Gillis v. Toliver, et al

Filing 206

MEMORANDUM ORDER granting 195 MOTION to Vacate 164 Order, filed by Vurnis Gillis, ORDER Setting Teleconference: plaintiff to initiate the call.( A Telephone Conference is set for 4/18/2013 at 08:30 AM before Judge Sue L. Robinson). Signed by Judge Sue L. Robinson on 3/25/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VURNIS L. GILLIS,

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) Civ. No. 04-921-SLR
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Plaintiff,

v.
STAN TAYLOR, et al.,
Defendants.

MEMORANDUM ORDER
At Wilmington this

J-,..,..

day of March, 2013, having considered plaintiff's

motion to vacate judgment and the papers submitted in connection therewith;
IT IS ORDERED that said motion (D.I. 195) is granted, for the reasons that
follow:
1. Background. In August 2004, plaintiff Vurnis L. Gillis, 1 an inmate at James T.

1

0n August 26, 1986, plaintiff began serving a 25-year sentence at JTVCC after
having been convicted of charges relating to robbery. (D.I. 152 at 7) In 1987, plaintiff
was diagnosed as suffering from schizophrenia and, as treatment, was prescribed a
series of psychotropic medications. (D.I. 2 at 11 27; D.l. 152 at 7) Plaintiff complained to
the prescribing doctors of "severe side effects, blurred vision and wild mood swings,"
but was told that these were normal reactions and that the effects would eventually
dissipate. (/d. at 1111 28-29) Plaintiff alleges that the side effects did not improve but
rather worsened and, as a result, caused him to commit four separate crimes while
incarcerated: (1) assault in a detention facility and conspiracy; (2) carrying a concealed
deadly weapon and promoting prison contraband; (3) assault; and (4) arson. (D.I. 2 at
W 30-33) Plaintiff pled guilty to these four crimes and was sentenced to an additional
27 years of incarceration. (/d. at 11 35)
On March 31, 1999, Delaware Superior Court Judge Charles Toliver ordered that
plaintiff be required to take any medications and/or other treatments as directed by the
JTVCC's Forensic Evaluation Team. (D.I. 153 at 112-13) By April14, 1999, plaintiff
had begun refusing to take his prescribed medication; a series of JTVCC memoranda
document plaintiff's various refusals. (/d. at 114-26) On November 6, 2001, Judge
Toliver reaffirmed the March 31, 1999 order and indicated that the order was to remain
in effect unless or until modified by the Delaware Superior Court. (/d. at 133)

Vaughn Correctional Center ("JTVCC"), Smyrna, Delaware, filed this civil rights action
against defendants Stanley W. Taylor, Jr. ("Taylor"), former Commissioner of the
Department of Correction of the State of Delaware; Paul Howard ("Howard"), former
Chief of the Bureau of Prisons of the Department of Correction of the State of Delaware;
Thomas L. Carroll ("Carroll"), former Warden of the JTVCC; Elizabeth Burris ("Burris"),
former Deputy Warden, JTVCC; Lawrence McGuigan ("McGuigan"), Deputy Warden,
JTVCC; and Jim Simms ("Simms"), Counselor, JTVCC 2 (collectively, the "State
Defendants"), pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the State Defendants
violated his constitutional rights to due process and freedom from cruel and unusual
punishment by forcibly administering psychotropic medications to him.
2. The case was assigned to the Honorable Kent A. Jordan, U.S.D.J., who
referred the matter to the Federal Civil Panel for representation. Zhun Lu, Esquire,
accepted appointment on May 3, 2006. In 2007, following Judge Jordan's appointment
to the United States Court of Appeals for the Third Circuit, the case was assigned to the
Honorable Mary Pat Thynge, U.S.M.J. for all pretrial proceedings. As a result, several
teleconferences and orders were entered to manage the litigation.
3. In February 2008, the case was reassigned to the undersigned. On August
28, 2008, the court held a discovery conference where plaintiff raised the problem of
obtaining his complete medical file. (D.I. 148) Specifically, plaintiff's records from 1986
to 1995 were missing. Plaintiff asserted that the State had failed to maintain and keep

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1n addition to the six State Defendants listed above, there are (14) additional
defendants who have not been served.

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those records, despite a duty to do so. Following the conference, the parties crossmoved for summary judgment.
4. On June 18, 2009, the court denied plaintiffs motion for summary judgment
on the issue of improper administration of forced psychotropic medication and granted
defendants' motion for summary judgment on statute of limitations grounds. Essentially,
the court concluded that plaintiffs claim accrued in 1999 and plaintiff was required,
under the two-year statute of limitations, to file suit on his claim in 2001, which he failed
to do. The court further found that the equitable tolling and continuing violations
doctrines did not apply to excuse the missed statute. 3 (D. I. 163 at 7-8)
5. On July 8, 2009, the court ordered plaintiff to show cause why certain (14)
defendants should not be dismissed due to his failure to provide sufficient information to
effectuate timely service. (D.I. 165) Plaintiff responded that he has been diligent in his
attempts to locate and serve defendants and requested that any dismissal be without
prejudice. (D.I. 170) The court took no action on these defendants.
6. On July 17, 2009, plaintiff appealed the court's summary judgment order to
the Third Circuit. (D. I. 166) On September 28, 2009, plaintiff moved for reconsideration
and to vacate the summary judgment decision. (D.I. 171) He also requested to reopen
limited discovery. {0.1. 172-74)
7. The court held a teleconference on October 27, 2010, wherein plaintiff
counsel advised the court:

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ln so doing, the court noted that plaintiff had filed three separate lawsuits in
1989, 1996 and 2002, which demonstrated that he possessed sufficient mental faculties
to discover and redress his constitutional rights. (D.I. 163 at 3, 7)
3

After the summary judgment decision, we were preparing for
some additional work, and then we identified several cases
which were filed by the plaintiff pro se, but under different names.
So following up those cases, we identified some additional medical
records. Namely, starting from 1985 to about 1990. And the new
medical records indicate that the psychotropic medication started
around August of 1989. And as you may remember, that one of
the key issues for this case was the whereabouts of certain medical
records starting from 1985 up to the 1995 or 1996 period.
And the prior discovery measures the plaintiff engaged in discovered
the regular medical records from 1996 up to current, but at that time,
there was about a ten-year gap in terms of medical records, and because
of the newly discovered medical records, indicated that there were early
psychotropic medications which actually were about the same time as the
additional charges placed on the plaintiff. So we believe, and also I
believe the counsel for the defendant agrees that those new medical
records gave rise to some fact issues as to the mental status of the
plaintiff around that time, and which also is the critical basis for the -whether the statute of limitations should be tolled. Therefore, by talking
to [defense counsel], who is the counsel for the defendants, we believe
that this opens an opportunity for us to find out whether there are
additional medical records to fill in the current gap, which is about
five years.
(0.1. 175)
8. Defense counsel responded:
We have a pending motion for relief from the summary judgment
and request to open discovery, and I think it has been agreed that
we need to enter into discovery. It's just a matter of how to do
it the most efficient way. And I think-- and correct me if I'm wrong,
[plaintiff's counsel] -- but I think what we discussed is, if we can keep
the summary judgment intact and then just have a discovery
schedule for this limited discovery issue, and then we can
all revisit whether we should have relief from the summary
judgment after we've gone through the discovery process
rather than trying to brief the issue now and then possibly
go through the discovery and then brief the issue again
later, we just do it once. But that would require us entering into
discovery post summary judgment, and that's an issue I
think that we wanted to discuss with the Court, to make
sure that your Honor didn't have any problems with that, and
to see if maybe your Honor has any other ideas about how -the best and most efficient way to handle this issue.

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The court agreed to not dissemble the summary judgment and to allow limited
discovery. (D.I. 175)
9. On March 21, 2011, the Third Circuit dismissed plaintiff's appeal. (D.I. 190)
On March 28, 2011, new counsel entered his appearance for State defendants.
10. A teleconference was conducted on April 8, 2011. (D.I. 193) A scheduling
order setting discovery and dispositive motions deadline was entered. (D. I. 194) On
May 23, 2011, plaintiff filed the pending motion to vacate the summary judgment order.
(D.I. 195)
11. Plaintiff argues that evidence discovered after summary judgment was
granted reveals that he suffers and has long suffered from borderline mental
retardation, paranoid schizophrenia and severe delusions and that he does not have the
mental capacity to redress violations of his constitutional rights. D.l. 196) With respect
to other litigation 4 filed pro se by plaintiff, none of these cases proceeded in any
substantive manner and were dismissed for procedural reasons. Plaintiff contends that
his impulsive initiation to file suit, followed by total inaction, demonstrates an inability to
protect his legal rights.

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During his incarceration, plaintiff has used seven aliases. (D.I. 196 at n.1)
During the supplemental discovery period, plaintiff discovered that three additional
lawsuits were filed under the alias Ishmael Nasir Muhammad, to wit: Muhammad v.
Kanniard, Civ. No. 90-597-SLR (dismissed for failure to prosecute); Muhammad v.
Brown, Civ. No. 91-178-JJF (dismissed with no action taken by plaintiff); Muhammad v.
VanRobinson, Civ. No. 90-602-LON (dismissed per plaintiff's request after defendants
filed unopposed motion to dismiss).

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12. Further, plaintiff asserts that newly discovered evidence 5 located during the
supplemental discovery period creates an issue of material fact, rendering summary
judgment inappropriate. Specifically, plaintiff discovered that, in 1978 as a teenager, he
was evaluated by the Governor Bacon Center ("Bacon Center"). (D.I. 196 at ex. C) A
pre-admission evaluation reflects an intellectual efficiency that "measures in the
borderline to mildly defective range," with a "general fund of information []rather
limited" but "within the range that is consistent with his overall level of functioning." (/d.)
A psychological report dated March 5, 1979 and when plaintiff was almost 16 years of
age, provides, in part:
Plaintiff obtained a verbal IQ score of 78 (borderline mental defective);
a performance IQ score of 85 (low average); and a full scale IQ
score of 80, placing him within the low average range of intellect.
This is an interesting finding, since referral source data suggests
that he is borderline retarded. This is not necessarily the case, but
he may operate as such in a heavily verbal medium. He does not
like to talk or to interact very well, and does not maintain eye
contact, which could contribute to an overall impression of
retardation.

(/d. at ex. D)
13. Records from the Bacon Center state, in part, that on February 27, 1980, he
was diagnosed with "latent schizophrenia" and "atypical paranoid disorder," among
other things. (ld. at exs. E, F) He was prescribed thorzine at Bacon Center and
remained there for approximately two years. (ld. at ex. G) In 1985, plaintiff was
incarcerated. No mental problems were noted in his prison admission history. (D. I. 173
at A003)

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Deposition testimony reveals that parts of plaintiff's prison and medical records
are missing. (D.I. 200 at ex. A & B)

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14. Defendants argue that plaintiff's litigation history proves that he is able to
recognize and proceed coherently with his claims. (D. I. 198) They disagree that the
new records demonstrate an inability to timely file the complaint. Defendants further
assert that the newly discovered evidence does not support equitable tolling and the
summary judgment should remain intact.
15. Analysis. The general purpose of Rule 60(b), "which provides for relief from
judgments for various reasons, is to strike a proper balance between the conflicting
principles that litigation must be brought to an end and that justice must be done."
Boughner v. Sec'y of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978); Co/tee
Indus., Inc., v. Hobgood, 280 F.3d 262, 271 (3d Cir. 2002). The interest in finality is

paramount and so relief under Rule 60(b) is extraordinary. Moolenaar v. Government of
the Virgin Island, 822 F.2d 1342, 1346 (3d Cir. 1987). The decision to grant a motion

for relief from judgment is left to the sound discretion of the trial court. Ross v. Meagan,
638 F.2d 646, 648 (3d Cir. 1981).
16. Rule 60(b)(2) provides that a court may relieve a party from a final judgment
when there is "newly discovered evidence that, within reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b)." Fed. R. Civ. P.
60(b)(2). This standard mandates that the new evidence must be: (1) material and not
merely cumulative; (2) could not have been discovered before the order through the
exercise of reasonable diligence; and (3) would probably have changed the outcome of
the trial. Compass Tech v. Tseng Lab., 71 F.3d 1125, 1130 (3d Cir. 1995). A Rule
60(b)(2) motion must be filed "no more than a year after the entry of the judgment or
order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1).

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17. Rule 60(b){6) states a court may relieve a party from a final judgment when
there is "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). The rule is a
"catchall provision that allows relief for any reason justifying relief from the operation of
the judgment." United States v. Witco Corp., 76 F. Supp. 2d 519, 527 (D. Del. 1999).
This section, however, provides for extraordinary relief and may only be invoked upon a
showing of exceptional circumstances. Co/tee /ndust. v. Hobgood, 280 F.3d at 273;

see a/so Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Rule 60(b)(6) motions must be
filed within a reasonable time. Fed. R. Civ. P. 60(c)(1).
18. In the case at bar, plaintiff has demonstrated to the court's satisfaction that
exceptional circumstances warrant relief under Rule 60(b)(6). 6 The new documents
reflect that the court considered an incomplete record 7 when evaluating the summary
judgment motions. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000).
For example, the court previously surmised that plaintiff's ability to file three other
lawsuits meant that he "still had mental faculties sufficient to discover potential

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Aithough defendants urge the court to review the motion under Rule 60(b){2)
and have declined to respond to the arguments raised under Rule 60(b)(6), the court
finds that review under Rule 60(b)(6) is appropriate because the court- and counselapproved deadlines took the parties outside the one-year deadline required under Rule
60(b)(2). The summary judgment order was issued on June 18, 2009; however, the
deadline to file motions related to supplemental discovery was May 23, 2011, outside
the one year required to seek relief under Rule 60(b)(2).
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After conferring with counsel (who amicably conferred and proposed the same
course of action to the court), the court allowed supplemental discovery to commence,
but did not disturb the summary judgment order. During the course of discovery,
plaintiff pursued numerous avenues in an effort to locate his records, and achieved
some success: (1) D.l. 176 (record keeping R. 30{b)(6) deposition); (2) D.l. 177, 178
(subpoena for records); (3) D.l. 179 (motion for protective order); (4) D.l. 185, 186
(affidavit); (5) D.l. 188 (subpoena of juvenile facility for records); (6) D.l. 189 (subpoena
for records in custody of Department of Children, Youth and Family Services); and (7)
D.l. 196 ex. A (affidavit), ex. B (records).
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infringements upon his constitutional rights and seek remedies for these infringements
through the courts." (0.1. 168 at 7) It is unclear whether that conclusion would remain
unchanged in light of the new evidence.
19. In reaching this decision, the court is mindful of Federal Rule of Civil
Procedure 17(c) and the Third Circuit's decision in Powell v. Symons, 680 F.3d 301 (3d
Cir. 2012). Rule 17(c)(2) provides that "[t]he court must appoint a guardian ad litem- or
issue another appropriate order - to protect a minor or incompetent person who is
unrepresented in an action." The court considers whether Rule 17(c) applies if
"presented with evidence from an appropriate court of record or a relevant public
agency indicating that the party had been adjudicated incompetent, or if the court
receive[s] verifiable evidence from a mental health professional demonstrating that the
party is being or has been treated for mental illness of the type that would render him or
her legally incompetent." Powell, 680 F.3d at 307 (3d Cir. 2012) (citing Ferrelli v. River
Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003)).

20. Since the appointment of counsel in 2006, plaintiff's litigation has been
guided by diligent counsel, consistent with Rule 17(c). 8 Out of an abundance of caution
and in light of the record of forced psychotropic medication during a period where
medical and prison documentation as to plaintiff's mental status was missing or
ambiguous, the court finds that the summary judgment granted on June 18, 2009 must
be vacated.

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The court notes that the parties attempted to resolve this matter through
mediation, but were unsuccessful in their efforts.

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IT IS FURTHER ORDERED that a telephone conference shall be held on

Thursday, April18, 2013, at 8:30a.m. Counsel for plaintiff shall coordinate and
initiate this call.

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