Victor v. SCI Smithfield et al

Filing 444

MEMORANDUM AND ORDER - Diffin has not filed a Dec. 1, 2011, response as required by this Courts Nov. 17 order. Given Diffins further defaults in this matter, we will not excuse him from appearing on Dec. 6, 2011, but we will excuse the other parties from what may be a fruitless and unnecessary proceeding. Thus, while Diffin is ORDERED to appear in Courtroom 5, United States Courthouse, Harrisburg,PA on December 6, 2011 at 10:00 a.m. to show cause why he should not be sanctioned for his failure to appear, and to respond to the pltfs motion for entry of default judgment against this dft, the other parties to this litigation are excused from appearing. In the event that Diffin may appear on December 6, the Court will endeavor to schedule a video-conference with this dft and the pltf, who is receiving medical treatment in SCI Pittsburgh, and will schedule additional proceedings on this matter. Otherwise, the Court will take the action it deems appropriate.Signed by Magistrate Judge Martin C. Carlson on December 2, 2011. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM VICTOR,
Plaintiff,
v.
R.M. LAWLER, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Civil No. 3:08-CV-1374
(Judge Nealon)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
This case is a prisoner civil rights lawsuit lodged by the plaintiff, William
Victor, against correctional staff at SCI Huntingdon. In this lawsuit, Victor alleges,
inter alia, that he was the victim of staff assaults in June 2008, staff assaults
committed by a cell extraction team led by the defendant, William Diffin. Victor has
filed two motions seeking a hearing on spoliation of evidence claims relating to what
are conceded to be missing videos from the time period of the cell extraction episode,
as well as allegations that some correctional staff destroyed, manufactured or failed
to record evidence of wrongdoing in June of 2008. (Docs. 397 and 401)

-1-

On October 7, 2011, we entered an order scheduling a hearing for all parties in
this case, a copy of which was mailed to defendant Diffin, who is proceeding pro se.
This order plainly stated as follows:
IT IS ORDERED as follows:
1.

The plaintiff’s motions for hearing (Docs. 387 and 401) are GRANTED.

2.

An evidentiary hearing regarding whether a spoliation sanction inference
is warranted in this case will be conducted before the undersigned on
November 14, 2011, at 10:00 a.m. in Courtroom 5, U.S. Courthouse,
Harrisburg, Pennsylvania.

3.

The parties will submit pre-hearing briefs arguing their respective
positions regarding the appropriateness of a spoliation sanction inference
as to each defendant on or before November 7, 2011.

4.

Pro se defendants are expected to attend and participate in this hearing,
and a failure to attend, and participate, may result in imposition of
sanctions against that party.

(Doc. 402)
Despite our clear instruction that “Pro se defendants are expected to attend and
participate in this hearing, and a failure to attend, and participate, may result in
imposition of sanctions against that party,” (id.) Defendant Diffin did not appear, and
did not attend this hearing. Diffin’s failure to appear at this hearing prejudiced
Victor’s presentation, prejudiced the interests of his co-defendants, and impeded the
work of this Court.

-2-

Late on November 16, 2011, Diffin faxed to this Court a document, styled
“Request for Reconsideration on Spoliation Issue.” (Doc. 433) In this pleading Diffin
admitted that he “has received several memorandum orders . . . and other related
documents from the Court” in this case. Ignoring the explicit instructions in the
Court’s October 7 order that “Pro se defendants are expected to attend and participate
in this hearing, and a failure to attend, and participate, may result in imposition of
sanctions against that party,” Diffin claimed that he “wrongfully assumed his presence
was not necessary,” even through his conduct was a central issue at this hearing.
Diffin then complained that appearing in Court entails a “huge amount of travel,” and
stated that he would require a “great deal of advance notice in the future”, if he was
to appear. Diffin’s pleading did not explain how the 5 weeks of advance notice
provided to him by this Court in this October 7 order was inadequate. Instead, Diffin
simply asked the Court to “consider deferring or eliminating the need for Defendant
Diffin’s presence in spoliation hearing.”
On November 17, 2011, we entered an order denying Diffin’s request to afterthe-fact excuse his failure to appear at this hearing, and directing Diffin to appear in
Courtroom 5, United States Courthouse, Harrisburg, Pennsylvania on December 6,
2011 at 10:00 a.m. to show cause why he should not be sanctioned for his failure to
appear, and to respond to the plaintiff’s motion for entry of default judgment against
-3-

this defendant. In this November 17 order Diffin was further directed to file a written
response to this show cause order and default motion on or before December 1, 2011.
Diffin was advised that the failure to respond or appear may result in entry of
judgment against the defendant, and other sanctions.
Diffin has not filed a December 1, 2011, response as required by this Court’s
November 17 order. Given Diffin’s further defaults in this matter, we will not excuse
him from appearing on December 6, 2011, but we will excuse the other parties from
what may be a fruitless and unnecessary proceeding.

Thus, while Diffin is

ORDERED to appear in Courtroom 5, United States Courthouse, Harrisburg,
Pennsylvania on December 6, 2011 at 10:00 a.m. to show cause why he should not
be sanctioned for his failure to appear, and to respond to the plaintiff’s motion for
entry of default judgment against this defendant, the other parties to this litigation are
excused from appearing. In the event that Diffin may appear on December 6, the
Court will endeavor to schedule a video-conference with this defendant and the
plaintiff, who is receiving medical treatment in SCI Pittsburgh, and will schedule
additional proceedings on this matter. Otherwise, the Court will take the action it
deems appropriate.

-4-

So ordered this 2d day of December, 2011.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

-5-