Opinion
Civil Action 1:18-CV-02286
01-04-2023
DAMION G. DAVIS, Plaintiff, v. OFFICER MILLER, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court is a “motion for sanction with entry of default judgment against Defendants for failure to obey discovery order,” a motion for summary judgment, and a “motion for judgment against the Defendants for the falsification or the alteration of police reports” filed by pro se prisoner-Plaintiff Damion G. Davis (“Davis”). (Doc. 116; Doc. 118; Doc. 119). On November 29, 2018, Davis initiated this pro se civil rights action arising under 42 U.S.C. § 1983, with the filing of the original complaint against Defendants Carlisle Police Department, Carlisle Police Officers Miller and Kennedy (collectively, “Defendants”), Cumberland County, and the City of Carlisle. (Doc. 1). For the following reasons, it is respectfully recommended that the motions be denied. (Doc. 116; Doc. 118; Doc. 119).
On April 3, 2020, Davis filed an amended complaint naming the Defendants as the sole Defendants in this action, thus terminating Cumberland County and the City of Carlisle as defendants in this action. (Doc. 28, at 2).
I. Background and Procedural History
On November 29, 2018, Davis filed the original complaint, a motion to proceed in forma pauperis, and a motion to appoint counsel. (Doc. 1; Doc. 2; Doc. 3). On March 13, 2019, the Court granted Davis's motions to proceed in forma pauperis, denied Davis's motion to appoint counsel, and found that Davis's original complaint failed to state a claim, but permitted Davis to file an amended complaint. (Doc. 14; Doc. 15; Doc. 16). On April 3, 2020, Davis filed his amended complaint against Defendants. (Doc. 28). On July 17, 2020, Defendants filed a motion to dismiss, which the undersigned recommended should be denied as to Davis's claim for excessive force under the Fourth Amendment and granted as to Davis's claims for cruel and unusual punishment, negligence, and supervisory. (Doc. 40; Doc. 55). Davis filed a second amended complaint on March 9, 2021, and the Court adopted the undersigned's recommendation on March 11, 2021. (Doc. 56; Doc. 57). Davis's second amended complaint asserts claims for deprivation of Davis's constitutional rights and claims of negligence. (Doc. 56, at 7-13). Davis alleges that on the night of February 28, 2017, until after midnight on March 1, 2017, two Carlisle police officers “stalked, harassed and assaulted” Davis on the steps of his home in Carlisle, Pennsylvania. (Doc. 56, at 9). Davis also submits that the incident caused his wife, Ashley Davis, great stress and trauma, which resulted in the loss of their unborn daughter from a placenta eruption that she experienced on March 2, 2017. (Doc. 81, at 1). On July 28, 2021, Defendants took the deposition of Davis. (Doc. 79; Doc. 89).
On October 18, 2021, Davis filed a motion to compel seeking an order directing Defendants to provide Davis with a copy of the transcript from his deposition. (Doc. 79). On November 22, 2021, Davis filed a motion to amend to join his wife, Ashley Davis, as coplaintiff. (Doc. 85). On December 27, 2021, Davis filed a letter with the Court requesting to press criminal charges against Pike County Correctional Facility and staff as a result of an alleged attack by correctional officers on December 2, 2021. (Doc. 87). On February 4, 2022, Davis filed another motion to compel, as well as a motion for sanctions with entry of default judgment against Defendants. (Doc. 89; Doc. 90). On March 10, 2022, Davis filed a letter with the Court requesting expert witness interrogatories. (Doc. 97). On May 6, 2022, the undersigned denied Davis's motions to compel, motion to amend/correct, and motion for sanctions. (Doc. 105; Doc. 106). On August 19, 2022, Davis filed a motion to appoint counsel, which the Court denied on August 30, 2022. (Doc. 113; Doc. 115).
On September 6, 2022, Davis filed the “motion for sanction with entry of default judgment against Defendants for failure to obey discovery order.” (Doc. 116). On the same day, Defendant Kennedy filed a brief in opposition to the motion for sanctions. (Doc. 117). On September 15, Davis filed the motion for summary judgment and “motion for judgment against the Defendants for the falsification or the alteration of police reports.” (Doc. 118; Doc. 119). Defendant Kennedy filed a brief in opposition to the motion for summary judgment on October 10, 2022, and a response to the motion for judgment on October 13, 2022. (Doc. 120; Doc. 121). On November 29, 2022, Davis filed a letter with the Court alleging that he was brought into the custody of United States Immigration and Customs Enforcement (“ICE”) in retaliation for filing the instant action. (Doc. 123). Davis filed a brief in support of his motion for summary judgment on December 6, 2022. (Doc. 124).
Upon review of Davis's “motion for judgment,” the undersigned agrees with Defendant Kennedy that “it is unclear what procedural posture the [m]otion is presented, as it appears to be a [m]otion for [s]anctions, but references unrelated Pennsylvania Rules of Civil Procedure, the Federal Rule of Civil Procedure relating to [s]ummary [j]udgment, and Federal Rules of Evidence and Federal Regulations related to criminal procedure.” (Doc. 121, at 1-2). Therefore, liberally construing the pro se pleading, the undersigned will address the motion as a motion for sanctions. (Doc. 119); see Hill v. Barnacle, 751 Fed.Appx. 245, 249 (3d Cir. 2018) (magistrate judge must liberally construe plaintiff's motion for sanctions).
The undersigned notes that if Davis wishes to challenge the fact or duration of his physical confinement with ICE and is seeking release from confinement, the proper mechanism for doing so is by filing a habeas corpus petition under 28 U.S.C. § 2241. See, e.g., DAJuste v. Pennsylvania, No. 3:CV-12-0958, 2012 WL 2930213, at *3 (M.D. Pa. May 25, 2012), report and recommendation adopted, No. 3:12-CV-958, 2012 WL 2930301 (M.D. Pa. July 18, 2012) (stating a detainee may challenge “his current confinement by iCE in YCP pending his removal” and “raise[ ] [that challenge] in a § 2241 habeas petition with this Court.”). indeed, the undersigned notes that Davis has previously filed several § 2241 petitions before the Court requesting release from iCE detention, each of which has been denied. See Davis v. Warden of Pike Cty. Corr. Facility, No. 4:22-CV-0020, 2022 WL 4389543, at *1 (M.D. Pa. Sept. 22, 2022); Davis v. Att'y Gen., No. 4:21-CV-01260 (M.D. Pa. July 19, 2021); Davis v. Hartye, No. 1:20-CV-00259 (M.D. Pa. Feb. 13, 2020); Davis v. U.S. Dep't of Homeland Security, No. 4:19-CV-02058 (M.D. Pa. Dec. 4, 2019).
The motion for sanctions with entry of default, motion for summary judgment, and motion for judgment have been fully briefed and are ripe for disposition. (Doc. 116; Doc. 117; Doc. 118; Doc. 119; Doc. 120; Doc. 121; Doc. 124).
II. Discussion
A. Motions for Sanctions with Entry of Default Judgment
Davis requests that the Court enter an order under Pennsylvania Rule of Civil Procedure 4019 imposing sanctions upon Defendants “for their failure to obey an order to provide discovery,” and “[f]or the falsification or the alteration of police reports.” (Doc. 116, at 1; Doc. 119, at 1). Davis claims that he served Defendants with requests for production of documents on August 7, 2022, but no timely responses have been received. (Doc. 116, at 1). Davis contends sanctions are warranted, including entry of default and payment of reasonable expenses, because Defendants failed to provide discovery in “direct disobedience of the court[']s order to have the discoveries completed by August 22, 2022,” and Defendants' failure to comply has prevented Davis from being able “to secure important evidence and documents essential to prove his case.” (Doc. 116, at 1-2). Davis further claims sanctions are warranted as he “believe[s]” the Carlisle Borough complaint report, incident report, and arrest report have been falsified or altered. (Doc. 119, at 1). Davis avers his belief is supported by Defendants' assertion that they have the right, at any time, to revise, correct, supplement, or amend the relevant documents. (Doc. 119, at 1).
In opposition, Defendant Kennedy maintains he served responses to Davis's request for production on August 23, 2022, including police reports containing personal identifying information and a copy of the transcript of Davis's deposition on February 28, 2022. (Doc. 117, at 2; Doc. 114; Doc. 94). Further, Kennedy asserts that Davis has made no attempt to address the alleged dispute with counsel for Kennedy, the Pennsylvania Rules of Civil Procedure are not applicable in this matter, and Davis is not entitled to attorney's fees or costs because he is pro se and Kennedy has not violated any discovery rules of Orders. (Doc. 117, at 4). Regarding Davis's allegations of the falsification of documents, Kennedy specifically denies that the above-mentioned documents were falsified or altered and clarifies that, contrary to Davis's allegation, “Defendants reserved the right to ‘revise, correct, supplement, clarify, or amend the responses and objections to [Davis's Request for Production of Documents],' not the documents themselves.” (Doc. 121, at 3) (emphasis in original).
Federal Rule of Civil Procedure 37 provides for a wide range of sanctions that may be imposed for a party's failure to comply with discovery obligations, “including discretion to deem facts as established, bar evidence, strike or dismiss pleadings, enter a default judgment, and find a party in contempt.” Manning v. Herman, No. 1:13-CV-01426, 2016 WL 4991431, at *3 (M.D. Pa. Sept. 19, 2016) (citation omitted); see also Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 918-19 (3d Cir. 1992) (a court may impose a default as a permissible sanction for violating a discovery order); Fed.R.Civ.P. 16(f) (providing for sanctions if a party fails to obey a scheduling or pretrial order). Specifically, Rule 37(b)(2) provides for penalties, including rending a default judgment, in the event of noncompliance with an Order compelling discovery. The Third Circuit has cautioned, however, that this sort of drastic relief should be a sanction of “last, not first, resort.” Hoxworth, 980 F.2d at 922 (quoting Carter v. Albert Einstein Med. Ctr., 804 F.2d 805, 807 (3d Cir. 1986)).
“The choice of the appropriate sanction is committed to the sound discretion of the district court.” Hewlett v. Davis, 844 F.2d 109, 113 (3d Cir. 1988). If a court finds sanctions warranted, the court must make factual findings to justify such an award. See Naviant Mktg. Solutions, Inc. v. Larry Tucker, Inc., 339 F.3d 180, 186-87 (3d Cir. 2003) (finding that the district court abused its discretion in imposing sanctions against defense counsel where the court made no explicit findings of misconduct, and record did not support such a finding). In light of the Third Circuit's reluctance to authorize the drastic relief of sanctions under Rule 37(b)(2), “absent the most egregious circumstances,” a plaintiff's request for extreme sanctions, such as default, will not be granted. See United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) (citation omitted).
In considering whether Rule 37(b)(2) sanctions are appropriate, courts apply the six factors articulated in Poulis v. State Farm & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). Cmty. Ass'n Underwriters of Am., Inc. v. Queensboro Flooring Corp., No. 3:10-CV-1559, 2015 WL 1537612, at *5 (M.D. Pa. Apr. 6, 2015) (applying Poulis factors in declining to enter default judgment against defendants). The Poulis factors are: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) whether there has been a history of dilatoriness; (4) whether the conduct of the party or attorney was willful or in bad faith; (5) the effectiveness of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868. The decision of whether to grant default judgment is left to the court's discretion. Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). No particular Poulis factor is controlling and dismissal or default can be granted even when some of the factors are not met. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
Upon review of the parties' pleadings, the undersigned finds that Davis has failed to follow the Federal Rules of Civil Procedure and Local Rules in that he has not engaged in good faith efforts to resolve a discovery dispute before resorting to Court intervention. Under Rule 37, a party may move for an order compelling disclosure or discovery only upon certifying that the movant conferred or attempted to confer with the opposing party in an effort to obtain the discovery sought without court action. Fed.R.Civ.P. 37(a)(1); M.D. Pa. L.R. 26.3. Even with a certification, courts look to the substance of a movant's efforts. See Lofton v. Wetzel, No. 1:12-CV-1133, 2015 WL 5761918, at *2 (M.D. Pa. Sept. 29, 2015) (denying prisoner-plaintiff's motion to compel where he asserted good faith efforts to resolve discovery dispute but efforts undertaken solely by written correspondence “falls short” of obligation under the Federal Rules); see also Cmty. Ass'n Underwriters of Am., Inc. v. Queensboro Flooring Corp., No. 3:10-CV-1559, 2014 WL 1516152, at *3 (M.D. Pa. Apr. 15, 2014).
Here, based upon a review of the record, it appears there is a potential that all or some of Davis's outstanding discovery issues may have been resolved. Davis does not address the adequacy of the discovery produced on and before August 23, 2022, and has not provided any evidence of an attempt to resolve the present discovery dispute without Court action. The undersigned has considered each of the six Poulis factors. The undersigned finds that Davis has failed to submit “sufficient evidence to establish that [D]efendants acted ‘with the purpose to delay the proceedings' or that they ‘willfully' failed to comply with their discovery obligations.” Cmty. Ass'n Underwriters of Am., 2015 WL 1537612, at *8 (quoting Miles v. Elliot, No. 94-4669, 2011 WL 857320, at *4 (E.D. Pa. Mar.10, 2011)). Due to the failure to establish that Defendants engaged in contumacious or dilatory behavior and Defendants' efforts to produce Davis's discovery requests, the undersigned will decline to enter default judgment or alternative monetary sanctions against Defendants. See Cmty. Ass'n Underwriters of Am., 2015 WL 1537612, at *6. Whether or not the above-mentioned documents were “falsified” or “altered” is a matter to be determined by the trier of fact after cross-examination, and not by the undersigned on a motion for sanctions. See Miller v. Native Link Constr., LLC, No. 2:15-CV-01605-JFC, 2019 WL 1277528, at *12 (W.D. Pa. Jan. 22, 2019), report and recommendation adopted as modified sub nom. Miller v. Thompson-Walk, No. CV 15-1605, 2019 WL 2150660 (W.D. Pa. May 17, 2019). Further, the undersigned finds no instances of misconduct articulated in this motion or otherwise warranting sanctions under Rule 37(b). See Poulis, 747 F.2d at 868. Guided by the Third Circuit's admonition that entry of default “must be a sanction of last, not first resort,” the undersigned finds the entry of default judgment to be inappropriate in this case. Poulis, 747 F.2d at 869.
Accordingly, it is recommended that Davis's motions for sanctions be DENIED. (Doc. 116; Doc. 119).
B. Motion for Summary Judgment
Davis moves for summary judgment and an award of $5 million, asserting that “there is genuine material facts to his Assault, Harassment, Stalking, Negligence and Wrongful Death claims.” (Doc. 118, ¶ 1). In opposition, Defendant Kennedy argues that the motion should be denied because “[d]espite this Court's order dated July 22, 2022 and the requirements of Federal Rule of Civil Procedure 56 and Middle District Local Rule 56.1, [Davis] filed his [m]otion without a supporting [b]rief, a separate [s]tatement of [f]acts, and without citation to the record.” (Doc. 120, at 1). Alternatively, Kennedy asserts summary judgment is not warranted because Davis admits that genuine issues of material fact exist, which preclude summary judgment, and Davis has failed to meet his burden of showing that there is no genuine issue of material fact. (Doc. 120, at 2). In response, Davis filed a brief in support of his motion for summary judgment stating:
The Plaintiff has not failed to satisfy his burden for summary judgment and did not fail[ ] to submit statements of facts, material facts which is required by FRCP 56 and LR 56.1. The Plaintiff did include in his motion for summary judgment statements of material facts which has set forth undisputed facts.(Doc. 124, ¶ 14).
Within the pleading, Davis includes a statement of material facts and asserts that his claims for relief are supported by the Carlisle Borough Police incident report, arrest report, complaint report, and Officer Kennedy's comments. (Doc. 124, ¶ 3).
In considering Davis's filings, the undersigned finds that Davis has failed to file a statement of material facts with appropriate record citations in support of his motion in violation of the Federal Rule of Civil Procedure 56 and Middle District of Pennsylvania Local Rule 56.1. Under Rule 56, summary judgment should be granted only if “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). Consistent with Rule 56, Local Rule 56.1 provides, in relevant part:
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
* * *
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.M.D. Pa. LR 56.1; seeRocuba v. Mackrell, No. 3:10-CV-1465, 2011 WL 6782955 (M.D. Pa. Dec. 21, 2011).
Moreover, the rationale for compliance with Local Rule 56.1 “is not insignificant”:
These statements are not merely superfluous abstracts of the evidence. Rather, they are intended to alert the court to precisely what factual questions are in dispute and point the court to the specific evidence in the record that supports a party's position on each of these questions. They are, in short, roadmaps, and without them, the court should not have to proceed further, regardless of how readily it might be able to distill the relevant information from the record on its own.Landmesser v. Hazleton Area Sch. Dist., 982 F.Supp.2d 408, 412 (M.D. Pa. 2013), aff'd, 574 Fed.Appx. 188 (3d Cir. 2014) (citing Rocuba, 2011 WL 6782955).
Here, Defendant Kennedy has raised Davis's failure to comply with the requirements of Rule 56 and L.R. 56.1 in its opposing brief. (Doc. 120). While Davis has filed a brief in support of his motion for summary judgment, which appears to include a statement of material fact, the issue with respect to Davis's failure to file a separate statement of facts with supporting record citations was completely ignored. (Doc. 124). On this basis alone, Davis's motion for summary judgment could be denied.
However, in addition to the above, the undersigned notes that Davis repeatedly maintains that genuine issue of material facts exist as to whether Defendants violated his Constitutional rights. (Doc. 118, ¶ 1; Doc. 124, ¶ 11). As discussed above, summary judgment is only appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Davis, as the moving party, bears the initial responsibility of stating the basis of his motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party can discharge that burden by “showing . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. Davis's “[unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to support a motion for summary judgment. See Postie v. Frederick, No. 3:14-CV-00317, 2018 WL 1750758, at *2 (M.D. Pa. Jan. 11, 2018), report and recommendation adopted, No. CV 3:14-00317, 2018 WL 1744598 (M.D. Pa. Apr. 11, 2018) (citation omitted); see also Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969) (“[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.”). Therefore, Davis's failure to meet his burden of showing, based upon the pleadings, depositions, answers to interrogatories and other information of record, that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law precludes a grant of summary judgment. Fed.R.Civ.P. 56(c).
Accordingly, it is recommended that Davis's motion for summary judgment be DENIED without prejudice.
III. Recommendation
For the foregoing reasons, it is respectfully recommended that Davis's motions for sanctions (Doc. 116; Doc. 119), and motion for summary judgment (Doc. 118) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 4, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.