Tolbert v. Colley

Background

Joel Tolbert, an incarcerated plaintiff proceeding without an attorney, brought this civil-rights action against the Antioch Police Department, its Chief Allan Cantando, and Officers James Colley and James Perkinson. The defendants filed a second request for a protective order, and Tolbert filed a motion for sanctions under Federal Rule of Civil Procedure 11.

Protective order

The defendants’ earlier request for a protective order had been denied because they had not shown that they satisfied the required effort to confer with Tolbert or the requirements of Rule 26(c)(1). In their second request, the defendants sought entry of the Northern District of California’s model standard protective order. Defense counsel submitted a declaration stating that he had made a good-faith but unsuccessful effort to discuss the order with Tolbert.

The defendants sought protection for internal police investigations, citizen complaints against department employees, mental-health evaluations of Cantando, Colley, and Perkinson, and complaints or investigations involving those defendants. They argued that the materials included private medical information, confidential interviews concerning officer-involved shootings, and information about victims and witnesses. They also argued that releasing the information without protection could expose defendants, other department personnel, victims, witnesses, and their families to retaliation.

The court did not enter the protective order in this order. Instead, it directed Tolbert, on or before April 26, 2024, either to notify the court that he agreed to entry of the model protective order or to show cause—explain why—the order should not be entered. A copy of the model order was to be sent to Tolbert.

Motion for sanctions

Tolbert sought Rule 11 sanctions based on the defendants’ earlier statement that they could not informally confer with him because he was incarcerated. The defendants acknowledged that the statement was inaccurate. Defense counsel said he had prepared the earlier motion before speaking with Tolbert and had accidentally failed to update it before filing; he apologized to the court.

Tolbert also sought sanctions because the defendants produced discovery on a flash drive even though they knew he was incarcerated. The court explained that a Rule 11 sanctions motion must be served before filing, giving the opposing party 21 days to withdraw or correct the challenged material. The court found that Tolbert had not shown that he served the motion before filing it, so the motion failed to meet that procedural requirement.

The court also determined that sanctions were not warranted. The defendants corrected the inaccurate statement in their opposition, within less than 21 days after Tolbert filed and served the sanctions motion. The court found no indication that the defendants knew prison rules prohibited Tolbert from accessing flash drives. It noted that the defendants had been ordered to provide paper copies of discovery and that an additional reasonable extension of the summary-judgment deadline could be considered upon a showing of good cause.

Disposition

Tolbert’s motion for sanctions was DENIED, and the order terminated docket entry 68. The order separately required Tolbert to respond to the request for a protective order by April 26, 2024.