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Smith v. Shady


October 25, 2007


The opinion of the court was delivered by: Judge Jones

Magistrate Judge Blewitt



Pending before this Court are several filings: a second Motion for Sanctions in the Nature of a Request for Dismissal ("Defendants' Motion") (doc. 103), filed by Defendants*fn1 on June 15, 2007; a Motion for Protective Order (doc. 114), filed by pro se Plaintiff Benjamin Smith ("Plaintiff" or "Smith") on or about July 17, 2007; and a "Motion in Opposition to Dismissal" (doc. 117), also filed by Plaintiff on or about July 17, 2007. On July 26, 2007, United States Magistrate Judge Thomas M. Blewitt ("Magistrate Judge" or "Magistrate Judge Blewitt") filed a Report recommending that Defendants' Motion be granted and that Plaintiff's Motions be denied. (Rec. Doc. 120). For the reasons that follow, we will adopt the learned Magistrate Judge's Report to the extent it is consistent herewith, and we will dismiss the instant action.*fn2


On December 27, 2005, Plaintiff, a prisoner currently housed at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"), initiated this 42 U.S.C. § 1983 action by filing a Complaint (doc. 1) in the United States District Court for the Middle District of Pennsylvania. Therein, he alleged numerous violations of his Constitutional rights during his stay at the State Correctional Institution in Rockview, Pennsylvania ("SCI-Rockview"), and he named as Defendants fourteen (14) employees of the Pennsylvania Department of Corrections ("DOC").

However, following the referral of this case to Magistrate Judge Blewitt for preliminary review, and the subsequent proceedings, only the aforementioned five (5) Defendants currently remain parties to this action. The claims remaining against these Defendants are as follows: an Eighth Amendment deliberate indifference claim and conditions of confinement claim against Officer Shady and Chaplain Ajjeh, and a retaliation claim against Francis Dougherty, Earl Walker, and Franklin Tennis.

On February 27, 2007, the Magistrate Judge granted (doc. 92) Defendants' Motion to Take Plaintiff's Deposition (doc. 91). Thereafter, on April 10, 2007, the Magistrate Judge granted (doc. 96) Plaintiff's Motion for Extension of Time to Complete Discovery (doc. 95), and the discovery deadline was set for May 6, 2007. Thus, Plaintiff's deposition via video conference was scheduled for May 1, 2007, and he received notice thereof on April 27, 2007.*fn4

On May 1, 2007, upon defense counsel's attempt to commence the scheduled deposition, Plaintiff refused to be disposed. (See Rec. Doc. 97-2, Exh. C). Plaintiff's justifications for his refusal were two-fold: he was not afforded sufficient notice of the deposition and the three days that he had to prepare for the deposition were not beneficial because his institution, then FCI-Ray Brook, was in a security lockdown. Id.

The following day, May 2, 2007, Defendants filed their first Motion for Sanctions in the Nature of a Request for Dismissal. (Rec. Doc. 97). Nearly a month later, on or about May 25, 2007, Plaintiff filed a "Motion for Postponement of Deposition due to Inadequate and Delayed Notice and in Opposition to Defendant's [sic] Request for Judgment." (Rec. Doc. 99).

On June 1, 2007, the Magistrate Judge issued an Order disposing of the parties' pending Motions. (See Rec. Doc. 102). Specifically, the Magistrate Judge denied Plaintiff's "Motion for Postponement of Deposition due to Inadequate and Delayed Notice and in Opposition to Defendant's [sic] Request for Judgment" (doc. 99) and granted Defendants' first Motion for Sanctions in the Nature of Dismissal (doc. 97) to the extent that Plaintiff's April 25, 2007 discovery requests be deemed untimely and that Plaintiff not be afforded any more discovery extensions. The Magistrate Judge also extended the discovery deadline to July 31, 2007 for the sole purpose of allowing Defendants to reschedule the deposition of Plaintiff.

The Magistrate Judge's June 1, 2007 Order (doc. 102) was based on his conclusions that although Plaintiff failed to show good cause for his refusal to be deposed, dismissal of the action was too severe a sanction to impose at that time. However, the Magistrate Judge explicitly forewarned Plaintiff that "[f]ailure of Plaintiff to be deposed a second time will result in a recommendation that his case be dismissed with prejudice." (Rec. Doc. 102 at 4).

On June 11, 2007, Defendants attempted for a second time to depose Plaintiff via video conference. (See Rec. Doc. 103-2, Exh. A). Although Plaintiff now contends that defense counsel agreed to postpone this deposition (doc. 124 at 3; 127 at 6),*fn5 the Magistrate Judge concluded that the attempted deposition ended due to Plaintiff's refusal to be deposed, and in light of the record in front of us, we agree. Indeed, our review of the entire transcript from the attempted June 11, 2007 deposition reveals that despite Plaintiff's clever attempts to avoid defense counsel's repeated questions as to whether Plaintiff was refusing to be deposed, and despite Plaintiff's assertions that he was moving for a postponement of the deposition in order that he might file a Motion for Protective Order with the Court, Plaintiff was, in fact, refusing to be deposed under the circumstances that then existed, supervision of Plaintiff by two staff members of the prison.

Following the second unsuccessful attempt to depose Plaintiff, three pending Motions were filed.*fn6 First, on June 15, 2007, Defendants filed the second Motion for Sanctions in the Nature of a Request for Dismissal. (Rec. Doc. 103). Second, on or about July 17, 2007, Plaintiff filed a Motion for Protective Order*fn7 (doc. 114) and a "Motion in Opposition to Dismissal" (doc. 117).

On July 26, 2007, the Magistrate Judge issued a Report outlining his recommendations as to our disposition of the three pending Motions. As Plaintiff has filed Objections to the Report (doc. 124), Defendants have filed their responses*fn8 thereto (docs. 125, 126), and Plaintiff has filed his reply (doc. 127), this matter is ripe for our disposition.


When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


The Magistrate Judge's Report recommends that Defendants' second Motion for Sanctions in the Nature of a Request for Dismissal*fn9 (subsequently, "Defendants' Motion") (doc. 103) be granted and that Plaintiff's Motion for Protective Order (subsequently "Plaintiff's Motion") (doc. 114) and "Motion in Opposition to Dismissal"*fn10 (doc. 117) be denied. (See Rec. Doc. 120). The Magistrate Judge reached this recommendation based upon his consideration of first Plaintiff's Motion and then Defendants' Motion. With respect to Plaintiff's Motion, the Magistrate Judge concluded that it should be denied for several reasons, including, inter alia: 1) it was untimely filed because Plaintiff failed to submit it prior to the second scheduled deposition; 2) the privacy concerns raised therein are not legitimate given that this action is a matter of public record; and 3) deposing Plaintiff without prison officials present is unworkable because it presents a security risk,*fn11 see Fraise v. Terhune, 283 F.3d 506, 516 (3d Cir. 2002) (reiterating that deference to prison authorities and regulations is appropriate where prison security is at issue). With regard to Defendants' Motion, the Magistrate Judge concluded that it should be granted after undertaking a considered application of the Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984) factors.*fn12 Indeed, the Magistrate Judge found that with the possible exception of sixth factor, the meritoriousness of the claim or defense, all factors weigh in favor of dismissing this action.

In his Objections, this rather adroit, but sadly misguided Plaintiff raises a multitude of issues with respect to the content and conclusions contained within the Magistrate Judge's Report, a number of which we have previously addressed herein, and which will not be repeated here. Moreover, Plaintiff's additional Objections can be viewed in terms of their relation to the two pending Motions, and we will address them in turn.

First, Plaintiff objects to the recommendation that his Motion be denied. In support of this Objection, Plaintiff argues that his privacy concerns form the requisite "good cause" for the granting of a protective order because, e.g., "'if a case involves private litigants, and concerns matters of little legitimate public interest, that should be a factor weighing in favor of granting or maintaining an order of confidentiality.'" (Rec. Doc. 124 at 7 (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994))). Indeed, Plaintiff argues that the Magistrate Judge's "cursory consideration" of Pansy's "good cause" standard, and the seven factors to be considered in analyses thereunder, see Arnold v. Commonwealth of Pennsylvania, 477 F.3d 105 (3d Cir. 2007), resulted in the erroneous recommendation that Plaintiff's Motion be denied.

Our review of the learned Magistrate Judge's thorough consideration of Plaintiff's Motion leads us to conclude that his recommendation that the Motion be denied is sound. We so conclude for several reasons. First, as the Magistrate Judge noted, given that prison staff were present at the first attempted deposition of Plaintiff, if Plaintiff wished to object thereto or file a motion based thereupon, he should have done so at that first deposition, or at least prior to the second scheduled deposition. Accordingly, his filing of the Motion at any time after the second attempted deposition was untimely. Second, as the Magistrate Judge also found, despite Plaintiff's similarly belated*fn13 suggestion that the deposition occur via telephonic conference, rather than video conference (see doc. 116 at 6), the viability of this as an avenue by which Plaintiff's deposition could be taken without any staff being present is unknown at best.*fn14 Indeed, cognizant of the deference that courts are to afford prison officials and policies in regard to matters that implicate prison security, Fraise, 283 F.3d at 516, Plaintiff's argument that any alternative avenue*fn15 exists by which his deposition could be taken while maintaining his privacy is simply unpersuasive. In sum, then, we think that both the untimely nature of Plaintiff's Motion and the impossibility of relief which it seeks renders denial thereof sufficiently justified.

However, assuming arguendo that neither alone nor in combination do the above two reasons justify the denial of Plaintiff's Motion, we turn to Plaintiff's argument that a factor by factor analysis under Pansy would change our ruling as to this issue. We find this argument to undermined by, inter alia, Plaintiff's own quotation from Pansy, which was noted above. Simply stated as to this particular factor upon which Plaintiff relies, this is not a matter concerning only private litigants involved in a matter of little public interest. Rather, it concerns allegations as to the treatment of inmates by state employees at a state prison, and has resulted in the representation of the named parties by the state Attorney General's office. Although making the call as to whether a particular case is of public interest can be problematic in some situations, we are convinced that this case assuredly concerns public litigants and public interests.*fn16 It is, accordingly, not a close call at all.

Second, Plaintiff objects to the recommendation that Defendants' Motion be granted. In support thereof, Plaintiff disputes the Magistrate Judge's findings as to the Poulis factors. For example,*fn17 Plaintiff challenges the Magistrate Judge's conclusion that he has acted in bad faith and in a dilatory manner. In support thereof, Plaintiff cites one of his statements during the second attempted deposition: "If counsel could perhaps persuade staff here that this is a matter that nonparties does [sic] not have to be present at or could be harmful that non-parties will be present at, I'm willing to be deposed." (Rec. Doc. 124 at 10-11 (quoting Rec. Doc. 103, Exh. A at 6)). By way of further example, Plaintiff argues that a sanction other than dismissal could be imposed. Plaintiff suggests that this Court fashion a sanction whereby Plaintiff would be required to raise all objections to deposition prior to a potential third deposition and whereby Plaintiff's failure to be deposed after all his objections thereto are resolved will result in dismissal.

We do not find persuasive any of Plaintiff's arguments as to the Poulis factors. Taking the examples mentioned above in turn, we first note that given the astute and calculated nature of Plaintiff, of which at this stage in the proceedings we are well-aware, we find it very likely that his "I'm willing to be deposed" remark was simply part of Plaintiff's strategy going into the scheduled deposition. This is confirmed by review of the complete transcript from the June 11, 2007 session, which demonstrates Plaintiff's absolute unwillingness to answer repeated inquiries as to whether he was refusing to be deposed. Indeed, the transcript reveals that Plaintiff's strategy was to try to avoid implication of the Magistrate Judge's June 1, 2007 warning that failure to be deposed would result in a recommendation that this action be dismissed. Thus, we think that rather than demonstrating Plaintiff's good faith, his responses at the second attempted deposition support the Magistrate Judge's finding that he has been acting in bad faith and in a dilatory manner. Simply put, Plaintiff's persistence in his "wise guy" behavior has caused him to outsmart himself.

Second, we find that Plaintiff's proposed sanction presents neither a workable solution nor one that would be likely to succeed. Indeed, it is most assuredly not the procedure of this Court, nor any other with which we are aware, to rule on all objections to depositions prior thereto. Rather, as a matter of course, objections are ruled upon following the completion of depositions, and Plaintiff's attempt to have this Court do otherwise demonstrates one rationale therefor: nearly eight months have passed since the Magistrate Judge entered an Order that Plaintiff could be deposed, and yet to date, no deposition has occurred. Further, in view of Plaintiff's tactics to date, we are confident that even were we to simultaneously permit and order Plaintiff to file all objections prior to a potential third deposition, the outcome would be all too predictable. While we must afford pro se litigants, such as Plaintiff, a wide berth, even they must ultimately play by the rules.

Instead, Plaintiff seeks to play the system, which we will neither countenance nor condone.

Finally, in the interest of completeness, we note that having considered the record de novo, as required given the plethora of Objections raised by Plaintiff, we nonetheless agree with the Magistrate Judge's very thorough application of each of the six Poulis factors (see doc. 120 at 13-23), and we specifically incorporate it herein by reference.*fn18 Accordingly, we will grant Defendants' Motion, and we will dismiss this action with prejudice against all remaining Defendants, pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure.

For all of the foregoing reasons, this Court shall overrule Plaintiff's Objections to the Report (doc. 124) and adopt the learned Magistrate Judge's Report (doc. 120) to the extent it is consistent herewith. An appropriate Order closing this case shall issue.

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