(PC) Arceo v. Savage
2:11-cv-02396-MCE-KJN
| E.D. Cal. | Nov 1, 2017Background
- Plaintiff, civilly committed under California’s SVPA, proceeds pro se and in forma pauperis on retaliation claims arising from incidents in 2012 against Surjick, Kong, Adams, McHugh, and Savage; other claims were previously dismissed without leave to amend.
- Plaintiff filed a lengthy motion seeking (1) to compel responses to interrogatories and requests for admissions served on various non-parties, (2) relief concerning his deposition, and (3) other miscellaneous documentary discovery.
- The court previously extended discovery to September 25, 2017, denied plaintiff leave to amend, and set a dispositive motion deadline of December 15, 2017.
- Defendants opposed and asked the court to deny the motion and consider dismissal for plaintiff’s alleged disregard of prior rulings. Plaintiff filed a response apologizing and asserting limited jail-law library access.
- The magistrate judge reviewed: deposition objections (including denial of free transcript and propriety of deposition at county jail), the non-party discovery requests, other documentary requests, and defendants’ request for dismissal. The judge denied the motion and declined to impose terminating sanctions but warned plaintiff to confine future filings to the 2012 retaliation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of plaintiff's objections to his deposition (reporter relationship, transcript access, location) | Deposition improper because court reporter "knew" defense counsel, plaintiff wasn’t given immediate/free transcript, deposition occurred at county jail after transfer | Deposition was properly noticed and held; plaintiff not entitled to a free transcript; protective order was pending but not decided before noticed date | Objections overruled: deposition was properly noticed/held; plaintiff not entitled to free transcript; he may purchase transcript; deposition review procedures apply |
| Compelling responses to interrogatories and requests for admissions served on non-parties | Plaintiff served written discovery on several non-parties (Sheriff Moore, Luna, Banning, Kowalczyk, Teague, Moule) and seeks to compel responses | Defense contends service on defense counsel does not effect service on non-parties; rules limit interrogatories/requests for admissions to parties | Denied: plaintiff may not propound interrogatories or requests for admissions to non-parties and service on defendants’ counsel was ineffective for non-parties |
| Requests for documentary material (state SVPA hearing microfilm; additional discovery from defendants) | Seeks certified copy of May 13, 2013 microfilm and additional discovery (impeachment, bias, trustworthiness) | Defendants contend such material is irrelevant to the 2012 retaliation claims; plaintiff cannot raise new relief in a response | Denied: microfilm request denied as irrelevant; plaintiff’s attempt to seek new discovery from defendants in his response denied without prejudice (must bring separate motion to compel) |
| Request to dismiss or impose sanctions for failure to follow prior orders | Plaintiff contends limited access to materials and pro se status explain filings; asks for leniency | Defendants argue plaintiff repeatedly files unrelated claims and disregards court rulings and deadlines, seeking dismissal | Court denied dismissal/terminating sanctions given pro se/IP status but warned plaintiff: future unrelated filings or noncompliance may lead to sanctions including recommended dismissal; monetary sanctions possible; limited further discovery only by timely motion showing good cause |
Key Cases Cited
- Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (public funds may not be expended to provide free deposition transcripts absent statutory authority)
- Thompson v. Hous. Auth., 782 F.2d 829 (9th Cir. 1986) (district courts have inherent power to control docket and impose sanctions, including dismissal)
- Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (dismissal for failure to comply with local rules is permissible)
- Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (dismissal for failure to comply with court order may be appropriate)
- Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987) (dismissal for failure to comply with court order)
- Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986) (factors to consider before dismissal/sanctions)
- Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002) (good-cause standard to modify scheduling order)
- Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) (plaintiff must show diligence to justify schedule modification)