(PC) Foust v. Kuku-Ojo
2:16-cv-02731
E.D. Cal.May 4, 2020Background
- Plaintiff, a state prisoner proceeding pro se under 42 U.S.C. § 1983, sued defendant Kuku-Ojo for alleged Eighth Amendment violations.
- Defendants served interrogatories, requests for admission, and requests for production; plaintiff failed to respond.
- The court granted defendants’ motion to compel and ordered responses; plaintiff still did not provide discovery and did not respond to the motion to compel.
- Defendants then moved for terminating sanctions (dismissal) under the Federal Rules and Local Rule 110; plaintiff received extensions but did not oppose the sanctions motion and continued filing other motions.
- The magistrate judge applied the Ninth Circuit five-factor dismissal test, concluded lesser sanctions would be ineffective, found willful noncompliance and prejudice to defendant, and recommended dismissal with prejudice; plaintiff’s motions for counsel, outside medical evaluation, and assistance with early release were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether terminating sanctions (dismissal) are warranted for discovery noncompliance | Foust says he cannot proceed without counsel/assistance and claims lack of prison assistance | Kuku-Ojo argues Foust’s complete failure to comply with court-ordered discovery prejudices defense and warrants dismissal | Magistrate: dismissal with prejudice recommended; plaintiff’s willful refusal and delay support terminating sanctions |
| Whether lesser sanctions are available/effective | Foust implies inability to comply due to lack of assistance (thus monetary/evidentiary sanctions inappropriate) | Defendants contend lesser sanctions are inadequate given plaintiff’s complete nonresponse | Court: lesser sanctions would be ineffective; plaintiff was warned; monetary sanctions unlikely (IFP status) |
| Whether the public interest and docket management factors favor dismissal | Foust’s filings assert need for counsel/assistance and continue to submit various motions | Defendants note plaintiff’s noncompliance has consumed court resources and delayed resolution | Court: public interest in expeditious resolution and docket management favor dismissal |
| Whether appointment of counsel, outside medical evaluation, or assistance for early release should issue | Foust requests counsel, outside medical evaluation, and instructions on early release | Defendants oppose as irrelevant to discovery noncompliance and sanctions motion | Court: requests denied (repeatedly raised and without new facts); court will not give legal advice on early release |
Key Cases Cited
- Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (dismissal is a harsh sanction and may be imposed for willful noncompliance)
- Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) (terminating sanctions require willfulness, bad faith, or fault and application of the five-factor test)
- Yourish v. Cal. Amplifier, 191 F.3d 983 (9th Cir. 1999) (public interest in expeditious resolution favors dismissal)
- Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (prejudice inquiry considers whether plaintiff’s actions impair defendant’s ability to try the case)
- Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987) (not all factors must favor dismissal; district court discretion)
- Olivia v. Sullivan, 958 F.2d 272 (9th Cir. 1992) (district court has discretion to dismiss for noncompliance)
- Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986) (court may treat warning of dismissal as part of consideration of alternatives)
- Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (public policy favoring merits resolution does not necessarily outweigh other factors)
- Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991) (failure to object to magistrate judge’s findings may waive right to appeal)