Damiani v. Delaware State Police Troop 2 et al

Filing 267

MEMORANDUM OPINION regarding MOTION to Appoint Counsel (D.I. 229 ), Motion for Sanction of Dismissal (D.I. 232 ), and Motion to Strike (D.I. 237 ). Signed by Judge Richard G. Andrews on 2/16/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Plaintiff,

v.

Civ. No. 12-1637-RGA

DETECTIVE DUFFY, et al.,
Defendants.

Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Plaintiff.
Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Detective Duffy, Gary Potts, Daniel
Grassi, Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk, Ronald Kline, Corey
Godek, Detective Tsai, Detective Rhoades, Detective Glenn, Rob Krisilla, James Kelly,
Scott Galbreath, and Parton.
Charles M. Oberly Ill, United States Attorney, and Jennifer Lynne Hall, Assistant United
States Attorney, Wilmington, Delaware. Counsel for Defendants Casey Bouldin,
Detective Morrissey, Ronald Kline, and the United States of America.
Rosamaria Tassone-DiNardo, Esquire, City of Wilmington Law Department,
Wilmington, Delaware. Counsel for Defendant Detective Morrissey.

MEMORANDUM OPINION

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February \~ , 2017
Wilmington, Delaware

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Plaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears
prose and has been granted leave to proceed in forma pauperis. (D.I. 7). The case
proceeds on the fourth amended complaint (D.I. 214), which raises excessive force
claims against Defendants. Before the Court are Plaintiff's Request for Counsel (D.I.
229), Plaintiff's Motion to Strike his own deposition (D.I. 237), and Defendant Casey
Bouldin's Motion for Sanction of Dismissal (D.I. 232). Briefing on the motions is
complete.

REQUEST FOR COUNSEL
Plaintiff seeks counsel on the grounds that he is indigent with no legal training, is
confined in administrative segregation, has limited law library access, Defendants are
represented by attorneys, he has no ability to investigate his case, considerable
discovery is necessary, there are conflicting statements of the parties, and the
allegations, if proved, clearly establish a constitutional violation. (D.I. 229).
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 1 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d
Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation
by counsel may be appropriate under certain circumstances, after a finding that a
plaintiff's claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.

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See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now§ 1915(e)(1)) does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.").

After passing this threshold inquiry, the Court should consider a number of
factors when assessing a request for counsel. Factors to be considered by a court in
deciding whether to request a lawyer to represent an indigent plaintiff include: (1) the
merits of the plaintiffs claim; (2) the plaintiffs ability to present his or her case
considering his or her education, literacy, experience, and the restraints placed upon
him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
which factual investigation is required and the plaintiff's ability to pursue such
investigation; (5) the plaintiffs capacity to retain counsel on his or her own behalf; and
(6) the degree to which the case turns on credibility determinations or expert testimony.
See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at
155-56. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d
at 157.
Plaintiff has previously requested, and been denied, counsel on numerous
occasions. (See 0.1. 20, 58, 65, 82, 115, 127, 177). Once again reviewing Plaintiffs
requests, the Court concludes that the case is not so factually or legally complex that
appointing an attorney is warranted. To date, the filings in this case demonstrate
Plaintiffs ability to articulate his claims and represent himself. Thus, in these
circumstances, the Court will deny, without prejudice to renew, Plaintiffs request for
counsel. (D.I. 229). The Court will revisit the issue should it become necessary to do
so.
MOTION FOR SANCTION OF DISMISSAL
Defendant Casey Bouldin moves for dismissal of this case as a sanction on the
basis that Plaintiff repeatedly perjured himself during his deposition. (D.I. 232). Plaintiff

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responds that he did not lie during his deposition and that his deposition testimony is
consistent with the testimony he provided during his criminal trial. (D.I. 250, 252).
In support of his motion, Bouldin refers to a recorded telephone conversation
between Plaintiff and his fiance, and two other recorded interviews; one when Plaintiff

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was interviewed by detectives and the other when he agreed to an "off-the-record
proffer'' of information during plea negotiations in his criminal case. (D.I. 234 at Exs. 6,
7, 10). In the recorded conversations and interviews, Plaintiff stated that he had
committed twenty-two armed robberies in 2010, including four robberies on the night of
his December 6, 2010 arrest. (Id.) Plaintiff did not accept the plea offer, was tried by a
jury, and convicted in Delaware Superior Court of eighteen counts of robbery in the first
degree, thirty-three counts of possession of a firearm during the commission of a
felony, eleven counts of wearing a disguise, six counts of conspiracy in the second
degree, six counts of aggravated menacing, eight counts of attempted robbery in the
first degree, and one count of reckless endangering in the first degree. See DamianiMelendez v. State, 55 A.3d 357 (Del. 2012).

After he was convicted, Plaintiff commenced this action alleging excessive force
by Defendants during his arrest. Plaintiff was deposed as part of the discovery process
in this civil action and denied committing any robberies. (D.I. 235, Ex. 1 at 65-68, 131132, 182-185). He testified that his only crime the night of his arrest was speeding. (Id.
at 183-185). This testimony, which Bouldin contends is perjured, is the basis for the

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motion for sanctions in the form of dismissal.
In his opposition, Plaintiff denies committing perjury and points to his testimony
during his criminal trial. During his criminal trial, Plaintiff testified that on December 6,

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2010, some individuals asked him to do them a favor, and run them around so that they
could collect money. (D.I. 252, Ex. 1 at 45-47). Plaintiff was asked about statements
he made to detectives, and Plaintiff testifi~d that he "needed to do something to get out
of all of this .. and tried to come up with something ... cooperate possibly with officers
and maybe get ... a ticket out of jail ... they didn't believe [him] ... they wanted to
hear that [he] did it, that [he] was guilty, so at some point ... [he] kind of gave them
what they wanted to hear to see if [he] could help [him]self. And then that didn't work
neither." (Id. at 52). Plaintiff was asked if he had anything to do with the four, back-toback robberies on December 61h. He replied, "No. Me personally I had nothing to do
with them." (Id. at 64). Plaintiff also testified that he "switched" up his testimony,
acknowledged that he had changed his versions several times, and that he "probably"
would not be believed. (Id. at 65).
Perjury. "In a perjury case, the plaintiff must prove that the allegedly perjurious

statement is not subject to a literal, truthful interpretation." Herring v. United States,
424 F.3d 384, 391 (3d Cir. 2005) (citing United States v. Tonelli, 577 F.2d 194, 198 (3d
Cir.1978)). Where an accusation of perjury forms the basis of a fraud upon the court
claim, "proof of perjury, though not sufficient to prove fraud upon the court, becomes a
necessary element which must be met before going on to meet the additional rigors of
proving fraud upon the court." Id. Therefore, if a "party lies to the court and his
adversary intentionally, repeatedly, and about issues that are central to the truth-finding
process, it can fairly be said that [the party] has forfeited his right to have [the] claim
decided on the merits." McMunn v. Memorial Sloan-Kettering Cancer Ctr., 191 F. Supp.
2d 440, 445 (S.D.N.Y. 2002).

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Fraud on the Court. Bouldin first contends that dismissal is appropriate due to

Plaintiff's alleged fraud on the court. District courts possess the inherent power to
impose the sanction of dismissal on one "who defiles the judicial system by committing
a fraud on the court." See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.
1989) (dismissing cause of action for "fraud upon the court" where plaintiff attached
fake agreement to complaint). Dismissal with prejudice is a drastic sanction, and a
decision to impose such a sanction must be made with restraint and discretion. Perna
v. Elec. Data Corp., 916 F. Supp. 388, 397-98 (D.N.J. 1995); see, e.g., National Hockey
League v. Metro. Hockey Club, 427 U.S. 639, 643 (1976) (extreme sanction of
dismissal is appropriate by reason of parties' flagrant bad faith and counsel's callous
disregard of responsibilities).
A party seeking to prove fraud upon the court, must show by "clear, unequivocal
and convincing evidence": "(1 )an intentional fraud; (2) by an officer of the court; (3)
which is directed at the court itself; and (4) in fact deceives the court." Herring, 424
F.3d at 386-87. "[A] determination of fraud on the court may be justified only by 'the

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most egregious misconduct directed to the court itself.'" Id. In addition, an "officer of
the court" must have perpetrated the fraud. Id.; see e.g., Demjanjuk v. Petrovsky, 10
F.3d 338, 348 (6th Cir. 1993) (explaining that, in order for conduct to be fraud on the
court, it must have been "on the part of an officer of the court"); Florence v. Donald,
2008 WL 1758796 (S.D. Ga. Apr. 16, 2008) ("Because Plaintiff is a prose litigant rather
than a member of the bar, his actions cannot properly be described as 'fraud on the
court."').

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Plaintiff appears prose. Therefore, he is not an officer of the court, and he
cannot commit fraud on the Court. Accordingly, the case cannot be dismissed on this
basis.
Dismissal as a Sanction. Bouldin also seeks dismissal under Pou/is v. State
Farm & Casualty Co., 747 F.2d 863 (3d Cir. 1984), for Plaintiff's alleged abuses. It is
clearly settled that a district court "may dismiss a suit outright in response to litigation
abuses." Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 n.10
(3d Cir. 1994) (citing Eash v. Riggins Trucking, Inc., 757 F.2d 557, 566 (3d Cir. 1985)).
In doing so, the Court determines the propriety of the sanction of dismissal for
misconduct by balancing six factors as set forth in Pou/is: (1) the extent of the party's
personal responsibility; (2) the prejudice to the adversary caused by the conduct at
issue; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or in
bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an
analysis of other sanctions; and (6) the meritoriousness of the claim or defense. Pou/is,
747 F.2d at 868; see a/so Amfosakyi v. Frito Lay, Inc., 496 F. App'x 218, 225 (3d Cir.
2012). Not every factor must weigh in favor of dismissal so long as most do.
Amfosakyi, 496 F. App'x at 225 (citing Curtis T. Bedwell & Sons, Inc., v. International
Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988)).
The litigation abuse here is Plaintiff's alleged perjury during his deposition when
he testified that he did not commit the crimes of which he was convicted. It appears
that there was strong, perhaps overwhelming, evidence of guilt in Plaintiff's criminal trial
and that the jury did not believe his version of the events, which resulted in a guilty
verdict and lengthy sentence. The Delaware Supreme Court affirmed the convictions

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on direct appeal and also affirmed denial of Plaintiff's motion for post-conviction relief.
See Damiani-Melendez v. State, 139 A.3d 837 (Del. 2016) (affirming denial of motion

for post-conviction relief); Damiani-Melendez v. State, 55 A.3d 357 (Del. 2012)
(affirming conviction on direct appeal). Plaintiff took the stand at his trial, and denied
guilt. Plaintiff now repeats that testimony. Essentially, Bouldin's position is that, unless
Plaintiff concedes that he previously lied and that the verdict was accurate, he cannot
maintain this excessive force case.
The Fourth Amended Complaint (D.I. 214) does not allege that Plaintiff was
innocent. In fact, it does not say anything at all about why the police stopped him.
Rather, it recites the basic excessive force claim starting with the vehicle stop and, in
this way, is consistent with earlier versions of the complaint. (D.I. 2, 15, 29). Plaintiff's
claim does not depend upon his guilt or innocence of the robberies and related crimes.
Nor, I think, does Bouldin's defense. Based upon the description of a vehicle driven by
Plaintiff and its location, Bouldin and the other officers thought the person being
stopped and arrested had committed four armed robberies that evening. (See D.I. 235
at Exs. 1, 2, 3). Excessive force claims arising out of an arrest, as in this case, are
analyzed under a standard of objective reasonableness under the Fourth Amendment,
Graham v. Connor, 490 U.S. 386 (1989), and not upon a finding of guilt. Had Plaintiff

later been acquitted, it would not have changed the amount of force appropriate to use
in connection with the car stop.
To be sure, "'[f]alse testimony in a formal proceeding is intolerable. We must
neither reward nor condone such a 'flagrant affront' to the truth-seeking function of
adversary proceedings."' 3M Innovative Props. Co. v. Tamar Electronics, 2006 WL
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2670038, at *6 (D. Minn. Sept. 18, 2006) (quoting ABF Freight Sys., Inc. v. N.L.R.B.,
510 U.S. 317, 323 (1994)). On the other hand, courts have understandably concluded
that, absent evidence of intentional or willfully false testimony, sanctions are not
warranted, and, "if [a party] disagrees with deposition testimony given by witnesses, he
is free to challenge that testimony through his own factual assertions, impeach it
through other evidence, and cross-examine the witnesses vigorously at trial." Taylor v.
AFS Techs., Inc., 2010 WL 4955166, at *1 (D. Ariz. Dec. 1, 2010).
Here, Plaintiff's deposition testimony is similar to that which he provided at his
criminal trial, which are the only two times he has testified under oath. Moreover,
Plaintiff conceded at his trial that he has provided several versions regarding his alleged
criminal conduct and acknowledged that he may not be believed. The numerous
versions of Plaintiff's criminal conduct speak to an issue that is not in dispute, since
Plaintiff will not be allowed to relitigate his guilt or innocence in this excessive force
case. Further, despite the lengthy history of this case, and assuming the testimony was
false, the deposition was an isolated instance of misconduct on what is, at most, a
collateral issue in the case. For purposes of the Pou/is analysis, I do not think I have to
decide whether the combined force of the state court convictions and the various
conflicting statements shows that Plaintiff perjured himself at the deposition; I can
assume that he did, because, on balance, even assuming that he did, I think Defendant
Bouldin's motion should be denied.
After weighing the Pou/is factors, the Court concludes they do not warrant
dismissal of Plaintiff's case. First, as a pro se litigant, Plaintiff is solely responsible for
the testimony he provides. This weighs in favor of dismissal.

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As to the second factor, Bouldin argues that Defendants have suffered, and will
suffer, prejudice because the allegations lodged against them are serious, they are
being sued for damages from their personal assets, the case impacts their lives and
careers, and Plaintiff has no real chance of winning at trial. He also contends that
permitting Plaintiff to lie with impunity during his deposition and again perjure himself at
trial would make a mockery of the judicial system. I am not sure I would describe the
testimony at the deposition (even assuming that it was intentionally false) as "lying with
impunity." As discussed above, Plaintiff has not asserted his innocence as a part of his
claims. Plaintiffs testimony under oath at his criminal trial and at his deposition are
similar. In addition, when testifying, Plaintiff readily admitted that he had provided
different accounts of his actions. As to prejudice, I agree that there is prejudice to
Defendants in having these sorts of allegations hanging over them for the many years
that this case has been open.

I do not think that is the sort of prejudice the Third

Circuit had in mind for the second Pou/is factor. On the other hand, in terms of a jury
reaching a decision on the merits, Plaintiff's denial that he committed the robberies
does not prejudice Defendants at all. Thus, there is the prejudice that comes from
being a defendant in this sort of litigation, but nothing more. This factor weighs against
dismissal.
With regard to the third factor, Bouldin argues that, although that Plaintiff has not
yet established a history of repeated perjury, he has made no effort to correct his false
deposition testimony, and this suggests that Plaintiff intends to further perjure himself.
Bouldin presumes that Plaintiff intends to "further perjure himself' based upon his

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deposition testimony and the manner in which it conflicted with prior statements.
However, this is not dilatoriness. Therefore, this factor does not support a sanction.
As to the fourth factor, any perjury is willful. In terms of overall bad faith,
however, I do think the complained-of testimony is collateral to the allegations in his
complaint, and I do not think the denial of guilt, even assuming it is perjurious, can be
imputed to Plaintiff's conduct of the litigation. Perhaps this factor weighs in favor of a
sanction, but I do not think it weighs as strongly as Defendant Bouldin argues it does.
As to the fifth factor, there are no available sanctions short of dismissal. Plaintiff
is an indigent prisoner serving a sentence of 296 years. See State v. DamianiMelendez, 2015 WL 9015051, at *10 (Del. Super. Nov. 25, 2015). Thus, if the Court

were going to impose a sanction, the only possible sanction would be dismissal.
Finally, as to the sixth factor, the court accepts that the amended complaint
states a claim for excessive force. Beyond that, and without delving into the record, the
Court cannot say.
False testimony could provide a reason to impose sanctions, but not in this
instance, where it is a collateral matter that seems as though it will only come up at trial
in the context of cross-examination. The Court finds that the Pou/is factors do not
weigh in favor of the extreme sanction of dismissal, and, therefore, will deny the Motion
for Sanction of Dismissal.
MOTION TO STRIKE
Plaintiff moves to strike the transcript of his deposition taken by Defendants on
July 27, 2016. (D.I. 237) During his State criminal action, Plaintiff provided a recorded
off-the-record proffer of information to detectives during plea negotiations. At that time,
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he was advised by counsel that "if something happens and you end up going to trial,
what you say here will not be used against you at trial." (D.I. 235, Ex. 10 at 2-4). When
Plaintiff was deposed in this civil matter, defense counsel played the recording of the
off-the-record statement when posing questions to Plaintiff. Plaintiff alleges that,
because the use of the recorded statement was a clear violation of his agreement with
the State, the Court should strike his deposition.
Defendants oppose on the grounds that the Motion to Strike is improper, counsel
was permitted to examine Plaintiff about his prior confessions, and Plaintiff did not
object to the use of the recorded statement during his deposition. (D.I. 238, 239, 243)
Motions to strike are governed by Rule 12(f) of the Federal Rules of Civil
Procedure which provides that the "court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ.
P. 12(f). The purpose of a Rule 12(f) motion is to "clean up the pleadings, streamline
litigation, and avoid the unnecessary forays into immaterial matters." United States v.
Education Mgmt. Corp., 871 F. Supp. 2d 433, 460 (W.D. Pa. 2012) (citation omitted).
"[M]otions to strike are generally and typically used for purposes of striking allegations
made in an answer or other pleading." See Hanover Ins. Co. v. Ryan, 619 F. Supp. 2d
127, 132 (E.D. Pa. 2007) (motions to strike decided on the pleadings alone).
Procedurally, a proper challenge to the admissibility of evidence is made in the
form of a motion in limine pursuant to the Federal Rules of Evidence. Hence, Plaintiff's
motion to strike is not proper under Rule 12(f). Nor has Plaintiff provided any grounds
to strike his deposition testimony under Fed. R. Civ. P. 30 which applies to depositions
by oral examination. In addition, it is clear in reading the off-the-record proffer, that the
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agreement that Plaintiff's statement would not be used was in reference to his pending
criminal trial. At that point, there was no civil action. Accordingly, the motion will be
denied without prejudice to the filing of a motion in limine should this matter proceed to
trial.
CONCLUSION
For the above reasons, the Court will: (1) deny Plaintiffs Request for Counsel
(D.I. 229); (2) deny Bouldin's Motion for Sanction of Dismissal (0.1. 232); and (3) deny
Plaintiffs Motion to Strike (D.I. 237) without prejudice to the filing of a motion in limine.
An appropriate order will be entered.

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