Milhouse v. Heath et al

Filing 418

MEMORANDUM (Order to follow as separate docket entry) re 397 MOTION for Discovery filed by Kareem Hassan Milhouse, 396 MOTION to Compel Discovery filed by Kareem Hassan Milhouse, 398 Request filed by Kareem Hassan Milhouse, 402 MOTION t o Disqualify filed by Kareem Hassan Milhouse, 394 MOTION for Order filed by Kareem Hassan Milhouse, 388 MOTION to Compel filed by Kareem Hassan Milhouse, 395 MOTION to Compel filed by Kareem Hassan Milhouse Signed by Chief MJ Karoline Mehalchick on 9/27/2022. (cw)

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 1 of 16

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 motions to compel discovery (Doc. 388; Doc. 395; Doc. 397); motion to seal
(Doc. 394); motion for production of documents (Doc. 396); motion under Rule 60(b(6) (Doc.
398); and motion to disqualify (Doc. 402). For the following reasons, the motions shall be
DENIED.

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).
1

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 2 of 16

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
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 that allegedly took place during the period of time from
December 31, 2014, through November 17, 2015 (the “Relevant Period”). (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

2

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 3 of 16

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 a 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
23, 2022. (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.” (Doc. 376; Doc. 377). On April 13, 2022, the undersigned issued a report and
recommendation denying Milhouse’s motion for “inquiry” and motion for default judgment,
which the Court adopted on June 1, 2022. (Doc. 379; Doc. 389). On April 13, 2022, the Court
also denied Milhouse’s motions, directed Defendants to respond to discovery received before
April 1, 2022, as the discovery deadline had expired, and extended the dispositive motions
deadline to June 1, 2022. (Doc. 380; Doc. 381). On April 26, 2022, Milhouse filed a motion
to reinstate motion for summary judgment and Defendants filed a motion to seal. (Doc. 382;
Doc. 384). On May 6, 2022, the Court struck Milhouse’s motion for summary judgment as
prematurely filed and granted Defendants’ motion to seal. (Doc. 389).

3

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 4 of 16

On May 31, 2022, Milhouse filed a motion to compel discovery. (Doc. 388). On June
1, 2022, Defendants filed a motion to dismiss and/or motion for summary judgment. 2 (Doc.
390). On July 14, 2022, Milhouse filed a motion to seal and a motion to compel discovery.
(Doc. 394; Doc. 395). On July 22, 2022, Milhouse filed a motion for production of
documents, a motion to compel discovery, and a motion under Rule 60(b)(1). (Doc. 396; Doc.
397; Doc. 398). On July 27, 2022, Milhouse filed a motion to disqualify. (Doc. 402). On
August 5, 2022, Defendants filed a brief in opposition to Milhouse’s motions to compel
discovery and motion to disqualify. (Doc. 405). On August 8, 2022, Milhouse filed a motion
for summary judgment. 3 (Doc. 406). On September 15, 2022, Milhouse filed a second motion
for summary judgment, as well as a brief in support and a statement of facts. 4 (Doc. 415; Doc.
416; Doc. 417). The instant motions are fully briefed and ripe for disposition. (Doc. 388; Doc.
394; Doc. 395; Doc. 396; Doc. 397; Doc. 398; Doc. 399; Doc. 402; Doc. 405).

2

The undersigned will address this motion in a separate report and recommendation.

Milhouse’s motion for summary judgment does not comply with Middle District
Local Rule 56.1 because he failed to file a brief in support and a statement of material facts.
Local Rule 56.1, in pertinent part, requires a party moving for summary judgment to file “a
separate, short and concise statement of the material facts, in numbered paragraphs, as to
which the moving party contends there is no genuine issue to be tried,” and requires a party
opposing summary judgment to file “a separate, short and concise statement of the material
facts responding to the numbered paragraphs” in the movant's statement of material facts.
M.D. Pa. L.R. 56.1. Milhouse’s motion for summary judgment frustrates rather than
facilitates the purposes of Local Rule 56.1 and Fed. R. Civ. P. 56. See Hickey v. Merritt-Scully,
No. 4:18-CV-01793, 2021 WL 949448, at *1 (M.D. Pa. Mar. 12, 2021). “When a moving
party fails to comply with Local Rule 56.1 ‘the court should not have to proceed further,
regardless of how readily it might be able to distill the relevant information from the record
on its own.’” Abu-Jamal v. Kerestes, No. 3:15-CV-967, 2018 WL 2166052, at *14 (M.D. Pa.
May 10, 2018) (quoting Landmesser v. Hazleton Area Sch. Dist., 982 F. Supp. 2d 408, 412 (M.D.
Pa. 2013)). Accordingly, Milhouse’s motion for summary judgment is STRUCK for its failure
to comply with Local Rule 56.1. (Doc. 406).
3

4

The undersigned will address this motion in a separate report and recommendation.

4

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 5 of 16

II.

DISCUSSION
A. MOTION TO COMPEL DISCOVERY
In the motions to compel discovery, Milhouse requests camera surveillance footage

from USP-Lewisburg and the production of documents from Defendants. (Doc. 388, at 1-3;
Doc. 395, at 1-2; Doc. 396, at 1-3; Doc. 397, at 1-2). Milhouse asserts that Defendants failed
to produce the requested discovery and that the materials are necessary in support of his case.
(Doc. 388, at 1-3; Doc. 395, at 1-2; Doc. 396, at 1-3; Doc. 397, at 1-2). In opposition,
Defendants argue that the Court should deny Milhouse’s motions to compel because
“Defendants have provided complete and full answers to Milhouse’s discovery and their
objections are well founded, and discovery ended May 1, 2022.” (Doc. 405, at 3). Defendants
contend Milhouse served Defendants with four sets of Requests for Documents from
November 30, 2021, to January 12, 2022, as well as twelve sets of Interrogatories directed to
individual Defendants, which have all been responded to and mailed to Milhouse on April
26, 2022. (Doc. 405, at 3-4; Doc. 405-2; Doc. 405-3; Doc. 405-4; Doc. 405-5; Doc. 405-6). In
addition, Defendants submit Milhouse’s requests should be denied because they do not
establish any substantive basis as to how the requested materials will support his claims. (Doc.
405, at 5).
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).

5

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 6 of 16

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
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)).
Milhouse contends Defendants have not responded to any of his discovery requests.
(Doc. 388, at 1-3; Doc. 395, at 1-2; Doc. 396, at 1-3; Doc. 397, at 1-2). Defendants contend
they “provided documents which are responsive within the time parameters established by
the Court and have properly objected regarding materials not produced, and all responses
were failed to Milhouse on April 26, 2022.” (Doc. 405, at 5). Defendants’ responses to
Milhouse’s discovery requests indicate the following: (1) the requested video surveillance
taken between December 31, 2014, through November 17, 2015, has been made available to
Milhouse’s case manager at USP Coleman-1 and may be reviewed upon Milhouse’s request;

6

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 7 of 16

and (2) the incident report from December 16, 2014, and associated Disciplinary Hearing
Officer (“DHO”) packet have been produced. (Doc. 405-2, at 3; Doc. 405-4, at 4-5).
Defendants make objections to Milhouse’s remaining discovery requests for being outside the
scope of the case, overly broad, and overly vague, explaining:
As per the Third Circuit’s remand, this case is limited to Administrative Record
805972 (submitted December 31, 2014, alleging [Milhouse] was celled with
“separation”), Administrative Remedy Number 809783 (February 6, 2015
submission alleging [Milhouse] was celled with violent inmate), Administrative
Remedy Number 824345 (June 10, 2015 alleging [Milhouse] was threatened to
change cells or be assaulted), and Administrative Remedy Number 835645
(submitted September 15, 2015 requesting a single cell due to safety concerns).
(Doc. 405-2, at 3-4).
Defendants assert a majority of Milhouse’s requests for documents and information are
irrelevant to the pending litigation because the Relevant Period for purposes of the complaint
is limited to December 31, 2014, through November 17, 2015, while Milhouse was at USPLewisburg Special Management Unit. (Doc. 405-2, at 3-5; Doc. 405-3, at 4; Doc. 405-4, at 57; Doc. 405-5, at 4).
Milhouse has submitted voluminous discovery requests to Defendants and the Court
finds that nothing in the record or Milhouse’s pleading suggest that Defendants have acted in
bad faith or failed to provide Milhouse with necessary materials. Notably, the Court
previously reviewed an affidavit by Patrick Hart, the case manager at USP Coleman-1, dated
March 30, 2021, in which Patrick Hart states the surveillance videos were produced and
“stored in a secure unit area,” he informed Milhouse that he is permitted to review the videos
upon request, and that, as of the date of the declaration, Milhouse has not requested to review
them. (Doc. 326-1, at 1). The Court finds that the record is devoid of any objective evidence
of biasedness or partiality by Defendants against Milhouse. In addition, the Court agrees with

7

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 8 of 16

Defendants’ objections regarding Milhouse’s discovery requests that fall outside the scope of
this lawsuit because Defendants are not required to produce materials outside of the Relevant
Period which do not pertain to the claims in the instant lawsuit. To the extent that Milhouse
is dissatisfied with Defendants’ responses to discovery requests, dissatisfaction is not a proper
basis for a motion to compel. See Easley v. Tritt, No. 1:17-CV-930, 2020 WL 836695, at *20
(M.D. Pa. Feb. 20, 2020), reconsideration denied, 2020 WL 1911536 (M.D. Pa. Apr. 20, 2020).
As Defendants’ timely requests for documents responses and interrogatory responses are
before the Court, and Milhouse does not dispute his receipt of Defendants’ responses, the
motions to compel discovery will be denied. Forrest v. Wetzel, No. 3:17-CV-1777, 2021 WL
1614810, at *3 (M.D. Pa. Apr. 23, 2021), appeal dismissed, No. 21-1903, 2021 WL 5467059
(3d Cir. Aug. 10, 2021) (denying motion to compel where defendant filed interrogatory
responses and plaintiff failed to dispute receipt of defendant’s responses).
Accordingly, Milhouse’s motions to compel discovery are DENIED. (Doc. 388; Doc.
395; Doc. 396; Doc. 397).
B. MOTION TO SEAL
In the motion to seal, Milhouse seeks to “seal all his information on the ELL in the
Middle District of Pennsylvania, Eastern District of Pennsylvania, Northern District of
Western Virginia, [and] Middle District of Florida. (Doc. 394, at 1-2). Milhouse claims
sealing this case is necessary because he “lives in fear the [Bureau of Prisons (“BOP”)] has a
hit out on him and refuses to transfer him to state custody or a drop out institution.” (Doc.
394, at 2). The Court has previously denied Milhouse’s prior motions to seal.
It is well-established that there is a “common law public right of access to judicial
proceedings and records.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). A “judicial

8

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 9 of 16

record” is a document “filed with the court . . . or otherwise somehow incorporated or
integrated into a district court's adjudicatory proceedings.” In re Avandia Mktg., Sales Practices
and Prods. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019). This presumption, however, is not
absolute and may be rebutted. United States v. Janssen Therapeutics, No. 19-1376, 2019 WL
7212265, at *3 (3d Cir. Nov. 13, 2019) (citing Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d
Cir. 1998)).
Notwithstanding the strong presumption in favor of the accessibility of judicial
records, district courts may seal documents “when justice so requires.” Leap Sys., Inc. v.
Moneytrax, Inc., 638 F.3d 216, 221 (3d Cir. 2011). “The party seeking to overcome the
presumption of access bears the burden of showing ‘that the interest in secrecy outweighs the
presumption’ ” and disclosure will cause the proponent “a clearly defined and serious injury.”
Avandia, 924 F.3d at 671. A party seeking to preclude the disclosure of a judicial document
“must demonstrate that ‘good cause’ exists for the order.” Avandia, 924 F.3d at 671 (quoting
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)). “Good cause” can be
established by “showing that disclosure will work a clearly defined and serious injury to the
party seeking closure.” Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)
(citation omitted). In defining the injury, the party must be specific; “[b]road allegations of
harm, bereft of specific examples or articulated reasoning, are insufficient.” Avandia, 924 F.3d
at 673.
The Public Access to Court Electronic Records (“PACER”) is an electronic access
service that allows the public access to obtain case and docket information for U.S. district,
bankruptcy, and appellate courts. See https://www.pacer.gov/ (last visited Sept. 15, 2022).
Docket pleadings and other filings are generally available to the public immediately once filed

9

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 10 of 16

with the Court. While the Court does not publish its opinions to third parties, unsealed
information available to the public on PACER is frequently published by online legal research
providers.
The Court finds that Milhouse has not met the requisite showing in order to justify
sealing the relevant records in this case. See Avandia, 924 F.3d at 672 (“The party seeking to
overcome the presumption of access [to court records] bears the burden of showing ‘that the
interest in secrecy outweighs the presumption.’” (quoting Bank of Am. Nat’l Tr. & Sav. Ass’n v.
Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986))). Milhouse’s complaint in this
matter was made available to the public via PACER soon after he filed the complaint with
the Court. (Doc. 1). Documents in this action simply recite the allegations set forth in
Milhouse’s complaint and further pleadings. (Doc. 1). Milhouse has not alleged that the
public availability of his filings has resulted in any threats or that its continued availability
may result in any particular threat in the future, apart from his own suspicions that “the BOP
has a hit out on him.” (Doc. 394, at 2). In sum, the Court finds Milhouse presents no
compelling reason to seal this lawsuit. Accordingly, Milhouse’s motion to seal is DENIED.
(Doc. 394).
C. MOTION UNDER RULE 60(B)(6)
In the motion under Rule 60(b)(1), Milhouse requests that the Court issue an Order
directing USP Coleman-1 to stop deducting filing fees pursuant to the Prisoner Litigation
Reform Act (“PLRA”). (Doc. 398; Doc. 399, at 2). Milhouse states: “Plaintiff is telling this
Court that he is refusing to pay any unpaid PLRA fees. Plaintiff never received a fair
proceeding and shouldn’t have to pay.” (Doc. 399, at 2).

10

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 11 of 16

Rule 60(b) allows a party to seek relief from a final judgment under a limited set of
circumstances, including fraud, mistake, and newly discovered evidence. See Fed. R. Civ. P.
60(b); Gonzales v. Crosby, 545 U.S. 524, 528 (2005). The general purpose of the Rule is “to
strike a proper balance between the conflicting principles that litigation must be brought to an
end and that justice must be done.” Boughner v. Sec'y of Health, Educ. and Welfare, 572 F.2d 976,
977 (3d Cir. 1978). The decision to grant or deny relief pursuant to Rule 60(b) lies in the
“sound discretion of the trial court”, and is guided by accepted legal principles applied in light
of all relevant circumstances. Pierce Associates, Inc. v. Nemours Foundation, 865 F.2d 530, 548
(3d Cir. 1988).
The first five subdivisions of Rule 60(b) delineate specific circumstances which may
justify relief from final judgment. The final subdivision, 60(b)(6), serves as the “catchall
provision” of Rule 60(b). See Coltec Industries, Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002).
Rule 60(b)(6) permits a party to seek reconsideration for “any other reason [other than the
specific circumstances set out in Rules 60(b)(1)-(5) ] that justifies relief” from the operation of
the judgment. See Fed. R. Civ. P. 60(b). Further, Rule 60(b)(6) “vests power in courts adequate
to enable them to vacate judgments whenever such action is appropriate to accomplish
justice.” Klapport v. United States, 335 U.S. 601, 614-15 (1949). Rule 60(b)(6) is only to be
invoked in the most “extraordinary circumstances, where, without such relief, an extreme
and unexpected hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir.
1993). The Supreme Court has stated that extraordinary circumstances justifying 60(b)(6)
relief “will rarely occur in the habeas context.” Gonzales, 545 U.S. at 535.
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:

11

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 12 of 16

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.
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,

12

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 13 of 16

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).
On February 23, 2022, Milhouse filed a similar motion requesting deferment of PLRA
fees until the COVID-19 lockdown was over. (Doc. 368). On April 13, 2022, the Court denied
Milhouse’s request, explaining that Milhouse, proceeding in forma pauperis, is not excused
from paying the full appeal filing fee and that failure to do so may result in the dismissal of
Milhouse’s action. (Doc. 380, at 9; Doc. 381, at 1). In the instant motion, Milhouse does not
present any basis for the Court to reconsider its Order requiring the payment of PLRA filing
fees. (Doc. 398; Doc. 399). Therefore, based on the foregoing, Milhouse has failed to show
extraordinary reasons justifying relief. See Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991) (the
movant under Rule 60(b) bears a heavy burden of proof that extraordinary circumstances are
present).
Accordingly, Milhouse’s motion under Rule 60(b)(6) is DENIED. (Doc. 398).
D. MOTION TO DISQUALIFY
Milhouse seeks to disqualify counsel for Defendants, Timothy S. Judge (“Mr. Judge”).
(Doc. 402). In support of this motion to disqualify, Milhouse argues Mr. Judge “nor any
government lawyer should[ not] be representing Defendants Heath nor Ebbert,” because
Defendants Heath and Ebbert are retired and are no longer government employees. (Doc.
402, at 2). In opposition, Defendants contend at the time Milhouse filed suit, Heath and
Ebbert were employees of the BOP and were employed during the Relevant Period. (Doc.
405, at 7). Defendants state the United States Department of Justice (“DOJ”) has authorized
individual representation of Heath and Ebbert and has determined that providing

13

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 14 of 16

representation to all Defendants is in the best interest of the United States. (Doc. 405, at 7).
Defendants explain the DOJ made this decision after the BOP forwarded Heath’s and
Ebbert’s representation requests, as well as a statement on whether they were acting within
the scope of employment, a recommendation for or against providing representation and all
available factual information, to the DOJ pursuant to 28 C.F.R. § 50.15(a)(1). (Doc. 405, at
7).
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)).

14

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 15 of 16

28 C.F.R. § 50.15 provides:
(a) Under the procedures set forth below, a federal employee (hereby defined
to include present and former Federal officials and employees) may be provided
representation in civil, criminal and Congressional proceedings in which he is
sued, subpoenaed, or charged in his individual capacity, covered by § 50.1 of
this chapter, when the actions for which representation is requested reasonably
appear to have been performed within the scope of the employee’s employment
and the Attorney General or his designee determines that providing
representation would otherwise be in the interest of the United States.
28 C.F.R. § 50.15(a).
Such representation is unavailable when the employee's alleged conduct does not reasonably
appear to have occurred within the scope of his or her federal employment or when the DOJ
otherwise determines that providing such representation does not serve the United States'
interests. 28 C.F.R. § 50.15(b)(1),(2). Determinations regarding whether an individual is
acting within the scope of his or her federal employment, and whether to provide
representation to the employee is left to the discretion of the DOJ. 28 U.S.C. § 50.15(b); see
also Mullane v. Moreno, No. CV 18-12618-PBS, 2019 WL 2567284 (D. Mass. June 21, 2019).
There is no distinction made between current or former employees, the only distinction is
whether the alleged violations occurred “in the scope of the employee’s employment.” See 28
U.S.C. § 50.15(a).
Here, the DOJ has authorized individual representation and has determined that
providing representation to all Defendants, including Heath and Ebbert, in this action is in
the best interest of the United States. (Doc. 10). 28 U.S.C. § 50.15(a) expressly defines “federal
employee” as both “present and former Federal officials and employees.” Therefore, the
DOJ’s representation of Heath and Ebbert is not improper and the Court declines to disrupt
the DOJ’s decision to authorize individual representation of all Defendants in this action.
Accordingly, Milhouse’s motion to disqualify is DENIED. (Doc. 402).

15

Case 1:15-cv-01400-YK-KM Document 418 Filed 09/27/22 Page 16 of 16

III.

CONCLUSION
For the foregoing reasons, Milhouse’s motions to compel discovery (Doc. 388; Doc.

395; Doc. 396; Doc. 397); motion to seal (Doc. 394); motion under Rule 60(b)(6) (Doc. 398);
and motion to disqualify (Doc. 402) are DENIED. In addition, Milhouse’s motion for
summary judgment is DENIED for its failure to comply with Local Rule 56.1. (Doc. 406).
An appropriate Order follows.

BY THE COURT:

s/ Karoline Mehalchick

Dated: September 27, 2022

KAROLINE MEHALCHICK
Chief United States Magistrate Judge

16