govinfo:USCOURTS-cand-5_23-cv-00811-6

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United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
ADRIAN L. CERVANTES, 
Plaintiff, 
v. 
 
DALIZU ELSEN, 
Defendant. 
 

 
ORDER GRANTING DEFENDANT’S 
RULE 37 REQUEST FOR 
TERMINATING SANCTIONS, 
DISMISSING MATTER WITH 
PREJUDICE 
Re: ECF No. 39 
 
 
On April 2, 2026, the Court issued an order notifying Plaintiff Adrian L. Cervantes that he 
failed to comply with this Court’s order compelling him to provide Defendants with discovery, 
and ordering him to show cause, within 28 days, why the Court should not grant terminating 
sanctions in this matter. See ECF No. 38. More than two months later, Cervantes has not 
responded to Defendant Elsen Dalizu’s discovery requests, the Court’s order to show cause, or 
Dalizu’s request that this Court dismiss this matter. Upon careful consideration, the Court 
GRANTS the request for terminating sanctions under Federal Rule of Civil Procedure 37 and 
DISMISSES this matter WITH PREJUDICE. 
I. BACKGROUND 
This matter was initially filed on February 23, 2023. See ECF No. 1. Cervantes’ 
complaints were dismissed with leave to amend multiple times, and on July 8, 2025, the Court 
served the operative Amended Complaint. See ECF No. 27. On January 14, 2026, Dalizu filed a 
motion to compel. See ECF No. 34. In her motion, Dalizu provided evidence showing that she 
served Cervantes with interrogatories and requests for production of documents on August 26, 
2025 and November 4, 2025, with the latter request going to Cervantes at his new address at Mule 

 
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Creek State Prison.1 In the November 4, 2025 letter accompanying Dalizu’s discovery request, 
defense counsel warned Cervantes that failure to respond by November 18, 2025, would result in 
their filing of a motion to compel with this Court. Cervantes neither responded to the discovery 
request nor filed an opposition to the motion to compel discovery. 
On February 11, 2026, after Cervantes failed to respond to the discovery requests, this 
Court granted Dalizu’s motion to compel discovery, and ordered Cervantes to respond to Dalizu’s 
discovery requests within 30 days. See ECF No. 36. The Court also warned Cervantes that failure 
to do so would place him at risk for the assessment of sanctions, including dismissal of this 
lawsuit. See Fed. R. Civ. P. 37(d)(1)(A), (d)(3). Per Dalizu’s March 17, 2026 notice, Cervantes 
did not respond to her discovery requests. As noted, on April 2, 2026, the Court issued an order to 
show cause directing Cervantes to explain his failure to comply with the Court’s order to compel. 
ECF No. 38. The Court’s April 2, 2026 order again warned Cervantes that his failure to comply 
with the Court’s order may result in the imposition of sanctions, including possible dismissal of 
his case with prejudice. Id. at 3. Following Cervantes’ failure to respond to the order to show 
cause, Dalizu formally requested that this Court dismiss the lawsuit. See ECF Nos. 37, 39. 
Cervantes did not file an opposition or otherwise communicate with the Court. 
II. DISCUSSION 
Rule 37(b)(2)(A) authorizes the court to impose whatever sanctions are just when a party 
fails to comply with a discovery order, up to dismissal of part or all the party’s claims, and 
Rule 37(d)(3) authorizes the same sanctions against a party who fails to respond to interrogatories 
or requests for production. 
Terminating sanctions are considered severe and are generally disfavored. In considering 
the appropriateness of terminating sanctions under Federal Rule of Civil Procedure 37(b)(2), the 
 
1 The California Department of Corrections and Rehabilitation’s (“CDCR”) Inmate Locator is a 
public record and a proper subject for judicial notice. See United States v. Lucas, 841 F.3d 796, 
802 (9th Cir. 2016) (taking judicial notice of publicly available information from the Federal 
Bureau of Prisons inmate locator); United States v. Basher, 629 F.3d 1161, 1165 & n.2 (9th Cir. 
2011) (same). The Court takes judicial notice of CDCR’s online inmate locator page for Adrian 
Cervantes, #BY2871, which reflects Mule Creek State Prison as Cervantes’ current location. See 
CDCR Inmate Locator, https://ciris.mt.cdcr.ca.gov/details?cdcrNumber=BY2871 (last visited June 
12, 2026). 

 
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Court considers the following: “(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.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 
(9th Cir. 2007). Potential lesser sanctions include, but are not limited to, barring of certain 
evidence, monetary sanctions, or warnings that a case may dismissed for failure to comply with 
further court orders. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132, n.1 (9th Cir. 1987) 
(discussing potential less drastic alternatives); Chism v. Nat’l Heritage Life Ins. Co., 637 F.2d 
1328, 1331–32 (9th Cir. 1981), overruled on other grounds by Bryant v. Ford Motor Co., 844 F.2d 
602 (9th Cir. 1987) (same). In determining whether a moving party has been prejudiced, courts 
should examine whether the party that failed to comply with a motion to compel has “impair[ed] 
the defendant’s ability to go to trial or threaten[s] to interfere with the rightful decision of the 
case.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). “Failure to produce 
documents as ordered is considered sufficient prejudice.” Id. “The law also presumes prejudice 
from unreasonable delay.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1227 
(9th Cir. 2006). 
Here, given Cervantes’ failure to respond to Dalizu’s discovery requests, motion to 
compel, and request for terminating sanctions—as well as his failure to comply with the Court’s 
order compelling him to respond to discovery and the Court’s order to show cause—the Court 
agrees with Dalizu and finds that terminating sanctions are warranted. As to the first two 
applicable factors, i.e., the public’s interest in expeditious resolution of litigation and the Court’s 
need to manage its own docket, Conn. Gen. Life Ins. Co., 482 F.3d at 1096, the Court notes that 
the operative Amended Complaint in this matter was served on July 8, 2025, and the parties have 
had nearly one year to conduct discovery. See ECF Nos. 27, 29. Cervantes’ refusal to 
acknowledge or respond to Dalizu’s discovery requests or this Court’s orders has delayed Dalizu’s 
ability to file a dispositive motion, and Cervantes’ failure to explain his actions suggests that the 
delays will continue. These factors weigh in favor of terminating sanctions in this matter. 
As to the third factor, the public policy favoring disposition of cases on their merits, the 

 
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Court notes that although this factor arguably weighs against terminating sanctions, the Court 
would likely be unable to dispose of this matter on the merits even if it denied the request for 
terminating sanctions. As to this point, Dalizu argues, and Cervantes has not disputed, that 
Cervantes’ failure to engage in the discovery process impeded her ability to “complete necessary 
litigation steps, including conducting [Cervantes’] deposition, retaining an expert, and preparing a 
motion for summary judgment.” ECF No. 32 at 2; see In re PPA, 460 F.3d at 1228 (“[A] case that 
is stalled or unreasonably delayed by a party’s failure to comply with deadlines and discovery 
obligations cannot move forward toward resolution on the merits. Thus, we have . . . recognized 
that 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.”). Accordingly, 
this factor weighs only slightly against terminating sanctions. 
As to the fourth factor, whether Dalizu might be prejudiced in the absence of sanctions, the 
Court notes that a party’s failure to “produce documents as ordered is considered sufficient 
prejudice” as a matter of law. In re PPA, 460 F.3d at 1227; see Sanchez, 298 F.R.D. at 465. 
Where the party facing the possible sanctions fails to provide an excuse for his noncompliance 
with court-ordered discovery, the rebuttable presumption of prejudice stands. See Sanchez, at 465. 
Here, Cervantes has provided no explanation for his delay; in addition, Dalizu has alleged specific 
prejudice to her ability to litigate this matter in the absence of the discovery at issue. See ECF 
No. 32 at 2. This factor therefore weighs in favor of terminating sanctions. See Conn. Gen. Life 
Ins. Co., 482 F.3d at 1097 (“What is most critical for case-dispositive sanctions, regarding risk of 
prejudice and of less drastic sanctions, is whether the discovery violations threaten to interfere 
with the rightful decision of the case.”) (citation modified). 
The fifth factor, whether any less drastic sanctions are available, also weighs heavily in 
favor of terminating sanctions. Analysis of 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 Engineers, Inc. v. Electric 
Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Although the Court understands that 
terminating sanctions are severe, the Court has already attempted less drastic alternatives, 

 
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including ordering Cervantes to participate in the discovery process, warning Cervantes multiple 
times that his case might be dismissed if he failed to communicate with the Court or comply with 
the Court’s orders, and expressly ordering him explain why he has not participated in the 
discovery process prior to entertaining Dalizu’s request for terminating sanctions. See ECF 
Nos. 27, 36, 38; Malone, 833 F.2d at 132–33 (noting that warning a plaintiff that failure to obey a 
court order will result in dismissal can suffice to meet the requirement that a court consider 
alternatives prior to granting terminating sanctions). Despite the Court’s repeated attempts to 
provide Cervantes an opportunity to comply with its orders and explain what happened, Cervantes 
has not communicated with the Court since October 2025—more than eight months as of the filing 
of this Order. Moreover, because Cervantes is before the Court in forma pauperis, monetary 
sanctions are effectively unavailable. See Sanchez v. Rodriguez, 298 F.R.D. 460, 466 (C.D. Cal. 
2014) (finding that monetary sanction would be futile where prisoner-plaintiff was proceeding in 
forma pauperis and would be unable to pay any monetary sanction). 
Given Cervantes’ failure to respond to the filings in this case, failure to comply with the 
Court’s discovery orders, and Dalizu’s representations to the Court regarding her inability to 
litigate this matter without Cervantes’ responses, the Court is unaware of viable less-drastic 
alternatives. See, e.g., Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116–17 (9th Cir. 
2004) (holding that “in light of [a party’s] continued willful disobedience [of the court’s orders], 
the . . . judge could reasonably conclude that additional lesser sanctions would be pointless”); 
Pappas v. Rojas, No. 13-cv-3491-CJC, 2013 WL 6145141, *4 (C.D. Cal. Nov. 21, 2013) 
(“Alternative sanctions include: a warning, a formal reprimand, placing the case at the bottom of 
the calendar, a fine, the imposition of costs or attorney’s fees . . . . In the instant case, however, 
each of these possibilities is either inappropriate for a pro se litigant proceeding in forma pauperis 
. . . or has already been employed with no apparent effect.”). The Court therefore grants 
terminating sanctions in this matter. 
III. CONCLUSION 
After careful consideration, the Court orders as follows: 
1. Dalizu’s request for Rule 37 terminating sanctions (ECF No. 39) is GRANTED. 

 
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2. This matter is DISMISSED WITH PREJUDICE as a sanction pursuant to 
Federal Rule of Civil Procedure 37(b)(2)(A)(v). 
3. The Clerk shall close the file. A separate judgment will issue. 
IT IS SO ORDERED. 
Dated: June 17, 2026 
 
Noël Wise 
United States District Judge 
 

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