NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRANDON MEEKS, 

Plaintiff-Appellant, 

 v. 

A. NUNEZ, Correctional Officer; T. 

SCOTT, Correctional Officer; J. 

WILBURN, Correctional Sergeant; M. 

ESTRADA, Registered Nurse; 

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND 

REHABILITATION, 

Defendants-Appellees.

No. 17-55364 

D.C. No. 

3:13-cv-00973-GPC-BGS 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted August 31, 2021

Pasadena, California

Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.

Appellant Brandon Meeks asks us to reverse the district court’s imposition 

of terminating sanctions and the dismissal of his 42 U.S.C. § 1983 action. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Exercising our jurisdiction under 28 U.S.C. § 1291, we hold that the district court 

acted within its discretion by imposing terminating sanctions. See Conn. Gen. Life 

Ins. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). We 

therefore affirm.

1. Meeks argues that terminating sanctions were unavailable to the district 

court to impose. We disagree. Federal Rule of Civil Procedure 37 allows 

imposing terminating sanctions in two relevant situations: when a party “fails to 

obey an order to provide or permit discovery” or “fails . . . to appear for that 

person’s deposition.” Fed. R. Civ. P. 37(b)(2)(A), (d)(1)(A)(i), (d)(3). 

Meeks attended his June 2016 deposition, making terminating sanctions 

unavailable under Federal Rule of Civil Procedure 37(d). But his refusal to 

participate in the June 2016 deposition violated prior court orders compelling his 

participation.

1

 Though Meeks asserted the deposition was terminable due to 

harassment, his only true grounds were that the Defendants had not obtained leave 

from the court to depose him. See Fed. R. Civ. P. 30(a)(2)(B), (d)(3)(A). Because 

the magistrate judge had, in fact, given leave months earlier, this objection had 

already been overruled several times. Thus, the district court’s finding that Meek’s 

failure to participate constituted willful non-participation in violation of past court 

1 Because this case involves violating court orders and not merely refusing to 

answer deposition questions, Estrada v. Rowland, 69 F.3d 405 (9th Cir. 1995) (per 

curiam), is inapt. 
3 

orders was not clearly erroneous. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 

(9th Cir. 2006) (factual findings of willfulness will not be disturbed unless clearly 

erroneous). Accordingly, terminating sanctions were available under Federal Rule 

of Civil Procedure 37(b).

2. Meeks argues that the district court abused its discretion by imposing 

terminating sanctions. We disagree. The district court’s finding that Meeks’s 

repeated violations of court orders were within his control, and thus his actions 

were willful, was not clearly erroneous. See Wyle v. R.J. Reynolds Indus., Inc., 709 

F.2d 585, 589 (9th Cir. 1983). The district court also carefully considered the five 

factors related to the imposition of case-dispositive sanctions: (1) the expeditious 

resolution of cases, (2) docket management, (3) prejudice to the moving party, (4) 

the preference of deciding cases on their merits, and (5) the availability of less 

drastic alternatives. See Conn. Gen. Life Ins., 482 F.3d at 1096. Because Meeks 

repeatedly violated court orders, the first and second factors favored sanctions. See 

Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1411–12 (9th Cir. 1990). Because 

Meeks’s conduct impeded the Defendants’ ability to gather information and mount 

a defense, the third factor favored sanctions. See id.; see also Wanderer v. 

Johnston, 910 F.2d 652, 656 (9th Cir. 1990). Because Meeks impeded his case’s 

progress towards a disposition, the fourth factor favored sanctions. See In re 

Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 
4 

2006). And because the district court considered less drastic alternatives, tried to

implement feasible alternatives, and repeatedly warned Meeks that further 

noncompliance could result in dismissal, the fifth factor was satisfied.2 See 

Adriana Int’l, 913 F.2d at 1412–13.

The district court’s imposition of terminating sanctions did not violate due 

process either as Meeks contends. So long as the sanctioned party’s actions 

“threaten to interfere with the rightful decision of the case,” the imposition of casedispositive sanctions will not violate due process. Wyle, 709 F.2d at 591. Meeks’s 

repeated refusal to follow the court’s orders directly impeded the fact-gathering 

process undergirding the core controversy. Thus, terminating sanctions here did

not violate due process.

3. Meeks makes a host of other arguments criticizing the Defendants’ 

discovery practices and the magistrate judge’s decision to modify its initial 

scheduling order. We do not consider these arguments on appeal as they were not 

raised below. In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th 

2 Meeks argues that the district court could have ruled on his motion to terminate 

as a less drastic alternative. But Meeks did not file a motion with the district court, 

so the court could not formally rule on his objections. Still, the district court, when 

dismissing the case, explained that Meeks’s objections during the June 13 

deposition had already been overruled. Thus, the district court, in effect, ruled on 

Meeks’s objections. 
5 

Cir. 2014); Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).3

AFFIRMED.

3 Defendants Estrada’s and Wilborn’s brief raises additional arguments which 

Meeks does not present in his briefing. Because these issues are not presented in 

Meeks’s briefing, they are not presented before us, and we need not address them. 

See Fed. R. App. P. 28(a); Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 

1146, 1149 (9th Cir. 2016).