Brown v. Commonwealth of Pennsylvania, Department of Corrections

Filing 250

ORDER - Having considered the parties competing submissions, (Docs. 242 and 249 ) the Court APPROVES the following as a record of this June 17, 2021 pretrial conference. Signed by Magistrate Judge Martin C. Carlson on January 26, 2022. (kjn)

Case 1:15-cv-00918-MCC Document 250 Filed 01/26/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN BROWN,
Plaintiff,
v.
COMMONWEALTH OF
PENNSYLVANIA, DEP’T OF
CORRECTIONS, et al.,
Defendants.

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Civil No. 1:15-CV-918

(Magistrate Judge Carlson)

ORDER
This case comes before us for consideration and resolution of a motion filed
pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure1 to settle and
approve a statement of proceedings describing a pretrial conference held in this
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Rule 10(c) provides as follows:

(c) Statement of the Evidence When the Proceedings Were Not Recorded or
When a Transcript Is Unavailable. If the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of the evidence or proceedings
from the best available means, including the appellant's recollection. The statement
must be served on the appellee, who may serve objections or proposed
amendments within 14 days after being served. The statement and any objections
or proposed amendments must then be submitted to the district court for settlement
and approval. As settled and approved, the statement must be included by the
district clerk in the record on appeal.
Fed. R. App. P. 10

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case on June 17, 2021. (Doc. 242). An order approving a statement of these
proceedings is now necessary to perfect the record on appeal because, although we
attempted to record the proceedings, due to a technical failure of the recording
equipment no audible recording of these proceedings exists.
By way of background, this action was brought by the plaintiff, Dawn
Brown, a former correctional officer in the Pennsylvania Department of
Corrections (“DOC”), against the DOC and several of its employees. Brown
alleged that she was retaliated against by the DOC and its employees in violation
of her First Amendment rights when she was terminated in July of 2015. After
protracted proceedings in the case, Brown consented to magistrate judge
jurisdiction and further consented to a non-jury trial of her claims before the
undersigned. The June 17, 2021 conference was one of several pretrial conferences
conducted in this matter in advance of this non-jury trial. Having considered the
parties’ competing submissions, (Docs. 242 and 2492) the Court APPROVES the
following as a record of this June 17, 2021 pretrial conference:

We note that the plaintiff’s filing simply requests that no action be taken to
resolve this issue until Ms. Brown fully litigates a recusal motion that she has
recently filed (Doc. 245). Upon consideration we have denied this motion to recuse
as untimely and without merit, while also noting that our recusal would make
settlement of the record on appeal impossible since it would remove the presiding
judge from the case, leaving no judicial officer in a position to settle what
transpired at this proceeding. (Doc. 248).
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1. Recognizing her pro se status, I provided Ms. Brown with a copy of the
Federal Rules of Evidence and Federal Rules of Civil Procedure for her use in
preparing the case for trial and at trial. The Defendants had no objection.
2. I addressed issues relating to the plaintiff’s proposed exhibits, which
included 373 pages of material spanning many years. I inquired as to whether the
Defendants had any threshold objections to Ms. Brown’s exhibits. The Defendants
advised that they did not have any immediate objections, but because they had not
yet seen all of her exhibits, that they reserved the right to raise any necessary
objections at trial.
3. I explained that, given the law of the case, the only claims remaining in
this lawsuit consisted of First Amendment retaliation claims premised on the
termination of Brown’s employment with the Pennsylvania Department of
Corrections. I instructed all parties to focus on the relevant events occurring during
the last twelve to eighteen months of Ms. Brown’s employment which was the
pertinent time period described in the plaintiff’s complaint. Although Ms. Brown
stated that she wished to introduce evidence pertaining to events that had occurred
several years before her termination, I advised her that, absent a proffer of
relevance to the issues remaining in the case, she likely would not be permitted to
do so. Nonetheless, I informed the Defendants that I would permit Ms. Brown to
introduce evidence of these temporally remote events if they attempted to rely on
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such prior events to demonstrate that her termination had constituted the
culmination of long-term progressive discipline.
4. Ms. Brown had initially listed some 75 to 100 witnesses that she wished
to call at trial. At this conference, I repeated the instructions I had previously
provided to Ms. Brown, instructing her in the first instance to focus on the 15
witnesses she had identified as being the most pertinent to the remaining issues in
her case. I further advised Ms. Brown that she was responsible for service of
subpoenas on her witnesses and for ensuring their timely appearance at trial.
5. I also advised all parties that Ms. Brown had telephoned chambers to
ask procedural questions, and that I had briefly spoken with her during some of
those calls when I had answered the phone. While no party lodged any objection to
these brief, non-substantive and inadvertent contacts with Ms. Brown, in order to
avoid such issues, I further advised all parties to email chambers to ask such
questions in the future, and to carbon copy the other parties on any such messages.
6. I also advised the parties that, after the conclusion of the trial,
I intended to take the case under advisement and issue a written decision based on
all relevant evidence. I informed the parties that I did not intend to orally announce
a decision at the end of the trial.
7. We also addressed witness availability and logistics at this conference. On
this score, counsel for the Defendants assured me that everyone on their witness
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list would be available during the trial, that all Defendants would be
physically present for the trial, and that these defense witnesses and defendants
would be available to Ms. Brown if she wished to call them in the course of her
case-in-chief.
8. We then discussed trial scheduling and I advised the parties that the trial
would commence on Monday, June 28, 2021, and I anticipated it would conclude
by Thursday, July 1, 2021. In the event that another day of testimony was needed,
it was agreed that the parties would return after the Fourth of July weekend.
9. Ms. Brown requested that all witnesses remain sequestered outside of the
courtroom during the trial, except when they were testifying. The Defendants
agreed to that request, with the understanding that the Defendants themselves
would be permitted to remain in the courtroom at all times.
10. Counsel for the Defendants asked whether post-trial briefs would need
to be filed, and I advised all parties that post-trial briefing would not be necessary.
11. Ms. Brown indicated that she intended to introduce a specific book into
evidence, “22 Years in Front of Bars,” by Lewis Bryant. I advised her that the
book likely would not be admissible because it did not appear to have any
relevance to the terms of Brown’s employment or the issues scheduled for trial.
12. I also informed Ms. Brown that she would not be permitted to
subpoena former Attorney General Kathleen Kane as a witness at trial since there
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was no offer of proof demonstrating that she possessed evidence relevant to the
issues in this case.
Pursuant to Federal Rule of Appellate Procedure 10(c), the foregoing record
of the pretrial conference held on June 17, 2021 shall be filed with the clerk,
transmitted to the Court of Appeals, and shall constitute part of the record on
appeal.
So ordered this 26th day of January 2022.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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