1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN THOMAS MATHEIS, Case No.: 3:20-cv-2100-GPC-AHG

12 Plaintiff,

ORDER:

13 v. (1) RECOMMENDING THE COURT 14 C. GODINEZ, et al.,

DENY DEFENDANTS’ MOTION

15 Defendants. FOR EVIDENTIARY SANCTIONS (ECF No. 68); 16 17 (2) DENYING PLAINTIFF’S

MOTION TO APPOINT NEUTRAL

18 EXPERTS (ECF No. 84); and 19 (3) DENYING AS MOOT 20

PLAINTIFF’S MOTION TO

21 EXTEND EXPERT DISCOVERY DEADLINES (ECF No. 110) 22

23

24

25

26

27 28 1 This matter comes before the Court on (1) Defendants’ Motion for Evidentiary 2 Sanctions (“Rule 37 Motion”) (ECF No. 68); (2) Plaintiff’s Motion for Appointment of 3 Neutral Experts to Conduct I.M.E.s Pursuant to Federal Rule of Evidence 706(a) (“Rule 4 706 Motion”) (ECF No. 84); and (3) Plaintiff’s Request to Extend the Deadline for Naming 5 Expert Witnesses (ECF No. 110) (“Motion to Extend”). 6 In the Rule 37 Motion, Defendants seek preclusionary evidentiary sanctions against 7 Plaintiff pursuant to Federal Rule of Civil Procedure 37, due to Plaintiff’s failure to 8 undergo a cystoscopy procedure as part of a Court-ordered and stipulated urological 9 independent medical examination (“IME”) under Rule 35. In the Rule 706 Motion, Plaintiff 10 requests the Court appoint neutral experts to conduct the urological IME as well as a 11 separate stipulated psychological IME, pursuant to Federal Rule of Evidence 706. After 12 both the Rule 37 Motion and Rule 706 Motion were briefed, Plaintiff additionally filed a 13 Motion requesting the Court extend the deadline for naming the appointed experts and 14 disclosing the experts’ reports. ECF No. 110. Because all three Motions are interrelated, 15 the Court has chosen to address them together in the present Order. 16 Notably, with respect to Defendants’ motion, whether evidence should be excluded 17 at trial is ultimately a matter for the presiding District Judge to decide. However, the 18 undersigned may consider the Rule 37 motion to determine whether Defendants have 19 established a discovery violation that would warrant a recommendation to the District 20 Judge to issue evidentiary sanctions. Additionally, or alternatively, if the Court finds such 21 a violation, the undersigned may directly issue non-dispositive, lesser sanctions, or may 22 otherwise recommend the District Judge impose any of the dispositive sanctions listed in 23 Rule 37(b)(2)(A)(i)-(vi). 24 In contrast, the undersigned has the authority to directly determine whether the Court 25 should exercise its discretion to appoint neutral experts under Federal Rule of Evidence 26 706, and whether the deadline for naming said experts and disclosure of their reports shall 27 be extended. Therefore, those motions will be addressed by a direct ruling rather than a 28 recommendation to the District Judge. 1 For the reasons explained more fully below, the undersigned (1) recommends that 2 Defendants’ Motion for Evidentiary Sanctions (ECF No. 68) be DENIED; (2) DENIES 3 Plaintiff’s Motion requesting the Court appoint neutral experts (ECF No. 84); and (3) 4 DENIES as moot Plaintiff’s Motion to extend the discovery deadlines regarding those 5 experts (ECF No. 110). 6 I. BACKGROUND 7 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 8 action under 42 U.S.C. § 1983. Plaintiff filed this action on October 22, 2020, bringing 9 First and Eighth Amendment claims against Defendants for retaliation, cruel and unusual 10 punishment, and failure to protect. ECF No. 1. On January 5, 2021, the Court found 11 Plaintiff’s Complaint sufficiently stated First Amendment and Eighth Amendment claims. 12 ECF No. 8. 13 Specifically, Plaintiff’s allegations underlying her First and Eighth Amendment 14 claims are as follows: Plaintiff alleges Defendant Godinez, a correctional officer at R.J. 15 Donovan State Prison where Plaintiff is incarcerated, came to Plaintiff’s cell to interview 16 her about a grievance she filed regarding missing property.1 ECF No. 1 at ⁋ 4. Godinez told 17 Plaintiff the cell needed to be searched and ordered Plaintiff’s cellmate to leave. Id. 18 Godinez then ordered Plaintiff to strip her clothes off, squat down, and masturbate in front 19 of him. Id. Plaintiff alleges that when she tried to stop, Godinez “forcefully told [her] not 20 to stop until he said to or he was going to assault her and take her to [Administrative 21 Segregation], (the hole).” Id. Plaintiff became “extremely scared and started to cry.” Id. At 22 that point, Godinez allegedly told her to insert her pinky finger into her penis, causing 23 Plaintiff “extreme pain.” Id. Relevant to both parties’ motions regarding the urological 24 IME, Plaintiff alleges her fingernail cut the inside of [her] penis during the act, causing it 25 to bleed. Id. Godinez directed Plaintiff to insert her finger even deeper, despite the 26 27 28 1 bleeding. Id. Godinez then laughed at Plaintiff and directed her to get dressed and exit her 2 cell. Id. In addition to the pain and abrasion on her penis, Plaintiff claims the physical injury 3 Godinez forced her to inflict on herself caused pain when urinating and “severe impairment 4 of [her] mental faculty.” Id. at 5. 5 On July 27, 2021, Defendants took Plaintiff’s deposition, wherein Plaintiff stated 6 she continues to experience pain in her penis and burning while urinating. ECF No. 68-3 7 at 73:11-77:15. Plaintiff stated she has never received medical treatment for the injury to 8 her penis, despite her request for it. Id. at 77:16-78:18. Plaintiff also testified to mental 9 health issues caused by the assault. Id. at 217:10-24. Based on Plaintiff’s statements, 10 Defendants petitioned the Court to continue discovery deadlines in order to explore 11 Plaintiff’s damages claims through both a psychiatric and urological Independent Medical 12 Examination (“IME”). ECF No. 49. Defendants retained urologist Tung-Chin Hsieh, M.D., 13 to conduct the urological IME of Plaintiff. ECF No. 49. Dr. Hsieh advised Defendants that 14 he would need to conduct a cystoscopy, also known as a cystourethroscopy, to examine the 15 health of the urethra and bladder by a bladder scope test. Decl. of Alice Segal, ECF No. 16 49-1 at ⁋ 6. Because the equipment for the cystoscopy could not be easily transported to 17 the prison, Plaintiff needed to be transported to Dr. Hsieh’s office in San Diego for the 18 procedure. Id. Counsel for Defendants advised Plaintiff that Defendants would be 19 requesting the Court order the IMEs, including the cystoscopy, to explore Plaintiff’s 20 liability and damages claims. Id. at 7. Plaintiff joined in a written stipulation to the two 21 IMEs, stating in relevant part that she agreed her claims and allegations necessitated a 22 urological examination by urologist Dr. Hsieh. ECF No. 50. 23 On October 5, 2021, the Court granted the parties’ joint motion for the IMEs 24 pursuant to Federal Rule of Civil Procedure 35. ECF No. 58. Per the parties’ stipulation, 25 the scope of the urological IME included a review of medical, counseling, and discovery 26 records, a physical examination, and an investigation of Plaintiff’s genitourinary 27 complaints that she asserts were caused or exacerbated by the alleged sexual assault, 28 including a cystoscopy/cystotheuroscapy. Id. at 2. On October 26, 2021, Plaintiff attended 1 the urological IME wherein Dr. Hsieh performed an external physical examination of 2 Plaintiff’s penis; however, Plaintiff refused to undergo the cystoscopy procedure. ECF No. 3 77. 4 On November 19, 2021, Defendants filed a Motion for Evidentiary Sanctions under 5 Federal Rule of Civil Procedure 37, asking the Court to preclude Plaintiff from introducing 6 evidence of internal injury to her penis due to her failure to comply with the Court’s Order 7 to undergo the cystoscopy procedure during the urological IME. ECF No. 68-1 at 1. 8 Defendants argue evidentiary sanctions are appropriate because without the results of the 9 cystoscopy procedure, Defendants are unable to evaluate Plaintiff’s claims of liability and 10 damages and have no way to dispute Plaintiff’s claims of internal damage to her penis. 11 ECF No. 68-1 at 5-6. Defendants also argue Plaintiff’s refusal to undergo the cystoscopy 12 was an act of willfulness and “clearly intentional” because she refused to undergo the 13 procedure “after she agreed to the cystoscopy in conversations with Defense counsel and 14 the Court ordered the procedure to proceed.” ECF No. 68-1 at 7. Defense counsel asserts 15 she explained the details of the cystoscopy procedure ahead of time, so any claim by 16 Plaintiff that she was confused or did not understand what the procedure would entail 17 supports Defendants’ claim that Plaintiff’s refusal to undergo the procedure was intentional 18 and therefore evidence of the Plaintiff’s willfulness. ECF No. 68-1 at 6-7. 19 In her Opposition to Defendants’ Motion, Plaintiff states she did not undergo the 20 cystoscopy because she was confused and did not understand a male doctor would be 21 performing the procedure. ECF No. 77 at 2. Plaintiff is a transgender woman and has 22 requested Defendants only allow female staff members to perform unclothed body searches 23 and medical examinations on her. Id. Plaintiff states she was extremely apprehensive to 24 talk about her injuries in front of two Correctional Officers and an unidentified male who 25 were also present in the exam room. Id. 26 On January 4, 2022, while Defendants’ Rule 37 Motion was pending, Plaintiff filed 27 her Motion for Appointment of Neutral Experts to conduct a second round of IMEs 28 pursuant to Federal Rule of Evidence 706(a). ECF No. 84. In the Rule 706 Motion, Plaintiff 1 argues the first set of IMEs were conducted by experts retained by the Defendants, making 2 the exams adversarial, biased, and not neutral. Id. at 1. Plaintiff claims the IME conducted 3 by Dr. Hsieh was “extremely biased.” Id. Plaintiff further explains she cannot retain her 4 own experts because she cannot afford them. Id. Thus, Plaintiff contends that if the Court 5 does not appoint neutral experts, there will be a “one-sided presentation of the evidence, as 6 presented from the defense[’]s retained and biased expert opinions” because she will be 7 unable to present “expert rebuttal testimony.” ECF No. 84 at 3. 8 Relatedly, on February 7, 2022, Plaintiff also filed a Request to Extend the Deadline 9 for Experts, asking the Court to extend the expert deadlines in the case schedule in light of 10 her existing request that the Court appoint neutral experts to conduct a second round of 11 IMEs. ECF No. 110 at 1. The Court will treat Plaintiff’s request as supplemental to her 12 Motion to Appoint Neutral Experts (ECF No. 84). ECF No. 111. 13 II. PLAINTIFF’S MOTION TO APPOINT NEUTRAL EXPERTS TO 14 CONDUCT IME 15 a. Legal Standard 16 Federal Rule of Evidence 706 authorizes the Court to appoint a neutral expert 17 witness according to the Court’s discretion. Fed. R. Evid. 706(a); Walker v. American 18 Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Such an 19 appointment is generally appropriate when “scientific, technical, or other specialized 20 knowledge will assist the trier of fact to understand the evidence or decide a fact in issue.” 21 Brooks v. Tate, No. 1:11-CV-01503, 2013 WL 4049043, at *1 (E.D. Cal. Aug 7, 2013) 22 (citing Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997)); see also Fed. R. Evid. 23 702 (“A witness who is qualified as an expert by knowledge, skill, experience, training, or 24 education may testify . . . if: (a) the expert’s scientific, technical, or other specialized 25 knowledge will help the trier of fact to understand the evidence or to determine a fact in 26 issue . . . .”). 27 “[R]ule 706 is not a means to avoid the in forma pauperis statute [28 U.S.C. § 1915] 28 and its prohibition against using public funds to pay for the expenses of witnesses, nor does 1 Rule 706 contemplate court appointment and compensation of an expert witness as an 2 advocate for [the] [p]laintiff.” Brooks, 2013 WL 4049043 at *1; see Tedder v. Odel, 890 3 F.2d 210, 211–12 (9th Cir. 1989) (holding section 1915 does not authorize waiver of 4 witness fees or expenses on behalf of an indigent litigant). Additionally, “[a]voiding bias 5 or otherwise assisting one party is not the purpose of Rule 706.” Brooks, 2013 WL 4049043 6 at *2. 7 b. Discussion 8 In her Motion, Plaintiff requests the Court appoint neutral experts for two main 9 reasons: (1) Plaintiff is unable to obtain her own experts because she cannot afford them, 10 and (2) the IMEs Plaintiff already participated in were conducted by experts retained by 11 Defendants, rendering the evidence from the IMEs “adversarial,” and “not neutral or 12 impartial.” ECF No. 84 at 1. In specific regard to the physical examination conducted by 13 Dr. Hsieh, Plaintiff contends the exam was “extremely biased.” Id. at 25-26. In support of 14 her argument, Plaintiff states in her Declaration that without court-appointed experts, the 15 evidence presented of her injuries will be “one-sided,” which will prejudice Plaintiff 16 because she will not be able to present rebuttal expert testimony. ECF No. 84 at 3. In 17 Plaintiff’s Reply to Defendants’ Opposition to the Motion, Plaintiff contends the “Court 18 experts will be used to assist the Court or Jury in understanding the issue and injuries that 19 [P]laintiff has already suffered and continues to suffer from.” ECF No. 109 at 1. 20 Plaintiff has not stated a valid reason for the Court to appoint a neutral expert to 21 conduct the IMEs, and thus the Court must deny the motion. First, Plaintiff is asking the 22 Court to appoint an expert witness to advocate on Plaintiff’s behalf. As noted above, 23 Federal Rule of Evidence 706 does not authorize the Court to appoint a neutral expert to 24 advocate for a plaintiff or avoid bias against a plaintiff. Brooks, 2013 WL 4049043 at *1. 25 As an initial matter, Plaintiff points to no evidence to support her claim of bias. Nor does 26 the record reflect any such evidence. The doctors who conducted the IMEs are not 27 employed by the prison, the IMEs were conducted pursuant to a joint stipulation by the 28 parties, and Plaintiff has seemingly complied fully with the psychological IME without any 1 disputes arising. Plaintiff presents only cursory argument that the experts are biased 2 because they are defense witnesses. But the fact that the doctors who performed the first 3 IMEs of Plaintiff are expert witnesses retained by Defendants does not justify the 4 appointment of a neutral expert, even if Plaintiff had presented some evidence of bias. See 5 Carson v. Martinez, No. 16-CV-1736-JLS (BLM), 2018 WL 4282599 at *3 (S.D. Cal. 6 Sept. 6, 2018) (holding the fact that medical providers employed by the prison may be 7 biased against the pro se, in forma pauperis prisoner plaintiff did not justify the 8 appointment of an independent medical expert). Moreover, to the extent Plaintiff is 9 concerned the Defendants’ expert witnesses may be biased, Plaintiff may present evidence 10 at trial by retaining her own expert witness or by cross-examination of Defendants’ expert 11 witnesses on the stand. Id. 12 Second, Plaintiff’s inability to pay for experts is not a basis for the Court to appoint 13 experts within its discretion under either Rule 706 or 28 U.S.C. § 1915. Rule 706 is not 14 meant to be used to avoid section 1915’s prohibition of the use of public funds to pay 15 witness fees for indigent plaintiffs, nor does Rule 706 provide for the Court to appoint an 16 expert and provide compensation in order for that expert to advocate on behalf of the 17 plaintiff. Brooks, 2013 WL 4049043 at *1. 18 Lastly, Plaintiff has not adequately explained why an appointed medical expert is 19 necessary to assist the Court in understanding Plaintiff’s injuries and damages. Plaintiff 20 has not shown her injuries are of such a complex nature that the trier of fact requires 21 scientific, technical, or otherwise specialized knowledge regarding her injuries and 22 damages. 23 For the foregoing reasons, Plaintiff’s Motion for Appointment of Neutral Experts is 24 DENIED without prejudice. 2 25 26 27 2 The Court denies the motion without prejudice, meaning that Plaintiff may petition the 28 1 III. DEFENDANTS’ MOTION FOR EVIDENTIARY SANCTIONS 2 a. Legal Standard 3 Federal district courts may issue sanctions for a party’s noncompliance with 4 discovery orders under Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure and under 5 their inherent powers. See Chambers v. Nasco, Inc., 501 U.S. 32, 49 n.14 (1991); see also 6 Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (the district court’s “two sources 7 of authority” are its “inherent power to levy sanctions in response to abusive litigation 8 practices” and Rule 37). One of the sanctions provided by Rule 37(b)(2)(A) is “prohibiting 9 the disobedient party . . . from introducing designated matters in evidence.” Fed. R. Civ. P. 10 37(b)(2)(A)(ii). 11 Under Rule 37(b)(2)(A), the Court may order sanctions against a party who “fails to 12 obey an order or permit discovery, including an order under Rule [35]” to submit to a 13 physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). A court exercises its discretion 14 to determine which sanctions under Rule 37(b)(2)(A) to impose. Von Brimer v. Whirlpool 15 Corp., 536 F.2d 838, 844 (9th Cir. 1976). A district court has wide discretion to issue 16 sanctions in its control of discovery. See Jeff D. v. Otter, 643 F.3d 278, 289 (9th Cir. 2011). 17 Where the sanctions requested by a party are a dismissal or default judgment, the 18 court must apply a five-factor test in its consideration of the sanctions. Malone v. U.S. 19 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (“a district court must weigh five factors in 20 determining whether to dismiss a case for failure to comply with a court order”). The Ninth 21 Circuit has said the five-factor test only applies to dismissal or default judgment sanctions. 22 See Caesars World, Inc. v. Milanian, 126 F. App’x 775, 777-78 (9th Cir. 2005). In some 23 instances, preclusionary sanctions may be considered tantamount to a dismissal and thus 24 subject to the same five-factor test, such as where the disobedient party is precluded from 25 supporting or opposing designated claims or defenses. U.S. for Use and Ben. of Wiltec 26 Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d 600, 603 (9th Cir. 1988) (determining 27 the requested sanctions as comparable to dismissal of the action because the sanctions 28 “represent the most severe penalty that can be imposed on a party”). 1 Here, the Court does not find the requested evidentiary sanctions are tantamount to 2 dismissal, and therefore does not apply the five-factor test. The Ninth Circuit has 3 established that “no lasting physical injury is necessary to state a cause of action for an 4 Eighth Amendment violation arising from sexual assault” and “an inmate need not prove 5 that an injury resulted from sexual assault to maintain [a] . . . claim under the Eighth 6 Amendment.” Bearchild v. Cobban, 947 F.3d 1130, 1143-44 (9th Cir. 2020). Therefore, 7 precluding Plaintiff from presenting any evidence of physical injury to her penis would not 8 be tantamount to dismissing her claim, because physical injury is not essential to Plaintiff’s 9 § 1983 claim that Defendant Godinez’s purported sexual assault violated her Eighth 10 Amendment right against cruel and usual punishment. The ultimate inquiry for an Eighth 11 Amendment violation is whether the prison official acted with malicious and sadistic intent, 12 which is satisfied by a showing of sexual assault; the law does not require a plaintiff to 13 show a prison official’s actions of sexual assault caused physical harm or lasting emotional 14 injury. Id. at 1145. Because evidence of the extent of Plaintiff’s injuries is not necessary 15 for her to prevail on her claim, barring any evidence of injuries would not be tantamount 16 to dismissal of her claim. 17 b. Discussion 18 Even without applying the stringent five-factor test, the Court determines in its 19 discretion not to impose the evidentiary sanctions sought by Defendants here. In reaching 20 its conclusion, the Court has considered the general purposes of Rule 37(b) sanctions, and 21 has determined that none of these purposes would be served by the sanctions Defendants 22 seek. The three general purposes of Rule 37(b) sanctions are as follows: 23 [1] Preclusionary orders ensure that a party will not be able to profit from its own failure to comply. [2] Rule 37 strictures are also specific deterrents, and, 24 like civil contempt, they seek to secure compliance with the particular order 25 at hand. [3] Finally, although the most drastic sanctions may not be imposed as “mere penalties,” courts are free to consider the general deterrent effect 26 their orders may have on the instant case and on other litigation, provided that 27 the party on whom they are imposed is, in some sense, at fault. 28 1 United States v. Sumitomo Marine & Fire Insurance Company, Ltd., 617 F.2d 1365, 1369 2 (9th Cir. 1980) (internal quotations omitted). 3 Precluding Plaintiff from claiming that she has suffered internal damages as a result 4 of the alleged assault would not serve any of these purposes. First, Defendants argue they 5 are prejudiced by Plaintiff’s refusal to undergo the cystoscopy examination, because they 6 are unable to evaluate Plaintiff’s claims of liability and damages and have no way to dispute 7 Plaintiff’s claims of internal damage to her penis. However, to the extent Defendants have 8 suffered any prejudice by Plaintiff’s refusal to undergo the cystoscopy, such prejudice only 9 affects Defendants’ ability to attack Plaintiff’s credibility by way of refuting her claims of 10 internal injury. That is, had the procedure revealed no scar tissue or other malformities, 11 Defendants could have offered the evidence to support an inference that Plaintiff is not 12 telling the truth regarding the extent of her damages. But Plaintiff’s refusal merely goes to 13 the weight of her damages claims of internal injury, not to the admissibility of such claims. 14 Defendants are not precluded from challenging Plaintiff’s credibility with respect to the 15 extent of her damages through cross-examination at trial, and her refusal to undergo the 16 cystoscopy procedure may support the same inference she is not telling the truth. In arguing 17 they will be prejudiced unless the Court grants preclusionary sanctions, Defendants heavily 18 rely on the first purpose laid out above—i.e., Plaintiff refused to undergo the cystoscopy 19 procedure to gain from her refusal. The Court disagrees. In fact, the opposite is true: 20 Plaintiff’s refusal to undergo the cystoscopy hurts her case more than it helps, because not 21 only does she now have no physical evidence of the internal injuries she claims, but she 22 has also opened the door for her credibility to be attacked by Defendants. Therefore, 23 Defendants have not shown that they have been prejudiced by Plaintiff’s non-compliance. 24 Defendants also argue they are unable to appropriately evaluate Plaintiff’s damages 25 claims without the cystoscopy procedure, and thus evidentiary sanctions are appropriate 26 because Defendants have no way to dispute Plaintiff’s claims. ECF No. 68-1 at 5-6. The 27 Court should likewise reject this argument for the same reasons just explained. Plaintiff’s 28 refusal goes to the weight of her damages claims, not admissibility. 1 As to the second purpose of Rule 37(b) listed above, the sanctions Defendants seek 2 are not related to specific deterrence because Defendants are not asking for Plaintiff to 3 finish the incomplete IME by suggesting a different doctor or location for the cystoscopy 4 procedure. 5 Lastly, sanctions in this instance would also not serve the third purpose listed above 6 of general deterrence, because, unlike cases in which a party continually disobeys a court’s 7 authority, there is no showing here that Plaintiff’s refusal to undergo the cystoscopy 8 procedure was done willfully or in bad faith. Although Defendants contend that Plaintiff’s 9 non-compliance with the IME order was willful, the Court finds the evidence shows 10 otherwise. Plaintiff was substantially compliant: she attended the urological IME and gave 11 a plausible set of reasons why she did not proceed with the cystoscopy, specifically, that 12 she did not understand a male doctor would be performing the exam and she was 13 “extremely apprehensive” about discussing her injury in front of two correctional officers 14 and another unidentified male who all remained present in the exam room. ECF No. 77 at 15 2. Moreover, Plaintiff fully complied with the psychological IME that was ordered by the 16 Court at the same time. Given Plaintiff’s voluntary stipulation to both IMEs, her partial 17 compliance, her proffer of plausible non-willful reasons for refusing the cystoscopy 18 procedure in particular, and the absence of any pattern of discovery misconduct on 19 Plaintiff’s part, the Court finds there is no evidence that Plaintiff’s refusal was done in bad 20 faith or that it otherwise warrants a strong response by the Court to deter Plaintiff from 21 continuing down a path of non-compliance. 22 For the foregoing reasons, Defendants have not shown evidentiary sanctions are 23 warranted here. Therefore, the undersigned recommends that Defendants’ Motion for 24 Evidentiary Sanctions be DENIED without prejudice. 25 IV. CONCLUSION 26 For the reasons set forth above, the undersigned RECOMMENDS that Defendants’ 27 Motion for Evidentiary Sanctions (ECF No. 68) be DENIED without prejudice. 28 1 Further, the Court DENIES without prejudice Plaintiffs Motion to Appoint 2 || Neutral Experts (ECF No. 84), and DENIES as moot Plaintiff's Request to have the Court 3 Extend the Deadline for Experts (ECF No. 110) moot. 4 IT IS FURTHER ORDERED, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. 5 || Civ. P. 72(b)(2), that no later than April 1, 2022, any party to this action may file written 6 ||objections to the undersigned’s recommended ruling on Defendants’ Motion for 7 || Evidentiary Sanctions (ECF No. 68). A copy of any such objections must be served on all 8 || parties. The document should be captioned “Objections to Report and Recommendation.” 9 || Any reply to the objections shall be filed with the Court and served on all parties no later 10 April 18, 2022. 11 IT IS SO ORDERED. 12 Dated: March 14, 2022 3 _Abiomt. Xl Honorable Allison H. Goddard 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12