Henricks v. Pickaway Correctional Institution et al

Filing 251

ORDER AND REPORT AND RECOMMENDATIONS. Defendants' Motion to Strike, ECFNo. 243 , is DENIED. It is RECOMMENDED that plaintiff's Motion forSanctions, ECF No. 240 , be DENIED. Plaintiff's request for oral argument or evidentiary hearing, made in the Motion for Sanctions, is DENIED. Objections to R&R due by 1/7/2016. Signed by Magistrate Judge Norah McCann King on 12/21/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN HENRICKS,
Plaintiff,
Case No. 2:08-cv-00580
Judge Smith
Magistrate Judge King

v.

PICKAWAY CORRECTIONAL INSTITUTION,
et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court on plaintiff’s Motion for
Sanctions, ECF No. 240, and defendants’ Motion to Strike Motion for
Sanctions, ECF No. 243 (“Motion to Strike”). For the following
reasons, the Motion to Strike is DENIED and it is RECOMMENDED that the
Motion for Sanctions be DENIED. Because the Court concludes that the
Motion for Sanctions can be resolved without oral argument or
evidentiary hearing, plaintiff’s request for oral argument or
evidentiary hearing, made in the Motion for Sanctions, is DENIED.
I. Background
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiff alleges that defendants were deliberately indifferent to
plaintiff’s serious medical needs while plaintiff was incarcerated at
the Pickaway Correctional Institution. See Complaint, ECF No. 3.
Earlier in the proceedings, defendants raised, and this Court struck,
the defenses of qualified immunity and failure to exhaust

1

administrative remedies because defendants had failed to raise those
defenses. Order and Report and Recommendation, ECF No. 226; Order, ECF
No. 229.
On interlocutory appeal, the United States Court of Appeals for
the Sixth Circuit held that this Court had not abused its discretion
by holding that the defendants had waived the defense of qualified
immunity. Henricks v. Pickaway Correctional Institution, 782 F.3d 744
(6th Cir. 2015).1 In addition, the Sixth Circuit held that this Court
may “on remand determine that the defendants’ waiver of qualified
immunity in pre-trial proceedings does not preclude the defendants
from asserting the defense at trial.” Id.
On remand, the defendants indicated at a status conference that
they intended to pursue a qualified immunity defense. See Status
Conference Order, ECF No. 236. This Court directed defendants to file
a motion seeking leave to do so and addressing, “at a minimum, (1)
whether defendants may pursue a qualified immunity defense, (2) the
discovery, if any, necessary to the litigation of that defense, and
(3) the effect of the denial of leave to pursue that defense.” Id.
Defendants thereafter filed Defendants Dr. Ida Gonzalez and
Officer Michael Maynard’s Motion for Leave to Pursue a Qualified
Immunity Defense by Establishing That There Is No Genuine Issue of
Material Fact Which Would Require Empanelling a Jury, ECF No. 238
(“Motion for Leave”). In the Motion for Leave, defendants argued that
defendants Maynard and Gonzalez were entitled to raise qualified

1

The Sixth Circuit also held that it lacked jurisdiction to determine whether
this Court properly ordered stricken defendants’ defense of failure to
exhaust administrative remedies. See id. at 752.
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immunity as a defense and asked this Court to convert the Motion for
Leave into a summary judgment motion or allow additional briefing on
the issue. See Motion for Leave, PAGEID# 1857. Plaintiff responded
that the Motion for Leave constituted an impermissible second motion
for summary judgment and that, in any event, defendant Gonzalez was
not entitled to invoke the protections of the qualified immunity
defense because of her status as an independent contractor. See
generally Plaintiff’s Response in Opposition, ECF No. 239.
It was recommended that the Motion for Leave be granted with
regard to defendant Maynard’s assertion of a qualified immunity
defense at trial, and denied with respect to defendant Gonzalez.
Report and Recommendation, ECF No. 246.

That recommendation remains

pending.
Plaintiff’s Motion for Sanctions was filed in response to the
Motion for Leave. The Motion for Sanctions asks that this Court
sanction defendants’ counsel pursuant to Rule 11 of the Federal Rules
of Civil Procedure and 28 U.S.C. § 1927 because (1) the Motion for
Leave sought relief foreclosed by the Sixth Circuit; (2) defendants
ignored binding precedent that forecloses defendant Gonzalez’
assertion of qualified immunity; and (3) defendants sought summary
judgment by contesting facts that have been legally admitted. See
Motion for Sanctions, PAGEID# 1920.
In response to the Motion for Sanctions, defendants filed the
Motion to Strike, invoking Rule 12(f)(2) of the Federal Rules of Civil
Procedure and arguing that the Motion for Sanctions is redundant,
immaterial to the proceedings, and scandalous. See Motion to Strike,

3

PAGEID# 1972-73. Plaintiff takes the position that the Motion to
Strike is both substantively and procedurally flawed. Response to
Motion to Strike, ECF No. 244.
II. Discussion
A. Defendants’ Motion to Strike
Rule 12(f) of the Federal Rules of Civil Procedure provides that
a court “may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). Rule 12(f) applies only to pleadings “and is
inapplicable to other filings.” See Dawson v. City of Kent, 682
F.Supp. 920, 922 (N.D. Ohio 1988), aff’d, 865 F.2d 257 (6th Cir. 1988)
(refusing to rely on Rule 12(f) to strike an affidavit attached to a
summary judgment motion); see also Lombard v. MCI Telecomms. Corp., 13
F.Supp.2d 621, 625 (N.D. Ohio 1998); Zaloga v. Provident Life and
Accident Ins. Co. of America, 671 F.Supp.2d 623, 632-33 (M.D. Penn.
2009) (”Motions to strike are decided on the pleadings alone”).
“Pleadings” are specified by the Federal Rules of Civil Procedure as
(1) a complaint; (2) an answer to a complaint; (3) an answer to a
counterclaim designated as a counterclaim; (4) an answer to a
crossclaim; (5) a third-party complaint; (6) an answer to a thirdparty complaint; and (7) if the court orders one, a reply to an
answer. Fed. R. Civ. P. 7(a). Motions are not included in this
specification.
Because the Motion to Strike improperly invokes Rule 12(f) in
asking that the Motion for Sanctions be stricken, the Motion to Strike
is DENIED.

4

B. Plaintiff’s Motion for Sanctions
Rule 11 of the Federal Rules of Civil Procedure provides, in
relevant part, that “[e]very pleading, written motion, and other paper
must be signed by at least one attorney of record in the attorney’s
name[.]”

Fed. R. Civ. P. 11(a). This signature certifies that, “to

the best of the person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances[,]” the pleading,
motion or paper, inter alia, “is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation[.]” Fed. R. Civ. P. 11(b)(1).
Determining whether Rule 11 has been violated depends on “whether
the attorney’s conduct was reasonable under the circumstances.” Ridder
v. City of Springfield, 109 F.3d 288, 293 (6th Cir. 1997). In making
this determination, “district courts must strike a delicate balance
between protecting the adversary system and not allowing attorneys to
exploit the system for their own purposes.”

Davis v. Crush, 862 F.2d

84, 89 (6t Cir. 1988) (quotation marks and citation omitted). Rule 11
“is not intended to chill an attorney’s enthusiasm or creativity in
pursuing factual or legal theories.”

McGhee v. Sanilac County, 934

F.2d 89, 92 (6th Cir. 1991) (quoting Fed. R. Civ. P. 11 advisory
committee’s note) (internal quotation marks omitted). “The decision to
impose or deny sanctions is within the discretion of the trial
court[.]” Parsons v. Fisher-Titus Medical Ctr., No. 95-4069, 1996 U.S.
App. LEXIS 22431, at *5 (6th Cir. Aug. 2, 1991)
Finally, a motion for sanctions under Rule 11 may not be filed
“if the challenged paper, claim, defense, contention, or denial is

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withdrawn or appropriately corrected within 21 days after service or
within another time the court sets.” Fed. R. Civ. P. 11(c)(2).
Accordingly, Rule 11 provides a “safe harbor” that protects a party
against a motion for sanctions upon timely withdrawal of the
challenged motion or paper. See, e.g., Ridder, 109 F.3d at 294
(quoting Fed. R. Civ. P. 11 Advisory Committee Notes (1993
Amendments)). In the case presently before the Court, plaintiff
represents that defense counsel declined to withdraw the Motion for
Leave despite plaintiff’s counsel’s request.

Motion for Sanctions,

PAGEID# 1920.
Section 1927 of Title 28 of the United States Code provides that
an attorney “who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.” 28 U.S.C. § 1927 (2015). Sanctions
under 28 U.S.C. § 1927 are warranted “when an attorney objectively
falls short of the obligations owed by a member of the bar to the
court and which, as a result, causes additional expense to the
opposing party.” Oakstone Comm. Sch. V. Williams, 615 Fed. App’x 284,
289 (6th Cir. 2015) (citation omitted). The imposition of sanctions
under 28 U.S.C. § 1927 requires more than a mere showing of negligence
or incompetence, although it does not require a showing of subjective
bad faith. See id. Furthermore, “an attorney’s conduct becomes
sanctionable when she intentionally abuses the judicial process or
knowingly disregards the risk that her actions will needlessly
multiply proceedings.” Id.; see also In re Ruben, 825 F.2d 977, 984

6

(6th Cir. 1987); United States v. Wallace, 964 F.2d 1214, 1220 (D.C.
Cir. 1992).
Plaintiff first observes that, with the denial of the Motion to
Strike, the Motion for Sanctions “stands unopposed.” Motion for
Sanctions, PAGEID# 1978. However, the local rules of this Court
provide that “[f]ailure to file a memorandum in opposition may result
in the granting of any motion that would not result directly in entry
of final judgment or an award of attorneys’ fees.” S.D. Ohio Civ. R.
7.2(a)(2).2 Furthermore, federal courts prefer to decide cases on the
merits, rather than on the basis of procedural missteps. See, e.g.,
Fayzullina v. Holder, 595 Fed. Appx. 608, 615 (6th Cir. 2015)(Referring
to “the Supreme Court’s longstanding rejection of ‘the approach that
pleading is a game of skill in which one misstep by counsel may be
decisive to the outcome and accept[ance of] the principle that the
purpose of pleading is to facilitate a proper decision on the
merits.’”)(quoting United States v. Hougham, 364 U.S. 310, 317
(1960)). See also United States v. $22,050.00, 595 F.3d 318, 322 (6th
Cir. 2010). The Court therefore declines to award sanctions on this
basis.
Plaintiff claims that the filing of the Motion for Leave is
sanctionable because the Sixth Circuit held that defendants were not
entitled to assert a defense of qualified immunity in the pretrial
stage of the litigation. Motion for Sanctions, PAGEID# 1925. This
Court agrees that defendants’ request to convert the Motion for Leave

2

Plaintiff apparently seeks sanctions in the form of an award of attorney’s
fees, to be determined “by supplemental motion or hearing.” Motion for
Sanctions, PAGEID# 1936.
7

into a second motion for summary judgment was improper. See Report and
Recommendation, ECF No. 246. The Sixth Circuit unambiguously held that
the defense of qualified immunity had been waived in the pretrial
stage. See Henricks, 782 F.3d at 749,750-52 (“Only one issue raised in
this interlocutory appeal is properly before us: whether the district
court was correct to hold at the summary judgment stage that Officer
Maynard and Dr. Gonzalez waived the affirmative defense of qualified
immunity. . . . [T]he district court did not abuse its discretion in
presuming prejudice to Henricks and finding waiver. . . . [O]n remand
[the district court] may determine that the defendants’ waiver of
qualified immunity in pre-trial proceedings does not preclude the
defendants from asserting the defense at trial.”).
However, the Court also concludes that the filing of the Motion
for Leave is not sanctionable under either Rule 11 or § 1927.
Defendants were permitted by this Court to address the assertion of a
qualified immunity defense. Status Conference Order. The Motion for
Leave addressed the three issues articulated by the Court in the
Status Conference Order. See Motion for Leave, PAGEID# 1843, 1853-54.
The fact that defendants also presented an argument in the Motion for
Leave that this Court rejected, see Report and Recommendation, ECF No.
246, does not alone militate in favor of an award of sanctions.
Plaintiff also complains that the Motion for Leave willfully
ignored binding Sixth Circuit precedent on the issue of defendant
Gonzalez’ invocation of qualified immunity in this case. Motion for
Sanctions, PAGEID# 1932 (citing McCullum v. Tepe, 693 F.3d 696 (6th

8

Cir. 2012)).3 This Court again concludes that an award of sanctions on
this basis is unwarranted.
It is true that the Motion for Leave addressed neither the
significance of defendant Gonzalez’ status as an independent
contractor nor McCullum. Rather, the motion primarily addressed the
merits of plaintiff’s constitutional claim against defendant Gonzalez.
However, in replying to plaintiff’s reference to McCullum, defendants
attempted to distinguish McCullum by, inter alia, citing a state
statute that had no application to the psychiatrist in McCullum. Reply
in Support of Their Motion for Leave, ECF No. 241, PAGEID# 1949-50.
Although that argument was rejected by this Court, see Report and
Recommendation, ECF No. 246, PAGEID# 2054-55, the Court cannot
conclude that, under these circumstances, an award of sanctions is
appropriate.
Finally, plaintiff contends that, because defendants’ failure to
file a timely answer is tantamount to the legal admission of all
factual allegations in the Complaint, defendants’ attempt to contest
those allegations is sanctionable under Rule 11 and 28 U.S.C. § 1927.

3

McCullum involved a claim under 42 U.S.C. § 1983 against, inter alia, a
prison psychiatrist for alleged deliberate indifference to the mental health
needs of a prisoner who later committed suicide. Id. at 697-99. The
psychiatrist was employed by an independent, non-profit organization but
worked at the Butler County Prison, a county facility. In holding that the
psychiatrist was not entitled to the protections of qualified immunity in
connection with his activities at the prison, the Sixth Circuit reasoned:
[T]here does not appear to be any history of immunity for a
private doctor working for the government, and the policies that
animate our qualified-immunity cases do not justify our creating
an immunity unknown to the common law. Thus, although we express
no opinion on the ultimate validity of McCullum's claims, we
AFFIRM the district court's conclusion that Tepe is not entitled
to assert qualified immunity.
Id. at 704.

9

Motion for Sanctions, PAGEID# 1933-34. In response, defendants insist
that 42 U.S.C. §1997e(g)4 preserves their right to challenge the
factual allegations presented by plaintiff, notwithstanding their
counsel’s failure to file a timely answer. Motion to Strike, PAGEID#
1970. Defendants’ argument in this regard has not been addressed by
this Court and plaintiff has not moved for default judgment because of
defendant’s failure to file a timely answer. See 42 U.S.C. §
1997e(g)(1)(“No relief shall be granted to the plaintiff unless a
reply has been filed.”).

Under these circumstances, the Court

concludes that plaintiff’s request for an award of sanctions on this
basis is without merit.
For the foregoing reasons, the defendants’ Motion to Strike, ECF
No. 243, is DENIED. It is RECOMMENDED that plaintiff’s Motion for
Sanctions, ECF No. 240, be DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
4

Section 1997e(g), which applies to actions such as this, provides that “[a]ny
defendant may waive the right to reply to any action brought by a prisoner. .
.” and that “such waiver shall not constitute an admission of the allegations
contained in the complaint.” § 1997e(g)(1).
10

to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
December 21, 2015

11

to