Johnson v. Reyna et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00459-PAB-MEH
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).
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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).1 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.
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
1 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.
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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 264.2 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 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
2 The deposition cost Defendants $437.66 for a videographer and $374.45 for a court reporter.
ECFs 268-3, 268-4.
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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
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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;
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(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
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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.
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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 F. App’x 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
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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
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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 F. App’x 763, 768 (10th
Cir. 2018) (“The district judge bent over backward to accommodate Black, but, it appears, nothing
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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].3
3 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
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Dated and entered at Denver, Colorado, this 26th day of January, 2024.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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.
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