Pizzuto v. Smith et al

Filing 198

REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED AND PLAINTIFF'S MOTION FOR LEAVE TO AMEND BE DENIED & ORDER ON PENDING NON-DISPOSITIVE MOTIONS: Denying 157 MOTION to Compel filed by Carol L. Gray Pizzut o, Denying 172 MOTION for Sanctions filed by S. A. Zimmerman, Denying 196 MOTION For Contempt of Court Against Defendant Zimmerman filed by Carol L. Gray Pizzuto, Denying 174 MOTION to Compel filed by Carol L. Gray Pizzuto; Denyin g 177 MOTION to Strike; Denying 169 MOTION To Retain Experts filed by S. A. Zimmerman; Denying 186 MOTION to Strike ; Denying 187 MOTION to Strike 165 Memorandum in Support of Motion; and Denying 158 MOTION to Strik e 154 Objections. RECOMMENDING Granting of 164 MOTION for Summary Judgment filed by S. A. Zimmerman, Denial as Moot of 189 MOTION for Extension of Time to Complete Discovery filed by Carol L. Gray Pizzuto; Denial of 166 MOTI ON to Amend/Correct 1 Complaint, filed by Carol L. Gray Pizzuto; Denial as Moot of 188 MOTION to Amend/Correct 143 Scheduling Order, filed by Carol L. Gray Pizzuto. Written objections due within 14 days. Signed by Magistrate Judge James E. Seibert on 4/23/14. (soa)(copy to pltff by cert. mail) (Additional attachment(s) added on 4/23/2014: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL L. GRAY PIZZUTO,
Plaintiff,
v.

Civil Action No. 5:12-cv-149

SCOTT R. SMITH, et al.,
Defendants.
REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT BE GRANTED AND PLAINTIFF’S MOTION FOR LEAVE
TO AMEND BE DENIED & ORDER ON PENDING NON-DISPOSITIVE MOTIONS

I. INTRODUCTION
A complete history of this case is detailed in the Memorandum Opinion and Order issued by
Judge Stamp on July 1, 2013.1 As a result of that Order, all but one of the twelve original Defendants
were dismissed from the case. Only Defendant Zimmerman remains as a Defendant. The parties
entered their Joint Rule 26(f) Conference Report on September 6, 2013. Defendant filed his Rule
26(a) disclosures on September 20, 2013, and Plaintiff filed her disclosures on September 23, 2013.
On October 21, 2013, Judge Stamp entered a scheduling order in this case setting a discovery
deadline of April 8, 2014.2 Currently, there are several motions pending before the Court.
II. DISCUSSION
A. Deposition Motions
On November 1, 2013, the undersigned entered an Order denying Plaintiff’s motion to

1

Dkt. No. 107.

2

Dkt. No. 143.

compel Defendant’s deposition.3 In that order, the undersigned found that “allowing Defendant to
depose Plaintiff first will narrow the issues and define the scope of allowable discovery in this case
going forward.” Additionally, the undersigned directed Plaintiff to provide Defendant with three
dates on which she was available to be deposed. The order also provided that “[a]fter Plaintiff’s
deposition is properly noticed, the parties shall schedule the depositions that Plaintiff wishes to
conduct, on dates following Plaintiff’s deposition.” Plaintiff partially complied with this order by
providing dates of availability to Defendant. On November 11, 2013, Defendant noticed Plaintiff’s
deposition for November 19, 2013. On the notice, Defendant mistakenly indicated that the
deposition would be held pursuant to the West Virginia, rather than the Federal, Rules of Civil
Procedure. On November 15, 2013, Plaintiff filed objections to Defendant’s notice because of this
error.4 However, on November 18, 2013, Defendant’s counsel emailed and faxed Plaintiff a letter
regarding her objections and assured Plaintiff that “the reference to the West Virginia rules was a
typographical error” and that he “fully understand[s] that this action is governed by the Federal
Rules of Civil Procedure.”5
Despite her objections, Plaintiff attended her deposition on November 19, 2013. At the
outset, Defendant’s counsel reiterated that the notice contained a typographical error as evidenced
by the following exchange:
Q: Okay. One other thing I wanted to clear up. I’m going to hand you
what we’ll mark as Exhibit B. I would like you to take a look at it. I
believe it’s the Notice of Deposition for today for you in this case. I
wanted to clear up one thing about it. First, take a look and let me
know when you’re done. Take all the time you need to look over the
whole document, and I’ll ask you a couple of quick questions about
3

Dkt. No. 151.

4

Dkt. Nos. 154 & 155.

5

Dkt. No. 160-1.

it.
A: Yes, I read it.
Q: And do you recognize that to be the Notice of Deposition that I
filed in the case,-A: Yes.
Q: – for today?
A: Yes.
Q: And I noted that – I believe that it was on Friday you filed an
objection to that Notice, pointing out to me that I had cited the West
Virginia Rules of Civil Procedure; is that right?
A: Yes.
Q: And to be clear and to make sure there’s no misunderstanding, I
appreciate you pointing that out to me. We all understand that we’re
in Federal Court and that the Federal Rules of Civil Procedure apply,
fair?
A: Yes.
Q: Very good. Was there anything else about the Notice that you
objected to other than the reference to the West Virginia Rules of
Civil Procedure?
A: No.
Q: Very good. I wasn’t sure and I wanted to make sure that you had
the chance to say whatever it was that you needed to say about the
Notice itself. I’m glad we cleared that up.
Dkt. No. 160-2, p. 3-5. The deposition proceeded as scheduled. At some point, Plaintiff agreed to
dismiss her complaint against Defendant, but asked if she could go to lunch first. The following
exchange then took place:
Q. Absolutely. It is up to you. If you would like to take some lunch
before we go do that, we will take lunch and go do that before.
A. Okay.

Q. However, before we break for lunch, I want to reiterate what
we’ve agreed. We’ve agreed that after we come back from lunch that
we’re going to go down to the clerk’s officer in the Federal Court and
you’re going to ask them to dismiss Defendant Zimmerman from the
case; is that correct?
A. Yes.
Q. And to aid in that process, while you’re at lunch, I will prepare an
agreed order between you and I that states that the parties, you and
I–well, you and me on behalf of Trooper Zimmerman, agree that
based on the deposition that took place today, Trooper Zimmerman
will be dismissed as a defendant and, accordingly, we ask the Judge
to go ahead and do that. If both of us sign that and both of us bring
that to the clerk’s office for filing, then we’ll come back here, make
that signed order part of the deposition record,–we’ll keep a copy of
it and we’ll make it part of the record–and then we’ll do a few wrapup things and we’ll be done. Is that okay?
A. Yes. Do I get a copy? Will I get a copy?
Dkt. No. 159-7, p. 125-26. After further discussing the mechanics of the dismissal order, the parties
broke for lunch:
Q. So with that being said, are we–is the plan I discussed before
acceptable, we’ll take lunch and then go down to the courthouse?
A. I don’t know what to do. That’s the right thing to do. Yes, it’s the
right thing to do.
Q. Okay. Then we will go do that. Why don’t you take lunch. I will
be here working on that order and we will go from there. How long
do you think you want to take?
A. Probably an hour.
Q. That’s fine. It’s about 1:12, so let’s plan on being back here about
2:12. Okay?
A. Okay. That would be fine.
MR. SOLOMON: Very good. With that, we’ll go off the record for
lunch.
PLAINTIFF: Okay.

MR. SOLOMON: Thank you so much.
PLAINTIFF: And do I leave my papers here? Might as well.
MR. SOLOMON: That’s completely up to you.
Dkt. No. 159-7, p. 129-30.
At 2:45 p.m., Plaintiff had not returned from lunch, so Mr. Solomon went back on the record
and left Plaintiff a voice mail asking that she call him immediately. At 3:28 p.m., Plaintiff had still
not returned, and Mr. Solomon left her voice mail advising that if he did not hear from her by 3:45
p.m., “we will adjourn the deposition and we’ll then need to make the Court aware of what occurred
this afternoon and seek the Court’s involvement.” At 3:45 p.m., having still not heard back from
Plaintiff, Mr. Solomon stated on the record:
As stated it’s now shortly after 3:45 and Ms. Pizzuto has not returned.
We attempted to call her cell phone number twice, left messages both
times advising her that we were waiting for her return. And the
second one advised that if we did not hear from her by 3:45, or if she
did not return by 3:45, that we would adjourn the deposition and raise
the issue with the Court. We’ve not heard from Ms. Pizzuto, she’s
failed to return for the remainder of her deposition. We are going to
suspend the deposition and leave it adjourned for today and reserve
the right to continue the deposition, to seek appropriate relief from
the Court and to otherwise bring the issue of today’s deposition to the
Court’s attention. That’s it for today.
Dkt. No. 159-7, p. 132-33.
Two days later, on November 22, 2013, Plaintiff filed a motion to compel Defendant to
provide deposition dates.6 Plaintiff filed a second motion to compel on March 5, 2014.7 Plaintiff’s
motions largely repeat her previous claims that Defendant refuses to give her his dates of availability
despite repeated requests–allegations the undersigned already found to be unsupported. Plaintiff also
contends that she was duly dismissed from her deposition; and, therefore, she is in full compliance
6

Dkt. No. 157.

7

Dkt. No. 174.

with this Court’s order. She claims that it is now Defendant’s turn to provide his dates of availability
as ordered by this Court.8 The undersigned disagrees.
The previous deposition order clearly indicates that Defendant’s deposition will be
conducted only after Plaintiff’s deposition has taken place. Simply put, Plaintiff’s deposition is not
complete because Plaintiff left before it was over. She was not “duly dismissed from [her]
deposition...by Deva A. Solomon,” as she claims. In order to believe Plaintiff’s version of the events
as it pertains to her motions to compel,9 the Court would have to believe that Mr. Solomon dismissed
Plaintiff from the deposition, but in an effort to avoid having his client deposed, nonetheless created
an elaborate ruse involving a forged deposition transcript and fraudulent filings with this Court. This
the Court simply cannot do based on Plaintiff’s unsupported and contradictory allegations. Plaintiff’s
version of the events is simply not credible. Accordingly, Plaintiff’s motions to compel Defendant’s
deposition are DENIED.
Plaintiff filed several other motions related to her deposition. First, on December 2, 2013,
Plaintiff filed a motion to strike her deposition transcript. Plaintiff contends that she did not have
notice of her deposition because she did not receive the amended notice changing the typographical
error discussed above until November 19, 2013, the date of her deposition. This argument lacks
merit. As noted above, Defendant made every effort to correct the typographical error and received
assurances from Plaintiff that she understood the deposition was proceeding under the Federal Rules

8

Plaintiff also likens her situation to Dennis Givens’s case wherein the undersigned recently rejected
Defendant’s request for a protective order precluding his deposition altogether because of an alleged weak case.
Unlike that case, here, Plaintiff has not submitted to a deposition first. Additionally, in Dennis Givern’s case, the
Court declined to decide that his deposition was unnecessary because no dispositive motions were before the Court.
Here, in contrast, Defendant’s summary judgment motion is before the Court. Accordingly, Plaintiff’s situation is
vastly different than Dennis Givens’s case.
9

The Court notes that in other motions and filings, Plaintiff claims that she “escaped” the deposition in fear
of her life because of Mr. Solomon’s bullying behavior. She also claims elsewhere that she was told by Mr. Solomon
to meet at the court house after lunch, but that Mr. Solomon never showed up there. She also claims that she was
having chest pains and stomach problems, facts which she revealed to Mr. Solomon and which he ignored.

of Civil Procedure. Plaintiff’s arguments to the contrary are frivolous.
Although not specifically raised as a ground in her motion to strike, Plaintiff raises the issue
of the inaccuracy of the deposition transcript multiple times in various pleadings, including attacking
the deposition transcript in opposing Defendant’s summary judgment motion. She states that “during
the entire interview with Defendant Attorney Deva A. Solomon, I was given the impression that I
was being stalked, as well as my entire family, and any guests to my home by Defendant
Zimmerman.” She also claims that Mr. Solomon “acted on behalf of Defendant Zimmerman as an
unmitigating bully and off the record intent on my immediate civil arrest or demise,” and that Mr.
Solomon told her that if she did not go to the court house to dismiss the complaint willingly, he
would forcibly take her there under arrest. Plaintiff also alleges that Mr. Solomon altered the
deposition transcript in an effort to make it appear as if Plaintiff made damaging admissions.
Plaintiff states that “Mr. Solomon began striking matters that we discussed, instructing the
transcriptionist to delete the complete, official record, key matters stricken...and trash and scratch
things pertaining to the record.” She claims that Mr. Solomon also tricked her into making
admissions against her will by showing her documents too quickly. Finally, she contends that
because she was never informed of the 30-day notice requirement to correct her deposition
transcript, any copy of it should be deemed inadmissible by this Court. Defendant filed a certified
copy of Plaintiff’s transcript signed by Ms. Shutek, the certifying official.10 Additionally, Defendant
filed excerpts of the deposition transcript in support of his motion for summary judgment and motion
for sanctions.
The Court finds that Plaintiff’s objections lack merit for several reasons. First, Plaintiff’s
fantastical allegations regarding Mr. Solomon’s conduct are simply not credible. The Court believes

10

Dkt. No. 183.

that Plaintiff made several damaging admission during her testimony and agreed to dismiss her
complaint against Defendant, but then had second thoughts once she was at lunch, and she simply
went home without finishing her deposition. It is not lost on the Court that Plaintiff’s allegations
against this Defendant stem from a strikingly similar incident in which Plaintiff agreed with Mr.
Gamble, in front of Judge Wilson, to dismiss her state court case11 against Mr. Gamble and others,
but then presumably changed her mind and denied having ever agreed to dismiss. Subsequently,
Plaintiff filed a motion seeking to hold Mr. Gamble in contempt for allegedly denying the Court’s
order not to prepare a dismissal order for Plaintiff’s signature.12 However, as Judge Wilson stated
in his Order Denying Plaintiff’s Motion: “The facts known to the Court are as follows: The parties
appeared for a scheduling conference on April 18, 2011. At that hearing Ms. Pizzuto expressed that
she was not interested in pursuing her case any further. The Defendant, an attorney, offered to
prepare the proposed Order to present to the Court to dismiss the action. The Court did not conduct
the scheduling conference because the Plaintiff had indicated her interest in no longer pursuing the
matter and, therefore, no Scheduling Order was produced by the Court.”13 Similarly, here, Plaintiff
attempts to rewrite events to fit her narrative–no matter how farfetched her version might be. It
simply defies credibility that Mr. Solomon would threaten and coerce Plaintiff, force a court reporter
to commit perjury, and then doctor Plaintiff’s deposition transcript before presenting it to the Court
as a certified copy. Plaintiff has presented nothing other than self-serving allegations that the
deposition transcript is inaccurate or that Mr. Solomon’s conduct was inappropriate.

11

Civil Action No. 10-C-101 in the Circuit Court of Ohio County, West Virginia

12

Dkt. No. 184-1, p. 19. In fact, it is this incident that Plaintiff reported to Defendant in an effort to have
Mr. Gamble prosecuted criminally for allegedly forging her name on the motion to dismiss. As Defendant’s
subsequent report indicates, upon interviewing Mr. Gamble and receiving documentation from Judge Wilson,
Defendant found the claims unfounded.
13

Dkt. 184-1, p. 17-18.

Finally, Plaintiff’s argument regarding her failure to review and sign the deposition transcript
lacks merit. Rule 30(e)(1) provides that “[o]n request by the deponent...before the deposition is
completed, the deponent must be allowed 30 days after being notified by the officer that the
transcript is available in which to (A) review the transcript and; (B) if there are changes in form or
substance, to sign a statement listing the changes and the reasons for making them.” Fed.R.Civ.P.
30(e). Thus, an “absolute prerequisite to amending or correcting a deposition under Rule 30(e)” is
that the deponent request review of the deposition before its completion. E.B.C., Inc. v. Clark Bldg.
Systems, Inc., 618 F.3d 253, 266 (3rd Cir. 2010); Agrizap, Inc. v. Woodstream Corp., 232 F.R.D.
491, 494 (E.D.Pa.2006) (barring witness from changing deposition transcript for failure to request
review before completion of the deposition). Only if the deponent has properly requested review
may she submit changes to the deposition transcript within thirty days after being notified by the
officer that the transcript is available for review.
Here, there is no indication that Plaintiff requested the opportunity to review the transcript.
The certificate signed by Ms. Shutek does not state that Plaintiff requested review.14 Moreover, even
if Plaintiff had requested the opportunity to make corrections to her deposition testimony, the
changes Plaintiff contemplates go far an beyond what Rule 30(e) authorizes. See Thorn v.
Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (“We also believe, by analogy to the
cases which hold that a subsequent affidavit may not be used to contradict the witness's deposition,
that a change of substance which actually contradicts the transcript is impermissible unless it can
plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’”);

14

Dkt. No. 183-1 p. 36. Plaintiff appears to argue that it was Mr. Solomon’s or Ms. Shutek’s responsibility
to inform her of her right to request review. Without addressing this contention, the Court notes that had Plaintiff not
left her deposition before it was completed, it is likely that the procedure would have been more fully explained to
her by Mr. Solomon, in light of the very thorough (and polite) way that Mr. Solomon explained all other aspects of
the deposition process to Plaintiff.

Touchcom, Inc. v. Bereskin & Parr, 790 F.Supp.2d 435, 465 (E.D.Va.2011) (“Rule 30(e)...‘cannot
be interpreted to allow one to alter what was said under oath. If that were the case, one could merely
answer the questions with no thought at all then return home and plan artful responses. Depositions
differ from interrogatories in that regard. A deposition is not a take home examination.’”) (quoting
Burns v. Bd. of County Com'rs of Jackson Cnty., 330 F.3d 1275, 1282 (10th Cir.2003)).
Significantly, “[e]ven jurisdictions that permit broad substantive changes usually disallow changes
tendered after a motion for summary judgment has been filed.” E.I. du Pont de Nemours and Co.
v. Kolon Industries, Inc., 277 F.R.D. 286, 296 (E.D.Va. 2011) (collecting cases); EBC, Inc. v. Clark
Bldg. Systems, Inc., 618 F. 3d 253, 267-68 (3rd Cir. 2010) (“As a general proposition, a party may
not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by
re-tailoring sworn deposition testimony to his or her satisfaction.”).
The Court finds that Plaintiff made several damaging admissions while testifying under oath
and now seeks to rewrite her testimony to undo those admissions. However, Plaintiff’s allegations
are conclusory and self-serving. Plaintiff provides neither specific examples of misrepresentations
contained in the transcript nor evidence supporting her allegations. Accordingly, the Court DENIES
Plaintiff’s motion to strike her deposition transcript and will consider the portions of the deposition
testimony cited in Defendant’s motion as authorized by the Federal Rules of Civil Procedure.
B. Plaintiff’s Motion for Leave to Amend Complaint (Doc. 166)
In her motion, Plaintiff seeks to file an amended complaint in order to add two defendants,
J.E. Dean (“Dean”) and Sergeant Adams (“Adams”), both police officers. Plaintiff contends that
leave to amend should be granted because “it will clarify the dispute between the parties and will
not cause undue prejudice.” Plaintiff attached her proposed amended complaint to her motion. Other
than the addition of the following new paragraphs, the amended complaint is identical in every

respect to Plaintiff’s original complaint:
Defendant Dean, Adams denied Plaintiff, or caused Plaintiff to be
subjected, unlike any citizen of the United States or other person
within the jurisdiction thereof to the deprivation the Plaintiff of the
rights, privileges, or immunities secured by the Constitution and laws
of the United States in the reporting of crimes. And so, has exercised
power “possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law by
such actions name in Counts I through V, contained herein.
Acting under “color of law” and agent for a governmental agency that
receives state and federal funds, Defendant Dean, Adams, Branham15
is mandated to comply with federal and state laws, including due
process and the First through Fourteenth Amendments to the United
States Constitution.
According to Defendant Dean, Adams, law enforcement Procedural
Operations Guidelines, Amendment rights require that Defendant
Dean, Adams, Branham not interfere with due process and the equal
protection of law, and because of that, Defendant Dean, Adams, is
required to provide equal access to the reporting, law enforcement of
crimes. Consequently, as a matter of official policy, practice, custom,
and/or procedure, Defendant Dean, Adams, has intentionally
dedicated his expressive conduct by breach of duty to the laws,
statutes and ordinances affective to the civil and constitutional rights
to be free from molestation of the reporting of all crimes and
misdemeanors affecting the Plaintiff, namely color of federal and
state laws, without bias, favoritism, or conflict of interest.
During the times and dates cited herein, Defendant Dean, Adams,
Branham have denied the Plaintiff, and targeted the Plaintiff, as well
as her expert(s), that have reason to believe that the added Parties are
15

Although Plaintiff includes the name “Branham” in several of these new paragraphs of her amended
complaint, it is entirely unclear from Plaintiff’s proposed amended complaint who “Branham” is because Plaintiff
did not list him or her as a new party. The Court notes that on the same day Plaintiff filed her motion to amend,
Plaintiff Dennis Givens also filed a motion to amend in companion case 5:12-cv-145 seeking to add D.L. Robinson
and Sergeant Branham as parties to his original complaint. Other than containing the names Robinson and Branham,
rather than Dean and Adams (and sometimes Branham), the five new paragraphs set forth in Dennis Givens’s
proposed amended complaint are identical in every respect to the five new paragraphs set forth in Pizzuto’s proposed
amended complaint. See 5:12-cv-145, Dkt. No. 145-1, p. 7–8. In the same vein, Plaintiff Greg Givens also filed a
motion to amend on January 31, 2014, in companion case 5:12-cv-155, seeking to add new parties Dean, Adams,
Branham, and Weaver. Again, other than containing the names Dean, Adams, Branham, and Weaver, Greg Givens’s
proposed amendment is identical in every respect to the proposed amendments of Pizzuto and Dennis Givens. See
5:12-cv-155, Dkt. No. 162-1, p. 10-12. It appears to the Court that all three Plaintiffs merely seek to add these “new”
Defendants in order to make all three complaints identical. This serves to bolster the Court’s finding, discussed
below, that Plaintiff utterly fails to state a claim against Dean and Adams.

PART AND PARCEL of the allegations herein, and complicate with
the remain [sic] parties to this suit, and contained within the
Plaintiff’s AMENDED COMPLAINT.
Defendant Dean, Adams, Branham have denied Plaintiffs’ access to
a public forum to express their civil and constitutionally-protected
views, and denial of victims rights under color of law, and biased the
content of a clear and proper criminal investigation expressed by
Plaintiff, and extreme restriction on Plaintiff, that at all times named
herein, placing Plaintiff in great harm, and risk of further injuries,
loss of companionship, all physical and emotional strain and damage.
Defendant argues that Plaintiff’s proposed amendment is futile because it fails to state a claim upon
which relief can be granted. Additionally, Defendant contends that the proposed amendment “is a
bad faith attempt to renew claims against Defendants that have already been dismissed.”
Under Federal Rule of Civil Procedure 15, a “court should freely give leave [to amend]
when justice so requires.” Fed.R.Civ.P. 15(a)(2). “The law is well settled ‘that leave to amend a
pleading should be denied only when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the amendment would be futile.’”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat
Foods Co., 785 F.2d 503, 509 (4th Cir.1986)). “Futility is apparent if the proposed amended
complaint fails to state a claim under the applicable rules and accompanying standards: ‘[A] district
court may deny leave if amending the complaint would be futile—that is, if the proposed amended
complaint fails to satisfy the requirements of the federal rules.’” Katyle v. Penn Nat. Gaming, Inc.,
637 F.3d 462, 471 (4th Cir. 2011) (quoting United States ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir.2008)). Thus, a proposed amendment that would clearly be subject
to immediate dismissal through a 12(b)(6) motion to dismiss is futile and leave to amend should be
denied. See Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.1986) (leave to amend
should be denied “when the proposed amendment is clearly insufficient or frivolous on its face”);

Jones v. N.Y. Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.1999) (amendments subject
to “immediate dismissal” for failure to state a claim are futile). Moreover, where a plaintiff seeks
to amend a complaint after the defendant has filed a motion for summary judgment, a more stringent
standard applies to the determination of whether leave to amend should be given. See, e.g.,
Eisenberg v. Wall, 607 F.Supp.2d 248, 257-58 (D.Ma. 2009). “[W]here plaintiff files a motion to
amend after defendant has moved for summary judgment the motion to amend will not be granted
unless the party seeking amendment can show not only that the proposed amendment has substantial
merit[,]...but also come forward with substantial and convincing evidence supporting the newly
asserted claim.” Carey v. Beans, 500 F. Supp. 580, 582 (E.D. Pa. 1980) aff'd, 659 F.2d 1065 (3d Cir.
1981) (internal citations and quotations omitted).
The undersigned agrees that Plaintiff’s proposed amendment would be futile because it
clearly fails to state a claim, and it would undoubtedly be subject to immediate dismissal under Rule
12(b)(6). See Adorno v. Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006) (holding
that futility of an amendment is assessed under the standard of Fed.R.Civ.P. 12(b)(6)). For a
complaint to avoid dismissal for failure to state a claim upon which relief may be granted, it must
include factual allegations sufficient to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.
662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). The Court must accept factual
allegations as true, but it need not accept the plaintiff’s legal conclusions. Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009). The complaint must have facial plausibility; thus, a plaintiff must
plead “factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Thus, to meet the plausibility standard
and survive dismissal for failure to state a claim, a complaint must offer more than “a sheer
possibility that a defendant has acted unlawfully.” Id. A pro se complaint may be dismissed for

failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S.
519, 521 (1972) (internal quotation omitted).
Here, Plaintiff’s allegations against Dean and Adams are completely conclusory and devoid
of any factual allegations that would give rise to a claim for relief. In fact, Plaintiff’s amendment
does not alter in any respect the factual substance of Plaintiff’s previously pled causes of action,
almost all of which have already been dismissed for failure to state a claim. Plaintiff baldly asserts
that Dean and Adams “denied” and “targeted” her, but offers no factual support for these allegations.
Similarly, Plaintiff claims that Dean and Adams “denied Plaintiffs’ access to a public forum to
express their civil and constitutionally-protected views,” denied her victim’s rights, and “biased the
content of a clear and proper criminal investigation expressed by Plaintiff.” Again, there are no facts
set forth to substantiate these vague and poorly-worded claims. Additionally, Plaintiff did not add
either of the new defendants to any of the causes of action in her proposed amended complaint. She
merely recites, verbatim, the causes of action from her original complaint and states that these “new”
defendants are “part and parcel” of those prior allegations. Accordingly, the Court finds that it is
“beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would
entitle [her] to relief.” Haines, 404 U.S. at 521.
Moreover, even if Plaintiff’s proposed amendment could survive a motion to dismiss for
failure to state a claim, Plaintiff faces a more stringent standard because her motion for leave to
amend came after Defendant’s Motion for Summary Judgment. As noted above, under this standard,
Plaintiff must “show not only that the proposed amendment has substantial merit[,]...but also come
forward with substantial and convincing evidence supporting the newly asserted claim.” Carey, 500
F. Supp. at 582. Clearly, Plaintiff’s conclusory and vague allegations do not meet this heightened

standard. Accordingly, Plaintiff’s Motion for Leave to Amend (Doc. 166) should be DENIED.
C. Plaintiff’s Motion to Retain Experts (Doc. 169)
On February 7, 2014, Plaintiff filed a Motion and Notice to Retain Experts. Attached to this
motion is a list of thirteen “potential persons expected/called for expert testimony as expert
witnesses,” which includes numerous police and security experts and forensic document examiners.
The only information provided about each expert is the expert’s name and a brief description of
services provided by the expert. Citing the Federal Rules of Civil Procedure and this Court’s
Scheduling Order, Plaintiff moves the Court to grant her leave to retain these experts. On March 11,
2014, Defendant filed a Motion to Strike Plaintiff’s Motion to Retain Experts. Defendant argues that
Plaintiff’s motion should be construed as Expert Witness Disclosures. Defendant also contends that
Plaintiff’s disclosures “completely fail to comply with Rule 26(a)(2) of the Federal Rules.
To the extent Plaintiff’s motion is seeking leave of Court to retain expert witnesses, the
Motion is DENIED. Plaintiff is free to retain any expert witness she chooses as long as she complies
with the procedural requirements of the local and Federal Rules. No leave of Court is required. To
the extent Plaintiff’s motion is intended to be an expert witness disclosure, the Court agrees that it
fails to comply with Federal Rule of Civil Procedure 26, which requires much more information than
Plaintiff provided. See Fed.R.Civ.P. 26(a)(2). However, the Federal Rules also provide a remedy for
such a failure. See Fed.R.Civ.P. 37(c)(1) (“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.”). Thus, unless and until Plaintiff attempts to use her expert witnesses to
supply evidence, Defendant’s Motion to Strike is premature. Accordingly, Defendant’s Motion to
Strike (Doc. 177) is DENIED.

D. Defendant’s Motion for Summary Judgment (Doc. 164)
Under Federal Rule of Civil Procedure 56, the Court shall grant a motion for summary
judgment if the movant shows that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary
judgment bears the initial burden of showing the absence of any genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The burden then shifts to the non-moving party
to come forward with facts sufficient to create a triable issue of fact.” Anderson, 477 U.S. at 247-48.
The court must avoid weighing the evidence or determining the truth and limit its inquiry solely to
a determination of whether genuine issues of triable fact exist. Id. In making this determination, the
court views all underlying facts and inferences in the light most favorable to the nonmoving party.
Id. However, “a party opposing a properly supported motion for summary judgment may not rest
upon mere allegation or denials of his pleading, but must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 256. Thus, “pure speculation and unsupported assertions [will not]
suffice to create a genuine issue of material fact; the nonmoving party, to defeat summary judgment,
must come forward with affidavits, interrogatories, depositions, and or other admissible evidence
demonstrating the existence of a genuine issue of material fact.” Blankenship v. Warren County
Sheriff’s Dept., 939 F.Supp.451, 456 (W.D.Va. 1996); see also Fed.R.Civ.P. 56(c). “The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which a jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Plaintiff brought this action alleging various civil rights violations against numerous
defendants pursuant to 42 U.S.C. § 1983. However, this Court allowed this claim against Defendant
to move forward based ONLY ON the allegation in Count III that Defendant, “in conspiracy with
Defendant Gamble, leaked internal investigative forensic reports supplied in confidence to the West

Virginia State police officer Zimmerman, to foster favor and provide advantage to intimidate
Plaintiff, and to affect the course of justice in favor of Defendant Keith C. Gamble, under color of
law, and in violation of Plaintiff’s Federal and state civil and constitutional rights and privileges
named herein.”16 In order to prevail on her § 1983 claim, Plaintiff must show that Defendant, acting
under color of state law, deprived her of “a right secured by the Constitution and laws of the United
States.” Although Plaintiff devotes a considerable portion of her brief on whether Defendant was
acting under color of state law, there does not seem to be any dispute that Defendant was a state
actor at all times relevant to the allegations in the complaint. The question then is whether Plaintiff
can prove an underlying constitutional violation caused by Defendant’s alleged leak of information.
After thoroughly reviewing the record, and showing as much deference as possible to the pro se
Plaintiff, it appears to the Court that Plaintiff alleges that Defendant leaked confidential documents
to Mr. Gamble in order to give Mr. Gamble leverage against Plaintiff in a pending civil suit in which
Mr. Gamble was named as a defendant, which violated her right to privacy and her right of access
to the courts. Defendant asserts that there is no genuine issue of material fact supporting Plaintiff’s
claim because Plaintiff admitted in her deposition that it was Dennis Givens who gave Defendant
the alleged confidential documents and that the documents neither belonged to her nor related to
her.17 The Court agrees.
16

Dkt. No. 107, p. 14-16.

17

The relevant testimony is as follows:
Q. Did you give Trooper Zimmerman documents on June 4, 2011?
A. Yes.
Q. And I suppose tha tyou told him that, you know, these support my claims and
what I’m telling you, this is for you to investigate with?
A. Yes.
Q. Did you tell him that any of those documents were confidential?
A. The ones I gave him on June the 4th-Q. Yes, ma’am.
A. –were different than the other–than any other–No, I never–Just those
documents. No, I didn’t tell him they were confidential, no.
Q. Did you ever give Trooper Zimmerman a confidential document?

Even if Plaintiff could prove that Defendant leaked documents to Mr. Gamble, there can be
no violation of Plaintiff’s constitutional rights if the documents neither belonged, nor related, to
Plaintiff. To sustain an access to the courts claim, “a plaintiff must demonstrate that the defendants’

A. No.
Q. Did you ever give Trooper Zimmerman confidential information?
A. Not that I can remember, so, no, I would say no–I would say no.
Q. Well, are you saying no or are you saying I don’t remember?
A. No. I said-Q. I’m sorry I need to press-A. –I dn’t remember, and then I said I would say no. Because I really can’t
remember, so–I probably didn’t, so I would say I don’t know. I’m not sure.
Q. So you don’t remember giving Trooper Zimmerman any confidential
documents or information at any time?
A. No, I don’t remember if it was confidential. It was all regular as far as I can
remember.
Q. And do you agree with–Are you willing to withdraw the allegation in your
Complaint–and you can look at whatever you want before you answer this
question. I’ll give you all the time you need. If you say I’m not ready to answer
that now, that’s fine too. But are you willing to withdraw the allegation in your
Complaint that Trooper Zimmerman leaked any confidential documents or
information? Will you withdraw that allegation?
A. I would like to–That’s a–That’s a question, believe me. Because-Q. That’s what I thought.
A. Because later on things were leaked to Gamble.
Q. Yes, ma’am.
A. So I don’t know if they came from Zimmerman-Q. But–Back up. And I-A. He’s affiliated somehow along the line I would say.
Q. Hold on. I don’t mean to stop you from saying anything you want to say. So
again, if we’re not done and I think we’re done and I’m wrong, you tell me. But
I need to clarify here. I think you just told me you don’t remember giving
Trooper Zimmerman any confidential information.
A. Uh-huh.
Q. And I’m wondering how it’s possible then that Trooper Zimmerman leaked
any confidential information if you didn’t give it to him?
A. Well, I didn’t give it to him.
Q. So who’s-A. Someone else surely did, not me.
Q. What precise confidential-A. It was another–It’s got something else to do with someone else. I can’t speak
for-Q. Whose information was it?
A. I don’t know. I’m not sure. I can’t say. Do I have to say?
Q. Well-A. Well, yeah, I can say if you want me to say.
Q. If you know, I would like for you to tell me what we’re talking about here.
A. Dennis Givens, his statement that he made for a forgery.
Q. So it’s your belief that Trooper Zimmerman leaked a statement that Dennis
Givens gave him?
A. Uh-huh, yes.

actions foreclosed her from filing suit in state court or rendered ineffective any state court remedy
she previously may have had.” Pollard v. Pollard, 325 F. App'x 270, 272 (4th Cir. 2009). Plaintiff
cannot prevail on such a claim if the documents allegedly leaked related to someone else. Similarly,
to prevail on a violation of privacy claim, Plaintiff must show that she had a legitimate expectation
of privacy in the disclosed documents. Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir. 1996). While in
some situations, a plaintiff may be able to prevail on a right of privacy claim even if the information
is not directly provided by the plaintiff to the defendant, the information must still pertain to a
personal matter about the plaintiff. See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d
64 (1977) (stating that the right to privacy protects “the individual’s interest in avoiding disclosure
of personal matters”).
However, despite attaching over eighty pages of exhibits and affidavits to her opposition to
the motion, Plaintiff offers no evidence showing that she provided Defendant with any confidential
documents. Nor does Plaintiff come forward with any evidence showing that the documents Dennis
Givens provided related to her or her pending state court case. In a section of her brief entitled
“Counter Claims Stated by Defendant,” Plaintiff states that she “DID NOT ‘admit’ that defendant
Zimmerman did not leak any of her confidential information, as attested to by her affidavits and true
statements; and results in word twisting by defendant’s counsel.” (emphasis in original). Plaintiff
also claims that she “witnessed the events alleged against Defendants Zimmerman, and can produce
eye-witness and expert testimony that argues for some doubt as to defendant Zimmerman’s
Memorandum, within the law.” These unsupported, conclusory statements and allegations are
simply not sufficient to overcome summary judgment. Levine v. Smithtown Cent. Sch. Dist., 565 F.
Supp. 2d 407, 419-20 (E.D.N.Y. 2008) (“The non-movant must present more than a “scintilla of
evidence,” or “some metaphysical doubt as to the material facts,” and cannot rely on the allegations

in his or her pleadings, conclusory statements, or on “mere assertions that affidavits supporting the
motion are not credible.”) (internal citations omitted).
Only two of Plaintiff’s affidavits contain any mention of anyone giving Defendant
confidential information, and both affirm that it was Dennis Givens, and not Plaintiff, who gave
Defendant the alleged confidential information. First, Dennis Givens states in an affidavit that he
met with Defendant on May 3, 2011, in order to file a police report against Keith Gamble for
forgery, uttering, and fraudulent schemes; and, on that date, he presented exhibits to Defendant in
support of his allegations. Second, Greg Givens states in an affidavit that “[b]etween May 11, 2011
and July 22, 2011, it was uncovered that West Virginia State Police Officer J.C. Weaver otherwise
leaked confidential internal investigative information, forensic police reports and information
concerning Dennis Givens and Greg Givens, supplied in confidence to [Defendant], on or about May
3, 2011, to one Keith Christopher Gamble of Morgantown, West Virginia, as used in deposition
involving Dennis A. Givens and Carol L. Gray Pizzuto....” Thus, instead of showing that there is a
genuine dispute as to whether Plaintiff gave Defendant confidential information related to her case,
Plaintiff’s evidence actually shows that it was Dennis Givens, and not Plaintiff, who provided
Defendant with confidential information and that it was Officer Weaver, and not Defendant, who
leaked this information.
Rather than present evidence showing a genuine dispute of material fact, Plaintiff attempts
to discredit Defendant’s evidence by making unsupported allegations that her deposition testimony
was coerced by Defendant’s counsel or quoted out of context in Defendant’s motion. However, as
discussed above, Plaintiff offers no facts to support these shocking allegations of impropriety on
Defendant’s part. “[P]laintiff's bald assertion that defendants’ evidence is fabricated does not create
a triable issue unless plaintiff produces competent evidence that contradicts defendants’ exhibits.”

Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 354 (D. Md. 2011); see also
Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (“If a party who has
been examined at length on deposition could raise an issue of fact simply by submitting an affidavit
contradicting his own prior testimony, this would greatly diminish the utility of summary judgment
as a procedure for screening out sham issues of fact.”). As one court put it: “Questions of this
general sort often arise in cases where the party resisting summary judgment can muster no
competent evidence to avoid it, yet wants to get to a jury in the hopes that the jury will disbelieve
the evidence that the summary judgment movant has adduced.” Wilson v. Clancy, 747 F.Supp. 1154,
1158 (D.Md.1990); see also see Scott v. Harris, 550 U.S. 372, 380 (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.”). Simply put, “[a] genuine issue of material fact is not created where the
only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony
is correct.” Barwick v. Celotex Corp., 736 F.2d 946 (4th Cir. 1984).
Finally, Plaintiff asserts that Defendant’s summary judgment motion is premature because
“discovery is not yet complete” and because “no deposition of Defendant have had the opportunity
to take place; relevant discovery has yet to be taken in related eye-witness testimonies relevant to
similar defendant’s acts or omissions relative to the present case.” “Generally speaking, ‘summary
judgment [must] be refused where the nonmoving party has not had the opportunity to discover
information that is essential to his opposition.’” Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Anderson, 477 U.S. at 250 n.5). Federal Rule of Civil
Procedure 56(d), formerly Rule 56(f), provides that “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to

a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” Thus, “the non-moving party’s duty to respond specifically to a summary judgment motion
is expressly qualified by Rule 56[(d)]’s requirement that summary judgment be refused where the
non-moving party has not had the opportunity to ‘discover information that is essential to his
opposition.’ ” Strag v. Board of Trustees, 55 F.3d 943, 953 (4th Cir.1995) (quoting Nguyen v. CNA
Corp., 44 F.3d 234, 242 (4th Cir.1995)).
In general, “a reference to Rule 56[(d)] and the need for additional discovery in a
memorandum of law in opposition to a motion for summary judgment is not an adequate substitute
for a Rule 56[(d)] affidavit,” and “the failure to file an affidavit under Rule 56[(d)] is itself sufficient
grounds to reject a claim that the opportunity for discovery was inadequate.” Harrods, 302 F.3d at
244. However, “the non-moving party's failure to file a Rule 56(d) affidavit cannot obligate a court
to issue a summary judgment ruling that is obviously premature.” Leftridge v. Matthews, 2013 WL
5467724 (D. Md. Sept. 30, 2013). Giving Plaintiff the full benefit of the doubt, the Court will
construe Plaintiff’s contentions as a Rule 56(d) affidavit seeking to engage in additional discovery.
“Rule 56(d) affidavits cannot simply demand discovery for the sake of discovery.” Hamilton
v. Mayor & City Council of Baltimore, 807 F.Supp.2d 331, 342 (D.Md.2011) (internal quotations
omitted). The nonmoving party must demonstrate that the summary judgment motion is clearly
premature because she has not had an opportunity to discover “information that is essential to [her]
opposition [of the motion].” Harrods, 302 F.3d at 244. Courts generally find that summary judgment
is premature where the nonmoving party, through no fault of her own, has had little or no
opportunity to conduct discovery. See Webster v. Rumsfeld, 156 Fed.Appx. 571, 577 (4th Cir. 2005);
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922 (4th Cir.1995); Strag,

55 F.3d at 953. Additionally, when the issues involved are highly fact intensive, such as intent or
motive, summary judgment may be inappropriate without more discovery. Harrods, 302 F.3d at 244.
The denial of summary judgment on the grounds that more discovery is necessary may also be
appropriate where the relevant facts are exclusively in control of the moving party. See Willis v.
Town of Marshall, N.C., 426 F.3d 251, 263-64 (4th Cir. 2005) (vacating the district court’s grant of
summary judgment prior to any discovery taking place because evidence of a material fact was “a
matter wholly within the knowledge of [Defendant]”). However, in all cases, the party asserting a
need to conduct additional discovery must “demonstrate that the evidence [she] seeks to discover
will materially affect the outcome of [the] case.” Amirmokri v. Abraham, 437 F.Supp.2d 414, 420
(D.Md. 2006); Strag, 55 F.3d at 954 (“The denial of a Rule 56(f) motion for extension should be
affirmed where the additional evidence sought for discovery would not have by itself created a
genuine issue of material fact sufficient to defeat summary judgment.”); Webster v. Rumsfeld, 156
Fed.Appx. 571, 577 (4th Cir. 2005) (holding that non-moving party failed to demonstrate the need
to conduct any discovery in opposing a motion for summary judgment because the information
sought “via the requested depositions is not relevant or necessary to the resolution of his breach of
contract claim and would not create a genuine issue of material fact”).
Here, although Plaintiff has not deposed Defendant, formal discovery in this case has been
ongoing since September of 2013, and Plaintiff has had ample opportunity to serve other discovery
requests upon Defendant. Additionally, as noted above, Plaintiff’s failure to depose Defendant was
not the fault of Defendant, but was solely due to her delay in responding to Defendant’s discovery
requests and her violation of this Court’s previous discovery order. Moreover, while Plaintiff
devotes the great majority of her brief on Defendant’s alleged failure to reasonably investigate her
allegations against Mr. Gamble, the sole question here is whether Plaintiff gave Defendant any

confidential information that he then improperly leaked to Mr. Gamble, which is a simple question
of fact, not involving inquiry into Defendant’s state of mind as to motive or intent.
Most significantly, Plaintiff provides no evidence that deposing Defendant, or conducting
any other discovery for that matter, could create a genuine issue of material fact. Plaintiff simply
makes generalized statements without pointing to any specific information she hopes to gain by
conducting any further discovery. Plaintiff asserts that Defendant’s deposition is necessary in order
for Defendant to “account for his role in these events.” She contends that “relevant discovery has
yet to be taken” about similar defendant’s acts or omissions. She ominously proclaims “Within this
case buried, is a secret. The Defendant does not want this known.” However, “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. Here, the factual dispute at issue is whether Defendant ever obtained
confidential documents from Plaintiff or pertaining to Plaintiff. Evidence of this fact is clearly within
the knowledge of Plaintiff, and Plaintiff makes no effort to explain why deposing Defendant is
necessary to show that this material fact is still in dispute. Accordingly, Plaintiff has failed to
demonstrate how the additional discovery requested “would by itself creat[e] a genuine issue of
material fact sufficient to defeat summary judgment.” Strag, 55 F.3d at 954.
In sum, despite the wide latitude given by this Court and an ample opportunity to present
some evidence in support of her vague allegations against Defendant, Plaintiff has not met her
burden of showing that a genuine issue of fact exists such that this case should proceed any further
to trial. While the Court is mindful that summary judgment should not be granted lightly before
discovery is completed, a primary purpose of summary judgment is to “isolate and dispose” of
meritless litigation. Celotex, 477 U.S. 317. The undersigned concludes, after a very careful and

thorough review of the record, that this case is meritless and that no amount of further discovery can
generate any material factual disputes. Accordingly, the undersigned recommends that Defendant’s
Motion for Summary Judgement be GRANTED.
E. Plaintiff’s Motions to Strike Defendant’s Replies (Docs. 186 & 187)
Plaintiff filed motions seeking to strike Defendant’s replies to her responses to his motions.
Specifically, Plaintiff filed a motion to strike Defendant’s reply to her response to Defendant’s
motion for sanctions18 and a motion to strike Defendant’s reply to her response to Defendant’s
motion for sanctions.19 In both motions, Plaintiff incorrectly states that the local rules of this Court
prohibit Defendant from filing a reply brief. The local rules prohibit the filing of a surreply without
first seeking leave of court. L.R.Civ.P. 7.02(b). However, Defendant’s reply briefs are not surreplies.
Although briefly stating this argument as the basis for the motions, Plaintiff’s motions to strike
actually are surreplies because they essential respond to Defendant’s responses. This is the second
time Plaintiff filed such a motion. The Court denied a similar motion seeking to strike properly filed
reply memoranda by Order dated January 28, 2013.20 In that order, the undersigned noted that
“Plaintiff, as a pro se litigant is likely unfamiliar with motion practice,” and specifically informed
Plaintiff that the Local Rules provide for both response and reply memoranda. Thus, Plaintiff is
aware that her motions to strike are improper, and the Court will not take into account her pro se
status. Plaintiff’s motions to strike are DENIED. Additionally, the Court will not consider the
motions or the exhibits attached thereto because they amount to impermissible surreply memoranda.
F. Plaintiff’s Motions to Extend the Scheduling Order (Docs. 188 & 189)

18

Dkt. No. 186.

19

Dkt. No. 187.

20

Dkt. No. 74.

Plaintiff filed two motions seeking to modify this Court’s scheduling order. In light of the
foregoing recommendation that Defendant’s summary judgment motion be granted, the undersigned
recommends that Plaintiff’s motions be DENIED AS MOOT.
G. Defendant’s Motion for Sanctions (Doc. 172)
Defendant seeks sanctions against Plaintiff pursuant to Rule 11 of the Federal Rules of Civil
Procedure and this Court’s inherent authority. Defendant contends that sanctions are warranted
because of Plaintiff’s “malicious, vexations, and abusive litigation conduct.” Specifically, Defendant
asserts that Plaintiff filed a frivolous claim and persisted in litigating the claim even after admitting
at her deposition that the events in her complaint did not occur. Additionally, Defendant contends
that Plaintiff has misrepresented facts in numerous pleadings, left her deposition prior to completion,
and misrepresented her deposition conduct to the Court. Defendant requests that the Court require
(1) Plaintiff to pay all of his attorney fees and costs in this matter, or alternatively, the fees and costs
incurred from November 19, 2013 (the date of her deposition), through the conclusion of this matter;
and (2) a civil penalty in an amount deemed appropriate. Plaintiff responded to Defendant’s motion
by repeating her previous outlandish allegations of misconduct by Mr. Solomon and generally
arguing that it is Defendant who deserves sanctions. Plaintiff even goes so far as to accuse
Defendant and Mr. Solomon of stalking her or placing her on “around the clock surveillance.”
Plaintiff also devotes a substantial portion of her response restating her opposition to Defendant’s
motion for summary judgment.
Rule 11 sanctions are appropriate where pleadings are not grounded in fact or warranted by
law and are brought to harass others. Although pro se parties are generally held to a more lenient
standard than professional counsel, nothing prevents a court from imposing Rule 11 sanctions on
a pro se litigant who has not complied with Rule 11. Burnett v. Grattan, 468 U.S. 42, 50 n. 13

(1984). Courts that have imposed sanctions against pro se parties frequently attach importance to
the fact that the party had already been placed on notice that she was close to violating Rule 11. See,
e.g. Baasch v. Reyer, 827 F.Supp. 940, 944 (E.D.N.Y.1993).
Here, the undersigned finds that the question of whether to impose sanctions on Plaintiff is
an extremely close call under the circumstances. The Court agrees with Defendant that Plaintiff has
repeatedly misrepresented facts in pleadings and affidavits, abused the discovery process, and filed
frivolous and vexatious motions. Plaintiff’s behavior has not only harmed Defendant, but also the
federal taxpayer, and Rule 11 operates to deter such conduct. However, the Court believes that
Plaintiff does not fully understand the effects of creating this litigation or the consequences of her
misrepresentations and other reckless conduct. Additionally, the Court notes that it has not formally
admonished Plaintiff regarding the imposition of sanctions. Finally, and most importantly, this Court
granted the defendants’ motion for prefiling restrictions against Plaintiff and the Givens as a
sanction to deter future duplicitous and frivolous litigation.21 While a pro se party should not have
carte blanche to behave recklessly with no consequences, because summary judgment disposes of
the case in Defendant’s favor and because Plaintiff has already been sanctioned in this case such that
she may no longer bring similar actions without prior court approval, this Court declines to further
sanction Plaintiff. Accordingly, Defendant’s motion for sanctions is DENIED.
H. Plaintiff’s Motion for Contempt of Court (Doc. 196)
Plaintiff filed a motion seeking to hold Defendant in contempt of court for failure to comply
with this Court’s November 1, 2013, discovery order directing him to provide Plaintiff with dates
of availability for a deposition. As discussed above, the Court does not find that Defendant failed
to comply with the discovery order because Plaintiff failed to complete her deposition as directed

21

Dkt. No. 107.

by the order. Accordingly, Plaintiff’s motion for contempt of court is DENIED.
IV. CONCLUSION & RECOMMENDATION
Based on the foregoing:
(1) Plaintiff’s Motions to Compel Defendant’s Deposition (Docs. 157 & 174) are DENIED.
(2) Plaintiff’s Motion to Strike Deposition Testimony (Doc. 158) is DENIED.
(3) The undersigned recommends that Plaintiff’s Motion for Leave to Amend Complaint
(Doc. 166) be DENIED.
(4) Plaintiff’s Motion to Retain Experts (Doc. 169) is DENIED.
(5) Defendant’s Motion to Strike (Doc. 177) is DENIED.
(6) The undersigned recommends that Defendant’s Motion for Summary Judgment (Doc.
164) be GRANTED.
(7) Plaintiff’s Motion to Strike Defendant’s Reply to Response to Motion for Sanctions (Doc.
186) is DENIED.
(8) Plaintiff’s Motion to Strike Defendant’s Reply to Response to Motion for Summary
Judgment (Doc. 187) is DENIED.
(9) The undersigned recommends that Plaintiff’s Motion to Amend the Scheduling Order
(Doc. 188) and Plaintiff’s Motion to Extend Deadlines (Doc. 189) be DENIED AS MOOT.
(10) Defendant’s Motion for Sanctions (Doc. 172) is DENIED.
(11) Plaintiff’s Motion for Contempt (Doc. 196) is DENIED.
Any party may, within fourteen [14] days of the filing of this Order, file with the Clerk of
the Court written objections identifying the portions of the Order to which objection is made, and
the basis for such objection. A copy of such objections should also be submitted to District Court
Judge of Record. Failure to timely file objections to the Order set forth above will result in waiver

of the right to appeal from a judgment of this Court based upon such Order.
The Clerk of the Court is directed to mail a copy of this Order to the pro se, certified mail
return receipt requested, and any counsel of record, as applicable.
IT IS SO ORDERED
DATED: April 23, 2014

/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE