United States District Court, M.D. Pennsylvania
September 14, 2005.
ABDEL FATTAH, Plaintiff
JOHN KILLEEN, CLIFFORD PELTER, PAUL ALLEN, DAVID STOCKHOLM, DERRICK ZIMMERMAN, MICHAEL SCOTT, CHARLES CRAIG, JESSE WITTEL, WILLIAM TORRES, ROBERT KOLVA, DAVID CROZIER, RICHARD MALONE, NATHAN GOSS, ROBERT SANTANGELO, JOSEPH KEEFER, MICHAEL CLARK, RANDY McCAUSLIN, JEFFREY ALBA, EDWARD SMITH, ALLEN WEBB, TODD MYERS, MICHAEL HARMON, PAUL LEGGORE, BERNARD BAKER, ROBERT RESSLER, LIEUTENANT LADY, and BLAINE STEIGERWALT, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Presently before the Court for disposition is the defendants'
joint motion to dismiss pursuant to Federal Rule of Civil
Procedure 37(b). This matter has been fully briefed and argued,
and is ripe for disposition. For the following reasons, we will
grant the motion to dismiss.
Plaintiff Abdel Fattah ("Fattah') is a prisoner in the State
Correctional Institute at Camp Hill, Pennsylvania ("SCI-Camp
Hill"). The defendants are all officers or employees of SCI-Camp
Hill. Fattah instituted the present action on August 6, 2003. On
September 29, 2003, he filed an amended complaint. In his amended complaint, he alleges
that the defendants violated his constitutional rights by
subjecting him to cruel and unusual punishment by assaulting him,
force feeding him, and providing him inadequate medical care.
A. Procedural Background
This case is presently in discovery. On December 13, 2004, the
defendants filed a motion for leave to depose Fattah. Fattah
opposed this motion, arguing that the deposition would not
benefit him, the defendants, or the Court, and he felt that his
medical condition would prevent him from attending a deposition.
On February 4, 2005, we granted the motion for leave to depose.
In a letter to the Court dated February 17, 2005, Fattah
acknowledged that we granted the motion to depose. (Doc. 166). On
March 7, 2005, Defendants provided Fattah with notice by first
class mail that they would take his deposition on March 23, 2005
at SCI-Camp Hill. (Doc. 167). On March 23, 2005, Fattah refused
to leave his cell or answer deposition questions. Thus,
Defendants filed a motion to compel pursuant to Federal Rule of
Civil Procedure 37. We granted this motion on March 24, 2005, and
ordered Fattah to submit to a deposition and cooperate in good
faith. On March 29, 2005, we issued an order requiring that
Fattah submit to a deposition and warning that failure to do so
would result in sanctions, including dismissal of his case.
On March 30, 2005, Fattah again refused to leave his cell or
submit to a deposition. Defendants' attorney read the March 29,
2005 Order to Fattah, but he continued to refuse. On April 5,
2005, Defendants filed the instant motion to dismiss pursuant to
Rule 37(d) for discovery abuses. B. Factual Findings
On August 19, 2005, we held a hearing to address the motion to
dismiss and Fattah's arguments in opposition. Based on this
hearing,*fn1 we make the following findings of fact.
On March 7, 2005, Defendants mailed a notice of deposition to
Fattah in his prison cell. (Doc. 167, Notice of Dep.). Prison
policy dictates that when a prisoner gives a clear physical
response that he does not want his mail, prison officials do not
permit the mail to accumulate in front of his cell and is instead
place it in his property box. (Tr. 76). At the time the notice
was mailed, Fattah was not responding to the mail delivery. (Tr.
96). Thus, consistent with the prison policy, the correctional
officers placed his mail in his property box. (Tr. 96-97) . He
could have recovered the notice from his property box at any time
had he submitted a property request slip to the appropriate
officer. (Tr. 77, 99). During the period in question, Fattah had
no serious medical needs and thus was able to respond to the
mail. (Tr. 14:14-16, Tr. 19-20).
On March 23, 2005, correctional officers arrived at Fattah's
cell to transport him to his deposition in another part of the
prison. (Tr. 6). Fattah refused to respond. (Tr. 7). He lay on
the ground and refused to respond in any one. (Tr. 7). Dr. Young
physically examined him at that time. (Tr. 18-20). This
examination established that no medical ailment prevented him
from attending his deposition. Fattah was "playing possum" and
was perfectly healthy. (Tr. 19). On March 30, 2005, correctional officers again arrived at
Fattah's cell to transport him to his deposition. (Tr. 7-8). He
again refused to respond in any way. (Tr. 8). The defendants'
attorney read him a copy of the Court Order compelling him to sit
for a deposition, and Fattah continued to refuse to respond. (Tr.
8). Dr. Underwood examined him and found no medical reason why he
could not submit to a deposition. (Tr. 55-56). Half an hour after
the correctional officers arrived, Cindy Watson, an employee of
the department of corrections, observed Fattah moving in his
cell. (Tr. 9-10). She saw him raising his bed sheets and making
his bed. (Tr. 9-10).
Rule 37 provides the Court with the authority to dismiss a case
for failure to comply with a discovery order. The following six
factors determine whether dismissal is warranted.
(1) The extent of the party's personal
responsibility; (2) the prejudice to the adversary
caused by the failure to meet scheduling orders and
respond to discovery; (3) a history of dilatoriness;
(4) whether the conduct of the party was willful or
in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of
other sanctions; and (6) the meritoriousness of the
claim of defense.
Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863
(3d Cir. 1984). Not every Poulis factor need be satisfied to
warrant dismissal. C.T. Bedwell & Sons, Inc. v. Int'l Fidelity
Ins. Co., 843 F.2d 683
, 696 (3d Cir. 1988). Dismissal is a
severe penalty and is appropriate only in the most extreme cases.
Id. However, "[i]n certain cases, it is a necessary tool to
punish parties who fail to comply with the discovery process and
to deter future abuses." National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639
, 643 (1976). We conclude that
the Poulis factors dictate that dismissal is warranted in this
case. Turning to the first factor, it is undisputed that Fattah
proceeds pro se, and thus is entirely personally responsible.
Regarding the second factor, prejudice "does not mean
`irremediable harm,' [but] the burden imposed by impeding a
party's ability to prepare effectively a full and complete trial
strategy is sufficiently prejudicial." Ware v. Rodal Press,
Inc., 322 F.3d 218
, 222 (3d Cir. 2003). Fattah's refusal to
submit to a deposition severely impedes the defendants' ability
to prepare a trial strategy. His explanations of the incidents in
his complaint and his alleged injuries are central to the case,
and without a deposition the defendants would be severely
disadvantaged. Furthermore, the costs and time wasted in
scheduling unattended depositions is prejudicial for the purposes
of the second Poulis factor. Hicks v. Feeney, 850 F.2d 152
156 (3d Cir. 1988).
Turning to the third factor, a history of dilatoriness, we find
that although Plaintiff has generally not been dilatory regarding
discovery in this case, he has intentionally delayed and
completely refused to submit to a deposition. Twice Defendants
scheduled depositions, and twice he refused to attend despite our
Order granting leave to depose, the Defendants' notice, and our
Order compelling him to submit to a deposition. Thus, we find
this factor weighs in favor of dismissal.
We find the fourth factor, whether Fattah acted wilfully and in
bad faith, weighs heavily in favor of dismissal. As he indicated
in his February 17, 2005 letter, Fattah was aware that we granted
the defendants leave to depose him. (Doc. 167). He then twice
feigned illness and weakness to intentionally prevent the
defendants from taking his deposition and thus adequately
preparing their case. Doctor Young and Doctor Underwood testified
that on both occasions, he was physically able to sit for a deposition. (Tr. 18-20,
55-56). Each performed a medical examination of Fattah and found
him in sound health, but simply unwilling to respond. (Tr. 18-20,
55-56). Corroborating their testimony, Cindy Watson testified
that following the second attempt to depose Fattah and his second
refusal, she witnessed him moving in his cell, raising his
sheets, and making his bed. (Tr. 9-10).
Fattah claims that his refusal to respond was unwilling because
he did not receive notice. We find this claim entirely without
merit. Defendants filed a certificate of service demonstrating
that they served notice by first class mail. (Doc. 167). The
hearing testimony established that Fattah's mail was not
delivered to his cell because he refused to respond to mail
delivery. (Tr. 96-97). It was, however, placed in his property
box where he could have obtained it at any time by submitting a
property request receipt to the property officer. (Tr. 77,
99-100). Thus, we find that Fattah did receive notice of the
deposition, he simply chose not to take possession of his mail,
and he chose not to read his mail, even though he was physically
capable. Fattah argues that service by mail is insufficient, and
notice is not received until the recipient actually reads the
notice. We find no support for this proposition.
A deposition notice may be served by mail, and if so,
`[s]ervice by mail is complete upon mailing.'
FED.R.CIV.P. 5(b); see 4A C. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1147 (2d ed. 1987).
Nonreceipt of a mailed notice does not affect the
validity of the notice. 4A C. WRIGHT & A. MILLER,
supra, § 1148.
Lock 26 Constructors v. Massman Contracting Co., 127 F.R.D. 542
(D. Kan. 1989).
We also find that Fattah received notice of our Order
compelling him to submit to a deposition. We granted the motion
to compel on March 24, 2005, and this Order was mailed by the Court. Six days passed before the date of the deposition
on March 30, 2005, leaving adequate time for him to receive it.
In addition, on March 30, 2005, defense counsel personally read
him a copy of our Order. (Tr. 8). Fattah did not respond, and
refused to submit to a deposition, in direct contradiction the
Order read to him. Therefore, we find that Fattah received notice
of the deposition and our Order compelling him to comply. We find
that he willfully and in bad faith refused to submit to his
depositions and feigned his illness to intentionally prejudice
Turning to the fifth factor, we find that lesser sanctions
would be ineffective. Precluding Fattah from presenting certain
evidence would not mitigate the prejudice of preventing the
defendants from deposing him to obtain an outline of their case
and prepare a defense to his accusations. Furthermore, Fattah's
deposition is relevant to the entire case, so precluding him from
presenting evidence relevant to his deposition testimony would
have the same effect as dismissal. For the same reason, granting
summary judgment for the defendants or forbidding Fattah from
pursuing further discovery would have the same effect as
dismissal given the sparse record and the centrality of Fattah's
deposition. Finally, granting attorney's fees would be
ineffective because it would not counterbalance the defendants'
need to depose Fattah to prepare their defense.
Finally, we find the sixth factor, the merit of the claim, is
neutral. Given Fattah's refusal to submit to a deposition, we
find the record too sparse to adequately address the merits of
his claims. However, the other five factors all weigh in favor of
In sum, we find that Fattah wilfully and in bad faith refused
to cooperate with the defendants, ignored Orders of the Court, and failed to comply
with the Federal Rules of Civil Procedure. He feigned illness and
weakness to avoid his deposition. Such willful disregard for the
discovery process is antithetical to the effective disposition of
cases. Fattah cannot on the one hand file suit seeking relief
from this Court and on the other selectively choose those aspects
of the litigation process in which he will participate.
Therefore, we will grant the defendants' motion to dismiss. An
appropriate order follows. ORDER
AND NOW, to wit, this 14th day of September 2005, Defendants'
motion to dismiss pursuant to Federal Rule of Civil Procedure
37(d) (Doc. 174) is hereby GRANTED. Plaintiff's action is
hereby DISMISSED with prejudice. The Clerk of Courts is
directed to enter judgment on behalf of Defendants' and close
this case in this district.
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