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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Adrien Joshua Espinoza,

Plaintiff,

v. 

David Shinn, et al.,

Defendants.

No. CV-17-03983-PHX-ROS

ORDER 

Plaintiff Adrien Joshua Espinoza (“Espinoza”) commenced this action in 2017. 

Despite repeated cautions that failure to comply with discovery obligations could result in 

sanctions including dismissal, and allowances for Espinoza’s mental health, he has never 

appropriately responded to Defendants’ discovery requests. (Docs. 102, 169.) Defendants 

have now moved for dismissal sanctions, Doc. 181, and Magistrate Judge James F. Metcalf 

recommends the motion be granted and the action be dismissed without prejudice. (Doc. 

192.) The recommendation will be adopted.

BACKGROUND

The factual background is set forth in detail in the Report and Recommendation 

(“R&R”). Espinoza objected to many of the facts set forth in the R&R, but generally did 

not identify the factual or legal basis for his objections. As the recommended relief is 

dispositive, the Court reviews de novo the portions of the R&R that have been properly 

objected to. Fed. R. Civ. P. 72(b)(3).

Espinoza commenced this case on October 27, 2017, and upon screening the Court

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found that Espinoza sufficiently stated two claims, a First Amendment mail and retaliation 

claim regarding retaliatory prohibitions on Espinoza’s receipt of publications, and an 

Eighth Amendment claim regarding cockroaches in Espinoza’s cell. (Doc. 17 at 13.) In 

September 2018 the Magistrate Judge issued a scheduling order, and Defendants served 

discovery requests on Espinoza on January 14, 2019.

On February 7, 2019, the Magistrate Judge concluded that Espinoza was not capable 

of pursuing litigation, due to his placement on persistent mental health watch and in a 

mental health unit, and vacated all deadlines. (Doc. 67.) On May 7, 2019, after Defendants 

reported Espinoza was no longer on a mental health watch, and after Espinoza filed a series 

of motions and objections, the Magistrate Judge concluded Espinoza was “prepared to 

continue litigating this case, and the reasons for holding the matter in abeyance no longer 

apply,” and reset the litigation schedule. (Doc. 93.)

When Espinoza failed to respond to Defendants’ discovery requests, Defendants 

filed a motion to compel. (Doc. 101.) The Magistrate Judge “perceive[d] that the 

intervening stay of proceedings may have impacted [Espinoza’s] understanding of the 

deadlines for responding,” and denied the motion to compel without prejudice. (Doc. 102 

at 2.) Espinoza was given until June 28, 2019 to respond, but was cautioned “that aside 

from being subject to an award of expenses (including attorneys fees) in the event a motion 

to compel is granted, his failure to comply with an order compelling discovery may result 

in a variety of sanctions, up to and including dismissal of this action.” (Doc. 102 at 3.)

On July 12, 2019, Espinoza filed a document titled “Notice of Service/Motion for 

Appointment of Counsel,” which begins “Plaintiff notifies the Court he is E-filing 

defendants’ Interrogatories and Requests for Production on 6/26/19.” (Docs. 119, 20.) This 

three-page document had a signature and a certificate of service, dated June 26, 2019. (Doc. 

119 at 3.) Appended to the document were copies of Defendants’ Interrogatories with handwritten objections and responses, but no signatures, and no certificates of service. (Docs. 

119, 120.) 

On August 5, 2019, Defendants filed a motion to compel. (Doc. 136.) The 

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Magistrate Judge granted the motion, finding Espinoza failed to respond to the discovery 

requests because his “supposed responses” were filed two weeks later, and were therefore 

untimely; he failed to sign his responses; and the responses were unresponsive, in part 

because they failed to specifically identify documents. (Doc. 169.) The Magistrate Judge 

specifically addressed Espinoza’s “proffer[] to send his ‘stack of documents’ for 

Defendants to copy and return.” (Doc. 169 at 4.) The Magistrate Judge warned Espinoza 

that it “is generally not sufficient to simply produce a ‘stack of documents’ and leave it to 

Defendants to discern which documents relate to which request” because discovery “must 

be produced in a responsive manner, i.e. with the response to each request designating the 

documents being produced in response.” (Doc. 169 at 4.) The Magistrate Judge ordered

Espinoza to “specifically identify for each request which documents or sub group of 

documents i[s] offered in response” in his responses to the requests for production and gave 

Espinoza 21 days to fully respond to the requests. (Doc. 169 at 4.) Finally, the Magistrate 

Judge cautioned Espinoza that “failure to fully and adequately respond to the discovery 

requests will result in sanctions, including . . . dismissing the action or proceeding in whole 

or in part.” (Doc. 169 at 5.) 

Espinoza appealed that order to the Court, which denied the appeal and cautioned 

him that he “must comply with the Magistrate Judge’s order regarding the discovery sought 

by Defendants.” (Docs. 171, 174.) Espinoza moved for reconsideration, and that motion 

was denied. (Docs. 179, 188.)

On the same date his appeal was denied, October 24, 2019, Espinoza filed a onepage Notice of Service, stating “Defendants[’] Interrogatories and Requests for Production 

were sent to Defendants 10/22/19,” Doc. 176, as well as a motion for an extension of time 

“to file the remainder of his Interrogatories and Requests for Production,” Doc. 175.

Defendants responded to the extension motion, stating that on October 25, 2019 they 

received “the same interrogatory responses that Espinoza had previously served” and 

“three manila envelopes, stuffed with hundreds of pages of completely disorganized papers 

. . ., but no written response to their Requests for Production indicating how the hundreds 

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of documents respond to the discovery requests.” (Doc. 180 at 1–2.) Defendants argued 

Espinoza had failed to explain why no real updates or written production responses were 

provided, and submitted Espinoza’s failure to “identify the facts supporting his claims or 

any documentation he has that support his factual allegations” “left the Court with no 

reasonable option other than to dismiss this action without prejudice based on Espinoza’s 

continuing failure to prosecute this action or to comply with the Federal Rules or the 

Court’s Orders under Fed. R. Civ. P. 37(b) and 41(b).” (Doc. 180 at 3.) Espinoza never 

replied, and objects now that he “was not afforded an opportunity to respond” because his 

motion for an extension of time to reply was not granted. (Doc. 200 at 3.) But Espinoza’s 

motion for an extension of time to reply was granted the day after it was filed, and although 

he was given until November 20, 2019 to reply, he never did. (Docs. 182, 183.) On 

November 25, 2019, the Magistrate Judge denied Espinoza’s motion to extend the time to 

complete his discovery responses, finding that the motion was delinquent and there was no 

excusable neglect justifying the failure to file on time. (Doc. 187.)

On November 12, 2019, Defendants filed the instant motion for sanctions. (Doc. 

181.) Defendants argue Espinoza failed to comply with the Court’s Order to respond to 

their discovery requests when he did not provide any meaningful additional responses, and 

the Court should issue an order for sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A). (Doc. 

181 at 2–3.) Defendants submit that the most appropriate of the seven orders contemplated 

by the Rule is dismissal, because any other order “would merely be putting off the 

inevitable dismissal of this case in light of Espinoza’s ongoing failure to prosecute his case 

according to the Federal Rules and Court’s prior discovery Orders.” (Doc. 181 at 3–4.)

Espinoza responded he complied with the Court’s order by sending “three very-well 

organized manila envelopes ... filled with discovery” to Defendants, and argued he was 

not able to provide anything else because prison staff “destroy[ed] and with[eld] his legal 

paperwork” and did not conduct legal box exchanges for six or seven weeks, “leaving 

Espinoza without access to about half of his legal work.” (Doc. 189 at 2.) Espinoza argued 

financial sanctions or a stay would be more appropriate sanctions than dismissal. (Doc. 

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189.) Three days later, Defendants replied, arguing even if Espinoza’s assertions about his 

case files were true, he had failed to identify the facts supporting his claim. (Doc. 191.) 

Espinoza objects to any consideration of the reply because he allegedly never received a 

copy. (Doc. 200 at 3.) Defendants note that delivery of the reply was not their 

responsibility, but the responsibility of Maricopa County. (Doc. 201 at 4 n.4.)

Having reviewed the matter de novo, the facts set forth in the R&R are correct. The 

R&R concludes Espinoza failed to comply with the Court’s order willfully and in bad faith, 

and after weighing the five factors recommends the motion for sanctions be granted and 

the action be dismissed without prejudice.

ANALYSIS

Where a party fails to obey an order to provide discovery, Federal Rule of Civil 

Procedure 37(b)(2)(A) contemplates several possible outcomes, including staying 

proceedings until the order is obeyed or dismissing the action. The Magistrate Judge

specifically warned Espinoza his discovery “must be produced in a responsive manner, i.e.

with the response to each request designating the documents being produced in response,” 

and clearly stated it was “not sufficient to simply produce a ‘stack of documents’ and leave 

it to Defendants to discern which documents relate to which request.” (Doc. 169 at 4.) 

Nonetheless, a stack of documents, with no written response to the interrogatories and no 

means for Defendants to identify which documents Espinoza contended were responsive 

to which request, is precisely what Espinoza produced. Thus, Espinoza has failed to comply 

with the Court’s order to provide discovery.

The Court has broad discretion in selecting the appropriate sanction. Von Brimer v. 

Whirlpool Corp., 536 F.2d 838, 843-44 (9th Cir. 1976). The R&R recommends dismissal. 

Before imposing this drastic sanction, the Court must first determine that Espinoza’s noncompliance was due to willfulness, fault, or bad faith, and, if so, conduct a balancing test. 

Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985); Henry v. Gill 

Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993).

Espinoza argues he did not willfully disobey the Court’s order, or act in bad faith, 

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but rather “tried to the best of his abilities to comply.” (Doc. 200 at 4.) Specifically, 

Espinoza argues that the stack of documents he produced to Defendants “should have been 

taken as responsive” to the discovery requests because “Defendants’ legal counsel is not 

retarded and can easily understand the documents he was sent, as well as their meaning . . . 

[but] simply chose not to.” (Doc. 200 at 4–5.) Espinoza also offers as a defense that 

Defendants refused to “allow him access to his files,” but does not identify any particular 

documents needed, or identify a specific discovery request for which he lacked the 

information necessary to respond. (Doc. 200 at 7.) Espinoza’s arguments are not 

persuasive. Espinoza willfully or in bad faith refused to comply with the Court’s order 

when he “failed to provide any facts, even basic facts,” made no explanation for his failure 

to respond to the interrogatories, and served only a stack of documents despite being 

specifically warned that this would not be sufficient. (Doc. 192 at 9.) 

Having determined Espinoza’s non-compliance was due to willfulness or bad faith, 

the Court must weigh five factors before imposing dismissal: 

(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 

need to manage its dockets; (3) the risk of prejudice to the party seeking 

sanctions; (4) the public policy favoring disposition of cases on their merits; 

and (5) the availability of less drastic sanctions. 

Henry, 983 F.2d at 948 (9th Cir. 1993) (quoting Porter v. Martinez, 941 F.2d 732, 

733 (9th Cir. 1991). Because the first two factors generally favor the imposition of 

sanctions, while the fourth cuts against a dismissal sanction, the key factors are prejudice 

and the availability of lesser sanctions. Id.

Espinoza’s continued non-compliance with discovery orders prejudices Defendants. 

Without any written responses or meaningful document productions, Defendants are 

unaware of the facts on which Espinoza’s claims are based, and would be able to rely only 

on the complaint’s bare allegations at trial.

With regard to lesser sanctions, Federal Rule of Civil Procedure 37(b)(2) lists six 

sanctions that are less drastic than full dismissal: (i) making factual determinations, (ii) 

precluding evidence, (iii) striking pleadings, (iv) staying proceedings, (v) partial dismissal, 

and (vii) contempt. In his objections to the R&R, filed on March 12, 2020, Espinoza asserts 

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that he “very much wishes to produce the discovery Defendants request so the case can 

conclude,” and expresses “a great desire to press this litigation to a conclusion.” (Doc. 200 

at 8.) But over five months have elapsed since Espinoza filed his objections, and over ten 

months have elapsed since the order compelling discovery was issued, yet Espinoza has 

failed to produce the discovery. Clearly, a further stay of proceedings would not induce 

compliance. Furthermore, given the history of this proceeding, and the nature of Espinoza’s 

failures and their applicability to his claims, the R&R is correct that imposition of any of 

the remaining sanctions would be tantamount to a dismissal, or would render a trial futile. 

Finally, Espinoza was explicitly warned on multiple occasions that failure to fully and 

adequately respond to discovery “will result in sanctions,” including dismissal, and that, 

“[g]iven the pervasive lack of response, the Court will be inclined more to dismissal,” and 

still failed to respond adequately. (Docs. 169 at 5 (emphasis added), 102 at 3.)

Having weighed all five factors, the Court concludes the sanction of dismissal is 

appropriate. Rule 37(b)(C) also requires that, “instead of or in addition to” the sanction of 

dismissal, “the court must order the disobedient party . . . to pay the reasonable expenses, 

including attorney’s fees, caused by the failure, unless . . . other circumstances make an 

award of expenses unjust.” In their motion for sanctions, Defendants explain they “did not 

move for expenses, determining that an award would provide them with no practical relief,” 

because “Espinoza is proceeding in this action as a pauper and is not known to have any 

financial assets.” (Doc. 181 at 2.) Espinoza confirmed his indigent status in his objections 

to the R&R. (Doc. 200 at 8) (“[T]he Court concedes that [Espinoza’s] indigent status is 

relevant to this matter.”) The Court concludes that, in the specific circumstances of this 

cases, an award of expenses would be unjust.

Accordingly,

IT IS ORDERED the Report and Recommendation (Doc. 192) is ADOPTED.

IT IS FURTHER ORDERED Defendants’ Motion for Sanctions (Doc. 181) is 

GRANTED.

...

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IT IS FURTHER ORDERED as a sanction under Rule 37(b)(2)(A), Plaintiff’s 

Complaint (Doc. 9) and this action are DISMISSED WITHOUT PREJUDICE.

Dated this 14th day of August, 2020.

Honorable Roslyn O. Silver

Senior United States District Judge

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