United States District Court, D. Colorado
ORDER DISCHARGING ORDER TO SHOW CAUSE, STAYING CASE, AND CLOSING CASE ADMINISTRATIVELY
ROBERT E. BLACKBURN, District Judge.
This matter is before the court on the following: (1) the Order To Show Cause [#594] filed February 13, 2014; and (2) Plaintiff's Response To the Court's Show Cause Order [#594] [#596] filed February 28, 2014. I discharge the Order To Show Cause [#594], stay all action in this case, and close this case administratively, subject to re-opening on the terms stated in this order.
On two occasions in recent months, the magistrate judge entered orders [#553 & #584] imposing sanctions on the plaintiff, Dean Carbajal, based on his unwarranted failure to comply with his discovery obligations in this case. In both orders, the magistrate judge ordered Mr. Carbajal to pay the expenses, including attorney fees, incurred by the defendants and tied to the failure of Mr. Carbajal to fulfill his discovery obligations. In both orders, the magistrate judge warned Mr. Carbajal that continued refusal to fulfill his discovery obligations and to abide by the orders of the court may lead to dismissal of this case as a sanction. The magistrate judge cited and discussed the five factors relevant to the imposition of dismissal as a sanction as rehearsed in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) and related cases.
One of the orders [#584] entered by the magistrate judge concerned the failure of Mr. Carbajal to provide the defendants with properly executed releases concerning documents sought in discovery by the defendants. Shortly after that order was issued, the defendants notified the court that Mr. Carbajal had provided the required releases before the court issued its order [#584] sanctioning Mr. Carbajal for his failure to provide properly executed releases. As a result, the magistrate judge entered an order [#586] vacating the order [#584] imposing sanctions. When addressing the issues raised in the Order To Show Cause [#594], I do not consider the discovery issues previously addressed by the court concerning the requirement that Mr. Carbajal provide properly executed releases to the defendants.
An earlier order [#553] entered by the magistrate judge concerned the willful refusal of Mr. Carbajal to participate in a deposition scheduled by the defendants to obtain the testimony of Mr. Carbajal. On May 7, 2013, the court granted the request of the defendants to take a combined deposition of Mr. Carbajal and authorized a total of thirteen hours over the course of two consecutive days. Minute order [#484]. After Mr. Carbajal refused to appear for this deposition, the defendants filed a motion [#526] for dismissal as a sanction. Mr Carbajal filed a response [#544], and the defendants filed a reply [#552].
In an order addressing the motion [#526] to dismiss, the magistrate judge considered the evidence submitted by the parties, including Mr. Carbajal, on the question of whether Mr. Carbajal had refused to appear for his deposition. The magistrate judge entered findings of fact as follows. The deposition was noticed properly. Counsel for the defendants appeared for the deposition as scheduled at the Sterling Correctional Facility, where Mr. Carbajal was incarcerated. On the day counsel appeared for the deposition, Mr. Carbajal was housed in the segregation unit. Inmates in the segregation unit are required to wear an orange jumpsuit. Specifically, the magistrate judge found
(T)here is no dispute that Plaintiff refused to follow the simple DOC requirement that he dress in the orange jumpsuit that all inmates in his unit are required to wear. Other than Plaintiff's unsubstantiated and conclusory allegations that DOC staff were affirmatively attempting to prevent him form attending his own deposition, there is no reason provided as to why Plaintiff could not have simply dressed in the appropriate jumpsuit and attended his deposition. The Court therefore finds that Plaintiff willfully refused to attend his own deposition and, thus, that Plaintiff's failure to attend was not substantially justified.
Order [#553], p. 5. The foregoing findings of fact are circumstantiated by the record.
Based on the willful refusal of Mr. Carbajal to attend his deposition, the magistrate judge ordered Mr. Carbajal to pay the reasonable expenses, including attorney fees, incurred by the defendants. After the defendants filed motions substantiating the expenses they had incurred, including attorney fees, the magistrate judge ordered Mr. Carbajal to pay reasonable expenses and attorney fees totaling over 12, 000 dollars. Order [#583]. In subsequent filings, including in his response [#596] to the Order To Show Cause [#594], Mr. Carbajal claims he is "unable to presently pay the awarded attorney fees and cost(s)." Response [#596], p. 4. He says, however, that "he will make a continuing effort to pay these sanctions in payments, and irrespective of whether or not the Trial Court dismisses this action...." Id., p. 4. Nothing in the record shows that Mr. Carbajal has made any payment toward the expenses, including attorney fees. Given this record, I must determine what sanction or sanctions are appropriate in response to (1) the willful refusal of Mr. Carbajal to attend his deposition; and (2) the failure of Mr. Carbajal to pay any part of the mandatory monetary sanctions imposed against him under FED. R. CIV. P. 37.
II. DISMISSAL AS A SANCTION
In determining whether dismissal as a sanction is appropriate, I must evaluate several factors:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions.
Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002), citing Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir. 1992). These criteria are known as the Ehrenhaus factors. "These factors do not create a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction." Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Dismissal is an appropriate sanction if, after considering all of the factors, the court "concludes that dismissal alone would satisfy the interests of justice." Id. As the magistrate judge notes in her recent order [#553], given the current circumstances of this case, many of the Ehrenhaus factors clearly weigh in favor of dismissal of this action. Order [#553], pp. 6-7. I analyze each of the factors.
A. Degree of Actual Prejudice to the Defendants
In his complaint [#254], Mr. Carbajal asserts a complex array of claims against a long list of defendants. A good summary of the background of this case and the claims of Mr. Carbajal can be found in the recommendation [#369] of the magistrate judge. In essence, Mr. Carbajal claims the defendants acted in concert during the years 2005 through 2010 as part of a "conspiracy to arrest, prosecute, convict, and confine [him]." Complaint [#254], p. 6. Since this case was filed on November 23, 2010, the defendants have filed numerous motions addressing the claims of Mr. Carbajal. As a result, some of the claims have been dismissed.
It took more than a year and many motions filed by the defendants to narrow the claims of Mr. Carbajal to claims which, assuming the allegations of Mr. Carbajal are true, might be plausible. With the claims of Mr. Carbajal somewhat refined and limited, the defendants then sought to conduct discovery concerning the remaining claims. Given the broad and sustained conspiracy alleged by Mr. Carbajal, the testimony of Mr. Carbajal constitutes a crucial part of the evidence. The defendants arranged to take the testimony of Mr. Carbajal, but Mr. Carbajal willfully refused to provide his testimony.
The willful refusal of Mr. Carbajal to give deposition testimony visited substantial expense on the defendants. That prejudice is significant per se . As expatiated below, there is no realistic hope that Mr. Carbajal will reimburse the defendants for these expenses. Given the context of this case, however, the prejudice cause by Mr. Carbajal extends much further. After much effort and expense by the defendants to defend this case and to narrow the claims of Mr. Carbajal, he willfully refused to permit the defendants to take his testimony to develop further their defenses to the remaining claims. This ...