Opinion
Case No. C04-1885-JLR-MAT.
August 31, 2005
ORDER RE: PLAINTIFF'S MOTIONS FOR CONTEMPT, SANCTIONS AND DEFAULT JUDGMENT, AND A CONTINUANCE
Plaintiff submitted two motions for contempt (Dkt. 153), a motion for sanctions and default judgment (Dkt. 156), and a motion for a continuance pursuant to Federal Rule of Civil Procedure 56(f) (Dkt. 150). Defendants object to these motions. (Dkts. 175-77.) Having reviewed the materials submitted by the parties, the Court hereby finds and ORDERS:
(1) Plaintiff asks the Court to hold King County in contempt for failing to forward filing fees to the Court in accordance with 28 U.S.C. § 1915. He maintains that King County Department of Adult and Juvenile Detention (DAJD) has a policy of refusing to collect and forward filing fees in 42 U.S.C. § 1983 cases, pointing to their "Inmate Trust Fund Accounting" policy and an account summary in support of this contention. ( See Dkt. 191.) However, because neither document supports the existence of such a policy, and plaintiff fails to provide any other evidence in support of this contention, his motion for contempt citations regarding 28 U.S.C. § 1915 (Dkt. 153) is DENIED.
(2) Plaintiff also seeks a contempt citation relating to deposition procedures. He maintains defendants have not conferred in good faith or cooperated in establishing a deposition procedure in contravention of an order of this Court. He requests, inter alia, that the Court enter an order requiring defendants to provide him with a notary public and tape recording equipment. In response, defendants outline DAJD's deposition policy and assert plaintiff's failure to comply with that policy. ( See Dkt. 177; see also Dkts. 77 and 118 in Silva v. Mayes, No. C04-1484JCC.)
As described by defendants, in order to conduct a deposition, plaintiff must provide the name of a court reporter and any attorney who will be attending the deposition to the Corrections Program Administrator, and specify the material or equipment those persons wish to bring to the jail. Identified individuals must provide information to facilitate a background check and any materials brought must be pre-approved and removed at the completion of the deposition. Deposition notices for jail staff must be sent to the DAJD attorney. Defendants assert that the use of court reporters to record depositions in civil cases is nearly universal, and note that jail policy prohibits inmates from possessing tape recorders based on security concerns. ( Id.)
In an order dated February 25, 2005, the Court found similar requests from plaintiff regarding deposition procedures premature and indicated that it expected the parties to confer in good faith on this issue. (Dkt. 63.) The Court stated: "The parties are advised that the Court will not order defendants to provide plaintiff with a notary public or tape recording equipment for depositions unless there is no other feasible way for plaintiff to conduct depositions in this matter in accordance with the applicable Federal Rules of Civil Procedure." ( Id. at 4.)
The Court also addressed this issue in the matter of Silva v. Mayes, No. C04-1484JCC. In a December 3, 2004 order, the Court declined plaintiff's request to compel defendants to allow him to have a tape recorder for the purposes of taking depositions and to provide a notary public to administer the oath for each deposition, stating that plaintiff had other available means to obtain discovery from defendants. ( Id., Dkt. 88.) In an April 22, 2005 order, the Court noted that, while plaintiff had not demonstrated he had the resources necessary to conduct depositions, he had "other available means to obtain discovery from defendants." ( Id., Dkt. 157 at 1.) Finally, on May 17, 2005, the Court adopted a Report and Recommendation which concluded plaintiff was not entitled to injunctive relief with respect to his requests that notary services be provided, and that he be allowed to store tape recording equipment in a legal materials box and permitted to access that equipment in order to take depositions. ( Id., Dkts. 149 172.) The Court noted that plaintiff had not yet demonstrated he was unable to obtain the necessary discovery in any other fashion. ( Id.)
In this case, the Court finds no basis for plaintiff's motion for contempt in relation to deposition procedures. Plaintiff presents no evidence showing his compliance with DAJD's deposition policy. Instead, he presents the same requests the Court previously denied both in this case and in Silva v. Mayes, No. C04-1484JCC. Moreover, as in Silva v. Mayes, plaintiff fails to demonstrate he attempted to secure the discovery sought through other available means. Accordingly, plaintiff's motion for a contempt citation regarding deposition procedures (Dkt. 153) is DENIED.
Given this failing, the Court finds no need to address plaintiff's bare assertion that defendants stole his money in order to avoid depositions in this matter.
(3) Plaintiff's motion for sanctions and default judgment alleges contempt of court, perjury, and abusive litigation practices. In particular, plaintiff points to alleged perjury by Roderick Dreyer and defendant Teri Hansen in declarations submitted to this Court, defendants' apparent failure to rebut these allegations of perjury in a King County Superior Court hearing, and different rationales for a jail rule given by defendant Bob Deneui.
Plaintiff also argues in his reply that default judgment is appropriate pursuant to Federal Rule of Civil Procedure 55 based on a failure to defend. (Dkt. 192.) He maintains that every declaration and certificate of service filed by defendants in this matter fails to comply with Federal Rule of Civil Procedure 5(d) (service and filing pleadings and other papers) and 28 U.S.C. § 1746 (unsworn declarations under penalty of perjury). ( See also Dkt. 129 (asserting objections to declarations from defendants on this same basis.)) The Court considers this argument waived based on plaintiff's failure to raise the issue in his motion. See, e.g., Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 725-26 (9th Cir. 1992) (declining to address arguments raised for the first time in a reply brief). ( See also Dkt. 191 (raising a similar argument in the reply to defendants' opposition to plaintiff's motion for contempt.)) However, because it clearly lacks merit, the Court also forewarns plaintiff against bringing forth this argument in the future.
"Courts have inherent equitable powers to dismiss actions or enter default judgments for failure to prosecute, contempt of court, or abusive litigation practices." TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 916-17 (9th Cir. 1987). Perjury entails the voluntary and intentional giving of testimony known to be false under oath about material matters. In re Disciplinary Proceedings Against Huddleston, 137 Wn.2d 560, 570, 974 P.2d 325 (1999) (citing 18 U.S.C. § 1621). Perjury could, in certain circumstances, qualify as a "willful deceit of the court" supporting entry of a default judgment. See, e.g., TeleVideo Systems, Inc., 826 F.2d at 917 (upholding default judgment where defendant admitted in a declaration filed on the day of trial that he had perjured himself in prior statements made under oath).
Here, the Court finds no basis for the entry of sanctions or default judgment. Plaintiff's allegations of abusive litigation practices and contempt of court are no more than conclusory. Moreover, the materials pointed to in support of plaintiff's specific allegations of perjury by Dreyer and Hansen ( see Dkts. 77, 78, 119, 156 192 (citing various declarations and other pleadings)), do not suffice to establish that these individuals voluntarily and intentionally gave testimony known to be false under oath about material matters. Nor does defendants' alleged failure to rebut those allegations in a state court hearing provide sufficient support for such a claim. Likewise, the mere fact that Deneui provided different rationales for a jail rule in a declaration and in a response to a grievance ( see Dkt. 97 Ex. 1 to Dkt. 156) does not constitute perjury, or otherwise demonstrate a willful deceit of court. For these reasons, plaintiff's motion for sanctions and default judgment (Dkt. 156) is DENIED.
(4) In response to defendants' motion for summary judgment and dismissal, plaintiff filed a motion for continuance pursuant to Federal Rule of Civil Procedure 56(f). He seeks an additional ninety days to allow for a response to a second set of discovery requests, as well as possible follow-up requests, and for the completion of depositions. In support of his request, plaintiff again alleges a failure of defendants to confer in good faith as to the establishment of a procedure for conducting depositions.
Rule 56(f) permits a party to request a continuance to conduct further discovery in order to obtain evidence to oppose a summary judgment motion. The rule provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.P. 56(f). Summary dismissal is generally disfavored "where relevant evidence remains to be discovered." Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988). However, a party opposing a summary judgment motion must "show that additional discovery would uncover specific facts which would preclude summary judgment." Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996). Also, a Rule 56(f) request may be denied if the party requesting a continuance did not seek discovery diligently. See Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 523-24 (9th Cir. 1989) (upholding refusal of Rule 56(f) request where movant had been granted an additional month to conduct discovery).
Defendants note that this is plaintiff's second request for a discovery continuance, and assert his lack of diligence, pointing to his failure to follow DAJD's deposition policy and the untimely submission of his second set of discovery requests. Defendants also assert that plaintiff makes no showing of what information he seeks through depositions, or how such information will preclude summary judgment.
By order dated April 22, 2005, the Court granted plaintiff a thirty-day extension of the discovery deadline in this case. (Dkt. 99.) The Court indicated that that order was "without prejudice to the parties to seek a further continuance of case deadlines as warranted." ( Id. at 2.) The Court questions whether plaintiff diligently pursued discovery either within the original time frame established for discovery or within the additional time period granted. The Court also notes that plaintiff's motion for a continuance does fail to specify what specific facts precluding summary judgment additional discovery would yield. Nonetheless, the Court finds one additional discovery extension appropriate in this case.
However, in granting this continuance, the Court stresses the following. First, the Court again finds no basis for ordering defendants to provide plaintiff with a notary public or tape recording equipment for depositions. As repeatedly explained in Silva v. Mayes, No. C041-484JCC, plaintiff has other available means to obtain discovery from defendants. Second, no additional extensions of the discovery deadline will be granted in this case. All discovery, including any "follow-up requests," must be completed by the final discovery deadline established by this order. Finally, the Court finds a thirty-day extension, rather than the ninety days requested by plaintiff, a sufficient period of time in which to complete discovery.
In sum, plaintiff's motion for a continuance (Dkt. 150) is GRANTED in part. The discovery deadline in this case is extended as indicated below.
(5) The Court also finds supplemental briefing from defendants necessary in order to properly consider plaintiff's pending motion for partial summary judgment. The supplemental briefing should total no more than ten (10) pages and should address the following:
(a) The proper analysis to apply to pretrial detainees in considering whether the state law at issue in plaintiff's motion for partial summary judgment creates a liberty interest; and
(b) Whether Washington Administrative Code Title 289 continues to have legal effect.
In addressing these issues, defendants should take into consideration all arguments raised in plaintiff's motion and reply in support of partial summary judgment. ( See Dkts. 81 101.) Defendants should submit this supplemental briefing, and plaintiff may submit a supplemental reply totaling no more than five (5) pages, in accordance with the deadlines indicated below.
(6) The deadlines and noting dates previously set in this case are hereby extended as follows:
* All discovery shall be completed by September 30, 2005.
* Any opposition to defendants' motion for summary judgment and dismissal must be filed on or before October 31, 2005, and defendants may file a reply on or before November 4, 2005.
* Defendants must submit the supplemental briefing requested above on or before October 31, 2005, and plaintiff may file a supplemental reply on or before November 4, 2005.
* Defendants' motion for summary judgment and dismissal (Dkt. 137) and plaintiff's motion for partial summary judgment (Dkt. 81) are hereby RENOTED for consideration on November 4, 2005.
* Counsel for defendants and plaintiff are directed to confer and provide the Court with a joint pretrial statement by no later than February 3, 2006.
(7) The Clerk is directed to send copies of this Order to plaintiff, to counsel for defendants, and to the Hon. James L. Robart.