BOULWARE v. OVERMYER et al

Filing 73

MEMORANDUM OPINION: the Court concludes that Plaintiffs complaint should be dismissed with prejudice. Defendants motion for sanctions will be granted, and an appropriate order dismissing the complaint will follow. Signed by Magistrate Judge Susan Paradise Baxter on 12/6/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KENNETH BOULWARE,
Plaintiff,

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v.
DEPUTY OVERMYER, et al.,
Defendants.

Civil Action No. 15-300 Erie

Magistrate Judge Baxter

MEMORANDUM OPINION1

SUSAN PARADISE BAXTER, United States Magistrate Judge:
Pending before the Court is Defendants’ motion for sanctions, seeking dismissal of
Plaintiff’s action with prejudice or, alternatively, the imposition of attorneys’ fees incurred in the
preparation of the motion and in response to Plaintiff’s motion for summary judgment. [ECF No.
72, p. 13]. Defendants contend that such consequences are warranted based upon Plaintiff’s
commission of a fraud upon the Court, through his submission of manufactured and forged
evidence in opposition to a pending motion.
As more fully set forth herein, the Court agrees that Plaintiff has abused the judicial
process in an effort to harass Defendants and to fraudulently extract monetary damages in pursuit
of questionable claims. Therefore, in accordance with Rule 11 of the Federal Rules of Civil
Procedure and the Prisoner Litigation Reform Act, Plaintiff’s action shall be dismissed with
prejudice.

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The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. See
28 U.S.C. § 636 et seq. (ECF Nos. 4, 13).

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I. Background and Relevant Procedural History
Kenneth Boulware (“Plaintiff”) initiated this civil rights action pursuant to 42 U.S.C. §
1983, by filing a motion to proceed in forma pauperis, accompanied by his complaint. [ECF
No. 1] At the time of filing suit, Plaintiff was an inmate incarcerated at the State Correctional
Institution at Forest in Marienville, Pennsylvania (“SCI – Forest”). Named as Defendants in his
complaint are: Deputy Overmyer (“Overmyer”), Deputy Oberlander (“Oberlander”), Major
Ennis (“Ennis”), Lt. Haggerty (“Haggerty”), Lt. Davis (“Davis”), Lt. Dickey (“Dickey”), Lt.
Murin (“Murin”), Sgt. Cochran (“Cochran”), Sgt. Anthony (“Anthony”), C.O. Mullooly
(“Mullooly”), C.O. Drayer (“Drayer”), Dr. Simons (“Simons”), Nurse Hill (“Hill”), and C.O.
Baumcratz (“Baumcratz”).2 [ECF No. 3].
Plaintiff’s complaint alleges several Eighth Amendment conditions of confinement
claims and a separate Fourteenth Amendment due process claim arising from the theft of a
television. Plaintiff’s Fourteenth Amendment claim was dismissed for failure to state a claim by
Order entered March 7, 2017, due to the availability of a post-deprivation remedy. [ECF No.
52]. Accordingly, the following claims remain:
(1) an Eighth Amendment excessive force claim against Defendants Drayer, Mullooly,
Cochran, Buamcratz, and Murin, arising from a November 11, 2015, incident when
his hand was allegedly pulled through a cell-door wicket;
(2) an Eighth Amendment failure to protect claim, alleging that Defendants failed to
prevent him from being raped by his cellmate on November 18, 2015, after he says he
informed Defendants Oberlander, Anthony and Ennis that he had received threats
from other inmates indicating an attack was imminent;
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The Court has adopted the correct spelling of Defendants’ names, as indicated in the various filings to date.

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(3) an Eighth Amendment claim of deliberate indifference against Defendants Simons
and Hill, related to inadequate medical and psychological care; and,
(4) an Eighth Amendment and/or First Amendment claim related to the denial of several
showers and meals, as well as harassment by DOC personnel, in retaliation for filing
grievances.
Upon the conclusion of discovery, Defendants filed their summary judgment motion,
requesting the entry of judgment in their favor as matter of law. [ECF No. 58]. Defendants
contend that Plaintiff failed to appeal the initial denial of any grievance and, accordingly, he has
failed to properly and completely exhaust his claims, as required by the Prison Litigation Reform
Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), 42 U.S.C. § 1997e(a). In addition,
Defendants indicate that certain Defendants and claims were not identified by Plaintiff in any
grievance and, therefore, have not been exhausted. Finally, based upon the uncontradicted
evidence of record, Defendants argue that Plaintiff cannot establish the existence of required
elements of his failure to protect claim. [ECF No. 58, 61].
Plaintiff has filed a motion for summary judgment, primarily serving as his response to
Defendants’ pending motion, and has attached as exhibits thereto copies of documents
purporting to evidence that he completely and properly exhausted each of his claims through the
prison grievance process. [ECF Nos. 64, 65]. In addition, as to his failure to protect claim,
Plaintiff provides documents which purport to establish Defendants’ deliberate indifference to an
identifiable risk of a potential inmate assault.
Defendants, in turn, have filed their response to Plaintiff’s motion, and assert that many
of Plaintiff’s exhibits in opposition to Defendants’ motion for summary judgment are fabricated
or forged. Defendants argue that the manufactured documents should not impact the dispositive

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effect of Plaintiff’s failure to exhaust administrative remedies or to otherwise establish issues of
fact with regard to any of his claims. [ECF Nos. 68, 72].
Defendants further move for the imposition of sanctions pursuant to Rule 11 of the
Federal Rules of Civil Procedure. Defendants argue that Plaintiff’s exhibits are designed to
harass and needlessly prolong and complicate the case, and otherwise perpetrate a fraud upon the
Court and judicial process. [ECF 72, pp. 13 - 15]. Defendants seek dismissal of the pending
action or, alternatively, an award of reasonable attorneys’ fees in the amount of $4812.50,
determined by the prevailing hourly rate, for the time and expense incurred to “ferret out and
address some of the forgeries and altered, fraudulent documents” Plaintiff has filed with the
Court. [ECF No. 72, pp. 14-15].
In response to the motion for sanctions, Plaintiff has filed a “Motion to Strike and to
Move Forward from Summary Judgment.” Plaintiff contends that it is Defendants who have
fabricated evidence to avoid liability for their conduct, and that “all of [his] documents are true
and correct.” [ECF No. 70, p. 2]. Plaintiff’s motion to strike was denied on August 31, 2017,
leaving Defendants’ motion for sanctions, as well as cross motions for summary judgment to be
resolved. [ECF No. 71].
In support of their entitlement to sanctions, Defendants indicate that, in large part, the
135 pages of exhibits submitted by Plaintiff in response to their motion for summary judgment
have been fabricated or contain post-hoc falsifications or forgeries. These fabrications include
fake grievances, appeals, request slips, altered medical records, and forged signatures.
Defendants provide the declaration of the current SCI-Forest Grievance Coordinator, who
indicates that many of the grievances produced by Plaintiff have been altered or manufactured.
She points to certain grievances that are dated 2015 or January 2016, but are drafted on forms

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that were not in existence or effective until mid-February 2016, as indicated by the Form
Effective Date inscribed on the bottom of each form. [ECF No. 72-1, pp. 3-5]. For example,
ECF No. 65-4, p. 16 purports to be a Grievance Appeal drafted on November 29, 2015, related to
the Defendants’ failure to process grievances concerning alleged retaliation. However, the DCADM 804 Appeal form submitted to the Court by Plaintiff was not issued until January 26, 2016,
and was not effective or available for use until February 16, 2016. Similarly, Plaintiff has
provided the Court with a document dated December 5, 2015, purporting to be a timely
grievance appeal, related to the failure to provide medical treatment. Again, the form upon
which the appeal was drafted did not become available to inmates until two months later, in
February 2016. [ECF No. 65-4, p. 9].
The Court takes notice of the patently forged signatures of Ms. Siegel, the former Facility
Grievance Coordinator, contained on documents provided to the Court by Plaintiff to establish
his initiation of the grievance process. See, ECF Nos. 65-4, pp. 8, 15. As indicated in the
Declaration of Lisa Reeher, based on her review of existing records and her experience and
personal knowledge of Ms. Siegel’s signature, both documents are forged. The Court’s review
of Plaintiff’s exhibits leads inescapably to the conclusion that these documents contain signatures
bearing clearly visible and blatant misspellings of Ms. Siegel’s name (“S. Siegil”), and
handwriting that is not consistent with documents submitted by the parties that are not contested.
In addition, Plaintiff has provided the Court with two documents using a grievance
identification number which had been assigned to a different inmate. [ECF No. 72-1, p. 3]. The
documents also bear the forged signature and misspelled name of the Facility Grievance
Coordinator, or are drafted on forms not in existence on the date purportedly drafted by the
Plaintiff. [ECF Nos. 65-9, pp. 2-3]. Other copies of grievances submitted by the Plaintiff have

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been altered to add claims and parties not previously mentioned, or to make it appear that he
filed an appeal where he had failed to do so. See, e.g., ECF No. 65-9, pp. 19-21, cf ECF No. 721, pp. 10-11.
Plaintiff has altered medical records, which have been submitted to the Court in support
of claims related to the alleged use of excessive force and/or the alleged failure to provide
medical treatment for a purported sexual assault by a cellmate. Defendants have supplied the
Court with copies of the original records to compare with Plaintiff’s fabricated documents. On a
medication log, Plaintiff added the words “sexual/rape assault” in his own handwriting, in a
location reserved for the signature of an examining nurse. [ECF No. 72-1, pp. 9-10]. Plaintiff
altered Progress Notes to indicate that he had a “bleeding open wound,” where the original
indicates a “healing” abrasion, changed the acronym BUE (bilateral upper extremity) to “BlUE,”
and added “crooked” to “left hand,” to indicate a blue hand, with a broken bone. In contrast, the
original Progress Note indicates that Plaintiff’s upper extremity and left hand were examined
and, other than a healing abrasion with minor swelling, Plaintiff did not suffer any injury. [ECF
No. 72-2, pp. 11-12]. In addition, Plaintiff altered a Medical Incident/Injury Report to indicate
that his left ring finger was broken and deformed; however, as indicated in an x-ray report, there
were no abnormalities in Plaintiff’s hand. [ECF Nos. 72-2, pp. 13-14; 72-3]. Plaintiff has also
altered Physician Order Forms and Suicide Risk Indicators Checklist, adding references to a
“suicide watch” and an alleged sexual assault, where neither are present in the original
documents. [ECF Nos. 72-2, pp. 16-19]. These alterations are blatant, and completed by
Plaintiff, based upon spacing, handwriting, and spelling.
Defendants provide the Declaration of Derek Oberlander, SCI-Forest Deputy
Superintendent, who states that based upon his familiarity with certain officials, signatures

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(including his own) have been forged on several documents provided to the Court by Plaintiff.
[ECF No. 72-4]. A cursory review suffices to demonstrate to the Court the apparent forgery of
these signatures. In addition, Deputy Oberlander indicates that Plaintiff’s fabricated documents
include information as to housing units he hadn’t been assigned, or other relevant information
that is otherwise incorrect, but serves as indicia to Plaintiff’s attempt to fabricate evidence. [ECF
No. 72-4].
In sum, Plaintiff has filed dozens of documents with the Court that were patently
manufactured or altered so as to challenge Defendants’ entitlement to summary judgment as a
matter of law.
II. Discussion
The Court’s ability to dismiss an entire action due to fraud on the Court may arise under
various procedural rules, or under the inherent power of the Court. See e.g., Chambers v.
NASCO, Inc., 501 U.S. 32, 42, 46 (1991) (discussing and contrasting several sources of the
Courts’ authority and obligations to control various aspects of litigation and to fashion
appropriate sanctions for conduct which abuses the judicial process.) See also, Derzack v. County
of Allegheny, PA., 173 F.R.D. 400, 412–13 (W.D. Pa.1996) aff’d 118 F.3d 1571 (3d Cir. 1997)
(listing cases wherein courts used their inherent authority to deter misconduct when it constitutes
fraud on the Court by dismissing the action.)
Accordingly, it is well-settled that a district court “may dismiss a suit outright in
response to litigation abuses.” Republic of the Philippines v. Westinghouse Elect. Corp., 43 F.3d
65, 73 n.10 (3d Cir. 1995) (citing Eash v. Riggins Trucking, Inc., 757 F.2d 557, 566 (3d Cir.
1985). Regardless of the source of authority invoked, the United States Court of Appeals for the
Third Circuit has held that judges should determine the propriety of punitive dismissal by

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referencing the factors outlined in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d
Cir. 1984). See also, Adams v. Trustees of New Jersey Brewery Employees Pension Trust Fund,
29 F.3d 863, 870 (3d Cir. 1994) (dismissal for failure to prosecute under Fed. R. Civ. P. 41(b)
analyzed with reference to Poulis factors); Hoxworth v. Blinder, Robinson & Co. Inc., 980 F.2d
912, 918–19 (3d Cir. 1992) (“we apply ‘some or all of the six-part test enunciated in Poulis ...’ in
reviewing sanction orders that deprive a party of the right to proceed with or defend against a
claim”).
In Poulis, a six factor balancing test was set forth to guide a court’s analysis as to whether
dismissal of a claim was an appropriate sanction. The factors are:
(1) the extent of the party’s personal responsibility;
(2) the prejudice of the adversary caused by the failure to meet scheduling orders and
respond to discovery;
(3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in bad faith;
(5) the effectiveness of sanctions other than dismissal, which entails an analysis of
alternative sanctions; and
(6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868.
In balancing the Poulis factors, the Third Circuit has explained that “no single Poulis
factor is dispositive,” and “not all of the Poulis factors need be satisfied in order to dismiss a
complaint.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Mindek v. Rigatti, 964
F.2d 1369, 1373 (3d Cir. 1992). However, in applying the Poulis factors, the Court must be
mindful that dismissal is an extreme sanction because it deprives a litigant of his or her day in

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court. Poulis, 747 F.2d at 867–68. Dismissal may be appropriate “so long as the ... court
carefully considers and weighs the several factors and reasonably exercises his or her discretion
in finding the scales tip toward dismissal.” Derzack, 173 F.R.D. at 414 (citing Mindek, 964 F.2d
at 1373).
1. The Extent of the Party’s Personal Responsibility
Plaintiff is proceeding pro se and so is solely responsible for the forged and manufactured
documents filed by him with the Court. This factor weighs heavily in favor of dismissal.
2. Prejudice to the Adversaries and Impact on Integrity of Judicial System
As indicated by Defendants’ response to Plaintiff’s motion, determining the veracity and
accuracy of Plaintiff’s exhibits has required a substantial investment of Defendants’ resources,
including time to locate original documents, interview witnesses, and isolate fabricated
statements and signatures. Thus, Defendants have suffered prejudice. In addition, the Court has
been required to review and rule upon the viability of Plaintiff’s claims in the face of
manufactured evidence propounded by the Plaintiff in an effort to mislead the Court.
“Where fraud on the court is the underlying misconduct upon which the district court is
considering dismissal, the Poulis ‘prejudice’ prong encompasses not only the prejudice to the
litigants but also the impact on the judicial system and the threat to the integrity of the court….”
Wesley v. Scharff, 2011 WL 5878053 *2 (W.D. Pa. Sept. 26, 2011). This factor weighs heavily
in favor of dismissal. “As noted by the United States Supreme Court: “tampering with the
administration of justice in the manner indisputably shown here involves far more than an injury
to a single litigant. It is a wrong against the institutions set up to protect and safeguard the
public, institutions in which fraud cannot complacently be tolerated consistently with the good

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order of society.” Id., quoting Hazel-Atlas Glass Co. v. Hartford – Empire Co., 322 U.S. 238,
246 (1944) overruled on other grounds, Standard Oil v. United States, 429 U.S. 17 (1976).
This Court is mindful of its responsibility to ensure that litigants who avail themselves of
the jurisdiction of the court do not partake in flagrantly abusive litigation practices that demean
the institution and its role in ensuring justice. In light of the conclusive evidence of Plaintiff’s
misconduct, this factor weighs very heavily against him.
3. A History of Dilatoriness and Abuse
When confronted with evidence of his misconduct, Plaintiff filed a motion to strike and
“move forward,” accusing Defendants of manufacturing evidence to dispute his fabrications and
blatant forgeries. [ECF No. 70]. This demonstrates a pattern of bad faith and lack of candor,
seeking solely to “forestall [his] day of reckoning,” which weighs in favor of dismissal.
Derzack, 173 F.R.D. at 416, Wesley, at *3.
4. Willfulness or Bad Faith
As observed in Derzak and Wesley, “[i]t is hard to imagine a more willful act of fraud on
the court than the deliberate, elaborate scheme concocted by the plaintiff[]” to manufacture and
submit one fraudulent document after another in pursuit of monetary gain, and to harass each of
the named Defendants. Derzak, at 417; and see Wesley, at *3. Because Plaintiff’s conduct
evinces an irrefutable display of bad faith, this factor heavily favors dismissal.
5. Alternative Sanctions
The Court has considered various alternative sanctions; however, in this case, monetary
sanctions to reimburse Defendants for costs incurred would be ineffective at best. Plaintiff is an
inmate with no resources, and given his ifp status, has been deemed unable to pay filing fees,
rendering monetary sanctions hollow. Further, permitting his lawsuit to continue by merely

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excluding the evidence would send a message that the court remains open to claims, even by
those who seek justice by fraudulent means. Derzak, at 417; Stafford v. Derose, 2015 WL
1499833 (M.D. Pa. April 1, 2015). This factor indicates dismissal is warranted, and that
dismissal is proportionate to the severity of Plaintiff’s misconduct.
6. Meritoriousness of the Claims and Defenses
“A claim or defense is meritorious when the allegations of the pleadings, if established at
trial, would support recovery by the plaintiff or alternatively, would constitute a complete
defense.” Stafford, at *5, citing Poulis, 747 F.2d at 869-70. Here, in the absence of Plaintiff’s
fabricated evidence, and based upon the pleadings and other evidence of record, it does not
appear that Plaintiff’s complaint has any merit. As such, this factor also weighs in favor of
dismissal.
Because all six Poulis factors weight in favor of dismissal, the Court concludes that
Plaintiff’s complaint should be dismissed with prejudice. Defendants’ motion for sanctions will
be granted, and an appropriate order dismissing the complaint will follow.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
cc:

All counsel of record via CM/ECF

Kenneth Boulware
JA 0827
SCI Fayette
50 Overlook Drive
LaBelle, PA 15450

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