Brown v. Edinger et al
Filing
103
MEMORANDUM re Mtn to add supplemental brief 89 , Mtn to file objs 91 , Mtn for Sanctions 92 and mtn for Reconsideration 102 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 6/15/16. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:
:
:
Plaintiff,
:
:
v.
:
MATT EDINGER, USP LEWISBURG, and :
:
the UNITED STATES OF AMERICA
:
:
Defendants.
JOSEPH A. BROWN,
Civ. No. 1:14-CV-1133
Judge Sylvia H. Rambo
MEMORANDUM
In this Bivens action, Plaintiff Joseph Brown (“Plaintiff”) brings a
retaliation claim against Defendant Matt Edinger (“Edinger”) for refusing to
transfer Plaintiff’s incompatible cellmate who later stabbed him. Presently before
the court are Plaintiff’s motion to file objections to his deposition, motion to add a
supplemental brief to his motion for a protective order, motion for reconsideration
of his motion for summary judgment, and Edinger’s motion for sanctions. Upon
consideration of the motions, and for the reasons discussed herein, the court will
deny Plaintiff’s motions and will grant Edinger’s motion for sanctions.
I.
Background and Procedural History
On June 13, 2014, Plaintiff filed a complaint against, inter alia, Edinger,
a correctional counselor at USP Lewisburg, alleging that Edinger retaliated against
him for exercising his right to access the courts. (Doc. 1, IV.) Plaintiff claimed
that Edinger “used systemic retaliation during the month of July, 2012” after
Plaintiff requested that he and his cellmate be transferred to different cells due to
incompatibility. (Id.) On July 28, 2012, after the prison denied his request, his
then-cellmate stabbed him. 1 (Id.) Plaintiff further alleges that he filed an informal
resolution request with the prison on November 20, 2012, detailing his grievances
against Edinger. (Doc. 28-4, p. 1.) In addition, he filed a request with the warden of
USP Lewisburg on March 22, 2013 (Id. at p. 2), and an appeal with the regional
office on April 6, 2012 (Id. at p. 3). On the latter two forms, Plaintiff requested to
be excused from their late filing because prison officials refused to give him the
necessary paperwork to file the appeals, and therefore, he had to acquire the forms
from other inmates. (Doc. 25, ¶ 19.)
On October 6, 2014, Defendants filed a motion to dismiss Plaintiff’s
complaint and/or a motion for summary judgment. (Doc. 17.) On January 7, 2016,
the magistrate judge filed a report and recommendation wherein he recommended
that the motion be denied. (Doc. 56.) In response, Defendants filed objections to
the report and recommendation solely on the issue of exhaustion of administrative
remedies. (Docs. 65 & 66.) On February 24, 2016, the court adopted the report and
recommendation in part and denied it in part. (Doc. 68.) As to the retaliation claim,
1
Plaintiff also alleged a negligence claim under the Federal Tort Claims Act, 28 U.S.C. §§ 26712680, based on the same allegations of retaliation against Edinger, USP Lewisburg, and the
United States (collectively, “Defendants”). (Id.)
2
the court adopted the report’s reasoning, which found that Plaintiff produced
sufficient evidence from which a reasonable jury could conclude that Edinger
deprived Plaintiff of access to the courts. The court, however, found that Plaintiff
had failed to exhaust his administrative remedies under the Federal Tort Claims
Act and dismissed the claim. (Doc. 67, pp. 3-4; Doc. 68, p. 1.)
On March 4, 2016, Edinger filed another motion for reconsideration and
sought to schedule an evidentiary hearing on whether Plaintiff exhausted his
administrative remedies as to the remaining retaliation claim. (Doc. 69.) On March
23, 2016, Edinger moved to depose Plaintiff, which the court granted on the same
day. (Docs. 72 & 73.) On April 12, 2016, the court granted the motion for
reconsideration, set a June 6, 2016 date for an evidentiary hearing, and provided
the parties with forty-five days to conduct discovery on the sole issue of
exhaustion. (Doc. 77.)
On March 29, 2016, Edinger served a request for the production of
documents regarding the administrative remedy forms Plaintiff had submitted.
(Doc. 93-2, pp. 13-19 of 25.) On April 20, 2016, Plaintiff requested an extension of
time for the production of documents (Doc. 84), which the court denied (Doc. 85).
After Plaintiff failed to provide any documentation, Edinger sent a letter to
Plaintiff requesting that he comply with the earlier request for the production of
documents. (Doc. 93-2, pp. 20-21 of 25.) In a response dated May 8, 2016,
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Plaintiff indicated that it was his belief that he was only required to produce the
documents at his scheduled May 20, 2016 deposition. (Doc. 93-2, pp. 22-23 of 25.)
In addition, Plaintiff stated in his letter that he believed he could produce any
documentation obtained after his deposition at the evidentiary hearing. (Id.)
At the May 20, 2016 deposition, Plaintiff objected to the fact that there
would not be an audiovisual recording. (Id. at pp. 6-7 of 25.) After invoking his
Fifth Amendment right against self-incrimination, Plaintiff refused to answer any
questions or provide any documentation. (Id. at pp. 7-9 of 25.) On May 25, 2016,
Plaintiff filed a motion to add a supplemental brief to his motion for a protective
order. (Doc. 89.) The following day, Plaintiff filed objections on the above grounds
in a motion with the court. (Doc. 91.) On May 27, 2016, Edinger filed a motion for
sanctions and a brief in support, arguing that Plaintiff’s failures to comply with
discovery prejudiced Edinger’s exhaustion of administrative remedies defense.
(Docs. 92 & 93.) On June 9, 2016, Plaintiff requested that the court treat his
objections to his deposition as an “objection” to Edinger’s motion for sanctions.
(Doc. 98.) On the same day, Edinger filed a brief in opposition to Plaintiff’s
motion to file his objections to his deposition and motion to add a supplemental
brief to his motion for a protective order. (Doc. 99.) On June 10, 2016, Plaintiff
filed a reply brief arguing that Defendant’s counsel and another attorney had
unfairly questioned Plaintiff on the issue of the exhaustion of administrative
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remedies in a May 2, 2016 deposition in an unrelated case. (Doc. 100.) Relying on
the same grounds, Plaintiff also filed a motion for reconsideration of his motion for
summary judgment. (Doc. 102.) The motions have been fully briefed and are ripe
for disposition.
II.
Legal Standard
Edinger moves to sanction Plaintiff pursuant to Federal Rules of Civil
Procedure 37(d) and 41(b). If a party fails to attend his own deposition after being
served with proper notice, the court may impose any sanction listed in Rule
37(b)(2)(A)(i)-(vii). Fed. R. Civ. P. 37(d)(3); see also Washington v. Grace, 533 F.
App’x 68 (3d Cir. 2013) (affirming a district court order dismissing action brought
by pro se inmate where the inmate, on two separate occasions, was physically
present at his depositions but refused to answer questions addressed to him). When
imposing a sanction, the court may issue “further just orders,” including: “(1)
directing that the matters embraced in the order or other designated facts be taken
as established for purposes of the action, as the prevailing party claims; (2)
prohibiting the disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters in evidence; (3) striking
pleadings in whole or in part; (4) staying further proceedings until the order is
obeyed; (5) dismissing the action or proceeding in whole or in part; [or] (6)
rendering a default judgment against the disobedient party.” Fed. R. Civ. P.
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37(b)(2)(A)(i)-(vi). The court may also “order the disobedient party . . . to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). In addition, Rule 41(b) allows for
the dismissal of a complaint for failure “to prosecute or comply with these rules or
a court order.”
When considering dismissal under Rule 37 or 41, a court must balance
the following factors: “(1) the extent of the party’s personal responsibility; (2) the
prejudice to the adversary caused by the failure to meet scheduling orders and
respond to discovery; (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 alternative sanctions; and (6) the
meritoriousness of the claim or defense.” Poulis v. State Farm Fire and Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984); see also Washington, 533 F. App’x at 71-72
(discussing the application of Poulis factors in a Rule 37(d) motion); Briscoe v.
Klaus, 538 F.3d 252, 258 (3d Cir. 2008) (applying Poulis factors to a court’s
dismissal under Rule 41). When balancing these factors, “no single Poulis factor is
dispositive” and “not all of the Poulis factors need [to] be satisfied in order to
dismiss a complaint.” In re Asbestos Prods. Liab. Litig. (No. VI), 718 F.3d 236,
246 (3d Cir. 2013) (first quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d
6
Cir. 2003); and then quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992)). Nevertheless, “a district court’s ability under Rule 41(b) [and Rule 37] ‘to
prevent undue delay and to achieve the orderly disposition of cases must be
weighed against the policy of law which favors disposition of litigation on its
merits.’” Id. (quoting Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974)). A
“dismissal is a drastic sanction and should be reserved for those cases where there
is a clear record of delay or contumacious conduct by the plaintiff.” Poulis, 747
F.2d at 866 (quoting Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342
(3d Cir. 1982)).
III.
Discussion
In his brief in support of his motion for sanctions, Edinger submits that
the court should impose sanctions on Plaintiff under Federal Rules of Civil
Procedure 37(d) and 41(b) because: (1) Plaintiff’s conduct was not substantially
justified; (2) Plaintiff’s conduct substantially prejudiced Edinger; and (3)
Plaintiff’s claim is not meritorious. (Doc. 93.) In his motion to file objections to his
deposition, Plaintiff argues that his objection should be sustained because he risked
incriminating himself and the deposition was fundamentally unfair.2 (Doc. 91.) The
court will address each party’s arguments under the appropriate Poulis factor.
2
Plaintiff’s motion to add a supplemental brief to his motion for a protective order requests that
the court order his deposition to be audiovisually recorded and limited to the sole issue of the
exhaustion of administrative remedies. (Docs. 89 & 90.) These requests for additional relief were
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A.
Extent of the Party’s Personal Responsibility
First, the court finds that Plaintiff bears complete personal responsibility
for his refusal to comply with Edinger’s discovery request and to answer any
questions at his deposition. Because Plaintiff is “proceeding pro se . . . rather than
through counsel, he is directly responsible for his conduct . . . , particularly his
failure to comply with the rules of discovery.” Williams v. Sullivan, Civ. No. 081210, 2011 WL 2119095, *6 (D.N.J. May 20, 2011) (citations omitted). Plaintiff
argues that his Fifth Amendment privilege should apply because “he may
incriminate hi[m]self, and the deposition was unfair, and partial.” (Doc. 91, p. 1 of
5.) In order for a court to find that Fifth Amendment privilege applies, however, it
must “be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot
not included in Plaintiff’s original motion for a protective order (Doc. 75), upon which the court
already issued a ruling (Doc. 78). Therefore, Plaintiff’s motion to add a supplemental brief to his
motion for a protective order will be denied as untimely.
Plaintiff’s motion for reconsideration of his motion for summary judgment argues
that Defendant’s deliberate misconduct forfeited his exhaustion of administrative remedies
defense. (Doc. 102.) Fed. R. Civ. P. 59(e) requires a motion to reconsider to be filed “no later
than 28 days after the entry of [final] judgment.” After reviewing the procedural history, the
court notes that Plaintiff’s motion for summary judgment (Doc. 24) was listed on the docket as a
brief in opposition to Defendant’s motion to dismiss Plaintiff’s complaint and/or a motion for
summary judgment (Doc. 17). Plaintiff’s arguments in his brief in support of his motion for
summary judgment (Doc. 26), however, were reviewed by the magistrate judge (Doc. 56) and
this court (Doc. 67) as a brief in opposition to Defendant’s motion. In its memorandum, this
court found that disputes surrounding Plaintiff’s credibility created a genuine issue of material
fact. (Doc. 67, p. 3.) To the extent that Plaintiff’s motion for summary judgment was not ruled
upon, the court will now deny it based upon the issue of Plaintiff’s credibility. Regarding
Plaintiff’s motion for reconsideration, the court will also deny it because a final judgment has not
been issued in this case.
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be answered might be dangerous because injurious disclosure could result.” United
States v. Matthews, 327 F. Supp. 2d 527, 529 (E.D. Pa. 2004) (quoting Hoffman v.
United States, 341 U.S. 479, 486-87 (1951)). According to the transcript of the
aborted deposition, Plaintiff expressed his displeasure with the lack of audiovisual
recording, and then invoked his Fifth Amendment privilege to simple questions to
which there was no danger of self-incrimination, such as his date of birth and
whether he had prior convictions. (Doc. 93-2, pp. 3-11 of 25.) Therefore, the court
finds Plaintiff’s Fifth Amendment objections to be meritless.
Regarding Plaintiff’s objections to the lack of an audiovisual recorder,
Federal Rule of Civil Procedure 30(b)(3)(A) allows the “party who notices the
deposition” to record the testimony by “audio, audiovisual, or stenographic
means.” Under subsection (b)(3)(B), Plaintiff, “with prior notice to the deponent
and other parties,” could have designated an additional method of recording the
testimony if he bore its expense. Fed. R. Civ. P. 30(b)(3)(B). Plaintiff failed to
request an additional method of recording prior to the deposition, however, and
had no basis upon which to refuse to participate in the deposition merely because it
was not audiovisually recorded.3
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Plaintiff also argues that he objected because he had been unfairly deposed by Defendant’s
counsel and another attorney on the issue of the exhaustion of administrative remedies on May 2,
2016. (Doc. 100.) Plaintiff failed to preserve the basis of this objection, however, at the
deposition. Federal Rule of Civil Procedure 30(c)(2) requires that “[a]n objection at the time of
the examination . . . must be noted on the record. . . . [and] stated concisely in a
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Plaintiff also failed to comply with Edinger’s request for production of
documents under Federal Rule of Civil Procedure 34. Nowhere in the order
denying Plaintiff’s request for an extension of time for the production of
documents did the court state that Plaintiff had until the date of the deposition or
the date of the hearing to provide any documentation on the issue of administrative
exhaustion. (Doc. 85.) As a result, Plaintiff was required to comply with Edinger’s
request for documents.
B.
Prejudice to the Adversary
Second, the court finds that Plaintiff’s refusal to testify at his deposition
and to respond to Edinger’s request for production of documents prejudiced
Edinger’s defense. “[E]xhaustion of a claim in a Bivens action requires completion
of the [Bureau of Prison]’s Administrative Remedy Program.” May v. Cash, 592 F.
App’x 67, 68 (3d Cir. 2015) (first citing Porter v. Nussle, 534 U.S. 516, 532
(2002); then citing Nyhuis v. Reno, 204 F.3d 65, 68, 77 n.12 (3d Cir. 2000); and
then citing 28 C.F.R. §§ 542.13-542.15). To satisfy the requirements of exhaustion,
“an inmate must first attempt to resolve an issue informally [in the time allowed],
followed by submission of a form to the staff member designated to receive such
grievances, and finally, an appeal to the Regional Director.” Id. (citing 28 C.F.R.
§§ 542.13-542.15). Here, Plaintiff’s conduct prevented Edinger from gathering
nonargumentative and nonsuggestive manner.” As a result, the court cannot consider this
objection.
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facts necessary to determine the basis of Plaintiff’s opposition to Edinger’s defense
and thwarted Edinger’s opportunity to inspect the originals or copies of the
allegedly submitted documents.
C.
History of Dilatoriness
Third, although Plaintiff’s conduct resulted in prejudice to Edinger, and
may have been a dilatory tactic, Plaintiff has not demonstrated a history of
dilatoriness. “Extensive or repeated delay or delinquency constitutes a history of
dilatoriness, such as consistent non-response[s] to interrogatories, or consistent
tardiness in complying with court orders.” Briscoe, 538 F.3d at 260 (quoting
Adams v. Trustees of the N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 874
(3d Cir. 1994)). One or two instances of dilatory conduct, however, are
“insufficient to demonstrate ‘a history of dilatoriness.’” Briscoe, 538 F.3d at 260
(citing Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984)). Under these
circumstances, Plaintiff’s refusal to answer questions and produce the requested
documentation does not establish a history of dilatory conduct.
D.
Whether the Conduct was Willful or in Bad Faith
With regard to the fourth Poulis factor, the court must consider if
Plaintiff’s conduct involves intentional and self-serving behavior, rather than
behavior that is “merely negligent or inadvertent.” Briscoe, 538 F.3d at 262
(citations omitted). As discussed under the first factor, Plaintiff, acting pro se and
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relying on meritless grounds, refused to answer questions at his deposition and
failed to provide Edinger with the requested documentation. As a result, the court
concludes that Plaintiff engaged in willfully self-serving behavior.
E.
Effectiveness of Sanctions other than Dismissal
Fifth, Edinger requests several sanctions such as dismissal of the
complaint, prohibiting Plaintiff from opposing the exhaustion of administrative
remedies defense presented by Edinger, and the payment of attorney’s fees and
costs for the deposition. Before granting a dismissal, a court must consider
alternative sanctions. Poulis, 747 F.2d at 868-69. Here, prohibiting Plaintiff from
opposing Edinger’s failure to exhaust administrative remedies defense would result
in the defeat of Plaintiff’s retaliation claim.
In addition, because Plaintiff is
currently incarcerated and proceeding in forma pauperis, Plaintiff does not possess
the ability to pay any monetary sanctions. See Briscoe, 538 F.3d at 263. The court,
however, may stay proceedings until the Plaintiff complies with the order. Fed. R.
Civ. P. 37(b)(2)(A)(iv). Edinger has not articulated any reason why staying
proceedings until Plaintiff complies with a discovery order would not serve as an
appropriate sanction. After considering the severity of a dismissal, the policy in
favor of addressing the merits of a claim, and Plaintiff’s lack of a dilatory history,
the court concludes that staying proceedings while Plaintiff complies with a
discovery order would serve as an appropriate alternative to dismissal.
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F.
Meritoriousness of the Claim
In regard to the sixth and final Poulis factor, “[a] claim . . . will be
deemed meritorious when the allegations of the pleadings, if established at trial,
would support recovery by plaintiff.” Poulis, 747 F.2d at 869-70. Edinger argues
that Plaintiff’s claim lacks merit because it was not brought within the twenty day
period following his stabbing as required by 28 C.F.R. § 542.14(a). The untimely
filing, Edinger asserts, establishes Plaintiff’s failure to exhaust his administrative
remedies. However, Defendants made a similar argument in their motion to
dismiss Plaintiff’s complaint and/or a motion for summary judgment (Doc. 18, pp.
6-7 of 21), which the court rejected because it created an issue regarding Plaintiff’s
credibility (Doc. 67, p. 3), allowing Plaintiff’s retaliation claim to proceed (Doc.
68). The court will adhere to its prior reasoning (Doc. 67, p. 3), and find that
Plaintiff’s claim is meritorious. Accordingly, this factor weighs against dismissal.
See Briscoe, 538 F.3d at 263 (finding that plaintiff’s claims had merit because they
survived a motion for summary judgment); Reigle v. Riesh, 635 F. App’x 8, 11 (3d
Cir. 2015) (finding that some of plaintiff’s claims had merit because they survived
a motion to dismiss).
IV.
Conclusion
After balancing the Poulis factors, this court concludes that Plaintiff,
acting pro se, was personally responsible for engaging in willful behavior that
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prejudiced Edinger’s ability to comprehend the grounds upon which Plaintiff
opposed the failure to exhaust administrative remedies defense. In this case,
however, Plaintiff has not demonstrated a history of dilatory conduct and he
possesses a meritorious retaliation claim. Under the fifth Poulis factor, staying
proceedings until an order is satisfied is a viable alternative to dismissal.
Furthermore, Plaintiff’s compliance with such an order, when combined with a
short extension of the discovery deadlines, would minimize or remove any
prejudice that Edinger suffered. Therefore, although Plaintiff’s actions merit the
imposition of sanctions, they do not merit the dismissal of his claim.
Accordingly, the court will deny Plaintiff’s motion to file objections to
his deposition, motion to add a supplemental brief to his motion for a protective
order, and motion for reconsideration of his motion for summary judgment, and
will grant Edinger’s motion for sanctions. Because dismissal is a drastic sanction,
and in light of Plaintiff’s inability to pay any expenses or costs associated with the
aborted deposition, the court will order Plaintiff to comply with Edinger’s request
for the production of documents and to submit to another deposition.
An appropriate order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: June 15, 2016
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