1 “Disagreement with any directive of security staff at the correctional
2 facility at which the deposition is scheduled is not a basis for Plaintiff to refuse to
3 answer appropriate questions, and the failure of Plaintiff to attend, be sworn, and
4 answer appropriate questions may result in sanctions. Such sanctions may include
5 dismissal of the action pursuant to Federal Rule of Civil Procedure 37.”
6 (Discovery and Scheduling Order, ECF No. 41 at 3:12-16.)
7 In addition to this warning, Defendant has given examples showing that Plaintiff was
8 warned more than once throughout his multiple cases that his failure to comply with the Federal
9 Rules of Civil Procedure and the Court’s orders could result in sanctions, including termination.
10 In Hammler v. Hernandez, defense counsel admonished Plaintiff that his failure to answer
11 questions could result in sanctions.
12 However, in instant case, Lyons, Plaintiff did not refuse to appear, be sworn, or answer
13 questions. At most, Plaintiff caused what appears to be a brief delay in the questioning until he
14 was prepared to fully participate. Plaintiff merely sought to bring his pen to the deposition.
15 Neither the Discovery and Scheduling Order, nor the court’s orders in other cases, gave Plaintiff
16 fair notice that his entire case could be dismissed if he caused a brief delay to the start of a
17 deposition. This factor weighs against dismissal.
18 Five Factors
19 The Ninth Circuit has provided the following guidance in evaluating whether terminating
20 sanctions are appropriate:
21 We have constructed a five-part test, with three subparts to the fifth part,
22 to determine whether a case-dispositive sanction under Rule 37(b)(2) is just: “(1)
23 the public’s interest in expeditious resolution of litigation; (2) the court’s need to
24 manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the
25 public policy favoring disposition of cases on their merits; and (5) the availability
26 of less drastic sanctions.” The sub-parts of the fifth factor are whether the court
27 has considered lesser sanctions, whether it tried them, and whether it warned the
28 recalcitrant party about the possibility of case-dispositive sanctions. This “test”
1 is not mechanical. It provides the district court with a way to think about what to
2 do, not a set of conditions precedent for sanctions or a script that the district court
3 must follow:
4 Like most elaborate multifactor tests, our test has not been what it appears
5 to be, a mechanical means of determining what discovery sanction is just. The
6 list of factors amounts to a way for a district judge to think about what to do, not
7 a series of conditions precedent before the judge can do anything, and not a script
8 for making what the district judge does appeal-proof.
9 Price, WL 2126779, at *2 (citing Connecticut General Life Ins. Co., 482 F.3d at 1096 (footnotes
10 omitted).
11 The Court finds that on balance, the five Malone Factors weigh against dismissal of this
12 case.
13 (1) Public Interest in the Expeditious Resolution of Cases
14 “[T]he public’s interest in expeditious resolution of litigation always favors dismissal.”
15 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, Plaintiff delayed the
16 start of the deposition, which resulted in termination of the deposition. The public interest in
17 efficient resolution of cases has thus been thwarted. Therefore, this first factor weighs in favor
18 of dismissal.
19 (2) The Court’s Need to Manage Its Docket
20 Considerations of judicial economy weigh in favor of terminating sanctions. Ferdik, 963
21 F.2d at 1261 (finding that it was necessary “to preserve the district courts’ power to manage their
22 dockets without being subject to the endless vexatious noncompliance of litigants”). Plaintiff’s
23 delay in the start of the deposition, which resulted in Defendant’s termination of the deposition,
24 has already consumed a considerable amount of limited judicial time and resources. The Eastern
25 District of California has one of the heaviest caseloads in the country, and Defendant’s filing of
26 ///
27 the motion for terminating sanctions in this case has demanded this court’s attention, time, and
28 resources. Therefore, the court’s need to manage its dockets weighs in favor of dismissal.
1 (3) Risk of Prejudice to the Defendant
2 “While [the mere pendency of a lawsuit] may be prejudicial, it cannot, by itself, be
3 considered prejudicial enough to warrant dismissal.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th
4 Cir. 1984). Rather, “[i]n determining whether a defendant has been prejudiced, we examine
5 whether the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere
6 with the rightful decision of the case.” Malone, 833 F.3d at 131 (citation omitted). “Limited
7 delays and the prejudice to a defendant from the pendency of a lawsuit are realities of the system
8 that have to be accepted, provided the prejudice is not compounded by ‘unreasonable’ delays.”
9 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Ash, 739 F.2d at 496).
10 In this case, Plaintiff’s conduct, which briefly delayed the deposition, was not
11 unreasonable and did not impair the defendant’s ability to go to trial or threaten to interfere with
12 the rightful decision of the case . Defendants insist that Plaintiff does not “have a right” to bring
13 his pen to the deposition and that such a right is not grounded in legal authority, but Defendant
14 has not cited any authority supporting the argument that Plaintiff, who is pro se, was neither
15 permitted nor allowed to bring a pen to the deposition. Therefore, the third factor weighs against
16 dismissal.
17 (4) Public Policy Favoring Merits-Based Resolution
18 The general policy favoring disposition of cases on their merits always weighs against
19 terminating sanctions, Yourish, 191 F.3d at 992 (citation and internal quotation marks omitted).
20 Pagtalunan, 291 F.3d at 643. Thus, this factor weighs against dismissal. Id. (citing Hernandez
21 v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).
22 (5) Availability and Effectiveness of Lesser Sanctions
23 The fifth factor, the availability of less-drastic sanctions, weighs against dismissal of this
24 case. Defendant has argued that dismissal is the only sanction available because Plaintiff would
25 still be able to testify to information he effectively withheld from Defendant, and the Court would
26 have no practical way of excluding such testimony. Defendant also argues that Plaintiff has
27 already shown that no amount of judicial admonishment would deter him from future misconduct
28 as Plaintiff has already had at least one other case dismissed for his failure to participate in a
1 deposition, (RJN No. 3), and additionally he had another case dismissed for his failure to board
2 a transport van to his trial, (RJN No. 2.) In this case, however, the court finds that defendant has
3 not established that Plaintiff’s conduct was unreasonable or that Plaintiff intended to terminate
4 or otherwise obstruct the deposition, thus sanctions are not justified. Therefore, this factor
5 weights against of dismissal.
6 Conclusion
7 Based on these arguments, the Court finds that the five Malone factors, on balance, weigh
8 against dismissal of this case.
9 V. REQUEST FOR MONETARY SANCTIONS
10 Pursuant to Rule 37(a)(5)(A), if a discovery motion is granted, “the court must, after
11 giving an opportunity to be heard, require the party or deponent whose conduct necessitated the
12 motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable
13 expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).
14 However, Rule 37(a)(5)(A) also provides that “the court must not order this payment if: (i) the
15 movant filed the motion before attempting in good faith to obtain the disclosure or discovery
16 without court action; (ii) the opposing party’s nondisclosure, response, or objection was
17 substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. The
18 party contesting the discovery sanction under Rule 37 bears the burden of establishing substantial
19 justification or that other circumstances make an award of expenses unjust. See Hyde & Drath
20 v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).
21 In addition to terminating sanctions, Defendant seeks the imposition of monetary
22 sanctions against Plaintiff in the amount of $5,910.00 to reimburse Defendant for the for the costs
23 of the depositions and the attorney’s fees in preparation for the deposition.
24 Rule 37(d) provides that if a party fails to appear at a duly noticed deposition, the court
25 may order sanctions. Fed. R. Civ. P. 37(d)(3); Lew v. Kona Hospital, 754 F.2d 1420, 1426 (9th
26 Cir. 1985); Sali v. Corona Regional Medical Center, 884 F.3d 1218, 1222 (9th Cir. 2018).
27 However, courts frequently refuse to impose monetary sanctions on indigent parties. Hammler
28 v. Franklin, No. 2:18-cv-5525 JGB (SP), 2021 WL 5238579 at *4 (C.D. Cal. Sept. 9, 2021)
1 (citing Davis v. Morris, 2014 WL 1364895 at *3 (C.D. Cal. Apr. 4, 2014); Thomas v. Gerber
2 Productions, 703 F.2d 353, 357 (9th Cir. 1983)); see also Lucero v. Pennella, No. 1:18-cv-01448
3 NONE SAB, 2020 WL 4059552 at *4 (E.D. Cal. July 20, 2020) (declining to impose monetary
4 sanctions for failure to appear for a deposition in light of plaintiff‘s pro se and previously
5 incarcerated status); Leonard v. Kaur, No. 2:19-cv-2271 DMC P, 2021 WL 242739 at *2 (E.D.
6 Cal. Jan. 25, 2021) (declining to order sanctions or expenses given plaintiff’s status as a prisoner
7 proceeding in forma pauperis).
8 In light of Plaintiff’s in forma pauperis status, the court would decline to impose
9 monetary sanctions. See e.g., Bumpus v. Nangalama, No. 2:12-cv-1102 GEB DAD P, 2015 WL
10 5435364, at *5 (E.D. Cal. Sept. 15, 2015) (“Given that plaintiff is proceeding in forma pauperis,
11 the court declines to impose the requested monetary sanctions.”); Morrow v. Sacramento D.E.A.,
12 No. 2:13-cv-2188 GEB KJN, 2014 WL 907349 at *3 (E.D. Cal. Mar. 7, 2014) (“[I]n light of
13 plaintiff’s in forma pauperis status, the court has little confidence that plaintiff would pay
14 monetary sanctions if they were imposed . . . .”); Jackson v. Cates, No. CIV S-10-2070 GEB
15 EFB, 2011 WL 546316 at *2 (E.D. Cal. Nov. 7, 2011) (“Due to plaintiff’s in forma pauperis
16 status, the court declines to issue an award of monetary sanctions at this time.”). Johnson v.
17 Nelson, No. 220CV0967WBSDBP, 2022 WL 118948, at *2 (E.D. Cal. Jan. 12, 2022). Houston
18 v. Ngai, No. 220CV1051KJMDBP, 2022 WL 993086, at *3 (E.D. Cal. Apr. 1, 2022).
19 In this case, the Court has determined that Plaintiff’s conduct at the deposition was not
20 shown to be either unreasonable or obstructionist as the decision by attorney Thai to terminate
21 the deposition was premature. In Plaintiff’s opposition to the motion for sanctions he states that
22 after retrieving a pen he “tried to turn and go back to the deposition” (see, ECF. DOC No. 68).
23 Thus without a showing that Plaintiff willfully refused, or caused unnecessary delay in the taking
24 of his deposition, the imposition of sanctions is not warranted nor justified. Therefore,
25 Defendant’s Motion for Terminating and Monetary Sanctions against Plaintiff should be denied.
26 ///
27 Vl. CONCLUSION AND RECOMMENDATIONS
28
1 The Court finds that Defendant has not established that Plaintiff willfully terminated or
2 obstructed his deposition, or that his conduct at the deposition was unreasonable. The Court does
3 not find the requisite extreme circumstances which the harsh penalty of dismissal can be imposed.
4 Henderson, 779 F.2d at 423. In addition, the Court finds that Defendant is likewise not entitled
5 to monetary sanctions against Plaintiff for the reasons stated above. Therefore, the Court shall
6 recommend that Defendant’s Motion For Terminating and Monetary Sanctions be denied, and if
7 discovery is reopened after resolution of Defendant’s two pending dispositive motions, Plaintiff
8 be provided one final opportunity to be deposed.
9 Based on the foregoing, IT IS HEREBY RECOMMENDED that:
10 1. Defendant Lucas’s Motion for Terminating and Monetary Sanctions Against
11 Plaintiff for his Willful Failure to Participate in his Deposition, filed on March 4,
12 2022, be DENIED;
13 2. If discovery is reopened after resolution of Defendant’s two pending motions
14 (ECF Nos. 57 and 61),2 Plaintiff be provided one final opportunity to be deposed,
15 and if Plaintiff fails to be deposed, this case should be dismissed with prejudice;
16 and
17 3. This case be referred back to the magistrate judge for further proceedings.
18 These findings and recommendations are submitted to the United States District Judge
19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
20 (14) days after the date of service of these findings and recommendations, Plaintiff may file
21 written objections with the court. Such a document should be captioned “Objections to
22 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
23 and filed within ten (10) days after the date the objections are filed. The parties are advised that
24 failure to file objections within the specified time may result in the waiver of rights on appeal.
25

26 2 Pursuant to the Court’s order issued on June 1, 2022, the discovery and dispositive
motions deadlines in this case are currently stayed until Defendant’s Motion for Terminating and
27
Monetary Sanctions (ECF No. 57 – this pending motion) and Defendant’s Motion for Summary Judgment
28 based on failure to exhaust administrative remedies (ECF No. 61 - motion pending) have both been
resolved. (ECF No. 69 at 3.)
1 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
2 1391, 1394 (9th Cir. 1991)).
3
IT IS SO ORDERED.
4

5 Dated: January 25, 2023 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10050107. Public record. Not legal advice.