BRACEY v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al, No. 1:2011cv00004 - Document 169 (W.D. Pa. 2013)
Court Description: OPINION & ORDER denying 150 Motion for Sanctions. Signed by Magistrate Judge Maureen P. Kelly on 4/23/2013. Copy of Opinion & Order mailed to Plaintiff on 4/23/2013. (dgg)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CO Y BRACEY, ) Plaintiff, ) ) ) vs. ) ) Supe ntendent HARLOW; Deputy HALL; ) ) Depu BRYANT; Major GILLMORE; Majo SUTTER; Captain WHITE; Captain ) ) FRO Z; Captain MORROW; Lieutenant DEA ; Sergeant WOLFE; Correction ) Offic r STAFFORD; Dr. ROMAN; ) WIL AM WOODS; E. BROWNLEE, ) GR-9 93; Correction Officer HARMON; ) Lieut ant IRWIN; and ) Serge t RUFF, ) Defendants. ) Civil Action No. 11-04 E District Judge Sean J. McLaughlin Magistrate Judge Maureen P. Kelly ECFNo.150 OPINION AND ORDER KEL Y, Magistrate Judge I. BACKGROUND This action arises out of an assault that occurred at the State Correctional Institute at ("SCI Albion"), when inmate Defendant E. Brownlee ("Brownlee") assaulted inmate Plaint' f Corey Bracey ("Plaintiff' or "Bracey") with a "shank" fashioned from the metal clip of a clip oard. Plaintiff alleges that each of the Pennsylvania Department of Corrections' ("DOC") Defen ants intentionally failed to protect him from Brownlee's assault and/or facilitated the y willfully disregarding safety procedures. Pending before this Court is Plaintiff's Motion for Discovery Sanctions, ECF No. 150, which ises out of apparent inconsistencies in discovery responses provided by Defendant 1 Corre tion Officer Stafford ("Officer Stafford"). The contradictory discovery responses concern Offic r Stafford's alleged failure to comply with the DOC's procedures regarding the need to cond t a "pat down" search when an inmate housed in the Restricted Housing Unit ("RHU") his cell, even though a visual strip search has been conducted. In particular, Plaintiff to Defendant Stafford's Responses to Plaintiffs Interrogatories dated May 10, 2012, wher .n Defendant Stafford affirmatively stated that he conducted a "pat search" of Plaintiff s assail nt, but "made a mistake of not using the metal detector." [ECF No. 150-1, p. 3-4J. Plaint ff argues that the interrogatory responses directly contradict statements that Stafford made at ape-disciplinary conference on October 22,2010. [ECF No. 150-3, pp. 3-4J. The interrogatories and corresponding responses at issue are as follows: Interrogatory No.3: 3. You stated that on September 14,2010, there was no available metal detector wand present on the pod. Also that no other officers were using the metal detector. Is it fair to say that you did not pat-search and use the metal detector on prisoners upon them exiting the cell, because you were an inexperienced officer and you were only following the procedures that you saw other officers employing? Response: This officer did perform a pat search and made a mistake on not using the metal detector. Interrogatory No.4. 4. You stated that even if you had of used the metal detector, it would not have discovered the weapon because the detector would have went off due to the metal handcuffs. Do you also feel you would not have noticed the weapon through the pat-search had you conducted it. Response: Once again, a pat search was conducted. [EC No. 150-1, p. 3AJ. 2 At the time these interrogatories were answered, Defendant Stafford's prior statements at his pr -disciplinary conference had not yet been produced to Plaintiff. However, after review of the st tements and consideration of Plaintiffs Motion to Compel [ECF No. 106], this Court order d production of the pre-disciplinary conference report, redacted as necessary to preserve confi ential personal information and governmental privilege related to investigative records. o. 129]. Defendant Stafford's statements at the pre-disciplinary conference reveal that he cond ted a visual strip search of Defendant Brownlee, but after Defendant Brownlee dressed to is cell, Defendant Stafford failed to comply with post-orders to conduct a pat search or etal detector to make certain the inmate did not obtain possession of a weapon while dressed after the strip search. I did read the post orders and did not know about the pat search when the inmate comes out of the cell and to use the metal detector. I have only worked in the RHU 4 times and I was not really taught the right procedures in the RHU. o. 150-3, pp. 3-4]. Furthermore, the investigation conducted after the assault revealed that Defendant StafD rd did not pat search or wand Defendant Brownlee. The interviews of the staff involved with the strip search indicate the strip searches were conducted, however once the inmate was removed from the cell he was not pat searched or processed with the hand held metal detector as per post orders. o. 150-3, p. 3]. Plaintiff contends that the discrepancy between the interrogatory responses and the pre disci inary conference statements is an act of intentional fraud on the judicial process on the part 0 either Defendant Stafford or his attorney, or both. Plaintiff seeks the imposition of sancti ns against both pursuant to federal law as well as Rules 11 and 26(g) of the Federal Rules 3 ofCi il Procedure. The DOC Defendants filed a Response to Motion for Discovery Sanctions. [ECF No. 155]. In the Response, they argue that the alleged inconsistency is not sanctionable, but is appro riate for use at any trial of this matter to challenge the witness's credibility. Defendants point 0 the absence of harm caused by the discrepancy inasmuch as Plaintiff has been made of it prior to deadlines for anticipated motions for summary judgment and pre-trial state ents. [ECF No. 155, p. 2]. On March 28,2013, this Court heard oral argument on Plaintiff's Motion for Sanctions, with laintiff participating via video-conference. In presenting his argument, defense counsel ed that an error was made, but that it was the result of inadvertence, not bad faith. Defe se counsel explained that in answering the interrogatories, Defendant Stafford mistakenly equat d "strip search" for "pat search." Defendant Stafford misinterpreted the question and becau e he had conducted a strip search, stated in the affinnative that he had conducted a "pat searc ." Defense counsel also accepted responsibility for the error, and requested that the Court consi er: (l) the number of discovery requests propounded by the Plaintiff in each of his cases pendi g before this Court for which defense counsel was responsible; (2) the current prisoner civil ghts caseload of the Pittsburgh office of the Pennsylvania Attorney General before the Unite States District Court for the Western District of Pennsylvania; (3) that the Pittsburgh office of the Pennsylvania Attorney General is understaffed due to the recent retirement of one attorn y and the unexpected resignation of another attorney; (4) the staffing of one "discovery" paral gal for seven attorneys; and (5) the fact that the pre-disciplinary conference record was not avail Ie to defense counsel at the time the interrogatories were served. Defense counsel also stated that pursuant to Rule 26(e)(2), he would amend the interrogatory responses at issue and 4 furth offered to concede the error as an admission at any trial of this matter, to wit, an ion that Defendant Stafford failed to conduct a pat search when inmate Brownlee exited the ce 1. Plaintiff argued that the inconsistent discovery responses constituted a fraud on the Court that r quired the imposition of sanctions. He asserted that no substantial justification was offere for the inconsistent responses and that it was objectively unreasonable for Defendant Staffi d to claim that a pat search was conducted. In addition, Plaintiff argued that in the absen e ofan award of sanctions, no penalty would accrue to Defendants if the case does not progr ss to trial. Plaintiff informed the Court that his copying expenses in preparing the Motion for Sa ctions, brief in support and exhibits are approximately $ .10 per page and that he pays or each pack of paper. II. STANDARD OF REVIEW There are a number of sources of authority for this Court to impose discovery sanctions, in add tion to the Court's inherent power to do so. The Court will review these briefly. First, 28 U.S.C. § 1927 states: "Any attorney or other person admitted to conduct cases in any c rt of the United States or any Territory thereof who so multiplies the proceedings in any easonably and vexatiously may be required by the court to satisfy personally the excess costs, xpenses, and attorneys' fees reasonably incurred because of such conduct." The focus of Sectio 1927 is on the conduct of the attorney. Section 1927 "requires a court to find an attorney has (1 multiplied proceedings; (2) in an unreasonable and vexatious manner; (3) thereby increa ing the cost of the proceedings; and (4) doing so in bad faith or by intentional In re Prudential Ins. Co. America Sales Practice Litig .. 278 F.3d 175, 188 (3d Cir. 2002). 5 The second source for sanctions is found in the Federal Rules of Civil Procedure. In partic lar, Rule 26(g) mandates that all discovery documents be signed by the party personally if unrep esented or by at least one attorney of record. "[T]he signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents Ie to him that are responsive to the discovery demand." 1983 Amendment, Advisory ittee Notes. The 1983 Advisory Committee notes explain that there is an "affirmative duty t engage in pretrial discovery in a responsible manner that is consistent with the spirit and purpo e of the [Rules]." Rule 26(g) is designed to curb discovery abuse by encouraging the impo ·tion of sanctions where a party or an attorney improperly certifies that the disclosed info ation is correct as of the time it is made. Incorporated in this effort is the duty pursuant to 6(e)(2), "seasonably to amend a prior response to an interrogatory, request for production, or req est for admission if the party learns that the response is in some material respect inca lete or incorrect." Rule 26(g)(3) provides that if a discovery certification violates the rule witho t substantial justification, the Court "must" impose an appropriate sanction on the signer, the p y on whose behalf the signer was acting, or both. The sanction may include an order to pay"r asonable expenses, including attorney's fees, caused by the violation." However, prior to impos ng sanctions, the Court must first find that the certification was "objectively unreasonable under he circumstances." Notably, Rule 26 (g) "does not require the signing attorney to certify the t hfulness of the client's factual responses to a discovery request." Thus, the lawyer's certifi ation under Rule 26(g) should be distinguished from other signature requirements in the rules, uch as those in Rules 30(e) and 33." Fed. R. Civ. P. 26 As noted by Plaintiff during oral argument on his Motion for Sanctions, the imposition of san tions under Rule 26(g) is phrased in mandatory language unless the Court finds that the 6 was substantially justified or harmless. Grider v. Keystone Health Plan Central, Inc .. 2874423 (E.D. Pa, 2007). Cj Rule 37(a)(5)(A)(iii) (sanctions not appropriate if "other stances make an award of expenses unjust"); Winner v. Etkin & Co., Inc., 2008 WL 5429 23 (W.O. Pa, Dec. 31, 2008). Plaintiff also cites Rule 11 of the Federal Rules of Civil Procedure, as a third source for the i position of sanctions. Rule 11 provides, in relevant part: Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name .... By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney ... certifies that, to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or ... will likely have evidentiary support after a reasonable opportunity for further investigation or discovery .... If, after notice and a reasonable opportunity to respond, the court determines that Rule 11 [ ] has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation .... Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. Fed. . Civ. P. 11 (2012) (emphasis added). Rule 11 imposes upon attorneys an affirmative duty to con uct a reasonable investigation into the facts of a claim both prior to filing suit and therea er in order to ensure that the assertions contained in each paper submission are made with reason hIe belief that they are well-grounded in fact. See Bradgate Associates, Inc. Read V. Fellows, Associates Inc., 999 F.2d 745, 751 (3d Cir. 1993) ("Rule 11 imposes on any party who SIgns document submitted to the court an affirmative duty to conduct a reasonable inquiry into the fac s and law before filing"). See also Fed. R. Civ. P. 11, Advisory Committee Notes to 1993 Amen ment (Rule 11 "applies only to assertions contained in papers filed with or submitted to the co rt"). However, Rule II(d) specifically provides that sanctions authorized under the Rule 7 do "n t apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37." Finally, Plaintiff cites to 28 U.S.C. § 1746 as a source for sanctions. This statute permits the e identiary use of signed declarations when sworn to "under penalty of perjury." This statut ,however, does not provide for a private cause of action. III. DISCUSSION The Court finds that the discrepancy at issue is troubling, but does not warrant the impos tion of sanctions against Attorney Willig or Defendant Stafford. First, the discrepancy at issue i not part of a pattern of obstructive behavior on the part of defense counselor Defendant Staffo d. The challenged answers to interrogatories were made based upon information from Atto ey Willig's client and the documentation available for their review at the time the interr gatory was served and the response was prepared. Throughout this action, Attorney Willig has responded to a substantial number of interrogatories, requests for production of docu ents and requests for admissions. Given the possible security issues posed by many of Plainti fs discovery requests, defense counsel was required to present facially valid objections, which equired this Court to assess the necessity for the information requested against the need for ins itutional security. To aid this process, defense counsel and/or the assigned paralegal compi d well over one thousand documents for in camera review by this Court in both redacted and u edacted form as well as a discovery log for Plaintiff, identifying the document and the reason for the review. Of the hundreds of pages requested by Plaintiff, only a handful were determ ned by this Court to be truly relevant to this action and all were provided to Plaintiff with approp iate redaction as directed by this Court. Based on the pattern of conduct of defense counse in this case, this Court finds that the alleged inconsistency is an anomaly. It does not 8 demo strate a fraud upon the Court and it is certainly not representative of defense counsel's litiga ion of this action. Second, other than the process of drafting and filing his Motion for Sanctions, Plaintiff has n t suffered any harm from his initial receipt of Defendant Stafford's inconsistent inteIT gatory answers. As is clear from his Motion, Plaintiff has received the pre-disciplinary confe ence statements, wherein Defendant Stafford disclosed that he did not conduct the secon ary pat down as required by the post orders for the Restricted Housing Unit. As revealed by the statements, Defendant Stafford had not worked in the unit often and while generally aware that w re additional security measures to be taken in the unit, he believed that requiring Plainfffs assailant to strip for a visual search before leaving his cell was sufficient to ensure the f guards and inmates in the exercise yard. Defendant Stafford also offered that he confu d the meaning of "strip search" and "pat search" given the fact that he had conducted a trip search prior to Defendant Brownlee's removal from his cell. As argued by defense couns 1 during oral argument of the Motion for Sanctions, Plaintiff may use the discovery respon es in cross examination of Defendant Stafford, as prior inconsistent statements and for impea hment purposes during a trial of this action. Furthermore, Plaintiff may tile a motion at the pre trial stage of this case requesting that District Judge McLaughlin give an adverse infere e instruction to the jury should he deem such an instruction warranted. Finally, the information provided does not establish an intentional or willful violation of Plainti fs constitutional rights, which is required to sustain a viable claim for the violation of Plainti fs Eighth Amendment rights. At most, Defendant Stafford's testimony reveals a mlsun rstanding regarding the need for a pat-down and "wanding" with a metal detector, even RHU inmate has been visually strip searched and is handcuffed before leaving his cell. 9 Acc dingly, because the discrepancy has not resulted in any prejudice to Plaintiffs claim or his to prepare for this litigation, the Court finds that sanctions are not warranted. IV. CONCLUSION For the foregoing reasons, the Motion for Sanctions [ECF No. 150] is denied. In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and Rule 72.C.2 of the L cal Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file appeal to the District Judge which includes the basis for objection to this Order. Any appe I is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Roo 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appel ate rights. DAT D: 23 April 2013 cc: The Honorable Sean 1. McLaughlin United States District Judge All counsel of record by Notice of Electronic Filing Corey Bracey GS-4754 SCI Smithfield Box 999, 1120 Pike Street Huntingdon, PA 16652 10
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