Milhouse v. Heath et al

Filing 380

MEMORANDUM (Order to follow as separate docket entry) re 378 MOTION for Extension of Time to (30 Day Enlargement of Time to Respond to Discovery and the Filing of any Dispositive Motions) filed by Nadiya, Ryan Smith, David Ebbert, Ro bert Marr, Suzanne Heath, J. Ritz, Daniel Knapp, Brent Taggart, Good, 376 MOTION for Order filed by Kareem Hassan Milhouse, 356 MOTION to Disqualify filed by Kareem Hassan Milhouse, 352 MOTION to Compel Discovery filed by Kareem Hassan Milhouse, 368 MOTION to Defer PLRA payments filed by Kareem Hassan Milhouse. Signed by Chief MJ Karoline Mehalchick on 4/13/2022. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILHOUSE,
Plaintiff,

CIVIL ACTION NO. 1:15-CV-01400

v.

(KANE, J.)
(MEHALCHICK, M.J.)

SUZANNE HEATH, et al.,
Defendants.
MEMORANDUM
This case involves a pro se Plaintiff Kareem Hassan Milhouse (“Milhouse”), who has
filed the above-captioned Bivens-style lawsuit, asserting violations of his First, Eighth, and
Fourteenth Amendment rights by various officials and administrators employed at USPHazelton and USP-Lewisburg. 1 (Doc. 113; Doc. 337). Milhouse is a federal inmate currently
incarcerated at USP Coleman-1 in Coleman, Florida. (Doc. 113; Doc. 337). Before the Court
is Milhouse’s motion to compel discovery (Doc. 352), motion to disqualify (Doc. 356),
motion to defer Prisoner Litigation Reform Act (“PLRA”) payments. (Doc. 368), and
“motion for inquiry/reschedule deposition.” (Doc. 376). For the following reasons, the
motions shall be denied.
I.

BACKGROUND AND PROCEDURAL HISTORY
Milhouse initiated the instant Bivens action on July 20, 2015, alleging harm suffered at

the hands of cellmates caused by the indifference of prison officials despite multiple warnings
of pending injury. (Doc. 1). Currently operative is Milhouse’s supplemental complaint, filed

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
(recognizing for the first time an implied private action for damages against federal officers
alleged to have violated a citizen's constitutional rights).
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on July 19, 2021, against remaining Defendants Suzanne Heath, David Ebbert, Brent
Taggart, Correctional Officers Good and Nadiya, Case Manager Ryan Smith, Counselor
Robert Marr, and Special Investigative Supervisor Daniel Knapp (collectively, the
“Defendants”). (Doc. 337). Milhouse’s pleadings assert violations of his First, Eighth, and
Fourteenth Amendment rights. (Doc. 113; Doc. 337).
On December 2, 2020, the Court stayed this action in an attempt to secure counsel for
Milhouse. (Doc. 309). The stay was lifted on March 17, 2021, and Defendants were ordered
to respond to Milhouse’s various outstanding motions and requests for the production of
documents and interrogatories. (Doc. 322). On April 14, 2021, the Court denied Milhouse’s
motions (Doc. 285; Doc. 297; Doc. 301; Doc. 303; Doc. 305; Doc. 311; Doc. 313; Doc. 316)
with the exception of his motion to supplement the complaint (Doc. 297), which was granted.
(Doc. 327). On July 19, 2021, Milhouse filed his supplement complaint. (Doc. 337).
On November 23, 2021, Milhouse filed a motion for immediate injunction, and on
November 29, 2021, Milhouse filed a renewed motion for summary judgment. (Doc. 342;
Doc. 343). On December 22, 2021, Defendants requested an extension of the discovery,
deposition, and dispositive motion deadlines, which the Court granted on January 3, 2022,
allowing for discovery and depositions to be completed by April 1, 2022, and dispositive
motions and briefs to be due by May 1, 2022. (Doc. 344; Doc. 345).
Milhouse filed the motion to compel discovery on January 4, 2022, and the motion to
disqualify on February 4, 2022. (Doc. 352; Doc. 356). On February 7, 2022, the undersigned
issued a report and recommendation denying Milhouse’s motion for immediate injunction,
which is currently pending before the District Court. (Doc. 359). Subsequently, Milhouse filed
a motion for “inquiry” on February 15, 2022, and a motion for default judgment on February

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23, 2022. 2 (Doc. 360; Doc. 366). On February 23, 2022, Milhouse filed the motion to defer
PLRA payments. (Doc. 368). On March 3, 2022, Defendants filed a motion to take the
deposition of Milhouse by remote means, which the Court granted on March 4, 2022. (Doc.
371; Doc. 373). On March 28, 2022, Milhouse filed a “motion of inquiry/reschedule
deposition.” 3 (Doc. 376; Doc. 377). On April 4, 2022, Defendants filed a motion for
enlargement of time to respond to discovery and the filing of any dispositive motions for thirty
(30) days until May 1, 2022. 4 (Doc. 378). The instant motions are fully briefed and ripe for
disposition.
II.

DISCUSSION
A. MOTION TO COMPEL DISCOVERY
In the motion to compel, Milhouse requests camera surveillance footage from USP-

Lewisburg and the production of documents from Defendants. (Doc. 352, at 1-2). In

The undersigned will address these motions in a separate report and
recommendation.
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The motion does not contain a specific inquiry or request for relief apart from the
title: “Motion for Inquiry/Reschedule Deposition.” (Doc. 376; Doc. 377). Milhouse states
that he is experiencing intense back pain and that he is not being treated by medical staff.
(Doc. 377, at 1). On March 4, 2022, the Court granted Defendants’ motion for leave to
conduct Milhouse’s deposition by remote means pursuant to Fed. R. Civ. P. 30(b)(4). (Doc.
373). Construing the pro se filing liberally, Milhouse’s motion will be GRANTED to the extent
that he requests to reschedule his deposition by Defendants. (Doc. 376). Defendants are
directed to coordinate with Milhouse to schedule the taking of Milhouse’s deposition. In
addition, Milhouse is directed to testify at his deposition at the agreed-upon date and time.
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Upon consideration of Defendants’ arguments, Defendants’ motion for extension of
time is GRANTED. (Doc. 378). Defendants shall respond to discovery received on January
4, 2022, and January 28, 2022, on or before May 1, 2022. Furthermore, Defendants are not
required to respond to any additional discovery received on or after April 1, 2022, as the
discovery deadline has expired. Additionally, the dispositive motions deadline is extended to
June 1, 2022, and further deadlines will be set by the Court after the resolution of any
dispositive motions.
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opposition, Defendants argue that although Milhouse did not properly serve counsel or
Defendants with requests for the production of documents, counsel for Defendants are
nevertheless in the process of compiling responses to all of Milhouse’s discovery requests.
(Doc. 364, at 4). Defendants state that their responses will be completed before the current
discovery deadline, and, therefore, request that the Court deny Milhouse’s motion to compel.
(Doc. 364, at 5; Doc. 374, at 5). Further, Defendants argue that answering Milhouse’s
discovery requests “has required the direct input from individual defendants, which required
locating and communicating directly with each responding defendant some who have retired
from federal employment.” (Doc. 378, at 3).
The general scope of discovery is outlined by Federal Rule of Civil Procedure 26(b)(1):
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence
to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Rule 26 establishes a liberal discovery policy. Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300
F.R.D. 225, 226-27 (M.D. Pa. 2014); Great West Life Assurance Co. v. Levithan, 152 F.R.D. 494,
497 (E.D. Pa. 1994). Issues relating to the scope of discovery permitted under Rule 26 rest in
the sound discretion of the court. Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 90 (3d Cir.
1987). Thus, a court's decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse of
discretion. Marroquin–Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). “Although the
scope of relevance in discovery is far broader than that allowed for evidentiary purposes, it is

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not without its limits.” Banks v. Beard, No. 3:10-CV-1480, 2013 WL 3773837, *2 (M.D. Pa.
July 17, 2013) (citing Stabilus v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258,
265 (E.D. Pa. 1992)). “Discovery requests may be curtailed to protect a person from whom
discovery is sought from ‘annoyance, embarrassment, oppression, or undue burden or
expense.’” In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 238 (E.D. Pa.
2014) (quoting Fed. R. Civ. P. 26(c)(1)).
Under the local rules, “[i]nterrogatories, requests for disclosures, requests for
documents, requests for admissions, and answers and responses thereto shall be served upon
other counsel and parties but shall not be filed with the court” unless authorized by the federal
or local rules or an order of the Court. L.R. 5.4(b) (emphasis added). Milhouse fails to
establish that he has served Defendants with these discovery requests. (Doc. 352). Even
assuming Milhouse properly served the interrogatories and requests for production of
documents, Defendants submit that their responses to the requests will be completed prior to
the current discovery deadline of May 1, 2022. (Doc. 374, at 5; Doc. 378, at 1). Accordingly,
the Court will deny the motion to compel without prejudice to Milhouse filing a later motion
if Defendants fail to meet the discovery deadline. (Doc. 352).
B. MOTION TO DISQUALIFY
Milhouse seeks to disqualify counsel for Defendants, Timothy S. Judge (“Mr. Judge”).
(Doc. 356). In support of this motion to disqualify, Milhouse argues that Mr. Judge “is partial
and biased and refused to investigate this perjury but used its testimony to defeat [Milhouse]’s
motion to compel.” (Doc. 357, at 2). In addition, Milhouse asserts that he has been refused
the opportunity to review the requested surveillance footage. (Doc. 357, at 1). In opposition,

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Defendants submit that Milhouse’s motion is “frivolous, harassing and sanctionable.” (Doc.
363, at 1).
Federal courts maintain an “inherent power to supervise attorney conduct” when an
attorney appears before the court. Saldana v. Kmart Corp., 260 F.3d 228, 235 (3d Cir. 2001).
This inherent authority includes the “power to disqualify an attorney” where necessary,
although “a district court must ensure that there is an adequate factual predicate for flexing
its substantial muscle under its inherent powers.” United States v. Miller, 624 F.2d 1198, 1201
(3d Cir. 1980); Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994).
The Third Circuit has cautioned that a court:
[S]hould disqualify an attorney only when it determines, on the facts of the
particular case, that disqualification is an appropriate means of enforcing the
applicable disciplinary rule. It should consider the ends that the disciplinary
rule is designed to serve and any countervailing policies, such as permitting a
litigant to retain the counsel for her choice and enabling attorneys to practice
without excessive restrictions.
Miller, 624 F.2d at 1201.
Because such motions “are generally disfavored,” “[t]he party seeking disqualification must
clearly show that continued representation would be impermissible . . . [and, a]s such, vague
and unsupported allegations are not sufficient to meet this standard.” Thomas v. Duvall, No.
3:16-CV-00451, 2020 WL 6747436, at *2 (M.D. Pa. Nov. 17, 2020) (quoting Conley v.
Chaffinch, 431 F. Supp. 2d 494, 496 (D. Del. 2006)).
In opposition to the motion to disqualify, Defendants assert that Milhouse has also
not proffered any evidence to substantiate the allegations that he has not been permitted to
view the footage or how Mr. Judge showed partiality or bias. (Doc. 363, at 6). Defendants
submit that counsel adequately responded to Milhouse’s request for production, provided the

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Bureau of Prisons (“BOP”) with a disc containing the requested surveillance footage, and
relied on the assistance of the BOP to provide Milhouse with access to such footage. (Doc.
363, at 4-6). Attached to the brief in opposition is a declaration completed by Patrick Hart,
the Case Manager at USP Coleman-1, dated March 30, 2021. (Doc. 326-1, at 1). In the
declaration, Patrick Hart states that the surveillance videos were produced and “stored in a
secure unit team area.” (Doc. 326-1, at 1). Patrick Hart declares that he informed Milhouse
that he is permitted to review the videos upon request, however, as of the date of the
declaration, Milhouse has not requested to review them. (Doc. 326-1, at 1). To the extent that
Milhouse seeks to redress issues regarding matters within USP Coleman-1, Defendants assert,
and the Court agrees, that Milhouse must first exhaust the BOP administrative process prior
to bringing suit. (Doc. 363, at 6); see 28 C.F.R. §§ 542 et seq.
Given the affidavit describing Defendants’ production of the surveillance videos that
Milhouse seeks and the fact that Milhouse has not requested to review such footage or
produced evidence to the contrary, Milhouse has not proffered any evidence to support his
claim that Mr. Judge “committed misconduct.” (Doc. 357, at 2). There is no objective
evidence of biasedness or partiality by Defendants against Milhouse, so as to warrant
disqualification. Recognizing that disqualification motions are disfavored and acknowledging
that it is the movant’s burden to show that disqualification is warranted, the Court finds that
Milhouse has not met this burden. Thomas, 2020 WL 6747436, at *2. Accordingly, the Court
will deny the motion without prejudice to Milhouse filing a later motion to disqualify that
sets forth facts showing that counsel’s conduct is improper. (Doc. 363).

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C. MOTION TO DEFER PLRA PAYMENTS
Milhouse requests that the Court “issue an Order to defer payment on all PLRA fees
until the Covid lockdown is over.” (Doc. 368, at 1). Milhouse asserts that he “is indigent, or
rather does not have access to institutional employment due to Covid lockdown which is
nearing 2 [years]. The stimulus checks went to PLRA fee.” (Doc. 368, at 1).
The PLRA recognizes that a prisoner may not have the financial assets or means to
file a civil action or appeal a civil or criminal judgment. Therefore, the PLRA provides:
any court of the United States may authorize the commencement, prosecution
or defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor. Such affidavit shall
state the nature of the action, defense or appeal and affiant's belief that the
person is entitled to redress.
28 U.S.C. § 1915(a)(1).
“In forma pauperis status merely ‘defers, but does not permanently excuse, the payment of filing
fees.’ ” Merritt v. Supplee, No. 20-CV-1054, 2020 WL 3469033, at *1 n.2 (E.D. Pa. June 25,
2020) (quoting In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997)); see also Lucien v. DeTella,
141 F.3d 773, 775 (7th Cir. 1998) (“All § 1915 has ever done is excuse pre-payment of the
docket fees; a litigant remains liable for them, and for other costs, although poverty may make
collection impossible.”) (internal quotation marks and citations omitted) (emphasis in
original); Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997) (“Unsuccessful litigants are
liable for fees and costs and must pay when they are able.”). Therefore, when a prisoner has
the means to pay PLRA fees as required by § 1915(b), failure to pay may result in the dismissal
of a prisoner’s action. See In re Smith, 114 F.3d at 1251.

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In this case, Milhouse was granted leave to proceed in forma pauperis on appeal
pursuant to 28 U.S.C. § 1915(b) on July 12, 2019. (Doc. 236; Doc. 251). The Court ordered
that Milhouse “is required to pay the full $505.00 fee in installations regardless of the outcome
of the appeal.” (Doc. 236, at 1; Doc. 251, at 1). In pertinent part, the Order provided:
The Court hereby directs the warden or his or her designee to assess an initial
filing fee, when funds are available, of 20% of the greater of (a) the average
monthly deposits to the prisoner’s account; or (b) the average monthly balance
in the prisoner’s account for the six month period immediately preceding the
filing of the notice of appeal. The warden, or his or her designee, shall calculate,
collect, and forward the initial payment assessed in this order to the United
States District Court for the Middle District of Pennsylvania. In each
succeeding month when the amount in the prisoner’s account exceeds $10.00,
the warden, or his or her designee, shall forward payments to the United States
District Court for the Middle District of Pennsylvania equaling 20% of the
preceding month’s income credited to the prisoner’s account until the fees are
paid.
(Doc. 236, at 1; Doc. 251, at 1); see 28 U.S.C. § 1915(b)(2).
Milhouse, proceeding in forma pauperis, is not excused from paying the full appeal filing
fee. See In re Smith, 114 F.3d at 1251. As set forth in the Court Order, the warden at USP
Coleman-1 will not forward payment of the initial filing fee and monthly installments unless
there are sufficient funds in Milhouse’s prisoner account. (Doc. 236, at 1; Doc. 251, at 1).
Therefore, when circumstances warrant such payment, Milhouse is required to pay PLRA
fees and failure to do so may result in the dismissal of Milhouse’s appeal. See In re Smith, 114
F.3d at 1251. Accordingly, the Court will deny Milhouse’s motion to defer PLRA payments.
(Doc. 368).
III.

CONCLUSION
For the foregoing reasons, Milhouse’s motion to compel discovery (Doc. 352), motion

to disqualify (Doc. 356), and motion to defer PLRA payments (Doc. 368) are DENIED. In

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addition, Milhouse’s “motion for inquiry/reschedule deposition” (Doc. 376) and Defendants’
motion for extension of time (Doc. 378) is GRANTED.
An appropriate Order follows.

BY THE COURT:

s/ Karoline Mehalchick

Dated: April 13, 2022

KAROLINE MEHALCHICK
Chief United States Magistrate Judge

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