Ziemba v. Lynch et al
Filing
188
ORDER granting in part and denying in part 57 Motion to Dismiss. Signed by Judge Stefan R. Underhill on 3/27/13. (Munoz, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Duane Ziemba,
Plaintiff,
No. 3:10cv717 (SRU)
v.
Ann Lynch, et al.,
Defendants.
RULING ON MOTION TO DISMISS AND FOR SANCTIONS
Pro se plaintiff Duane Ziemba brought this action under 42 U.S.C. § 1983 against
a group of officers at Northern Correctional Institute (―NCI‖), commissioners at the
Connecticut Department of Corrections (―DOC‖), and an assistant attorney general.
Ziemba alleges that those government officials conspired to deprive him of access to the
courts. As part of a motion for a preliminary injunction, Ziemba submitted copies of two
purported DOC memos in which high-ranking NCI officers instructed staff to seize
Ziemba’s legal materials, and to do everything in their power to bring Ziemba’s lawsuit
to a stop. Doc. # 29. Defendants responded by filing a motion to dismiss and motion for
sanctions alleging not only that both memos were forgeries, but also that Ziemba created
the memos in an effort to defraud this court. A three-day evidentiary hearing followed in
which I heard testimony regarding the memos’ authenticity and authorship.
After careful review of the evidence, I grant in part and deny in part defendants’
motion to dismiss and for sanctions. Although the memos are clearly doctored versions of
official documents, the defendants have failed to prove by clear and convincing evidence
that Ziemba created them. Because Ziemba could have reasonably believed that NCI
officials authored the memos, he did not act in bad faith when he appended them to his
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request for a preliminary injunction. Thus, I decline to dismiss his complaint on that
ground, or to sanction him for defrauding the court. Defendants three alternative grounds
for partial dismissal, however, have merit.
I.
DISCUSSION
Dismissal as a Sanction
A district court has the ―inherent power to sanction parties‖ in order to ―manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.‖
Revson v. Cinque & Cinque, 221 F.3d 71, 78 (2d Cir. 2000). Dismissal is a particularly
―harsh sanction‖ and is only ―appropriate if there is a showing of willfulness, bad faith, or
fault on the part of the sanctioned party.‖ West v. Goodyear Tire & Rubber Co., 167 F.3d
776, 779 (2d Cir. 1999). Defendants in this case point to plaintiff’s submission of
falsified documents as evidence of his bad faith. But to prove a fraud upon the court, a
party must ―establish . . . by clear and convincing evidence that a[n opposing] party has
sentiently set in motion some unconscionable scheme calculated to interfere with the
judicial system's ability impartially to adjudicate a matter.‖ Passlogix, Inc. v. 2FA Tech.,
LLC, 708 F. Supp. 2d 378, 393 (S.D.N.Y. 2010). And here, defendants have not provided
enough of a factual basis from which to find that Ziemba had the opportunity or the
means to forge official documents. Without more, I cannot find that Ziemba acted in bad
faith or dismiss his claim as a result.
A. The Fraudulent Memos
The memos at issue look official, but read like awkward imitations. Both
documents are emblazoned with official seals and fonts. They bear signatures, and one of
the memos has a bold stamp marking it ―RECEIVED.‖ But once read, they sound too
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good (from Ziemba’s point of view) to be true. The memo dated September 30, 2009
(―the September memo‖) advises elliptically that ―we reached the conclusion that inmate
Ziemba to be permitted in the continuance of his course of litigation against our
Department would not be an option,‖ before commanding rather formally that ―with no
delay deprive him of his legal work and law books.‖ It ends with a smoking gun: ―Mr.
Murphy agrees that to deny him court access will be less damaging than permitting him
to run in his course of litigation.‖ Though shorter, the memo dated October 18, 2009
(―the October memo‖) uses similarly stilted diction. ―Attached is the correspondence by
Lieutenant Siwicki a corrective action and control of inmate litigation I concur with the
attached recommendations.‖ On the stand both purported authors confirmed what is
obvious from the memos’ words— they do not use such formal wording in notes to other
officers, and they would never commit a naked admission of illegal conduct to writing.
Even had the memos sounded more authentic, defendants’ expert pointed to
physical indications that they were forged, and I find his testimony entirely credible.
Greg Kettering, a forensic scientist who specializes in handwriting analysis, testified that
both documents bore hallmarks of forged documents. Kettering testified that no one signs
his signature exactly the same way twice. In other words, the only way for two signatures
to be identical is for one to be a copy of the other. Otherwise, a side-by-side comparison
would reveal minor variations. The September and October memos were allegedly
authored by Brian Siwicki and Angel Quiros. Kettering compared Siwicki and Quiros’
signatures on those suspicious memos with signatures on two memos that Siwicki and
Quiros admitted to writing. Kettering testified that the signatures on both sets of
memos—the ones on the suspect memos, and control signatures taken from real
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memos— were eerily similar; they had the same stray ink splotches left by a leaky pen,
the same thick wall blunting the circle in the number nine, the same dot positioned in the
same spot over an ―I.‖ Kettering concluded that such synchrony is impossible, and that
one signature must be a photocopy of the other. I find no reason to doubt his opinion, and
find both that someone forged the September and October memos, and that they used
actual dispatches from Siwicki and Quiros to do so.
B. The Means and Opportunity to Forge a Document
Defendants elide two issues – whether a document is a fake, and whether Ziemba
intended to dupe the court by faking a document. But the two inquiries are different—
even if Ziemba submitted forged documents, it does not follow that he doctored them.
Indeed, for one of the memos in question, nothing in the evidence presented indicates that
Ziemba had either the means or the opportunity to falsify it.
The October memo is a cover letter written by Warden Angel Quiros to Deputy
Warden Steven Faucher. The memo instructs Faucher to adopt a proposed corrective
action against Ziemba in order to ―control . . . inmate litigation.‖ Def. Ex. 4-B. Greg
Kettering testified that this memo was a forgery. According to Kettering, someone lifted
the memo’s signature from a similar Quiros missive that instructed Faucher to tighten
security after a set of keys went missing. Def. Ex. 5-A. Whoever fabricated the October
memo, then, had to have access to Quiros’ instructions about the keys. And there is no
way that Ziemba could have gained access to the official documents from which the
October memo was fabricated.
From September 2009 to September 2010, Ziemba was held in ―administrative
segregation‖ at NCI. Administrative segregation is like solitary confinement – inmates
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are housed alone, must have an escort whenever they leave their cells, and do not have
access to computers or libraries. Quiros testified that he stored his internal memos in a
locked filing cabinet, and that only three people, Faucher, Deputy Warden Lauren
Powers, and his secretary, had access to the cabinet. It is difficult to imagine how
Ziemba— a prisoner monitored at all times, with little contact with others outside of
corrections officers— could have gotten his hands on a document locked in a filing
cabinet in the warden’s office. Indeed, I find that he could not have gained access to such
a document.
Even if he had, Ziemba would have faced a second hurdle— transforming a
memo about keys into a memo about violating constitutional rights. The October memo
contains typed text that ordered a lower officer to seize legal materials. The text is
perfectly centered under the document’s header listing the sender, recipient, and date. To
substitute old text for new, the forger had to type out a new directive, print it, cut the text
out, center it exactly, paste it, and then photocopy the new memo enough times to erase
telltale edges and shadows from glued layers of paper (or perform equivalent steps on a
computer). On the stand, Warden Quiros admitted that that the only office supply Ziemba
could have access to during his time at NCI was the one flexible pen with which he wrote
letters. Given these constraints, I find that Ziemba could not have forged the documents
from inside the prison.
Defendants argued that Ziemba could have sent instructions on how to doctor the
memos to his mother Pamela Ziemba, hiding them in envelopes mismarked legal mail.
But on the stand, Pamela Ziemba testified that she did not own a computer or printer, nor
did she ever use either with any frequency. I find her testimony credible. In addition,
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there is no evidence in the record that she has any experience with manipulating
documents, such that she could produce a convincing replica, one with perfectly centered
text and free of shading from copying spliced documents with hard edges. She testified
that she has only ever used a copier to copy large stacks of paper. In short, defendants
failed to present clear and convincing evidence that Pamela Ziemba had the skill
necessary to produce forged documents. With this lack of evidence in mind, I find that
Duane Ziemba did not forge the October memo.
Given that Ziemba could not have forged the October memo, it is hard to believe
that he is still responsible for creating the September memo. The September memo lays
out the recommendation referenced in the October memo: In it, Lieutenant Brian Siwicki
allegedly recounts that he and others ―reached the conclusion that inmate Ziemba to be
permitted in the continuance in his course of litigation against our Department would not
be an option.‖ Def. Ex. 4-A. Ziemba may have had an opportunity to forge the September
memo: Greg Kettering testified that Siwicki’s signature on the September memo came
from a letter sent to Ziemba in March 2010. But he still lacked the means to create it: he
was still stuck in administrative segregation,1 still did not have access to the tools
necessary to execute the fraud, and still did not have someone on the outside to do it for
him. Because both memos were likely forged by the same person, and because Ziemba
1
At oral argument, defendants’ counsel argued that Ziemba could have made the documents after he left
NCI. In October of 2010, Ziemba was briefly housed at MacDougall Correctional Institute, and was then
transferred to a mental health facility for several months. Ziemba brought the court’s attention to the
memos during that time – he quoted the memos in his amended complaint filed in early 2011. Defendants’
counsel posits that Ziemba could have had greater freedom once he left NCI. But defendants’ counsel
offered no evidence that Ziemba had greater access to computers, photocopiers, scissors, and other supplies
after he left NCI. Defendants have the burden to prove fraud by clear and convincing evidence, and they
have not offered any evidence that Ziemba had the ability to doctor documents either at NCI or in other
facilities.
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did not have the means to forge either, I also find that Ziemba did not forge the
September memo.
C. The Submission of Fraudulent Documents
Regardless of the memo’s authorship, Ziemba would still have acted in bad faith
if he submitted documents to this court that he knew to be frauds. Ziemba claims that he
received the documents from a corrections officer who wanted to warn Ziemba of the
conspiracy brewing against him. Ziemba has long had an especially strained relationship
with NCI officers, and this simmering tension primed him to believe that officers might
scheme to harm him. In other words, the memos confirmed Ziemba’s suspicions. Ziemba
testified that he thought the memos were real when he submitted them, and I find his
testimony credible.
In sum, the government has not proven by clear and convincing evidence that
Ziemba authored the fake memos, nor that he knew they were forgeries when he brought
them to the court’s attention. Because they have not met their burden, their motion for
sanctions, in particular their request that I dismiss the complaint in its entirety, is denied.
However, because both memos are clearly forgeries, I will order that any portion of
Ziemba’s complaint that relies upon them is barred as a matter of law.
Remaining Grounds for Dismissal
In their motion, defendants raised three alternate grounds for dismissal. I will
discuss those arguments briefly here.
First, defendants argue that Ziemba cannot use this proceeding to re-open three
other cases— Ziemba v. Dzurenda, No. 3:08cv565, Ziemba v. Murphy, No. 3:08cv1090,
and Ziemba v. Lantz, No. 3:08cv1335. Because those cases were never before me, I do
not have authority to reopen them. If Ziemba believes that defendants’ misconduct
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resulted in an unjust or fraudulent outcome, he will have to seek relief in each of those
cases.
Second, defendants argue that Ziemba’s request for injunctive and declaratory
relief should be dismissed. In his complaint, Ziemba requests that I enjoin officials from
impeding his ability to litigate. All of the alleged unconstitutional actions – the stolen
documents, the intimidation, the rifling through his legal mail— occurred at NCI.
Because Ziemba is no longer at NCI, I dismiss both those requests for relief as moot.
Finally, defendants request that I dismiss claims against supervisors in this case,
specifically against defendants Powers, Strange, and Lajoie. Ziemba’s claims against
these three supervisors are limited to complaints about their failure to respond to his
grievances. As an opinion from the Southern District of New York has noted, ―[t]he law
is clear . . . that a prison official’s mere response to a grievance, by itself, is not sufficient
to establish personal involvement for purposes of § 1983.‖ Hidalgo v. Kikendall, 2009
WL 2176334 at *4 (S.D.N.Y. 2009). ―Were it otherwise,‖ the court explained, ―virtually
every prison inmate who sues for constitutional torts by prison guards could name the
Superintendent as a defendant since the plaintiff must pursue his prison remedies, and
invariably the plaintiff's grievance will have been passed upon by the Superintendent.‖
Id. Because Ziemba has not alleged any personal involvement of these three officials in
the alleged deprivation of his rights, his claims against them are therefore dismissed.
II.
Conclusion
For the reasons set forth, defendants motion to dismiss and for sanctions in granted in
part and denied in part.
It is so ordered.
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Dated at Bridgeport, Connecticut, this ___ day of March 2013.
_____________________
Stefan R. Underhill
United States District Judge
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