Opinion
Civil Action 20-cv-00459-PAB-MEH
01-26-2024
JABARI J. JOHNSON, Plaintiff, v. REYNA, and KORIN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Defendants have filed a Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(b) for Plaintiff's Refusal to Attend His Deposition (“Motion”). ECF 268. Chief Judge Philip A. Brimmer has referred the Motion to me. ECF 269. Based on the current record, I find Plaintiff has interfered with Defendants' ability to present their case and the judicial process, sufficient to warrant dismissal, and for that reason, I respectfully recommend granting the Motion and dismissing this case.
FACTS
The underlying facts of this Section 1983 excessive force case, which are not essential to the disposition of this Motion, were explained in detail in Johnson v. Reyna, 57 F.4th 769, 772-73 (10th Cir. 2023).
This case has been in the discovery phase for some months. At a June 12, 2023, status conference, I addressed Defendants' desire to depose Plaintiff and granted that oral request. ECF 198 (conference minutes).During a July 25, 2023, status conference, I discussed any remaining discovery with the Parties. ECF 216. I also specifically ordered that Plaintiff's deposition occur during the week of September 18, 2023, or September 25, 2023. Id. (conference minutes). On August 18, 2023, near the end of the discovery deadline (October 31, 2023), Defendants filed a Fed.R.Civ.P. 30(a)(2)(B) motion, requesting that the deposition occur on September 19, 2023. ECF 235; see also ECF 216 (setting discovery deadline). I found the motion moot, stating that I had already orally granted the motion to conduct the deposition and approved the date requested. ECF 237. On August 28, 2023, Plaintiff requested a continuance of the deposition so that he could review some discovery first. ECF 244. I granted Plaintiff's motion to continue and directed that the deposition occur during the period between October 9 and October 20, 2023. ECF 251. Again, on September 8, 2023, Plaintiff moved for a continuance of his deposition based on his desire to receive and review additional discovery from Defendants. ECF 255. I found this request moot considering already having moved the deposition to mid-October. ECF 259.
Under Fed.R.Civ.P. 30(a)(2)(B), a deposition of an incarcerated person may only be accomplished by leave of the court through a motion.
Plaintiff filed a third motion for continuance of the deposition on September 11, 2023, expressing a need to obtain legal books to prepare for his deposition. ECF 261. In response, I reiterated that the deposition would “occur sometime during the weeks of October 9 through October 20, 2023.” ECF No. 263. I further stated that “the Court sees no reason to delay the deposition because of a lack of access to legal books. Plaintiff does not need to do any legal research prior to his deposition, he simply needs to tell the truth to the questions presented.” Id. I also stated that “[i]f, immediately prior to his deposition, Plaintiff believes he has been materially prevented from preparing for his deposition, he may seek relief.” Id.
Defendants set Plaintiff's deposition for October 18, 2023, at 9:00 a.m. at the Colorado State Penitentiary (“CSP”) where he was incarcerated. ECF 268-1 (Amended Notice of Video Deposition of Jabari Johnson). Plaintiff did not file any motion claiming he was being materially prevented from preparing for his deposition. Counsel for Defendants, a court reporter, and a videographer appeared at the CSP on October 18, 2023, at 9:00 a.m., whereupon CSP personnel advised them that Plaintiff refused to come to his deposition. ECF 268-2 (deposition transcript certifying nonappearance); see also ECF 268 at 2; cf. ECF 264.Plaintiff acknowledged his refusal to attend his deposition in a notification to the Court that he signed that same day, October 18, 2023, attributing his failure to attend to CSP's refusal to provide him a wheelchair. ECF No. 264.
The deposition cost Defendants $437.66 for a videographer and $374.45 for a court reporter. ECFs 268-3, 268-4.
The issue of Plaintiff's expressed belief he is entitled to a wheelchair is not new. Plaintiff has previously requested a wheelchair to attend a scheduling conference via telephone. ECF 120 (Motion for Writ of Habeas Corpus Ad Prosequendem). With a desire to determine Plaintiff's need for a wheelchair, I ordered Defendants to respond to this motion. ECF 122. Defendants, who are sued in their individual capacity for damages, went through the extraordinary step of submitting documentation (in the form of three declarations and several records) that Plaintiff did not have a medical need for a wheelchair, and that Colorado Department of Corrections (“CDOC”) regulations do not permit use of a wheelchair by an inmate unless determined to be medically necessary. ECF No. 127 (with exhibits). I reviewed this evidence, along with Plaintiff's arguments and his submission of numerous materials on the issue of his alleged permission to have a wheelchair, including a purported CSP dispensary note in response to a “Request for Sick Call” by Plaintiff, stating “you have a conversion disorder your file states you do have a wheelchair accommodation.” ECF 120-2. On the other hand, Defendants' evidence established that years ago, in 2019, Plaintiff had been approved for temporary use of a wheelchair, but when medical staff determined that he did not have a further need, the wheelchair order was discontinued. ECF 127 at 3 (citing exhibits). Defendants also made a convincing argument that the CSP dispensary note was fraudulent. Id. at 4-5. I found that Defendants had established that Plaintiff did not have a medical need for a wheelchair and denied Plaintiff's motion. ECF 133.
Plaintiff filed another motion seeking an order from this Court to require the CDOC to provide him a wheelchair, this time submitting additional purported “evidence.” ECF 144. I found it moot, stating the following: “Plaintiff adds exhibits to his current request, but from an evidentiary perspective, some of them appear not to be authentic. Weighing the evidence submitted by Plaintiff with the declarations submitted by CDOC officials, Plaintiff has not met his burden to establish that the Court's original order was erroneous.” ECF 146. Plaintiff later participated in an April 12, 2023, status conference, without a wheelchair. ECF 162. However, Plaintiff then subsequently claimed that I ordered the CDOC to provide a wheelchair for him, ECF 182, which was not true, ECF 184. Again later, and without a wheelchair, Plaintiff attended a July 25, 2023, status conference, at which the Parties and I discussed discovery, including Plaintiff's deposition. ECF 216. The subject of a wheelchair was not raised by Plaintiff at that conference.
On October 27, 2023, Defendants filed the present Motion. ECF 268. Pursuant to an extension of time the Court granted for good cause shown, Plaintiff filed a Response on December 7, 2023. ECFs 273, 284. Defendants then filed a Reply on December 21, 2023. ECF 289. Plaintiff later filed a motion seeking a stay due to being transferred to another detention facility for court proceedings and requested the Court not address the Motion to Dismiss during the stay, which the Court denied because the Motion to Dismiss was fully briefed and the Court required no additional briefing. ECFs 290, 292.
On January 5, 2024, Plaintiff filed a “Motion Requesting Deposition Due to Wheelchair Order Being Provided,” which asked the Court to schedule his deposition for a date between January 29 and February 5, 2024. ECF 293. In the Motion, Plaintiff represented he was “provided a transport chair to attend court in case 23-CR-50,” a state court criminal proceeding, arguing that this means he should be provided a wheelchair for his deposition in this case. Id. My Order on this motion noted that the Court previously found that pursuant to CDOC regulations, Plaintiff is not qualified for a wheelchair. ECF 297 (citing ECF 133). Accordingly, I denied the motion without prejudice and ordered Defendants to file a status report with the Court stating whether the CDOC has changed its position on Plaintiff's eligibility for a wheelchair, and to provide an affidavit in support. Id. This Order explicitly permitted Plaintiff to refile the motion if the CDOC now permits Plaintiff to have a wheelchair. Id.
On January 24, 2024, Defendants filed a Status Report with not one but two affidavits with supporting documentation including Plaintiff's medical records in response to my Order. ECFs 299-300. The Status Report clearly states, “CDOC has not changed its position regarding whether Mr. Johnson medically requires a wheelchair. He still does not.” ECF 299 ¶ 1. It explains that (1) Plaintiff “refused to attend proceedings without a wheelchair” in a state court criminal case; (2) that state court ordered CDOC to provide Plaintiff with a wheelchair for an upcoming proceeding; (3) CDOC was not involved in the state court's decision; and (4) “CDOC is preparing an objection to the order because, as CDOC and Defendants have consistently stated, Mr. Johnson does not medically require a wheelchair.” Id. ¶¶ 2-4. Notably, both supporting affidavits are consistent with a declaration Defendants previously submitted on this same issue. Compare ECF 299-2 and ECF 299-8, with ECF 127-3.
The first supporting affidavit is from a CSP Health Services Administrator who has reviewed Plaintiff's medical records. ECF 299-2. It confirms that as of January 24, 2024, Plaintiff “has not been approved by CDOC clinical staff to use a wheelchair.” Id. ¶ 5. Importantly, it explains:
CDOC has made many attempts to diagnose and treat the foot problems that Mr. Johnson alleges require[] him to use a wheelchair. On the few occasions when Mr. Johnson has not actively obstructed those efforts, they have not revealed any medical basis for Mr. Johnson's request to use a wheel chair.... I am aware, both through Mr. Johnson's medical records and other CDOC records that were made available to me, that evidence gathered by CDOC confirms that Mr. Johnson is very capable of standing, walking and moving around when he decides that he wants to do so.... I have reviewed an updated Psychological Evaluation of Mr. Johnson completed in November of 2022 . . . [which] finds: “Mr. Johnson appears to be intentionally fabricating or grossly exaggerating physical symptoms in regard to his foot injury and mobility....”Id. ¶¶ 6, 21, 24. Lastly, the affidavit maintains that under Administrative Regulation 700-34, “CDOC cannot provide an offender with a wheelchair unless a medical provider determines that the offender has a medical need for one.” Id. ¶ 25.
The second supporting affidavit is from CSP's Litigation Coordinator. ECF 299-8. It, too, confirms that Plaintiff “has not been approved by CDOC clinical staff to use a wheelchair at all, including to attend legal proceedings” and maintains that Administrative Regulation 700-34 prohibits CDOC from “provid[ing] an offender with a wheelchair unless a medical provider determines that the offender has a medical need for one.” Id. ¶¶ 6-7. And it explains “evidence gathered by CDOC confirms that Mr. Johnson is very capable of standing, walking and moving around when he decides that he wants to do so,” describing multiple examples including a November 14, 2023, video showing Plaintiff “traversing his cell to retrieve his mail” after his October 18, 2023, refusal to attend his deposition because he was not given a wheelchair. Id. ¶ 8. The Court has reviewed this video evidence, and it is consistent with the affidavit's representations. ECF 299-10.
In addition to the issues surrounding Plaintiff's request for a wheelchair and his refusal to attend his deposition, the record demonstrates that Plaintiff has periodically refused to accept Court mail. See, e.g., ECFs 83, 113, 115, 129, 130, 131. He has also sought the recusal of Chief Judge Brimmer and me based on conclusory and unsubstantiated allegations that we “conspired with the Colorado Attorney General and the CDOC staff members to attempt to kill [him] using inmates”; “engag[ed] in criminal activity assisting CDOC in trying to harm and kill [him]”; and “fail[ed] to rule fairly.” ECF 225; see also ECFs 234, 238.
ANALYSIS
Parties in a federal civil lawsuit have a right to depose one another. Fed.R.Civ.P. 30(a)(1). Parties who disobey a court-ordered deposition are subject to sanctions, including dismissal. Fed.R.Civ.P. 37(b)(2)(A)(v). Rule 41(b) of the Federal Rules of Civil Procedure allows a district court to dismiss an action due to a plaintiff's failure to prosecute or comply with a court order:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.Fed. R. Civ. P. 41(b). The Tenth Circuit has instructed district courts to use the following factors in deciding a Rule 41(b) motion: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process;” “(3) the culpability of the [plaintiff]; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (internal citation omitted).
Unfortunately, it is all too common that a court must dismiss a pro se plaintiff's action pursuant to Fed.R.Civ.P. 41(b) when the plaintiff fails to appear for his or her deposition. See, e.g., Anaeme v. FHP of New Mexico, 201 F.3d 447 (10th Cir. 1999); L'Ggrke v. Asset Plus Corp., 641 Fed.Appx. 779, 780 (10th Cir. 2016); Raiser v. Brigham Young Univ., No. 2:02-cv-975-TC, 2007 WL 3231525 (D. Utah Oct. 30, 2007); aff'd, Raiser v. Brigham Young Univ., 297 Fed. App'x. 750 (10th Cir. 2008); Johnson v. Little, No. 17-cv-02993-RBJ-NRN, 2019 WL 7404035, at *2 (D. Colo. Nov. 14, 2019) (dismissing case for inmate failure to appear for deposition), report and recommendation adopted, No. 17-cv-02993-RBJ-NRN, 2020 WL 289520 (D. Colo. Jan. 21, 2020). The Mobley test demands the same outcome here, based on every factor.
Regarding prejudice, that is undoubtedly the case here. Defendants were entitled to take Plaintiff's deposition. Fed.R.Civ.P. 30(a)(1). However, leading up to the unsuccessful deposition, Defendants were required to engage in motions practice and court appearances. They incurred costs in showing up to the facility with the necessary professionals to conduct a video deposition, which will never be recouped. Defense counsel represented that he spent considerable time preparing for Plaintiff's deposition and traveled 111 miles one-way to CSP to depose him. All of this involved the expenditure of public funds in terms of the salaries of defense counsel from the Colorado Attorney General's Office. Moreover, the deposition deadline is long past. See Anaeme, 201 F.3d 447 at *2 (“[D]efendants were prejudiced by plaintiff's behavior because they incurred additional costs related to filing motions and were delayed in completing discovery....[T]here was no justification for plaintiff's behavior nor did his pro se status excuse him from following the Federal Rules of Civil Procedure.”).
The interference with the judicial process is also clear here. The Court has engaged in numerous efforts to enforce compliance with its orders. Indeed, the docket has over 300 total entries in this single plaintiff prisoner case. Plaintiff was aware of the Court's orders and was adequately apprised of his obligation to appear for the deposition in light of the multiple efforts to make it happen.
Plaintiff's culpability is not disputable. This was no mistake. The record in this case demonstrates Plaintiff makes the decision when he will and will not participate in judicial proceedings. As a matter of evidence, Defendants have repeatedly established Plaintiff had no legal entitlement to a wheelchair. In any event, I am doubtful a federal court has any jurisdiction to demand a state prison-which is not a party to this individual capacity civil rights action-to engage in conduct that is contrary to its own regulations. See, e.g., Grove v. Smyth, 169 F.Supp. 852, 853 (E.D. Va. 1958) (“The entire controversy is a matter peculiarly and exclusively within the internal jurisdiction and authority of the prison officials and is a matter in which the Federal Courts have no power or concern.”) (plaintiff inmate sought to require prison to provide specific research materials); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.”); Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994) (“It is well established that absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.”); Walker v. Galbreath, No. 5:22-CT-3319-M-RJ, 2023 WL 6447227, at *1 (E.D. N.C. Sept. 29, 2023) (quoting and applying Taylor regarding state inmate's request that federal court order state prison to return inmate's legal materials); Mendez v. Cook, No. CV 6:19-539-DCN-KFM, 2019 WL 5073723, at *2 (D.S.C. Sept. 9, 2019), report and recommendation adopted, No. 6:19-cv-00539-DCC, 2019 WL 5063433 (D.S.C. Oct. 8, 2019) (quoting and applying Taylor regarding state inmate's request that federal court order state prison to take inmate to the law library).
Moreover, Plaintiff has demonstrated the ability to appear for court conferences without a wheelchair when he so decides. Plaintiff's knowledge of the consequences of his actions cannot reasonably be questioned. And as the Tenth Circuit has noted:
Johnson, a state prisoner in Colorado, is a prolific pro se litigant. By his own count, he has brought over sixty civil suits against prison officials under the Eighth and Fourteenth Amendments. Except for those complaints that are still pending, all of Johnson's complaints have been dismissed on grounds that he failed to prosecute or failed to comply with court orders or procedural rules.Johnson v. Reyna, 57 F.4th at 772. Based on the record in this case and Plaintiff's established knowledge that his actions have consequences, Plaintiff had notice of what would likely happen if he did not participate in this deposition. See Black v. Larimer Cnty., 722 Fed.Appx. 763, 768 (10th Cir. 2018) (“The district judge bent over backward to accommodate Black, but, it appears, nothing short of ‘doing it her way' would suffice. Such an obstinate and self-centered approach is intolerable.”).
Finally, there is no lesser sanction here that would make any difference. Numerous courts have tried to assist Plaintiff in bringing a lawsuit to its intended conclusion: a decision on the merits. It appears from the Tenth Circuit's opinion in this case earlier this year that every single judge has failed. I cannot logically expect a different outcome here. The two judicial officers in this case have granted numerous requests for extensions of time and other accommodations to Plaintiff. The amount of judicial resources the Court has spent on assisting Plaintiff is disproportionate. This case should be dismissed.
CONCLUSION
Dismissal with prejudice as a sanction under Rules 37 and 41 is “a weapon of last, rather than first, resort,” because it “defeats altogether a litigant's right to access to the courts.” Mobley, 40 F.3d at 340 (internal quotations and citations omitted). Under the law, there is no other just outcome here. By my count I have issued over twenty orders in this case in just the past six months. Although that is a large number by any standard, extensive court involvement is a fact of life in many pro se cases. But here, Plaintiff's actions in prejudicing Defendants' ability to assert their defenses, and Plaintiff's personal culpability in interfering with the progress of this case, carry it far beyond the typical or even the extraordinary. Dismissal with prejudice is necessary. For the reasons stated herein, I respectfully recommend granting Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(b) for Plaintiff's Refusal to Attend His Deposition [filed October 27, 2023; ECF 268].
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply with the District Judge's practice standards for any specific requirements concerning the filing and briefing of objections.