SIMMONS v. GIMORE et al

Filing 109

ORDER granting in part and denying in part 99 Motion for Sanctions. Signed by United States Magistrate Judge Richard A. Lanzillo on July 16, 2020. (jbh)

Case 2:17-cv-00996-RAL Document 109 Filed 07/16/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AUGUSTUS SIMMONS,
Plaintiff
vs.
R. GILMORE, ET AL.,
Defendants

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Case No. 2:17-cv-00996
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
MEMORANDUM OPINION ON
DEFENDANTS’ MOTION FOR
SANCTIONS
ECF NO. 99

Before the Court is Defendant’s Motion for Sanctions. ECF No. 99. For the reasons that
follow, the motion will be granted in part and denied in part. 1
I.

Introduction
On August 7, 2017, Plaintiff Augustus Simmons (Simmons) filed a Complaint against several

officials and employees (Defendants) of the Pennsylvania Department of Corrections (DOC). 2 ECF
No. 4. Simmons is an inmate currently housed at the State Correctional Institution at Coal
Township (SCI-Coal Township). His Complaint, and subsequent amendments and supplements to
it concern events that took place while Simmons was incarcerated at the State Correctional
Institution at Forest (SCI-Forest). Id. See also ECF Nos. 46 and 80.
After Defendants filed a motion for summary judgment (ECF No. 82) and Simmons filed
his response in opposition to the summary judgment motion, Defendants notified the Court that
All parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this
case. See ECF Nos. 23, 24, 31, and 40.

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2 In filing his initial Complaint, Simmons called himself “Augustus Simmons Enoch,” and at times styles himself as the
“Reverend August Simmons Enoch” in other filings. See, e.g., ECF Nos. 5, 50, 68. Even so, the Court will refer to him
as “Augustus Simmons” or “Simmons” because a review of the DOC’s inmate locator service does not yield results for
anyone named “Augustus Simmons Enoch.” See http://inmatelocator.cor.pa.gov (last consulted on May 29, 2020). The
Defendants also refer to him by that name.

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Simmons had filed a forged and fraudulent document as part of his opposition record. See ECF No.
99, p. 3. They argue that in doing so, Simmons committed a fraud upon this Court and urge the
dismissal of this litigation as a sanction. The Court construed that filing as a motion for sanctions
and will begin with that serious allegation.
II.

Alleged Fraudulent Filing
In response to Defendants’ summary judgment argument that he failed to exhaust his

administrative remedies before suing in federal court, Simmons included several pages of grievance
filings. See ECF No. 96, pp. 40-41, 59-67, 70-71. At page 71, Simmons filed a “request slip”
addressed to Tracy Shawley, a staff member at SCI-Forest. 3 This document purported to be a list of
grievances and a handwritten reply from Shawley confirming “no responces by staff” (misspelling in
the original), followed by a signature that is indecipherable. This handwritten reply appears in the
section of the form with a heading “Response: (This Section for Staff Response Only).” Id.
Defendants contend that the portion of this document represented as Shawley’s response and
signature is a forgery. In their Reply, Defendants attached an affidavit from Tracy Shawley in which
she attested that:
1.
2.
3.

She is employed by the DOC as the Superintendent’s
Assistant;
She reviewed the request slip at issue; and
The form is not completed in her handwriting, contains
misspelled words, and the purported signature on the form
is not hers. 4

ECF No. 99-1, ¶¶ 1-4.

Simmons originally named Ms. Shawley as a defendant in this action but she was terminated as such after Simmons
failed to name her as a defendant in his Amended Complaint. See ECF No. 46.

3

That document misspells the word “response” as “responce.” ECF No. 96, p.71. Simmons has misspelled this word
in various other documents. See, e.g., ECF No. 46, ¶¶ 6, 8; ECF No. 55, ¶ 7; ECF No. 96, p. 21.

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Construing Defendants’ Rely as motion for sanctions, the Court ordered Simmons to file a
Response to Defendants’ request for sanctions and show cause why sanctions, including the possible
dismissal of this action, should not be imposed on him. ECF No. 101. The Court further advised
that if following review of Simmons’ response, it concluded that an evidentiary hearing on the
Defendants’ request were necessary, one would be scheduled. Id.
Simmons filed his response on June 19, 2020. ECF No. 104. In his response, he denies
falsifying the document at issue. Id. He explains that he marked an “X” in the section for staff “for
his own records to remind and record the non-response from staff with my name and I believe a
with a date.” Id. at p. 2. The Defendants challenge the credibility of Simmons’ explanation, pointing
out that “Plaintiff did not follow his stated process by placing an ‘X’ in the box reserved for staff
response. Rather, it states ‘No responces by staff.’ Further, it is not dated and, finally, the ‘signature’
under this endorsement appears different from Plaintiff’s signature on the signature line at the top
of the form.” ECF No. 106, p. 2, ¶ 5.
On July 15, 2020, the Court conducted an evidentiary hearing to assess the credibility of the
parties’ respective positions. During the hearing, Simmons acknowledged that he wrote the notation
and signature on the form at issue, but testified that he did so simply to memorialize his position
that the Defendants did not respond to certain grievances and not in an effort to mislead the Court
to find that Defendants had admitted to a failure to respond. While Simmons’ submission of the
notation and signature was confusing and could reasonably be interpreted as a purported admission
by Defendants, the Court finds that this was not Simmons’ intent, but rather the result of his
carelessness in presentation of his record in opposition to the Defendants’ motion for summary
judgment. This finding, however, does not end the Court’s inquiry in this matter. As noted during
the hearing, Simmons has repeatedly filed papers that refer to exhibits that were not included in the
record and that include citations to exhibits that are confused and inconsistent. Again, the Court has
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given Simmons the benefit of the doubt that these practices have been the result of his lack of
attention to the importance of a clear and accurate record. During the hearing, the Court further
explained that each paragraph of Simmons’ responsive concise statement of material facts in
opposition to any future motion for summary judgment must respond directly to the corresponding
paragraph of the Defendants’ concise statement and include any accurate citation to each exhibit in
the record upon which his factual assertions are based.
With the foregoing in mind, the Court turns to Defendants’ motion for sanctions. In Poulis
v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals for the Third
Circuit set out a six-factor balancing test to guide a court’s analysis on whether to dismiss a claim as
a sanction:
(1)
(2)
(3)
(4)
(5)
(6)

extent of the party’s personal responsibility;
prejudice to the adversary;
a history of dilatoriness;
whether the conduct of the party or the attorney was willful
or in bad faith;
effectiveness of sanctions other than dismissal; and
meritoriousness of the claim or defense.

Poulis, 747 F.2d 863 (3d Cir. 1984). Any doubts in weighing the factors should be resolved in favor
of reaching a decision on the merits. Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir.1984). That
said, although a court must balance the six factors, it need not find that all factors are met before it
may dismiss an action with prejudice. Mindek, 964 F.2d at 1373 (holding that it is unnecessary that
all the factors point toward a default before that sanction will be upheld). Under these directives, the
Court will evaluate whether Simmons’ submission of the misleading document warrant dismissal of
his action.
1.

The Extent of the Party’s Personal Responsibility.

Simmons is solely responsible for the submission of the document. He is proceeding pro se
and has acknowledged that his own hand is the source of the notation and signature at issue.
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Further, Simmons is no stranger to federal litigation, having filed six actions (including this one) in
this Court against various individuals during his incarceration. See Simmons v. Szelewski, No. 1:13-cv0258; Simmons v. Gilmore, No. 2:17-cv-0096; Simmons v. Wetzel, No. 2:17-cv-0224; Simmons v. Overmyer,
No. 1:18-cv-0201; and Simmons (Enoch) v. Perry, No. 1:19-cv-0026. He has demonstrated his
familiarity with what is necessary in an evidentiary record to respond to a motion for summary
judgment that is based, in part, on an assertion that he has failed to exhaust his administrative
remedies. Thus, this factor favors dismissal.
2.

Prejudice to the Adversaries and Impact on Integrity of Judicial System

The type of prejudice that will support dismissal of an action for abuse of litigation tactics
need not be irreversible and can consist of the extra costs of repeated delays in filing of motions
demanded by the improper behavior on the part of plaintiffs. Curtis T. Bedwell & Sons v. Int’l Fidelity
Ins. Co., 843 F.2d 683, 693–94 (3d Cir. 1988). Simmons’ actions have forced Defendants to expend
time and energy to bring his actions to the attention of the Court and ensure that the integrity of the
judicial process is protected. Thus, Defendants have suffered prejudice. 5
3.

A History of Deleteriousness and Abuse

As noted, Simmons has engaged in practices that have impeded the Defendants’ ability to
present their defenses, confused the record, and protracted this litigation. But the Court finds that
these practices have been the result of carelessness rather than the product of intent. Therefore, the
Court regards this factor as weighing against dismissal of his action. Having duly instructed
Simmons to correct these practices in the future, however, the Court will interpret any continuation
of them as intentional and act accordingly.
If Simmons had intentionally attempted to deceive misrepresent the record, the Court would also have viewed the
Poulis “prejudice” prong as implicating the integrity of the courts and their ability to maintain a level playing field among
the participants. Derzack v. Cty. of Allegheny, Pa., 173 F.R.D. 400, 414 (W.D. Pa. 1996), aff’d sub nom. Derzack v. Cty. of
Allegheny Children & Youth Servs., 118 F.3d 1575 (3d Cir. 1997). Thus, at least of equal, if not greater, importance in the
fraud on the court context is the public interest in preserving the integrity of the judicial system. Aoude v. Mobil Oil
Corporation, 892 F.2d 1115, 1118 (1st Cir. 1989).

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4.

Willfulness or Bad Faith

As noted, the Court has found that Simmons’ misleading presentation of the record was
inadvertent and not intentional. Therefore, this factor does not support dismissal.
5.

Alternative Sanctions

Imposing a monetary sanction on Simmons would be ineffective as he appears to be
impecunious. See, e.g., Haskins v. Dart, 633 F.3d 541, 544 (7th Cir. 2011) (“Monetary sanctions are
generally not as effective against a pro se plaintiff proceeding as a pauper.”). 6 The Court may also
strike the misleading document from the record, thereby eliminating it as purported evidence to
counter Defendants’ exhaustion defense. Finally, the Court could sanction Simmons by revoking
his in forma pauperis status. The right to proceed in forma pauperis is a privilege, not a right. Shahin v.
Sec’y of Delaware, 2013 WL 4734392 (3d Cir. Sept. 4, 2013). See also Wilson v. Yaklich, 148 F.3d 596,
603 (6th Cir. 1998). And federal courts have the authority to revoke or deny this privilege if a
litigant abuses the privilege of proceeding in forma pauperis by filing frivolous, harassing, or
duplicative lawsuits. Royal v. Rutherford Police, 2012 WL 1551338, at *2 (D.N.J. Apr. 27, 2012); see also
In re Macdonald, 489 U.S. 180, 184-85 (1989) (per curiam); Maxberry v. S.E.C., 879 F.2d 222, 224 (6th
Cir. 1989). “[O]ne acting pro se has no license to harass others, clog the judicial machinery with
meritless litigation, and abuse already overloaded court dockets.” Bradley v. Wallrad, 2006 WL
1133220, *1 n. 2 (S.D. Ohio Apr. 27, 2006) (quotation omitted). Although revocation of in forma
pauperis status and requiring an indigent litigant to pay his own filing fees before starting future
litigation is a severe sanction, it is appropriate in rare cases of repeated litigation abuse. See Wesley,
2011 WL 5878053, at *2 (citing Jimenez, 321 F.3d at 657; Aoude, 892 F.2d at 1119; Pope, 138 F.R.D. at
683 (“Permitting this lawsuit to succeed would be an open invitation to abuse the judicial process.

6 Monetary sanctions for such behavior are not unheard of, however. See Altschul v. United States, 2019 WL 8198603, at
*2 (E.D. Tex. Oct. 28, 2019), report and recommendation adopted, 2020 WL 1171513 (E.D. Tex. Mar. 10, 2020) (pro se, IFP
plaintiff fined $2500.00 for filing forged document).

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Litigants would infer they have everything to gain, and nothing to lose, if manufactured evidence
merely is excluded while their lawsuit continues. Litigants must know that the courts are not open
to persons who would seek justice by fraudulent means.”); Telectron, Inc. v. Overhead Door Corp., 116
F.R.D. 107, 130 (S.D.Fla.1987) (collecting cases)). Thus, alternative sanctions short of dismissal are
available and appropriate here, which weighs against dismissal.
6.

Meritoriousness of the Claims and Defenses

A claim or defense is considered meritorious when the allegations of the pleadings, if
established at trial, would support recovery by the plaintiff or would constitute a complete defense.
Poulis, 747 F.2d at 869–70. After careful review of the pleadings in this actions and the parties’
submissions on summary judgment, serious doubts exist regarding the merits of Simmons’ claims.
However, the Court will defer any in-depth analysis of Simmons’ claims and Defendants’ defenses
pending Defendants’ potential filing of a renewed motion for summary judgment and will treat this
Poulis factor as neutral.
III.

Conclusion
Having considered each of the Poulis factors, the Court finds that the sanction of dismissal is

not warranted at this time. The Court will, however, strike the document filed at ECF No. 96, p. 71
and bar Simmons’ future reliance upon this document in any former proceedings. Further,
Simmons is warned that any further abusive litigation actions as described herein will be interpreted
as intentional and will result in the imposition of additional sanctions, which may include revocation
of in forma pauperis status and dismissal of this action.
ORDER
Therefore, in light of the foregoing, it is hereby ORDERED as follows:
1.

Defendants’ Motion for Sanctions is DENIED to the extent it seeks dismissal of
Simmons’ action.
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2.

The document filed at ECF No. 96, p. 71, is hereby STRICKEN from the record in
this case. Simmons is prohibited from any reliance upon this document in any future
proceedings in this case.

3.

Separately, the Court will issue a scheduling order for Defendants to renew their
motion for summary judgment or file a new motion and for Simmons to respond.

Entered this 16th day of July, 2020.

________________________________
RICHARD A. LANZILLO
United States Magistrate Judge

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