Opinion
20-cv-11099
06-21-2022
DERRICK CAIN, Plaintiff, v. CITY OF DETROIT, et al., Defendants.
Honorable Terrence G. Berg
REPORT & RECOMMENDATION TO GRANT DEFENDANTS' ORAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
I. Introduction
Defendants City of Detroit and Dennis Christie moved for an order to show cause why non-parties Britnie Mathis and Alesha Cain should not be held in contempt for failing to appear at their depositions. ECF No. 63. Defendants suspected that Plaintiff Derrick Cain was advising the witnesses not to comply with subpoenas. Id. at PageID.561-563. The Court ordered Cain, Ms. Mathis, and Ms. Cain to appear at a show cause hearing held on June 1, 2022. ECF No. 64. Before the hearing, Cain telephoned defense counsel and threatened him with violence if he continued to telephone Ms. Mathis and Ms. Cain. ECF No. 76, PageID.685-689, 694. Defendants thus orally moved to dismiss Cain's case as a sanction for bad faith conduct. Id. at PageID.697, 699-700, 708. The Court RECOMMENDS that defendants' motion to dismiss be GRANTED and that the case be DISMISSED WITH PREJUDICE.
II. Background
This civil rights action stems from Cain's April 2017 arrest for an alleged assault against his sister, Ms. Cain. ECF No. 1, PageID.2. In her written statement about the assault, Ms. Cain said that Cain strangled her.As Ms. Cain fought to breathe and to get Cain to release her, Ms. Mathis (who is Ms. Cain's daughter) and other family members tried to get Cain away from his sister. After Ms. Cain's son was finally able to push Cain away, Cain retrieved a rifle from his house and pointed it toward Ms. Cain and Ms. Mathis. Ms. Cain reported that Cain said, “[Y]ou all dead to me! I will fuck you up! Get away from [my] house! I'll kill you all!”
The statements and declaration cited here were provided to the Court at the hearing and are attached to this report.
Ms. Mathis signed a statement that corroborated her mother's account of the assault. She said that Cain had been drinking before he started choking Ms. Cain and then pointed the rifle as she and her family members were preparing to leave. Ms. Mathis said that, after leaving the scene of the assault, she went to a police precinct and filed a report.
Ms. Cain and Ms. Mathis signed their statements to attest that they were true. A week after those statements, Detroit police officers searched Cain's house for his firearm and arrested him. ECF No. 1, PageID.2. Cain appears to allege that the officers had no probable cause to arrest him because Ms. Cain had withdrawn her complaint against him. Id. (stating that, when defendants authorized his arrest, the “initial complaint from which plaintiff was arrested . . . no longer exist[ed]”); see also attached May 2022 declaration from Ms. Cain (stating that Cain should not have been arrested because she told a detective that “no charges were going to be pursued”). Cain's complaint thus alleges false arrest, malicious prosecution, and false imprisonment. ECF No. 1, PageID.2.
In February 2022, defendants sent Ms. Mathis a notice of deposition and subpoena, which she received three days in advance. ECF No. 42-1, PageID.297; ECF No. 42-2, PageID.300. Defense counsel states that Ms. Mathis called and refused to appear. ECF No. 42, PageID.291. Counsel states that Cain also called and “irately” said that he “was refusing to let her testify.” Id. at PageID.291. Ms. Mathis did not appear for the deposition. ECF No. 42-3, PageID.304. Defendants thus moved to compel the deposition, and Cain moved for a protective order to preclude the depositions of Ms. Mathis and Ms. Cain. ECF No. 42; ECF No. 47. The Court granted defendants' motion, denied Cain's motion, and ordered Cain to provide defendants with Ms. Mathis's mailing address so they could serve her with a subpoena. ECF No. 52, PageID.390.
Cain admits that he called counsel to object to the deposition but disputes defense counsel's claim that he stated that “he was refusing to let [Ms. Mathis] testify.” ECF No. 75, PageID.671 (quoting ECF No. 42, PageID.291).
Cain did not provide the address as ordered, but defendants were able to contact Ms. Mathis to schedule a deposition. ECF No. 63, PageID.559, 562. Defendants sent Ms. Mathis and Ms. Cain subpoenas for depositions in April 2022, but the postal mail tracking shows the mail “was refused by the addressee[s].” ECF No. 63-3; ECF No. 63-4; ECF No. 63-5, PageID.589; ECF No. 63-6, PageID.592. Defense counsel states that he left a voicemail for Ms. Mathis to confirm the deposition, and a man who refused to identify himself called back a short time later from her phone number. ECF No. 63, PageID.562. The man demanded to know how counsel got Ms. Mathis's number and stated, “I have previously told you to stop harassing us.” Id. During the show cause hearing, Cain identified the caller as his nephew. ECF No. 76, PageID.686, 691-692, 696, 705. Mathis did not appear at the deposition. ECF No. 63, PageID.561.
Defense counsel also called Ms. Cain to confirm the deposition. Id. at PageID.560. According to counsel, the person who answered the call was evasive and claimed not to be Ms. Cain, though she said she could speak for her. Id. at 560-561. She stated that Ms. Cain refused to respond to the subpoena. Id. at 561. Ms. Cain did not appear for her deposition. Id.
Defendants then moved for an order for Ms. Mathis and Ms. Cain to show cause why they should not be held in contempt and related their suspicion that Cain was advising the witnesses not to appear for deposition. Id. at PageID.561-563. After receiving the motion, Cain made a threatening phone call to defense counsel, who hung up. ECF No. 70, PageID.631-632, 634. When counsel hung up, Cain called back and left a voicemail stating:
Defendants filed a recording of the voicemail in the traditional manner. See ECF No. 72.
If you keep harassing my nephew and my nieces, then I ain't got nothing to do with that. That's between you and them. They catch you off work and punch you in your face or do
whatever that's between you and him. He don't give a damn about the 90 days [of jail for misdemeanor assault], he'll do that....You tell the court whatever, but don't ever infer that I got irate ‘cause I know what it's like when I get irate. I could care less what they do to you.Id.
The Court granted defendants' motion to show cause and ordered Cain, Ms. Mathis, and Ms. Cain to appear for a June 1, 2022 hearing. ECF No. 64. Cain appeared at the hearing, but Ms. Mathis and Ms. Cain did not. ECF No. 76, PageID.681-682. Defendants sent Ms. Mathis and Ms. Cain notice of the hearing by certified mail. ECF No. 66. At the hearing, Cain said that defendants sent the notices to the wrong address, but he then denied knowing Ms. Mathis's and Ms. Cain's correct address. ECF No. 76, PageID.687, 713. Cain admitted during the hearing that Ms. Mathis and Ms. Cain are “evading service.” Id. at PageID.693.
Cain also admitted that he left the threatening voicemail. Id. at PageID.685. He tried to justify his threats by stating that defense counsel had been “harassing” Ms. Mathis, Ms. Cain, and other family members by repeatedly calling to schedule depositions. Id. at PageID.686-687. Cain said:
I directed [counsel]-I told him that I would have instructed my nephew, if he continues to keep calling my nephew's phone, to punch him in the face, and I also instructed him that I'm sure that my nephew wouldn't care about doing 90 days. That's
what I told him. I told him that he was calling my nephew's phone. I said, ‘Had I been the one who answered the phone and had I been irate, I would have told him, “Quit calling this fucking phone, and if you keep calling my phone, then I'm going to find you and kick your ass,”' is what I told him I would have told my nephew to say to him.Id. at PageID.686.
The Court finds that Cain's threatening conduct warrants dismissal of his complaint.
III. Analysis
A.
Courts may dismiss a plaintiff's complaint as a sanction for violating discovery orders, procedural rules, or court orders. Fed.R.Civ.P. 37(b)-(c), 41(b). A court also has the inherent authority to sanction bad faith conduct, “derive[d] from its equitable power to control the litigants before it and to guarantee the integrity of the court and its proceedings.” First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512 (6th Cir. 2002). “A primary aspect of [a court's inherent authority] is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).
Although dismissal is a severe sanction, it is within a court's discretion. Bradley J. Delp Revocable Trust v. MSJMR 2008 Irrevocable Trust, 665 Fed.Appx. 514, 520 (6th Cir. 2016). Four factors guide whether dismissal is proper: (1) whether the party's conduct was due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Id. at 520-21.
These factors are the same whether proceeding under Rule 37(b), Rule 41(b), or a court's inherent authority. Coleman v. Am. Red Cross, 23 F.3d 1091, 1094 n.1 (6th Cir. 1994).
No one factor is dispositive, but bad faith is the preeminent consideration. Fharmacy Records v. Nassar, 379 Fed.Appx. 522, 524 (6th Cir. 2010). And while pro se litigants are generally entitled to a degree of leniency, “pro se filings do not serve as an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Porton v. SP One, Ltd., No. 6:15-cv-566-Orl-40KRS, 2015 WL 1648893, at *2 (M.D. Fla. Apr. 13, 2015) (internal quotation marks omitted).
The Court addresses each factor below.
1. Bad Faith
Sanctions are warranted “when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . or when conduct is tantamount to bad faith.” Metz v. Unizan Bank, 655 F.3d 485, 489 (6th Cir. 2011) (internal quotation marks omitted). “Bad faith” does not encompass mere negligence “but includes conduct that is either intentional or reckless.” Webastro Thermo & Comfort N. Am., Inc. v. Bestop, Inc., 323 F.Supp.3d 935, 939-40 (E.D. Mich. 2018). The Sixth Circuit has not settled the standard for finding bad faith-either by a preponderance of the evidence or clear and convincing evidence-but a court in this district inferred that the lesser standard of preponderance applies. Plastech Holding Corp. v. WM Greentech Auto. Corp., 257 F.Supp.3d 867, 872-73 (E.D. Mich. 2017) (citing Williamson v. Recovery Ltd. P'ship, 826 F.3d 297, 302 (6th Cir. 2016)). Regardless of the proper standard, Cain's threat of violence warrants the dismissal of his complaint.
Cain admits to telling defense counsel that he would direct his nephew to punch counsel in the face-subjecting his nephew to 90 days in jail-if counsel continued calling Ms. Mathis and Ms. Cain to schedule their depositions. Cain was not contrite at the hearing and did not recant his threat. Instead, he was argumentative and insisted that he made no threats because he stated in “hypothetical” terms what he “would have” told his nephew to say. ECF No. 76, PageID.688, 692, 694-696. But while Cain tried to cloak his threats by using hypothetical terms, he made an unmistakable threat that he would have his nephew physically assault defense counsel if he called Ms. Mathis and Ms. Cain to try to secure their depositions. As defense counsel put it, “a threat is a threat is a threat.” Id. at PageID.697.
Cain's threatening conduct is just one way that he has obstructed discovery. He has refused to provide basic written discovery about his background (e.g., his age, birthday, and exact name), requiring motion practice to resolve these frivolous disputes. See ECF No. 52, PageID.390-392. Cain refused to answer similar questions during his deposition, claiming that the information was irrelevant or confidential. ECF No. 55-3, PageID.439-446.
Cain's threat of criminal violence warrants dismissal. Petito v. Brewster, 562 F.3d 761, 763 (5th Cir. 2009) (upholding dismissal as a sanction because plaintiff referred to judicial officer in vulgar and abusive language and made potentially criminal threats to opposing counsel in emails); see also White v. William, 423 Fed.Appx. 645, 645-47 (7th Cir. 2011) (upholding dismissal as a sanction for the plaintiff's vulgar and disrespectful outbursts toward opposing counsel and the court); Porton, 2015 WL 1648893, at *3-4, 6 n.5 (dismissing case because the plaintiff engaged in threatening conduct toward defendant's employees and counsel, including leaving a voicemail recording of gunshots and threatening to punch an employee in the face); Lee v. Sass, No. 04-70550, 2006 WL 799176, at *1-2 n.1 (E.D. Mich. Mar. 29, 2006) (dismissing case because the plaintiff tried to suborn perjury from a witness by threatening physical violence).
2. Prejudice to Defense
By itself, Cain's threats of violence are troubling. The threats also prejudice defendants in their continued efforts to secure Ms. Mathis's and Ms. Cain's depositions. For months, defendants have been trying to secure the depositions, and Cain has been trying to block them. See ECF No. 42; ECF No. 47; ECF No. 52; ECF No. 60. Cain did not provide defense counsel with Ms. Mathis's address, as ordered. ECF No. 52. And although Cain denies instructing them to not testify or intimidating them, he has certainly discouraged them from testifying and encouraged their purposeful evasion of service. See ECF No. 76, PageID.686-687, 690-697. As part of the active efforts to prevent Ms. Cain and Ms. Mathis from testifying, Cain has told defense counsel that he will be punched in the face if he tries to contact the witnesses.
Cain's admission that he could command his nephew to assault defense counsel, and be jailed as a result, supports the suspicious that Cain may have commanded Ms. Mathis and Ms. Cain to evade service and refuse to testify.
Ms. Mathis's and Ms. Cain's testimony would go to the core of Cain's false arrest, malicious prosecution, and false imprisonment claims. His efforts to prevent their depositions, including by threatening violence, prejudice defendants and support the dismissal of his complaint.
3. Prior Warning and Consideration of Less Drastic Sanctions
The third factor requires the Court to consider whether Cain was warned that his conduct might lead to dismissal. Bradley J. Delp Revocable Trust, 665 Fed.Appx. at 520-21. But no prior warning is necessary here because of the evidence of Cain's bad faith. See Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). Even as a pro se litigant, Cain needed no notice that threats of physical violence are unacceptable.
Finally, even though the Court must consider alternative sanctions, dismissal with prejudice is warranted when no other sanction would “protect [the] integrity of the judicial process.” Bradley J. Delp Revocable Trust, 665 Fed.Appx. at 524; see also Harmon, 110 F.3d at 368 (stating that egregious misconduct may warrant dismissal with prejudice as a “first and only sanction”). Here, given Cain's threats and the prejudice they caused to defendants' discovery rights, dismissal with prejudice is the only sanction that will protect the integrity of the judicial process.
IV. Conclusion
The Court recommends that defendants' motion to dismiss be GRANTED and that Cain's case be DISMISSED WITH PREJUDICE.
NOTICE TO THE PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this report and recommendation, any party may serve and file specific written objections to this Court's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). If a party fails to timely file specific objections, any further appeal is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And only the specific objections to this report and recommendation are preserved for appeal; all other objections are waived. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).
Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Within 14 days after service of objections, any non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections are without merit, it may rule without awaiting the response.
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