NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 6 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASMINE PAUL SANCHEZ, No. 23-15168

Plaintiff-Appellant, D.C. No. 3:22-cv-00259-MMD-CSD v.

CHET RIGNEY; CURTIS RIGNEY; MEMORANDUM*

WILLIAM REUBART; DAVID

DRUMMOND; TASHEENA COOKE;

JEROME HICKS,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted October 10, 2025 Las Vegas, Nevada

Before: BENNETT, SANCHEZ, and H.A. THOMAS, Circuit Judges. Dissent by Judge BENNETT.

Plaintiff Jasmine Paul Sanchez appeals the district court’s adoption of a

magistrate judge’s report and recommendation that Sanchez’s pro se lawsuit be

dismissed sua sponte, and with prejudice, as a sanction for Sanchez’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. nonappearance at his initial case management conference (“CMC”). We have

jurisdiction under 28 U.S.C. § 1291. Because the district court abused its

discretion by imposing terminating sanctions in this matter, we reverse and remand

for further proceedings.

1. The district court abused its discretion when it reviewed the magistrate

judge’s report and recommendation for clear error after Sanchez made a timely

objection. “[W]hen a magistrate judge issues a report and recommendation on a

dispositive matter, a district judge must ‘make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made.’” CPC Pat. Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 804

(9th Cir. 2022) (citing 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(3)).

Within the 14-day objection window following the magistrate judge’s report

recommending terminating sanctions, Sanchez made four court filings. Sanchez’s

first filing asserted that his legal documents and evidence had been “taken,

damaged or destroyed” in retaliation for his attendance at the show cause hearing.

Sanchez’s fourth filing, although captioned as a request for video footage, plainly

raised objections to the report and recommendation. The filing mentioned the

magistrate judge by name and challenged the report’s determination that Sanchez

2 had given false testimony about his reasons for missing the CMC.1 Sanchez also

wrote that the magistrate judge “still refused to take in the seriousness of my case

and is disregarding all my plea[]s for help and safety . . . and recommends that my

case be dismissed after knowing the seriousness of this case and seeing the proof

beyond a reasonable doubt!”2

It is well-established that “[a] document filed pro se is ‘to be liberally

construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). “Federal courts sometimes will ignore the legal

label that a pro se litigant attaches to a motion . . . . in order to avoid an

unnecessary dismissal [or] to avoid inappropriately stringent application of formal

labeling requirements . . . .” Castro v. United States, 540 U.S. 375, 381 (2003).

Here, Sanchez’s filing was sufficient to put the district court on notice of

Sanchez’s objections to the magistrate judge’s report and recommendation and

1 Our dissenting colleague suggests that it was impossible to discern any clear objection in the filing’s “deluge of words.” We disagree. In the relevant portion, Sanchez expressly referenced the statement he filed to explain his absence from the CMC and asserted that the threats against his life were genuine and that the magistrate judge improperly disregarded his allegations. 2 Sanchez offered a nonfrivolous explanation for his nonappearance. Sanchez testified and explained in his filed statement that he did not appear because officers threatened to kill him if he attended the CMC—allegations closely linked to those made in his complaint that he had been retaliated against, threatened with death, beaten, and had his arm broken for pursuing legal claims against prison staff. Such serious allegations should not be terminated on the basis of a credibility finding at a limited show cause hearing, particularly where one of the two officer witnesses is a named defendant in the underlying lawsuit.

3 thereby trigger the district court’s obligation to perform de novo review.

2. Had the district court’s error ended there, we would typically remand for

the district court to apply the correct legal standard. See CPC, 34 F.4th at 810.

However, the district court further abused its discretion in determining that

dismissal with prejudice was the only sanction available for Sanchez’s failure to

appear at his initial CMC. The record demonstrates that a terminating sanction

was outside the acceptable range of sanctions under the circumstances of this case.

“Courts are to weigh five factors in deciding whether to dismiss a case for

failure to comply with a court order: ‘(1) the public’s interest in expeditious

resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

prejudice to the defendants; (4) the public policy favoring disposition of cases on

their merits; and (5) the availability of less drastic sanctions.’” In re

Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir.

2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).

In recommending dismissal with prejudice, the magistrate judge cited the delay

caused by Sanchez’s nonappearance, the need to manage its docket, prejudice to

the defendants, and the unavailability of less drastic sanctions. The district court

found no clear error in these findings. We conclude that while factor one is neutral

and factor two supports the district court, factors three, four, and five weigh

decisively in favor of nondismissal. See Valley Eng’rs Inc. v. Elec. Eng’g Co., 158

4 F.3d 1051, 1057 (9th Cir. 1998) (describing how factors “3 and 5, prejudice and

availability of less drastic sanctions, are decisive”).

While the public has an interest in an expeditious resolution to litigation, the

one-month delay caused by Sanchez’s nonappearance was minimal and came at an

early stage of the litigation when discovery had yet to take place and no trial date

had been set. Factor one is therefore neutral. But because the district court has a

strong interest in managing its docket, factor two favors the district court.

Turning to the third factor, “[a] defendant suffers prejudice if the plaintiff’s

actions impair the defendant’s ability to go to trial or threaten to interfere with the

rightful decision of the case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406,

1412 (9th Cir. 1990). While “[t]he law presumes injury from unreasonable delay,”

Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998), a one-month

delay at the start of litigation is insufficient to presume injury. Though defendants

expended additional time preparing for and attending the show cause hearing, the

district court failed to explain how Sanchez’s single nonappearance “impair[ed] the

defendant’s ability to go to trial or threaten[ed] to interfere with the rightful

decision of the case.” Adriana Int’l Corp., 913 F.2d at 1412. As explained above,

the one-month delay caused by the nonappearance was minimal. And defendants

have not presented evidence that they were actually prejudiced in any way.

5 The district court correctly determined that the fourth factor—“the public

policy favoring resolution on the merits”—supports Sanchez. See Hernandez, 138

F.3d at 401.

The fifth factor, the availability of less drastic sanctions, also weighs

decisively against dismissal. This factor “involves consideration of three subparts:

whether the court explicitly discussed alternative sanctions, whether it tried them,

and whether it warned the recalcitrant party about the possibility of dismissal.”

Valley Eng’rs Inc., 158 F.3d at 1057 (citing Malone, 833 F.2d at 132). It is

undisputed that Sanchez received no warning prior to missing the CMC that failure

to appear at the hearing could result in dismissal of his action, and the district court

attempted no other sanction prior to dismissing Sanchez’s case sua sponte. The

district court’s analysis of the inadequacy of the alternative sanctions—finding that

Sanchez’s incarceration renders all deterrents ineffective—did not meaningfully

consider alternatives and finds no support in the record.

Although Sanchez qualified as an indigent litigant, the district court should

have more seriously considered whether a fine or order covering defendants’

litigation costs was available as a less drastic sanction to encourage compliance

with court orders. While the court concluded that a contempt order “would not

have an effect on an indigent litigant who is already incarcerated[,]” nothing in the

record supports this unexplained determination. On the contrary, the record

6 affirmatively demonstrates that a warning by the court could have been effective:

when Sanchez was warned that his case could be dismissed if he failed to appear at

his show cause hearing, he made an appearance.3

The district court’s order dismissing this case is therefore reversed. We

further direct the district court to appoint counsel to represent Sanchez in further

proceedings in this matter.

REVERSED AND REMANDED.

3 Our dissenting colleague relies on evidence wholly outside the record to suggest that Sanchez is a “vexatious litigant” who should not be believed. At no point did defendants raise or argue that Sanchez is a “vexatious litigant” or that he allegedly “lied” in prior lawsuits, nor did the magistrate judge or district court mention Sanchez’s prior litigation history or litigation status as a factor in dismissing this action. Even if Sanchez were a “vexatious litigant,” our dissenting colleague overlooks that the district court screened Sanchez’s complaint and found that it stated colorable constitutional claims. Our colleague cites no authority for the proposition that a vexatious litigant whose colorable claims survive a screening order should have fewer due process protections than other litigants. Because the district court did not review the magistrate judge’s report and recommendation de novo, as it was required to do after Sanchez objected to the magistrate’s credibility determination, we cannot assume that Sanchez “lied” to the court.

7

FILED

JAN 6 2026

Sanchez v. Rigney, No. 23-15168

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BENNETT, Circuit Judge, dissenting:

For years, the district court in Nevada handled Plaintiff’s many abuses of

process with patience and prudence. In this case, Plaintiff once again lied to the

court and failed to comply with court orders. Plaintiff also threatened—in open

court—to kill prison officers. Assessing the situation, the magistrate judge

recommended that the district court dismiss this case sua sponte and with

prejudice. The district court reviewed the report and recommendation (R&R) for

clear error and, finding none, adopted the magistrate judge’s findings and

recommendations in full. On appeal, Plaintiff asks that we gloss over his history of

vexatious litigation—which the magistrate judge and district court were plainly

aware of—and reverse. I would not do so. Even under the liberal pleading

standard afforded pro se litigants, Plaintiff failed to object timely to the R&R.

Moreover, under any standard of review, the district court’s conclusion was proper.

Plaintiff’s litigation misconduct not only justified—but required—dismissal with

prejudice. Thus, I respectfully dissent.

1. Between June 2018 and April 2023, Plaintiff filed thirty-three lawsuits

in the United States District Court for the District of Nevada against Ely State

Prison (ESP), ESP staff, and two magistrate judges of that court. Sanchez v. Sharp,

No. 21-cv-408, 2023 WL 7390138, at *9 (D. Nev. Sept. 21, 2023) (tabulating the

1 cases), report and recommendation modified in part and adopted, 2023 WL

7039779 (D. Nev. Oct. 25, 2023). At a global settlement conference in December

2020, fourteen of his earlier lawsuits were settled. Id. Yet Plaintiff continued to

file lawsuits. Id. None succeeded and all were dismissed by the district court—

one for lack of jurisdiction, one for failure to effect service, four for failure to state

a claim, five by summary judgment finding no constitutional violations, seven for

failure to pay the filing fee, and this case as a sanction for failure to comply with

court orders. Appendix (App.).1 Noninclusive of this case, Plaintiff appealed six

times. Id. Each time we dismissed—three times as frivolous, Sanchez v. Ely State

Prison, No. 22-15412, 2022 WL 4289619 (9th Cir. Aug. 19, 2022) (order); Sanchez

v. Rose, No. 22-15840, 2022 WL 4073357 (9th Cir. Aug. 17, 2022) (order); Order,

Sanchez v. Ely State Prison, No. 19-17131, Dkt. No. 16 (9th Cir. Mar. 6, 2020),

twice for lack of jurisdiction, App. at 1, and once for failure to prosecute, Sanchez

v. Reubart, No. 22-15841, 2022 WL 17424542 (9th Cir. Sept. 19, 2022) (order). In

all, Plaintiff accumulated four strikes under 28 U.S.C. § 1915(g). See App.

In these many cases, Plaintiff proved himself to be a “vexatious litigant.”

Sharp, 2023 WL 7039779, at *3. He “routinely refused to participate in, or adhere

to the [district court’s] rules and orders.” Id. (citation omitted). He “refus[ed] to

1 I take judicial notice of the district court’s records in the cases listed in the Appendix. 2 accept service of documents or attend hearings.” Id. “He frequently d[id] not

oppose dispositive motions” and regularly failed to prosecute his lawsuits “for at

least six months, further evidencing that he is not diligently prosecuting his

claims.” Id.

Indeed, at least several times, Plaintiff lied to the court. For example, in one

complaint, Plaintiff alleged that he was placed in the shower and then forced to

undress in front of female staff and on camera—all while Correction Officer Chet

Rigney licked his lips and made sexual comments. State Civil Rights Complaint at

3–5, Sanchez v. Rigney, No. 22-cv-109 (filed D. Nev. Feb. 22, 2022), Dkt. No. 1-1.

That complaint also alleged that Rigney choked him for no reason and refused to

take photos of the resulting injuries. Id. at 5–6. But when the defendants moved,

unopposed, for summary judgment and presented video footage of the incident,

Plaintiff’s account was shown to be untrue. Sanchez v. Rigney, No. 22-cv-109,

2023 WL 10510317, at *1–2, *4–6 (D. Nev. Sept. 6, 2023). In this case, Plaintiff

once again accuses Rigney of misconduct—this time alleging that Rigney broke

his arm in retaliation for filing case number 22-cv-109, the case in which Plaintiff

was found to have alleged lies about being stripped and choked by Rigney.

To justify ignoring this history, the majority argues that I “rel[y] on evidence

wholly outside the record to suggest that Sanchez is a ‘vexatious litigant’ who

should not be believed.” Maj. at 7 n.3. But there is nothing to “suggest.” In

3 October 2023, responding to Plaintiff’s repeated abuses of process, the district

court declared him a vexatious litigant and required him to obtain leave before

initiating any litigation against ESP or its employees. Sharp, 2023 WL 7039779, at

*3. Moreover, evidence of Plaintiff’s vexatiousness is properly before us because

the record includes many references to his other lawsuits.2 And we may “take

judicial notice of [our] own records in other cases, as well as the records of an

inferior court in other cases.” United States v. Wilson, 631 F.2d 118, 119 (9th Cir.

1980). Doing so is especially proper where, as here, such records relate to

“litigation between the same parties who are now before us.” See Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 157 (1969).

2. This case is the twenty-eighth out of the thirty-three filed by Plaintiff.

See App. In August 2022, the district court screened his complaint and allowed

him to proceed with claims alleging retaliation, excessive force, failure to protect,

and deliberate indifference to serious medical needs. On November 22, 2022, the

magistrate judge ordered the parties to file a case management report by December

13 and appear for a mandatory telephone conference on December 20. Plaintiff did

2 ER 19 (Plaintiff stating “I filed a lawsuit previous to this”); ER 20 (“I just went to Palo Alto to court after court after court, and it seems like the court is not taking my lawsuits into any type of consideration”); ER 54 (screening order noting that “Sanchez has accumulated four strikes under 28 U.S.C. § 1915(g)”); FER 4 (Plaintiff’s application for a temporary restraining order referencing at least two other lawsuits filed by him). 4 neither. The prison’s law librarian provided Plaintiff with a copy of the minutes

from the December 20 hearing but, consistent with his behavior in other cases, he

refused to sign for the document.

The magistrate judge set a show cause hearing for January 12, 2023. Before

that hearing, Plaintiff filed a document stating that ESP staff threatened to kill him

if he appeared for the December 20 telephone conference. At the show cause

hearing, the magistrate judge received testimony from several ESP staff who stated

that Plaintiff was given the opportunity to attend the December 20 telephone

conference but voluntarily refused. For his part, Plaintiff once again accused ESP

staff of threatening to kill him. Plaintiff then went on what can be described only

as a rant that included the statement, “lately I’ve been thinking about homicide is

my only escape out here. It’s either kill [ESP staff] before they kill me.” Because

the majority omits this fact, I pause to emphasize that Plaintiff threatened—in open

court—to murder Defendants.3

After the show cause hearing, the magistrate judge issued the R&R

recommending dismissal of Plaintiff’s claims sua sponte and with prejudice. The

magistrate judge found Plaintiff’s testimony “not credible” and his accusations

about death threats to be “false.” Thus, Plaintiff had “not demonstrated good

3 At oral argument, Plaintiff’s counsel was asked whether Plaintiff had said, “with regard to the correctional officers, he was considering homicide, right?” Plaintiff’s counsel responded, “He did say that.” 5 cause” for his failure to attend the December 20 conference and, moreover, had

“provided false testimony about his refusal to attend.” In recommending dismissal

with prejudice, the magistrate judge concluded that Defendants were prejudiced

“by the expenditure of time and effort” in preparing for and attending the telephone

conference and show cause hearing. The magistrate judge also determined that

less drastic sanctions would not be effective because monetary and contempt

sanctions would not deter Plaintiff, “an indigent inmate litigant,” and other

non-monetary sanctions would not adequately address Plaintiff’s noncompliance

with court orders. Based on “Plaintiff’s demeanor at the [show cause] hearing,”

the magistrate judge also found that “a warning or reprimand would have no

impact.”

The R&R informed the parties that “they may file . . . specific written

objections to this [R&R] within fourteen days of being served with a copy of the

[R&R].” The R&R further instructed that such “objections should be titled

‘Objections to Magistrate Judge’s Report and Recommendation’ and should be

accompanied by points and authorities for consideration by the district judge.”

Within the fourteen-day period to object, Plaintiff filed four documents: (1) a letter

styled as a “motion” claiming that Plaintiff’s property and evidence were “taken,

damaged, or dest[roy]ed;” (2) a motion to use priority shipping envelopes; (3) an

ex parte motion for appointment of counsel; and (4) “a motion to obtain video

6 feed.” None of these four filings attempted to comply with the R&R’s clear

instruction to file “specific written objections” titled as such and “accompanied by

points and authorities.”

On January 27, 2023, because Plaintiff had failed to object to the R&R, the

district court reviewed the R&R for clear error. Finding none, the district court

adopted the R&R and dismissed Plaintiff’s complaint with prejudice. Plaintiff

timely appealed.

3. The majority states that Plaintiff’s motion for video footage “plainly

raised objections to the report and recommendation.”4 Maj. at 2. The

memorandum portion of that motion consisted of a long rant that stated, in full:

Between 8:00Am and 9:51Am on 1-12-23 as I was attending a mandatory court order By Magistrate Judge Craig S. denney stating that “I Mr Sanchez would not Be Retaliated for my attendance and if I was to refused he would dismiss my case”! even after I send a statment stating that “I was threaten By ely state prison on 12-14-22 that they was going to kill me and destory my personal property if I was to attend my court order meeting”! in which they did exactly that By coming in my cell and taking some and destorying the rest and now this same Judge Craig S. denney is trying to insure my death by trying to dismissed my case knowing that my life is in danger that once my case get’s dismissed the staff here at ely state prison is planing on killing me! I’ve have put in motion’s after countless motion’s to seek protection by mean’s of legal actions and no matter how much proof I’ve have sent to the court Judge Craig S. denney from time and

4 Thus, the majority implicitly concedes that the other three filings, even liberally construed, failed to lodge specific objections to the R&R. 7 date’s on everything as well as the staff statement’s them self magistrate Judge craig S. denney still refused to take in the seriousness of my case and is disregarding all of my plea’s for help and safty! and I fear that he is related in some way to the defendant’s, Because no other judge would knowing the seriousness of this case and then Just disregarded it as nothing to Be taken in further action’s other then someone who is closely related in some way to the defendant’s! other wise why did he and the staff at ely state prison denyed any access to reach a (counsel/attorney) to help me with the Legal process of this case, that I dont know what to do pass filing the 1983 that I was going to need counsel/attorney help with the case! But still Magistration Judge Craig S. denney denyed my motion for appointed counsel/attorney assistance, the same judge that is recommend that my case be dismissed after knowing the seriousness of this case and seeing the proof beyond a reasonable doubt! By obtain video feed of unit 2A that’s faceing cell 2A you’ll see once I was out of my cell the C/O come’s right in and start destorying, taking, and retaliating on me for going to attend a court order telephonic conference date set forth for 1-12-23 at 9:00Am in which I was taken out of my cell Between 8:00Am and 8:40Am But as I returned to my cell at 9:51Am that’s when I discovered my personal property destoryed and taken! this motion is for a request for the court to see first hand on how ely state prison staff all stick together on to try and intimate us prisoner’s from seeking outside legal protection and assistance By threat’s of death and destorying personal property! They have Been Know for year’s to carry out Both form’s of threat’s even Before I came! I’m Just the only one of us Brave enough to continue to seek Justice By Legal mean’s even tho I don’t know everything about the Legal system I am still willing to try and fight for my Life and Livelyhood nomatter how Long it take’s to get Justice! And if I die my family and friend’s will continue to seek Justice for this case and all those who are involve from Judge’s, attorney’s, clerk, esp staff, and ect! I’ve sent them enought info to insure that

8 they would Know who is to Blame for my death Like Jorge f. Searching this deluge of words for specific objections to the R&R

yields nothing relevant to our review. At most, Plaintiff lodged a general

complaint regarding Magistrate Judge Denney’s handling of this case and other

cases filed by Plaintiff. Such a general objection does not trigger the district

court’s duty to conduct de novo review. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate

judge’s disposition that has been properly objected to.” (emphasis added)).

The majority argues that Plaintiff “expressly referenced the statement he

filed to explain his absence from the CMC and asserted that the threats against his

life were genuine and that the magistrate judge improperly disregarded his

allegations.” Maj. at 2–3 n.1. But though Plaintiff referenced his pre-hearing

statement, nothing raised a specific objection to the R&R. Plaintiff merely lodged

accusations that Magistrate Judge Denney conspired to ensure his death and

disregarded the seriousness of his case. Even under the liberal standard afforded

pro se litigants, such general complaints which merely “restate[d] his grievance

against” ESP staff and magistrate judges of the district court did not suffice to raise

specific objections to any finding or recommendation made in the R&R. Cf.

Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005)

(per curiam) (“In his brief on appeal, plaintiff again restates his grievance against 9 alleged ‘unlawful practices’ that resulted in the taking of his vehicle. At no point,

however, do his conclusory allegations address the substance of the District Court’s

Memorandum of Decision and Order that dismissed plaintiff’s actions.”).5

Moreover, although we liberally construe documents filed pro se, when a pro

se litigant has been informed of requirements that he must meet, his failure to

comply justifies imposing adverse consequences. See Draper v. Rosario, 836 F.3d

1072, 1080 & 1080 n.5 (9th Cir. 2016). The R&R informed Plaintiff of the

requirements for objecting to a magistrate judge’s findings and

recommendations—namely, to “file and serve specific written objections with

supporting points and authorities.” D. Nev. Loc. R. IB 3-2; see also 28 U.S.C.

§ 636(b)(1)(C) (allowing parties to file written objections to a magistrate judge’s

“proposed findings and recommendations as provided by rules of court” (emphasis

added)). Plaintiff’s motion for video footage failed to comply with these

requirements.

This reality proves wrong the majority’s mischaracterization of my argument

as stating that “a vexatious litigant whose colorable claims survive a screening

order should have fewer due process protections than other litigants.” Maj. at 7

5 Plaintiff lodged only one specific objection. He complained that “Magistration Judge Craig S. denney denyed my motion for appointed counsel/attorney assistance [sic].” But the R&R did not address appointment of counsel because Plaintiff moved for appointment of counsel eleven days after the R&R had issued. 10 n.3. Plaintiff did not receive fewer due process protections than other litigants.

Rather, the magistrate judge afforded Plaintiff ample notice and every opportunity

to raise specific objections to the R&R. Plaintiff simply failed to do so.

The district court needed to review de novo only “those portions of the

report or specified proposed findings or recommendations to which objection is

made.” See CPC Patent Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 804 (9th Cir.

2022) (quoting 28 U.S.C. § 636(b)(1)(C)) (citing Fed. R. Civ. P. 72(b)(3)). But

Plaintiff failed to object properly to any specific findings or recommendations

made in the R&R. Thus, the district court was not required to conduct de novo

review. See 28 U.S.C. § 636(b)(1).

4. If the majority stopped there and held only (and wrongly in my view)

that the district court had to conduct de novo review, the district court could

reconsider the appropriateness of a terminating sanction on remand, see CPC

Patent Techs., 34 F.4th at 810, including by taking express judicial notice of

Plaintiff’s long history of vexatious litigation and explicitly considering his

misconduct and noncompliance against that backdrop. Instead, I believe the

majority oversteps and contravenes circuit authority by placing a terminating

sanction out of reach. See United States v. Rivera-Guerrero, 377 F.3d 1064, 1071

(9th Cir. 2004) (stating that when the district court misapplies a deferential

standard of review, “we must vacate the district court’s order and remand”).

11 On this issue, the majority first errs in misconcluding that Plaintiff’s only

misconduct was his “nonappearance at his initial case management conference.”

Maj. at 1. Plaintiff’s misconduct was far more severe. The magistrate judge found

that Plaintiff also provided false testimony by accusing two correction officers of

threatening to harm or kill him if he attended the December 20 conference.

Plaintiff additionally failed “to comply with the court’s order[] to file a case

management report.” Most egregiously, during the show cause hearing, Plaintiff

threatened to kill Defendants.

The majority, however, ignores all this and implicitly “reverses [the]

magistrate judge’s credibility determinations, made after receiving live

testimony . . ., without viewing key demeanor evidence.” See United States v.

Thoms, 684 F.3d 893, 906 (9th Cir. 2012) (holding that such reversals abuse

judicial discretion in nearly all circumstances); see also United States v. Ramos, 65

F.4th 427, 436 (9th Cir. 2023) (“[W]e cannot hold that the magistrate judge was

wrong to reject [the defendant’s] testimony” when the R&R “provided ample

reason to find [the defendant] not credible.”). In support of this reversal, the

majority offers only that “serious allegations should not be terminated on the basis

of a credibility finding at a limited show cause hearing.” Maj. at 3 n.2. But our

cases instruct that “[b]ecause the magistrate [judge] sees and hears live testimony,

he has an adequate basis for making credibility determinations.” United States v.

12 Mejia, 69 F.3d 309, 316 (9th Cir. 1995). Moreover, 28 U.S.C. § 636 does not

require district courts to conduct a de novo hearing. United States v. Raddatz, 447

U.S. 667, 676 (1980). Rather, it “permit[s] whatever reliance a district judge, in

the exercise of sound judicial discretion, cho[oses] to place on a magistrate

[judge]’s proposed findings and recommendations.” Id.

Thus, even had Plaintiff objected properly to the magistrate judge’s adverse

credibility determination, the correct course would be to remand for the district

court to make a “de novo determination.” Id. (quoting § 636(b)(1)). If necessary,

further fact-finding could take place in the district court, which unlike this Court

“has the option of adding to th[e] record through live testimony.” See Thoms, 684

F.3d at 905. But departing from our usual practice, see CPC Patent Techs., 34

F.4th at 810, the majority reverses on appeal the magistrate judge’s credibility

determination. Doing so contravenes circuit precedent, which instructs us in like

circumstances to “vacate the district court’s order and remand.” See

Rivera-Guerrero, 377 F.3d at 1071.

The majority compounds its error in its incorrect review of the R&R’s

application of the Malone factors. We review “the district court’s ultimate

decision” to apply a terminating sanction “only for abuse of discretion.”

Transamerica Life Ins. Co. v. Arutyunyan, 93 F.4th 1136, 1146 (9th Cir. 2024). We

do not require the district court to “expressly recite and individually discuss each”

13 Malone factor; “[i]t suffices if the district court’s analysis, considered in the

context of the record as a whole, permits us ‘independently to determine if the

district court has abused its discretion’ in light of these factors.” Id. at 1146–47

(quoting Allen v. Bayer Corp., 460 F.3d 1217, 1226 (9th Cir. 2006)). Contravening

this standard of review, the majority steps into the district court’s shoes and

reviews de novo the R&R’s application of the Malone factors.6

In any case, I believe the majority also misapplies the Malone factors. “The

first two Malone factors are typically considered together, and because they relate

to docket-management issues that the district court ‘is in the best position’ to

assess, we give particular deference to the district court’s judgment concerning

them.” Id. at 1147 (quoting Allen, 460 F.3d at 1227). The first two factors heavily

favored dismissal with prejudice because Plaintiff, a vexatious litigant, failed to

comply with court orders in an action that he had brought, and his nonappearance

at the initial conference thwarted the district court’s ability to manage Plaintiff’s

noncompliance. See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.

1990) (noting the general rule that, in a case involving violations of court orders,

“the first two factors support sanctions”). Moreover, Plaintiff’s misconduct

6 Because the majority concludes that the district court needed to review de novo the entire R&R, I assume that the majority applies a de novo standard of review in its weighing of the Malone factors. 14 exceeded mere noncompliance—he provided false testimony and lodged a death

threat against ESP staff.

“The third Malone factor—the ‘risk of prejudice’ to the other party—

examines the extent to which the recalcitrant parties’ conduct creates a risk of

either ‘impair[ing] the [opposing party’s] ability to go to trial’ or ‘interfer[ing] with

the rightful decision of the case.’” Arutyunyan, 93 F.4th at 1147 (alterations in

original) (quoting Allen, 460 F.3d at 1127). Here, Defendants had suffered

prejudice from having to defend against Plaintiff’s false accusations. And the risk

of future prejudice was high because Plaintiff had attempted to interfere with the

correct resolution of the case by providing false testimony and threatening to kill

ESP employees. See Valley Eng’rs Inc. v. Electric Eng’g Co., 158 F.3d 1051, 1058

(9th Cir. 1998) (affirming terminating sanction because “[t]here is no point to a

lawsuit, if it merely applies law to lies.”); Conn. Gen. Life Ins. Co. v. New Images

of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007) (“In deciding whether to

impose case-dispositive sanctions, the most critical factor is not merely delay or

docket management concerns, but truth.”). The majority, however, weighs only the

risk of delay, which, in any event, also weighed in favor of dismissal. See In re

Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). Although the delay was short, Plaintiff

had regularly failed to prosecute other lawsuits “for at least six months.” Sharp,

15 2023 WL 7039779, at *3. The third factor therefore strongly favored dismissal

with prejudice.

The fourth factor weighed against dismissal, but “provide[d] only ‘little

support’ for that conclusion.” See Arutyunyan, 93 F.4th at 1147 (quoting Allen, 460

F.3d at 1228). This factor “‘lends little support’ to a party whose responsibility it is

to move a case toward disposition on the merits but whose conduct impedes

progress in that direction.” Id. (quoting Allen, 460 F.3d at 1228). Plaintiff’s failure

to appear at the telephone conference impeded progress toward disposition on the

merits in a case that he had brought and had the responsibility to prosecute. Thus,

this factor provided Plaintiff only “little support.” See id. at 1147.

The fifth factor also favored dismissal with prejudice. Although “it is not

always necessary for the court to impose less serious sanctions first, or to give any

explicit warning,” Valley Eng’rs, 158 F.3d at 1057, the R&R explicitly discussed

alternative sanctions and properly determined that such sanctions would not

adequately address Plaintiff’s misconduct. This was not a cursory determination.

Across Plaintiff’s vexatious filing and prosecution of thirty-three cases, “the

district court applied a measured and gradational approach in responding to

[Plaintiff’s] non-compliance with the court’s orders and the local rules.” See

Arutyunyan, 93 F.4th at 1148. The R&R also properly concluded “that a warning

or reprimand would have no impact.” See Valley Eng’rs, 158 F.3d at 1057 (“The

16 significance of warning is that a sanction may be unfair if the party could not have

realized that it was in jeopardy of so severe a consequence . . . .”). Plaintiff knew

that his failure to comply with court orders could result in dismissal with prejudice

because it had happened to him many times before. App. Indeed, when this case

was dismissed, Plaintiff had accumulated four strikes under 28 U.S.C. § 1915(g).

Accordingly, the fifth Malone factor also favored dismissal with prejudice. See

Adriana, 913 F.2d at 1413. In sum, even reviewed de novo, the Malone factors

strongly supported dismissal with prejudice.

Thus, I believe this record does not justify reversal under any standard of

review. See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643

(1976) (per curiam) (“[T]he most severe in the spectrum of sanctions provided by

statute or rule must be available to the district court in appropriate cases . . . .”).

But again, our review is “only for abuse of discretion.” Arutyunyan, 93 F.4th at

1146. Under the proper standard of review, I believe the record falls far short of

creating “a definite and firm conviction that the district court made a clear error in

judgment” in adopting the R&R and imposing a terminating sanction, which would

be required for us to reverse. See Adriana, 913 F.2d at 1408.7

7 I note that the majority’s decision forces the district court, on remand, to reengage a vexatious litigant against whom a filing injunction has already been entered. Sharp, 2023 WL 7039779, at *3. It bears repeating that the filing injunction prevents Plaintiff, without first obtaining leave of court, from initiating any new litigation against ESP and its staff, including Defendants. Id. 17 5. I believe the majority commits one final error by “direct[ing] the

district court to appoint counsel to represent [Plaintiff] in further proceedings in

this matter.” Maj. at 7. “A district court’s refusal to appoint counsel pursuant to 28

U.S.C. § 1915(e)(1) is reviewed for an abuse of discretion.” Palmer v. Valdez, 560

F.3d 965, 970 (9th Cir. 2009). Courts appoint counsel only in “exceptional

circumstances.” Id. (citation omitted). “When determining whether ‘exceptional

circumstances’ exist, a court must consider ‘the likelihood of success on the merits

as well as the ability of the petitioner to articulate his claims pro se in light of the

complexity of the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d

952, 954 (9th Cir. 1983)).

After Plaintiff’s complaint was dismissed with prejudice, Plaintiff’s motion

for appointment of counsel was denied as moot. Thus, the district court has yet to

consider the merits of Plaintiff’s motion. The majority nonetheless grants it. In so

doing, the majority disregards what experience has taught us—that “appointment

of counsel” is a matter “best addressed by the district court in the first instance.”

Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002).

In any event, the denial was proper because Plaintiff’s “claims were

relatively straightforward” and “he articulated his claims well.” See Harrington v.

Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). Indeed, as a repeat litigant, Plaintiff

had “engaged with opposing counsel and the court throughout years of legal

18 proceedings.” See id. And despite his repeated misconduct, Plaintiff knew how to

advance his case—when he wanted to. App. Accordingly, the district court “did

not abuse its discretion by denying him appointed counsel.” See Harrington, 785

F.3d at 1309.

Appointment of counsel requires “exceptional circumstances.” Palmer, 560

F.3d at 970. As detailed above, there were extremely exceptional circumstances

here. Most exceptional, at the show cause hearing, Plaintiff threatened to kill

Defendants. But these exceptional circumstances, in my view, militate against

rewarding Defendant for his extreme misconduct.

* * *

For these reasons, I would affirm the judgment of the district court

dismissing Plaintiff’s complaint with prejudice. Thus, I respectfully dissent.

19

APPENDI X

Lawsuits filed by Plaintiff Jasmine Paul Sanchez in the United States District Court for the District of Nevada

1. Sanchez v. Ely State Filed: June 29, 2018 Prison, No. 18-cv-317 Closed: Dec. 15, 2020 Settled by global settlement conference. Appeal dismissed for lack of jurisdiction prior to settlement conference. 2. Sanchez v. Ely State Filed: Aug. 8, 2018 Prison, No. 18-cv-373 Closed: Sept. 17, 2019 Dismissed for lack of jurisdiction. Appeal deemed frivolous. 3. Sanchez v. Gittere, Filed: Oct. 5, 2018 No. 18-cv-475 Closed: Dec. 15, 2020 Settled by global settlement conference. 4. Sanchez v. Ely State Filed: Dec. 13, 2018 Prison, No. 18-cv-590 Closed: Jan. 24, 2019 Dismissed for failure to file application to proceed in forma pauperis or pay the filing fee. Appeal dismissed for lack of jurisdiction. 5. Sanchez v. Bralower, Filed: July 29, 2019 No. 19-cv-431 Closed: Dec. 15, 2020 Settled by global settlement conference. 6. Sanchez v. Gittere, Filed: July 29, 2019 No. 19-cv-432 Closed: Dec. 15, 2020 Settled by global settlement conference.

1 7. Sanchez v. Jones, Filed: Aug. 1, 2019 No. 19-cv-447 Closed: Dec. 15, 2020 Settled by global settlement conference. 8. Sanchez v. Kirchen, Filed: Aug. 1, 2019 No. 19-cv-448 Closed: Dec. 15, 2020 Settled by global settlement conference. 9. Sanchez v. Homan, Filed: Aug. 12, 2019 No. 19-cv-481 Closed: Aug. 24, 2020 Dismissed for failure to state a claim. 10. Sanchez v. Gittere, Filed: Aug 15, 2019 No. 19-cv-492 Closed: Dec. 15, 2020 Settled by global settlement conference. 11. Sanchez v. Homan, Filed: Aug. 23, 2019 No. 19-cv-527 Closed: Dec. 15, 2020 Settled by global settlement conference. 12. Sanchez v. Rose, Filed: Sept. 9, 2019 No. 19-cv-557 Closed: Dec. 15, 2020 Settled by global settlement conference. 13. Sanchez v. Manning, Filed: Dec. 203, 2019 No. 19-cv-757 Closed: Dec. 15, 2020 Settled by global settlement conference. 14. Sanchez v. Wickham, Filed: May 18, 2020 No. 20-cv-291 Closed: Dec. 15, 2020 Settled by global settlement conference.

2 15. Sanchez v. Homan, Filed: June 1, 2020 No. 20-cv-319 Closed: Dec. 16, 2020 Settled by global settlement conference. 16. Sanchez v. Rose, Filed: Oct. 5, 2020 No. 20-cv-577 Closed: Dec. 15, 2020 Settled by global settlement conference. 17. Sanchez v. Reubart, Filed: Oct. 29, 2020 No. 20-cv-610 Closed: Dec. 15, 2020 Settled by global settlement conference. 18. Sanchez v. Ely State Filed: July 6, 2021 Prison, No. 21-cv-292 Closed: Feb. 28, 2022 Dismissed for failure to state a claim. Appeal deemed frivolous. 19. Sanchez v. Sharp, Filed: July 22, 2021 No. 21-cv-311 Closed: Aug. 22, 2023 Dismissed by summary judgment finding no constitutional violations. 20. Sanchez v. Johnson, Filed: Aug. 16, 2021 No. 21-cv-362 Closed: Nov. 17, 2023 Dismissed for failure to effect service. 21. Sanchez v. Sharp, Filed: Sept. 9, 2021 No. 21-cv-408 Closed: Oct. 25, 2023 Dismissed by summary judgment finding no constitutional violations. Plaintiff declared a vexatious litigant.

3 22. Sanchez v. Rose, Filed: Nov. 8, 2021 No. 21-cv-475 Closed: May 16, 2022 Dismissed for failure to state a claim. Appeal deemed frivolous. 23. Sanchez v. Ely State Filed: Feb. 9, 2022 Prison, No. 22-cv-76 Closed: May 29, 2024 Dismissed by summary judgment finding no constitutional violations. 24. Sanchez v. Rigney, Filed: Feb. 28, 2022 No. 22-cv-109 Closed: Mar. 26, 2024 Dismissed by summary judgment finding no constitutional violations. 25. Sanchez v. Reubart, Filed: Mar. 18, 2022 No. 22-cv-133 Closed: May 6, 2022 Dismissed for failure to pay the filing fee. Appeal dismissed for failure to prosecute. 26. Sanchez v. Saucedo, Filed: Mar. 23, 2022 No. 22-cv-141 Closed: Mar. 26, 2024 Dismissed by summary judgment finding no constitutional violations. 27. Sanchez v. Reubart, Filed: Apr. 11, 2022 No. 22-cv-167 Closed: Feb. 7, 2023 Dismissed for failure to pay the filing fee. 28. Sanchez v. Rigney, *The instant case. No. 22-cv-259* 29. Sanchez v. Cornutt, Filed: Jan 17, 2023 No. 23-cv-21 Closed: June 15, 2023 Dismissed for failure to pay the filing fee.

4 30. Sanchez v. Denney, Filed: Feb. 6, 2023 No. 23-cv-52 Closed: Apr. 3, 2023 Dismissed for failure to pay the filing fee. 31. Sanchez v. Pickens, Filed: Mar. 6, 2023 No. 23-cv-89 Closed: July 18, 2023 Dismissed for failure to pay the filing fee. 32. Sanchez v. Baldwin, Filed: Mar. 22, 2023 No. 23-cv-126 Closed: Apr. 10, 2023 Dismissed for failure to state a claim. 33. Sanchez v. Reubart, Filed: Apr. 20, 2023 No. 23-cv-616 Closed: July 6, 2023 Dismissed for failure to pay the filing fee.

5