Lopez v. Lee et al

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United
 States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANDREW LOPEZ,
Plaintiff,
v.
M. LEE, et al.,
Defendants.
Case No. 23-cv-03660-HSG
ORDER REQUIRING INMATE-
WITNESS WINSON TO SHOW CAUSE
WHY CONTEMPT CITATION
SHOULD NOT ISSUE; RESETTING
CERTAIN DEADLINES
Re: Dkt. Nos. 79, 81
Plaintiff, an inmate currently housed at San Quentin State Prison, has filed a pro se civil
rights action regarding events that occurred at Pelican Bay State Prison (“PBSP”), while he was
previously housed there. For the reasons set forth below, the Court GRANTS Defendants’ request
for an order requiring Richard Winson to show cause why a contempt citation should not issue for
his failure to comply with a subpoena and for an extension of the fact discovery deadline, Dkt. No.
79; and DENIES as moot Defendants’ request for an extension of time to file a motion to compel
Plaintiff’s response to defendant Hamner’s document request, Dkt. No. 81.
BACKGROUND
Complaint. Plaintiff has sued PBSP officers S. Cupp, Hamner, Cross, M. Lee, Brewer, and
K. Davis, alleging that, between May 2020 to March 2021, while he was housed in Restricted
Custody General Population (“RCGP”), Facility B-1, Defendants retaliated against him for his
grievance activity by denying or limiting his phone time, yard time, and shower time. See
generally Dkt. Nos. 1, 12.
Inmate witness Winson. On April 15, 2025, in Plaintiff’s deposition, Plaintiff identified
Richard Winson, an inmate currently housed at California State Prison – Corcoran (“CSP-
Corcoran”) as having information pertinent to his retaliation claim. Dkt. No. 79 at 8; Dkt. No. 79-
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United States District Court
Northern District of California
1 at 8-11. On August 29, 2025, Defendants served a subpoena on inmate Winson, commanding
him to appear at a deposition on September 11, 2025, at 9:00 a.m. Dkt. No. 79 at 8; Dkt. No. 79-
2. On September 10, 2025, defense counsel spoke by telephone with inmate Winson. Inmate
Winson confirmed receipt of the deposition subpoena and stated that he would attend the
deposition. Dkt. No. 79 at 8. On September 11, 2025, at the time the deposition was scheduled to
begin, custody staff informed defense counsel that inmate Winson reused to appear. Dkt. No. 79
at 8; Dkt. No. 79-3. On October 3, 2025, Defendants filed this motion for an order to show cause
why a contempt citation should not issue against inmate Winson for failure to comply with his
deposition subpoena and asking for an extension of the fact discovery deadline to allow for
Defendants to take inmate Winson’s deposition. Dkt. No. 79.
DISCUSSION
I. Request for Order to Show Cause Why Contempt Citation Should Not Issue
(Dkt. No. 79)
A. Legal Standard
Fed. R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
of the case . . .” Fed. R. Civ. P. 26(b)(1). Fed. R. Civ. P. 30 provides that a party may depose any
person, including a nonparty material witness, by oral examination. Fed. R. Civ. P 30. A non-
party witness must attend a deposition within 100 miles of where they reside when served with a
subpoena under Fed. R. Civ. P. 45. Fed. R. Civ. P 45. “Proper subpoenas issued by attorneys on
behalf of the court are treated as orders of the Court.” Ortiz v. Lucero Ag Servs., Inc., No. 1:23-
CV-01319-JLT-EPG, 2024 WL 4164602, at *1 (E.D. Cal. Sept. 12, 2024) (internal quotation
marks and citation omitted). “Although the subpoena is in a sense the command of the attorney
who completes the form, defiance of a subpoena is nevertheless an act in defiance of a court order
and exposes the defiant witness to contempt sanctions.” Fed. R. Civ. P. 45 Advisory Committee
Notes to 1991 amendment. “The only sanction available against nonparties for failure to comply
with deposition subpoenas is a contempt citation. There is no authority for any other sanction
(except reimbursement of expenses on a motion to compel).” Martinez v. Antique & Salvage
Liquidators, Inc., No. C 09-cv- 00997 HRL, 2011 WL 798707, at *2 (N.D. Cal. Feb. 8, 2011)
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(internal quotation marks and citation omitted) (emphasis in original); see also Sali v. Corona
Regional Medical Center, 884 F.3d 1218, 1224 (9th Cir. 2018) (Rule 45 deposition subpoena
“obligates the nonparty to appear at the scheduled deposition at pain of being held in contempt.
None of the other sanctions available under Rule 37 are available against the nonparty.”). A civil
contempt sanction is designed to force the contemnors to comply with an order of the court.
Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 207 (1999); see also Falstaff Brewing
Corp., v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983).
Before a court may hold a person in contempt, the person has “the right to be heard in a
meaningful manner.” Martinez, 2011 WL 798707, at *2; see also Ortiz, 2024 WL 4164602, at *1.
Where there is no issue of material fact, the district court is only required to give the contemnor
notice of the request for a civil contempt citation and an opportunity to be heard. See United
States v. Ayres, 166 F.3d 991, 996 (9th Cir. 1999). If the contemnor fails to respond to an order
requiring the contemnor to show cause why a contempt citation should not issue, the court may be
justified in finding that the allegations of the party seeking the contempt citation are uncontested
as a matter of law. See Rogers v. Webster, 776 F.2d 607, 611 (9th Cir. 1985).
B. Analysis
Defendants request that the Court require inmate Winson to show cause why a civil
contempt citation should not issue and why the Court should not impose monetary sanctions
against Winson, with the monetary sanctions lifting upon Winson’s appearance at his deposition.
Defendants state that inmate Winson is a necessary and material witness to this case, that they are
prejudiced by his failure to appear at his deposition, and that a contempt citation paired with
monetary sanctions are necessary to coerce Winson into attending and participating in his
deposition. See generally Dkt. No. 79. Plaintiff has not opposed this request.
Defendants have reasonably identified inmate Winson as a necessary and material witness
and sought to depose him. Inmate Winson’s failure to attend his deposition is a violation of a
court order. Fed. R. Civ. P. 45 Advisory Cmte Notes to 1991 amendment. The Court therefore
ORDERS as follows.
The Court GRANTS Defendants’ request that the Court order inmate Winson to show
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cause why a contempt citation should not issue and monetary sanctions be imposed, with the
monetary sanctions lifting upon Winson’s appearance at his deposition. The Court GRANTS
Defendants’ request that the Court change the deadline to complete fact discovery to allow for
them to take Winson’s deposition after properly serving him with a second deposition subpoena.
The Court ORDERS inmate Winson to show cause, by December 5, 2025, why a contempt
citation should not issue and monetary sanctions should not be imposed on inmate Winson for
failure to sit for his deposition. To respond to the order to show cause, inmate Winson should file
a written response with the Court explaining why the contempt citation should not issue and why
monetary sanctions not be imposed on him. If inmate Winson does not file a response to the
Order to Show Cause by December 5, 2025, the Court will enter a contempt citation and monetary
sanctions against inmate Winson. If inmate Winson attends and participates in his deposition prior
to the order to show cause deadline, no contempt citation shall issue and no monetary sanctions
will be imposed. If inmate Winson attends his deposition after a contempt citation issues and
monetary sanctions are imposed, the Court will lift the monetary sanctions after inmate Winson
appears at, and participates in, his deposition.
In light of the above, the Court RESETS the deadlines as follows.
Event Deadline
Fact Discovery Deadline with exceptions set
forth below for Defendants to conclude
discovery regarding inmate Winson
September 30, 2025
Deadline for Defendants to Depose Inmate
Winson
December 5, 2025
Dispositive Motion Deadline December 29, 2025
Opposition Deadline January 30, 2026
Reply Deadline February 13, 2026
CONCLUSION
For the reasons set forth above, the Court ORDERS as follows.
1. The Court GRANTS Defendants’ request that the Court order inmate Winson to
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show cause why a contempt citation should not issue and monetary sanctions be imposed on
Winson, with the monetary sanctions lifting upon Winson’s appearance at his deposition. Dkt.
No. 79. The Court ORDERS inmate Winson to show cause, by December 5, 2025, why a
contempt citation should not issue and monetary sanctions should not be imposed on inmate
Winson for failure to sit for his deposition. The Court instructs inmate Winson as follows. To
respond to the order to show cause, inmate Winson should file a written response with the Court
explaining why the contempt citation should not issue and why monetary sanctions not be
imposed on him. If inmate Winson does not file a response to the Order to Show Cause by
December 5, 2025, the Court will enter a contempt citation and monetary sanctions against inmate
Winson. If inmate Winson attends, and participates in, his deposition prior to the order to show
cause deadline, no contempt citation shall issue and no monetary sanctions will be imposed. If
inmate Winson attends his deposition after a contempt citation issues and monetary sanctions are
imposed, the Court will lift the monetary sanctions after inmate Winson appears at, and
participates in, his deposition.
2. The Court ORDERS the Clerk to send a copy of his order to Richard Winson,
CDCR No. C63916, at California State Prison – Corcoran, P.O. Box 8800, Corcoran, CA 93212-
8309.
3. The Court ORDERS Defendants to serve a copy of his order on inmate Richard
Winson.
4. The Court GRANTS Defendants’ request that the Court extend the deadline to
complete fact discovery to allow them to take Winson’s deposition after properly serving him with
a second deposition subpoena. Dkt. No. 79.
5. The Court DENIES as moot Defendants’ request to extend the deadline to move to
compel Plaintiff’s response to Defendant Hamner’s document request to November 14, 2025.
Dkt. No. 81. Defendants have withdrawn this motion. Dkt. No. 84.
6. The Court resets the deadlines in this case as follows.
//
//
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Event Deadline
Fact Discovery Deadline with exceptions set
forth below for Defendants to conclude
discovery regarding inmate Winson
September 30, 2025
Deadline for Defendants to Depose Inmate
Winson
December 5, 2025
Dispositive Motion Deadline December 29, 2025
Opposition Deadline January 30, 2026
Reply Deadline February 13, 2026
This order terminates Dkt. Nos. 79, 81.
IT IS SO ORDERED.
Dated:
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
11/21/2025
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