FILED
NOT FOR PUBLICATION
JAN 27 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA JEAN MILKE, No. 20-17210
Plaintiff-Appellant, D.C. No. 2:15-cv-00462-ROS
v.
MEMORANDUM*
CITY OF PHOENIX; et al.,
Defendants-Appellees,
and
WILLIAM GERARD MONTGOMERY,
Maricopa County Attorney - in his official
capacity; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted January 10, 2022
San Francisco, California
Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
Debra Milke brought various claims under 42 U.S.C. § 1983. As the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court found, she and her lawyers knowingly and willfully obstructed discovery and
destroyed an extraordinary amount of physical evidence and some electronic
evidence. The district court did not clearly err in so finding. See Merchant v.
Corizon Health, Inc., 993 F.3d 733, 739 (9th Cir. 2021). The misconduct was so
extensive and prejudicial that the district court held it required the case to be
dismissed with prejudice. We have jurisdiction under 28 U.S.C. § 1291 and affirm
because the district court did not abuse its discretion.
Milke served more than two decades on Arizona’s death row for the murder
of her four-year-old son. See Milke v. Ryan, 711 F.3d 998, 1000–01 (9th Cir.
2013). Although no physical evidence linked Milke to the crime, she was
convicted after police detective Armando Saldate, Jr. testified that she confessed to
the murder conspiracy. Id. at 1002. This court granted Milke conditional habeas
relief because the government had prejudicially failed to disclose that Saldate had a
“long history of lying under oath and other misconduct.” Id. at 1001. A state court
found that any retrial would violate the Double Jeopardy Clause of the Arizona
Constitution. See Milke v. Mroz, 339 P.3d 659, 662 (Ariz. Ct. App. 2014).
In 2015, Milke sued Saldate, a police sergeant, the City of Phoenix, and
Maricopa County (“Defendants”), claiming she had been unconstitutionally
incarcerated. As the district court noted, “[h]er central claim was that Saldate
fabricated her confession in 1989.” She also alleged other evidence fabrication; a
2
coercive interrogation and the use of her coerced statements; and supervisory,
municipal, and county liability. The case proceeded for more than five years. The
district court found that Milke had committed egregious discovery violations,
including willfully and intentionally destroying both physical and electronic
evidence and repeatedly making incomplete and inaccurate discovery responses.1
The district court also found that this misconduct had caused years of delay. The
evidence that Milke destroyed included boxes of documents she had collected
while in prison, and Milke’s deceased mother’s boxes of documents concerning
Milke’s criminal and habeas cases.2 Milke and her lawyers also directed the
removal or destruction of a website and social media pages about her case. The
district court did not clearly err in making these core findings.
After finding the requisite willfulness, fault, or bad faith, the district court
weighed the five relevant factors to determine whether dismissal was the proper
sanction. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Those
factors are “(1) the public’s interest in expeditious resolution of litigation; (2) the
1
The district court made detailed findings on all such violations. We highlight
here only the physical evidence destruction.
2
Milke sent her mother a prison journal and her recollections of the events
underlying this case. Milke denied keeping a journal until confronted with her
own statement that she had done so. She never produced the journal. The district
court also found it “more likely than not that Milke’s mother’s files [that Milke
destroyed] contained [Milke’s] ‘recollections’ and journal and that those
documents contained versions of Milke’s interrogation and included Milke’s
knowledge regarding Saldate’s history of misconduct.”
3
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.” Id. (citation omitted).
The district court did not abuse its discretion in applying this test, which “is
not mechanical.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482
F.3d 1091, 1096 (9th Cir. 2007). The district court correctly found that the
public’s interest in expeditious resolution of litigation and its need to manage its
dockets supported dismissal because the case had been pending for five years, the
district court had been unable to close discovery, and Milke’s actions had thwarted
these efforts and prevented the case from proceeding to trial. The district court
also correctly found that public policy weighed against dismissal. But as the
district court noted, this factor, on its own, cannot outweigh the other factors.
Leon, 464 F.3d at 960–61. The relevant inquiry thus centers on prejudice to the
opposing party and the availability of less drastic sanctions.3
The district court did not clearly err in finding that Milke’s destruction of
evidence prejudiced Defendants’ ability to proceed to a fair trial. The central
factual dispute involves whether Milke or Saldate was telling the truth about
3
The district court also found that Milke violated one of its related orders. And
when a party violates a court order, whether dismissal is appropriate similarly turns
on the risk of prejudice to the opposing party and the availability of less drastic
sanctions. See Comput. Task Grp., Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir.
2004).
4
whether Milke confessed. Thus, just as evidence bearing on Saldate’s credibility
was crucial, so, too, was evidence bearing on Milke’s credibility. Milke’s
destruction of relevant documents raises a presumption that the documents cast
doubt on her case. See Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d
337, 354 (9th Cir. 1995). Milke has not rebutted that presumption. And even
beyond the presumption, the district court correctly found that the documents
Milke destroyed would “likely be at the heart of [the] defense were [they]
available.” Leon, 464 F.3d at 960. We emphasize, as did the district court, that
Milke’s willful destruction of relevant evidence was extraordinary.4 Thus, the
district court did not clearly err in finding prejudice.
4
Among the detailed prejudice findings made by the district court:
The destroyed prison documents and the files maintained by Milke’s
mother more probably than not included documents regarding the core
events at issue in this case. . . . Thus, the loss of the documents threatens
the rightful decision of the case.
...
Because of Milke’s willful and intentional destruction of her prison
files after her release, and her willful and intentional destruction of her
mother’s files two years after the present suit was filed, Defendants will
never know what those files contained. But it is at least reasonable to
presume that Milke would not have destroyed the evidence if it had
been helpful to her claims. Rather, it is more likely than not that the
destroyed evidence was inculpatory.
...
Milke’s destruction of documents has rendered it impossible for the
parties to have access to all the material and true facts.
5
The district court also did not clearly err in determining that less drastic
sanctions were unavailable here. It “considered lesser sanctions,” “tried them,”
and warned Milke “about the possibility of case-dispositive sanctions.” Conn.
Gen. Life Ins. Co., 482 F.3d at 1096. The district court first considered imposing
costs and attorneys’ fees against Milke. It tried to implement its costs and fees
award by asking the parties to propose an appropriate award (Defendants sought
more than $600,000, while Milke proposed no more than about $150,000), asking
Milke to report her total assets (an expectation of about $96,000 from her mother’s
estate), and then determining that Milke could not satisfy even her own low
suggested award. The district court also explained why other alternative sanctions,
which it had instructed Milke to propose if she could not satisfy a fee award, were
insufficient. Milke proposed dismissing her coerced confession claim, dismissing
the police sergeant defendant, or giving the jury an adverse inference instruction.
The district court assessed the coerced confession claim as weak because Milke
had written to her retrial counsel that Saldate read her Miranda warnings twice and
that she told him she understood her rights. And Milke had also given conflicting
accounts of invoking her right to counsel. The district court found dismissal of the
police sergeant defendant to be insufficient because Milke’s claim against him was
an insignificant part of her suit. It also found that an adverse inference jury
instruction would not sufficiently remedy the prejudice that Milke had caused
6
through her evidentiary destruction. And in its initial sanctions order, before the
dismissal order, the district court warned Milke about the possibility of dismissal.5
Thus, the district court did not clearly err in finding that less drastic sanctions were
unavailable.
Had Milke and her attorneys either satisfied their discovery obligations or
even committed less egregious discovery violations, this lawsuit would not have
been dismissed before trial. But they chose to destroy evidence and obstruct the
discovery process in extraordinary fashion. The district court correctly dismissed
the case and thus did not abuse its discretion in so doing.
AFFIRMED.
5
In its dismissal order, the district court also noted that other material discovery
violations had been identified after it had issued the initial sanctions order.
7