Washington v. Grace et al

Filing 144

MEMORANDUM (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HENRY UNSELD WASHINGTON, :
:
Plaintiff,
:
:
v.
:
:
JAMES GRACE, et al.,
:
:
:
Defendants.
:

4:08-cv-1283
Hon. John E. Jones III
Hon. Martin C. Carlson

MEMORANDUM
May 1, 2013
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Pending before the Court in this troubled, four-year old litigation is the
Report and Recommendation (“R&R”) (Doc. 138) of Chief Magistrate Judge
Martin C. Carlson recommending that the Defendants’ Second Motion for
Sanctions (Doc. 132) be granted and that this action be dismissed with prejudice
based on the Plaintiff’s utter failure to comply with court orders and discovery
obligations. Since the filing of the R&R, pro se Plaintiff Henry Unseld
Washington (“Plaintiff” or “Washington”) has filed three submissions with the
Court that can be construed as “objections” thereto, (Docs. 141-143), however
these submissions, like all of Washington’s other recent submissions, contain no
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availing legal argument in opposition the Magistrate Judge’s recommendations but
rather recite fanciful and patently dubious allegations of mistreatment and
retaliation that Washington claims to be suffering at the hands of his jailers.
In any event, this matter is ripe for our review. For the reasons that follow,
the R&R shall be adopted in its entirety, and this matter shall be dismissed with
prejudice.
I.

STANDARD OF REVIEW
When, as here, objections are filed to the report of a magistrate judge, the

district court makes a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objections are made. 28
U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The
court may accept, reject, or modify, in whole or in part, the magistrate judge’s
findings or recommendations. Id. Although the standard of review is de novo, 28
U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of
sound discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

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II.

BACKGROUND
As aptly stated by Magistrate Judge Carlson, “[t]he tragic, tortured trajectory

of this litigation defies easy description,” (Doc. 138, p. 1), however within his
R&R the Magistrate Judge describes with detail the procedural milieu
underpinning this case. Thus, we shall not endeavor to recite the same herein, but
rather provide the reader with an abbreviated summary of the matter’s history.
This case was filed by Plaintiff on July 7, 2008. (Doc. 1). Eleven months
later, on June 29, 2009, Washington elaborated upon his claims by filing an
amended complaint. (Doc. 22). This prolix, confusing document contained 320
factual averments against approximately 132 defendants. Many of the factual
allegations harkened back ten years to 1997, and in many instances it was
impossible to determine which of the more than 132 defendants were alleged to
have committed the acts. Broadly construed, the complaint alleged claims of
Eighth Amendment violations relating to lack of medical care and use of excessive
force by prison officials, due process violations, negligence and medical
malpractice.
In June of 2010, we referred this difficult matter to Magistrate Judge Carlson
for pre-trial management. After a careful examination of the Plaintiff’s complaint,
the Magistrate Judge entered a screening order, intended to simplify and add clarity
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and focus to Washington’s complaints. (Doc. 33). Washington’s initial response
to the Order was to request a 6-month extension of time to file an amended
complaint. (Doc. 34). When this request was denied, Washington filed a second
amended complaint on August 19, 2010. (Doc. 40). Far from addressing the
concerns originally cited in the screening order, Washington’s second amended
complaint actually exacerbated and compounded these concerns, inasmuch as the
pleading named 159 defendants and contained 368 separately numbered
paragraphs.
After being notified of inadequacies in this pleading, Washington filed a
third amended complaint. (Doc. 47). While this document spanned fewer pages
(82) than the second amended complaint (135), this result was achieved by
Washington’s use of minutely small handwriting in drafting the document. Thus,
the two complaints were substantively identical and the third amended complaint
retained all of the flaws that had been previously by the Magistrate Judge as
grounds for dismissal of Washington’s prior complaints. We dismissed this
complaint and Washington appealed. On October 2011, the Court of Appeals
affirmed the dismissal of 354 of the 368 averments set forth in the complaint, but
remanded for further proceedings on 14 specific allegations. Washington v. Grace,
455 F. App’x 166, 171 (3d Cir. 2011)(“Specifically, the following paragraphs of
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the third amended complaint contain allegations of retaliation, excessive force, and
sexual assault that appear to state a claim upon which relief could be granted: 88,
103-104, 108, 112, 118, 122, 131, 145, 221, 239, 339 and 356-357.”).
Following this remand, Magistrate Judge Carlson engaged in months of
efforts with Washington, endeavoring to secure from him a simple amended
complaint which conformed to the appellate court’s ruling. These efforts were
entirely unavailing. Washington insisted that the task of filing the amended
complaint would take a year or more to complete. As aptly noted by the
Magistrate Judge, these delays were inspired by concerns that seemed more
imagined than real, since Washington alleged to have been working 12 to 16 hours
a day to complete his amended complaint, yet asserted that he had experienced
daily heart attack symptoms, frequent collapses, nose bleeds that continued
unabated for days, and episodes of memory loss spanning many hours. Ultimately,
the Magistrate Judge was compelled to conclude that asking Washington for a
further amendment was futile and ordered service upon the Defendants of the 14
allegations identified by the Court of Appeals as plausibly stating a claim.
After service, the Defendants commenced discovery but then encountered an
irreconcilable obstacle, namely Washington’s flat refusal to participate in a
deposition. Before the Magistrate Judge on the instant R&R is the Defendants’
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second motion to impose sanctions against the Plaintiff for refusing to answer
questions during a deposition that the Court had authorized and ordered to take
place. The Plaintiff previously refused to answer questions during his first
deposition in January 2013. In response, the Defendants moved for sanctions (Doc.
116) and the Plaintiff thereafter assured the Court that he understood his
obligation to submit to a deposition. (Doc. 119). Notwithstanding this recognized
obligation, the Plaintiff attempted to condition his compliance on being provided
with a permanent single cell housing at a prison different than his current place of
incarceration. Magistrate Judge Carlson entered an Order directing Plaintiff to
submit to a deposition and answer the Defendants’ questions, and rejected his
baseless attempt to condition his compliance upon a change in prison housing. In
that Order, Magistrate Judge Carlson expressly advised the Plaintiff that continued
failure to answer questions at the deposition would be grounds for further
sanctions, including dismissal of this case. (Doc. 120).
Following the entry of this Order, the Defendants rescheduled the Plaintiff’s
deposition for March 19, 2013. The transcript of that deposition, which is
appended to the Defendants’ Motion for Sanctions, reveals that the Plaintiff flatly
refused to provide any meaningful answers to defense counsel’s questions. Rather,
Plaintiff repeatedly responded that his life was in danger at the prison and that he
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could not answer questions. After several attempts to achieve meaningful
responses from the Plaintiff, with absolutely no progress, defense counsel
terminated the deposition and filed the Motion for Sanctions, requesting dismissal
of the case.
Following briefing on the Motion for Sanctions, Magistrate Judge Carlson
issued the instant R&R, recommending dismissal with prejudice. For the reasons
that follow, we shall adopt the Magistrate Judge’s recommendation.
III.

DISCUSSION
As discussed above, Plaintiff, a state inmate, has filed multiple, prolix,

confusing and voluminous complaints, which have, through judicial screening,
been reduced to 14 discrete factual averments, upon which he is now proceeding.
See Washington v. Grace, 455 F. App’x 166, 171 (3d Cir. 2011). Even with the
claims narrowed in this fashion, the litigation has been unable to progress in any
meaningful way, despite the efforts of the Defendants to conduct discovery into the
Plaintiff’s remaining claims, and despite the Court’s repeated efforts to remind the
Plaintiff of his obligations to participate in the discovery process. To the contrary,
since this case was remanded by the Court of Appeals, the Plaintiff has frustrated
every attempt by the Court and defense counsel to advance his case past the
pleading stage. Instead, Plaintiff, who by his own admission suffers from an array
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of physical and mental health issues, has used the Court of Appeals remand to file
documents with the Court that contain bizarre and incredible allegations about
conduct that is claimed to have occurred at a prison at the State Correctional
Institution at Greene. Notably, Plaintiff contends that prison officials have
contaminated his cell with “renowned cancer-causing juice,” 455 F. App’x at 168,
that prison officials have managed to shrink his genitals, and more recently, that a
prison medical official at SCI-Greene responded to Plaintiff’s heart attack
symptoms by “attempt[ing] to place his mouth on the nipple of my chest for the
sake of withdrawing ‘CHEST MILK’ from me.” (Doc. 129, at 2).
Despite these fanciful allegations contained in Plaintiff’s repeated filings,
the Defendants attempted to proceed with discovery in an orderly fashion. This
attempt was blocked by Plaintiff at every turn. Most recently, on March 19, 2013
at approximately 10:30 a.m., the Plaintiff was placed under oath and a deposition
taken pursuant to video conference was commenced. (Doc. 134). After defense
counsel went over preliminary instructions regarding the way the deposition would
proceed, the Plaintiff responded by stating that his life was in danger at the prison,
and expressing fear that he would be killed “in some way for being here.” (Doc.
134, p. 7). Plaintiff gave no explanation for this dramatic statement, and continued
to respond in this fashion to basic questions posed by defense counsel regarding
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Plaintiff’s name and inmate number. Paradoxically, while denying that he could
testify, the Plaintiff at one point erratically stated that he was “willing and raring to
give a deposition,” (Doc. 137, p. 11), but never provided a single substantive
answer to the questions posed by defense counsel. After 10 minutes of this back
and forth, Defendants’ counsel terminated the deposition. Thus, on April 2, 2013,
Defendants filed their Motion for Sanctions pursuant to Fed. R. Civ. P. 37,
requesting dismissal of this action as a sanction.
Fed. R. Civ. P. 37(b)(2)(B) provides that a district court may sanction a
party’s failure to comply with a discovery order in many ways, including by
dismissing the case in whole or in part. Fed. R. Civ. P. 37(b)(2)(B)(v); See also
Fattah v. Beard, 214 Fed. App’x 230, 232 & n. 1 (3d Cir. 2007)(sanctions for
failure to give deposition testimony, in violation of court order, may result in
sanctions that “may include dismissal of the case.”). In addition, Rule 37(d)(3)
authorizes a court to impose sanctions if a party fails to appear for his deposition
after being served with proper notice. See Fed. R. Civ. P. 37(d)(1)(A)(I). Rule
37(d)(3) provides that sanctions that may be imposed for failure to attend a
properly noticed deposition may include any of the sanctions listed in Rule
37(b)(2)(A)(i)-(vi), which includes dismissal.

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As discussed by the Magistrate Judge, in cases where a party has failed or
refused to submit to a deposition on more than one occasion, despite having been
served with notice to do so, and despite the entry of court orders compelling the
party to attend and provide answers to deposition questions, the Third Circuit has
found that dismissal may be an appropriate sanction. Fattah, 214 Fed. App’x 23233 (affirming district court’s order dismissing action brought by pro se inmate
where the inmate, on two separate occasions, refused to come out of his cell to
attend his deposition, and refused to respond to questions addressed to him). At the
same time, the Third Circuit has cautioned that “the sanction of dismissal is
extreme and should be reserved for cases where it is justly deserved . . .” Id. at 233
(citing Ware v. Rodale Press, Inc., 322 F. 3d 218, 221-22 (3d Cir. 2003)). The
decision to impose the sanction of dismissal rests within the discretion of the
district court. While that discretion is broad, it is guided by the six factors
enunciated by the Third Circuit in Poulis v. State Farm Fire and Casualty
Company, 747 F. 2d 863, 868 (3d Cir. 1984). There is no “magic formula”
utilized when considering the Poulis factors, and no single factor is dispositive, nor
must all be satisfied in order to dismiss a complaint. See Briscoe v. Klem, 538 F.
3d 252 (3d Cir. 2008); Ware, 322 F. 3d at 222. Moreover, recognizing the broad
discretion conferred upon the district court in making judgments weighing the six
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Poulis factors, the Court of Appeals has frequently sustained such dismissal orders
where there has been a pattern of dilatory conduct by a pro se litigant who is not
amenable to any lesser sanction. See, e.g., Tillio v. Mendelsohn, 256 Fed. App’x
509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 Fed. App’x 506 (3d Cir.
2007); Azubuko v. Bell National Organization, 243 Fed. App’x 728 (3d Cir. 2007).
Within the R&R, the Magistrate Judge undertakes a careful review of the
Poulis factors, with which we fully agree. Thus, we shall not recite all of the
points made by Magistrate Judge Carlson but will emphasize a few salient areas of
his analysis. First, the delays in this case have been entirely attributable to the
Plaintiff, who has failed to abide by Court orders, and has now on two occasions
refused to submit to a deposition in any meaningful or substantive way. Moreover,
as the docket demonstrates, Plaintiff’s dilatory conduct has been rampant and
persistent throughout the pendency of this matter, marked by frequent requests for
exorbitant extensions of time to file pleadings and other submissions.
Furthermore, Plaintiff’s conduct is obviously prejudicing the Defendants’ ability to
defend against this lawsuit in any meaningful manner, inasmuch as they have been
unable to ascertain any discovery from Plaintiff. In addition, the Defendants have
born the costs imposed in connection with the aborted depositions. Finally, and
perhaps most importantly, we agree with the Magistrate Judge than sanctions other
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than dismissal have been considered but will not be effective. Washington has
flatly refused to follow every order issued by the Magistrate Judge since the
remand of this action, and rather than address the factual merits of the 14
allegations that survived from his 368 paragraph complaint, he has used this case
as an empty vessel into which he can pour is current, and often quixotic, concerns.
In fact, most of Washington’s recent filings address matters only occurring at SCIGreene, which are entirely unrelated to the handful of remaining claims in this
lawsuit.1 Simply stated, dismissal is the only appropriate sanction available to the
Court in this tortured, complicated, and unfortunate situation. We and the Court of
Appeals have given the Plaintiff every possible opportunity to litigate his potential
claims, and he has frustrated or blocked every method we have employed.
Accordingly, based on the foregoing analysis and the detailed analysis of
Magistrate Judge Carlson as set forth in his cogent and thorough R&R, we shall
dismiss this case with prejudice. An appropriate Order shall issue.

1

Moreover, SCI-Greene is located in the Western District of Pennsylvania, thus any civil
rights claims Washington believes he may have arising out of conduct at that institution could
not be properly litigated here in the Middle District.
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