Burton v. Johnson et al
MEMORANDUM. Signed by Judge Ellen L. Hollander on 5/15/14. (c/m & c/em 5/15/14 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. ELH-13-2371
BETTY JOHNSON, et al.,
This Memorandum addresses the “Motion to Reconsider the Court’s Order of April 3,
2014 or, in the Alternative Motion to Bifurcate and Stay Discovery” (ECF 33, the “Motion”),
filed by defendants Betty Johnson, Dionne Randolph,1 and Paul Williams (the “Represented
Plaintiff Haymond Burton, originally self-represented, filed suit against four defendants
under 42 U.S.C. § 1983, alleging a violation of his civil rights based on an assault committed by
Correctional Officer Emmanuel Dabiri on February 18, 2013, when plaintiff was housed at
Brockbridge Correctional Facility in Jessup, Maryland (“Brockbridge”). See ECF 1 (Complaint).
According to plaintiff, the Represented Defendants were “legally responsible” for the operations
or the supervision of Brockbridge, and for the welfare of the inmates housed there. Id. ¶¶ 3-5.
Dabiri, who is self-represented, filed an Answer on November 15, 2013 (ECF 14). As discussed,
infra, Dabiri’s current whereabouts are unclear.2
Although Dionne Randolph was identified in the Complaint as Dionne Dale, ECF 1, she
advised that she is “[n]ow known as Dionne Randolph.” ECF 12-1 at 2. The docket has been
amended to reflect the change. ECF 16 (ordering Clerk to amend docket).
Copies of the Court’s Memorandum (ECF 15) and Order (ECF 16), docketed January
23, 2014, were sent via U.S. mail on January 24, 2014, to Mr. Dabiri at the address (a post office
box in Jessup, Maryland) that was provided in his Answer (ECF 14). However, those documents
The Represented Defendants filed a motion to dismiss or, in the alternative, motion for
summary judgment, to which three declarations were attached. See ECF 12 & Exh. 1, 2, and 3.
No opposition was filed. I construed the Represented Defendants’ motion as a motion for
summary judgment, which I granted on January 23, 2014. ECF 15, 16.
On February 21, 2014, plaintiff, through counsel, filed a “Motion For Reconsideration Of
The Court’s Order Of Judgment of January 23, 2014” (ECF 29). He maintained that summary
judgment was premature and that discovery is warranted. See ECF 29-1 at 3. The Represented
Defendants opposed plaintiff’s motion for reconsideration. ECF 31. They noted, inter alia, that,
during the time that plaintiff was without legal counsel, he filed no response to their dispositive
motion (ECF 12) and never requested discovery before summary judgment was granted. ECF 31
at 2-3. Further, the Represented Defendants maintained that plaintiff’s allegations provided
insufficient grounds for recovery against them. Id. at 3. As for plaintiff’s assertions that Dabiri
had “a history of assaulting other inmates” at the facility, the Represented Defendants observed
that those claims are found in a declaration that plaintiff failed to attach to his motion for
In an Order of April 3, 2014 (ECF 32), I granted plaintiff’s motion for reconsideration,
vacated summary judgment in favor of defendants Johnson, Randolph, and Williams, and
permitted plaintiff to proceed as to all four defendants. Thereafter, the Represented Defendants
filed the Motion at issue (ECF 33), seeking reconsideration of the Court’s Order of April 3,
2014. Alternatively, they seek bifurcation of the proceedings and a stay of discovery as to the
were returned to the Court as undeliverable. See ECF 18. Several other filings sent to the Jessup
post office box were also returned as undeliverable. See ECF 18 and 21 (indicating that
additional copies of ECF 15 and ECF 16 were returned as undeliverable); ECF 30 (indicating
that ECF 22 was returned as undeliverable); and ECF 34 (indicating that ECF 32 was returned as
undeliverable). Since the filing of his Answer, Mr. Dabiri has made no other filings.
Represented Defendants. The Represented Defendants invoke Fed. R. Civ. P. 54(b), which
states, in relevant part:
[A]ny order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
In the Fourth Circuit, “the precise standard governing a motion for reconsideration of an
interlocutory order is unclear.” Randolph v. ADT Sec. Services, Inc., 2012 WL 273722, at *2 (D.
Md. Jan. 30, 2012) (Chasanow, J.). In assessing a Rule 54(b) motion, courts often consider three
factors applicable to a motion for reconsideration brought pursuant to Fed. R. Civ. P. 59 or 60.
See id. Specifically, a motion to reconsider under Rules 59 or 60 is granted only “(1) to
accommodate an intervening change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Zinkand v.
Brown, 478 F.3d 634, 637 (4th Cir. 2007) (citations omitted). However, as the Represented
Defendants acknowledge, Opp. at 2, “‘[m]otions for reconsideration of interlocutory orders’”
brought pursuant to Rule 54(b) “‘are not subject to the strict standards applicable to motions for
reconsideration of a final judgment.’” Boyd v. Coventry Health Care Inc., 828 F. Supp. 2d 809,
814 (D. Md. 2011) (quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th
To be sure, a district court retains the power to reconsider and modify an interlocutory
judgment at any time before final judgment.
Am. Canoe Ass’n, 326 F.3d at 514-15.
Accordingly, resolution of a motion to reconsider an interlocutory order is “committed to the
discretion of the district court,” id. at 515, with “the goal . . . to reach the correct judgment under
law.” Netscape Commc’n Corp. v. ValueClick, Inc., 704 F. Supp. 2d 544, 547 (E.D. Va. 2010)
(internal citations omitted). Accord Lynn v. Monarch Recovery Management, Inc., 953 F. Supp.
2d 612, 618-19 (D. Md. 2013); see also Capitol Sprinkler Inspection, Inc. v. Guest Services, Inc.,
630 F.3d 217, 227 (D.C. Cir. 2011) (Rule 54(b) recognizes a court’s “inherent power to
reconsider an interlocutory order ‘as justice requires’”) (quoting Greene v. Union Mut. Life Ins.
Co. of Am., 764 F.2d 19, 22-23 (1st Cir. 1985) (Breyer, J.) (observing that “the district judge is in
the best position to assess whether or not ‘justice requires’ [reconsideration]”)).
As reflected in the procedural history recounted above, this case’s progression, for a
variety of reasons, has been atypical. The Motion represents, in part, an effort to file a classic
Rule 12(b)(6) motion to dismiss the original pro se Complaint (ECF 1). See Motion at 2-6
(arguing that plaintiff has failed to state a claim upon which relief can be granted and citing, inter
alia, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). But, the Represented Defendants had previously elected to frame their dispositive
motion as a motion to dismiss or, in the alternative, motion for summary judgment, and had
submitted supporting declarations. See ECF 12. And, in ruling on the Represented Defendants’
unopposed dispositive motion, the Court construed it as a motion for summary judgment. See
ECF 15, 16.
Plaintiff, who is incarcerated, subsequently obtained counsel, who filed a motion for
reconsideration (ECF 29). In granting plaintiff’s motion for reconsideration, I concluded that
summary judgment in favor of the Represented Defendants was premature. See ECF 32 at 3
(citing E. I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)
(in general, summary judgment is inappropriate “where the parties have not had an opportunity
for reasonable discovery”)). Of relevance to the Motion filed by the Represented Defendants,
who seek to undo that ruling, the Fourth Circuit has cautioned that motions for reconsideration
create a risk that there will “‘be no conclusion to motions practice,’” with “‘each motion
becoming nothing more than the latest installment in a potentially endless serial that would
exhaust the resources of the parties and the court—not to mention its patience.’” Pinney v.
Nokia, Inc., 402 F.3d 430, 453 (4th Cir. 2005) (quoting Potter v. Potter, 199 F.R.D. 550, 553 (D.
Md. 2001) (Grimm, M.J.)). That risk becomes particularly acute when, as here, successive
motions for reconsideration have been filed.
For the reasons stated in the Court’s Order of April 3, 2014 (ECF 32), and to avoid the
endless cycle of re-litigation that the Fourth Circuit warned against in Pinney, the Represented
Defendants’ Motion (ECF 33) is denied.
Nevertheless, the Represented Defendants’ observations regarding the original pro se
Complaint, which remains the operative pleading, are not without merit. I had anticipated that, if
plaintiff’s counsel was successful in obtaining reconsideration, he would then seek to file an
amended complaint, in lieu of the pro se complaint.3 Yet, counsel has not done so. Moreover,
plaintiff’s allegations are, in effect, scattered throughout several pleadings, including the
submissions made in connection with plaintiff’s motion for reconsideration. See, e.g., Motion at
3.4 In my view, an amended complaint would alleviate that issue, and bring clarity to plaintiff’s
allegations. Accordingly, plaintiff shall be ordered to file an amended complaint by June 6,
Notably, when counsel is appointed by the Court for a self-represented prisoner, it is
normal practice for the Court to order counsel to file an amended complaint.
As an added complication, not all of those materials are currently available on the
docket. On February 20, 2014, plaintiff filed a “Rule 56 Declaration of Isaac Klein, Esquire”
(ECF 25), which was marked by the Clerk as “FILED IN ERROR” and removed from the
docket. When plaintiff re-filed his motion for reconsideration the following day (ECF 29), he
failed to attach the declaration. Yet, briefing submitted by the parties has discussed aspects of
the declaration. See, e.g., ECF 29 at 6; ECF 33 at 3.
The Represented Defendants have also requested, as an alternative to their dismissal, that
the Court “exercise its discretion and to bifurcate these proceedings pursuant to Fed. [R.] Civ.
Motion at 8.
Rule 42(b) allows separate trials “[f]or convenience, to avoid
prejudice, or to expedite and economize[.]” The Represented Defendants assert: “Because the
basis for holding the defendants in this case is tenuous, it would be patently unfair to subject
them to the burden and cost of discovery and trial unless and until it has been determined that
defendant Dabiri committed a constitutional violation.” Motion at 9 (footnote omitted).
Plaintiff has not filed a response to the Motion. As such, his views are unknown with
respect to the Represented Defendants’ proposals for bifurcation of the proceedings and a stay of
discovery. And, notably, it appears that plaintiff still has not located Mr. Dabiri. In an Order
dated February 11, 2014 (ECF 22), I observed: “I assume plaintiff’s counsel is attempting to
locate defendant Dabiri, as discovery cannot proceed if his whereabouts are unknown.” Id. at 2.
I also requested that plaintiff’s counsel provide the Court with contact information for Mr. Dabiri
once it became known, to allow service of filings on Mr. Dabiri. See id. However, as of this
date, the docket continues to reflect the same address for Mr. Dabiri—the post office box in
Mr. Dabiri is central to this case and to my consideration of the request for bifurcation
and a stay of discovery made by the Represented Defendants. Accordingly, by June 6, 2014,
plaintiff’s counsel shall provide a status report regarding his efforts to locate Mr. Dabiri, and to
file a response to the Represented Defendants’ proposals concerning bifurcation and the
In addition, I note that Mr. Dabiri’s Answer (ECF 14) contains what appears to be his
personal email address. Accordingly, I ask that the Clerk transmit this Memorandum and the
attached Order, as well as the following prior orders of this Court, to Dabiri at the email address
found in ECF 14: ECF 15 and 16 (Memorandum Opinion and Order); ECF 22 (Order); and ECF
32 (Order). In an abundance of caution, I also ask the Clerk to transmit this Memorandum and
Order to Mr. Dabiri at the Jessup, Maryland address, via U.S. Mail.
Further, Mr. Dabiri is reminded that, under the Local Rules of this Court, all parties,
including self-represented litigants, have an ongoing duty to keep a current address on file with
the Clerk’s Office. See Local Rule 102.1(b)(iii).5 Therefore, Mr. Dabiri shall be ordered to
provide the Clerk’s Office with his current address.
For the foregoing reasons, the Represented Defendants’ motion for reconsideration of the
Court’s Order of April 3, 2014 (ECF 33) is denied. The alternative motion for bifurcation and a
stay of discovery will be held in abeyance. A separate Order follows, consistent with this
Date: May 15, 2014
Ellen Lipton Hollander
United States District Judge
Specifically, Local Rule 102.1(b)(iii), which is titled “Duty of Self-Represented
Litigants to Keep Current Address on File,” states:
Self-represented litigants must file with the Clerk in every case which they have
pending a statement of their current address where case-related papers may be
served. This obligation is continuing, and if any self-represented litigant fails to
comply, the Court may enter an order dismissing any affirmative claims for relief
filed by that party and may enter a default judgment on any claims asserted
against that party.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?