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Griffin-El v. Beard

September 4, 2009

K. KABASHA GRIFFIN-EL A/K/A KEITH FEDELE GRIFFIN, PLAINTIFF,
v.
JEFFREY A. BEARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: L.FELIPE Restrepo United States Magistrate Judge

MEMORANDUM AND OPINION

Before the Court is Defendants' Motion to Disqualify Plaintiff's Counsel and supporting Memorandum of Law (Doc. No. 115). Submitted in support of Defendants' Motion is the Declaration of Defendant John Moyer, who is employed as the Security Lieutenant at the State Correctional Institution at Graterford ("SCI-Graterford"). See Def.'s Mem. Ex. 1 (hereinafter cited as "Moyer Decl."). Also before the Court is Plaintiff's Response in Opposition to Defendants' Motion (Doc. No. 126), to which he has attached the Declarations of attorneys Michael Puma, Esquire ("Puma"), see Pl.'s Resp. Ex. 1 (hereinafter cited as "Puma Decl."), Larry L. Turner, Esquire ("Turner"), see id. Ex. 2 (hereinafter cited as "Turner Decl."), Sean W. Sloan, Esquire ("Sloan"), see id. Ex. 3 (hereinafter cited as "Sloan Decl."), and W. John Lee, Esquire ("Lee"), see id.Ex. 4 (hereinafter cited as "Lee Decl."). Defendants have submitted a Reply (Doc. No. 128), to which Plaintiff submitted a Letter Brief in response (Doc. No. 130).

Following Plaintiff's Letter Brief, defense counsel submitted a response via e-mail, to which Plaintiff further responded via e-mail (both attached to Doc. No. 130). For the reasons which follow, Defendants' Motion to Disqualify is denied.

I. BACKGROUND

In this lawsuit, Plaintiff K. Kabasha Griffin-El is suing various employees of the Department of Corrections ("DOC") claiming violations of his First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, which allegedly occurred as a result of two searches of his prison cell while he was incarcerated at SCI-Graterford. See Second Am. Compl. ¶¶ 1, 2-105. Plaintiff also seeks a declaratory judgment. Id. ¶¶ 1, 81-83. The procedural history of this case has been adequately set forth in the Court's previous Memoranda and Opinions; thus, only the facts that pertain to the current Motion to Disqualify will be set forth below.

Plaintiff initiated this action pro se after being granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 by the Honorable Timothy J. Savage. See Order dated 8/1/06 (Doc. No. 4). Plaintiff later filed a Motion for appointment of counsel (Doc. No. 25), which Judge Savage granted. See Order dated 7/3/07 (Doc. No. 27). Plaintiff is now represented by attorneys Turner, Sloan, and Lee of the firm Morgan, Lewis & Bockius LLP ("Morgan Lewis"). Turner Decl. ¶¶ 2-3. On July 2, 2008, Judge Savage entered an order referring the case to this Court for all further proceedings after the parties consented to proceed in front of the undersigned pursuant to 28 U.S.C. § 636(c). See Order dated 7/2/08 (Doc. No. 62); Consent of Def. dated 7/1/08 (Doc. No. 60); Consent of Pl. dated 6/30/08 (Doc. No. 61).

After defense counsel e-mailed the Court on June 24, 2009 to notify the undersigned of a potential conflict of interest (to which Plaintiff's counsel responded and defense counsel replied), see Def.'s Mem. Ex. 3, Defendants' filed the instant Motion to Disqualify on July 13, 2009. Defendants allege that there is a conflict of interest with Plaintiff's counsel because Puma, another Morgan Lewis attorney not involved in this case, is handling a case where Moyer is a witness serving as the custodian of records for SCI-Graterford. See Def.'s Mem. 1-5.

Moyer is the SCI-Graterford employee who prepared the confiscation slip outlining the materials seized from Plaintiff's cell; he also issued a misconduct report after Plaintiff refused to divulge the password to some password-protected materials located on a computer disk seized from his cell. Def.'s Mem. 2. Defendants argue that because Plaintiff attached these documents to his initial pro se pleadings, Plaintiff had knowledge before counsel even entered their appearance that Moyer would be one of the main Defendants in this case. Id. Attorneys Sloan and Lee met with Moyer and defense counsel in February 2008 at SCI-Graterford to inspect the items confiscated from Plaintiff's cell and to inquire as to "whether certain documents could be copied and/or returned to [P]laintiff." Id.

Puma and Turner are partners in Morgan Lewis's labor and employment group ("LEPG"). Puma Decl. ¶ 2; Turner Decl. ¶ 2. Lee and Sloan are associates in Morgan Lewis's LEPG. Lee Decl. ¶ 2; Sloan Decl. ¶ 2. Michelle Pardoll ("Pardoll") is a former LEPG associate who ended her employment with Morgan Lewis in October 2008. Puma Decl. ¶ 4. Puma is currently working on a pro se case for the Support Center for Child Advocates where Morgan Lewis attorneys are "representing three children in the following action: In the matter of Clinton, Johnson, and Johnson ('Clinton'), DP Nos. 3218-06-10, 6010-07-07, and 6405-06-10 (Pa. Comm. Pl. Philadelphia)" (hereinafter "the Clinton case"). Id. ¶ 3-4. In April 2008, Moyer was contacted by Pardoll, who was formerly Puma's subordinate working on the Clinton case, in connection with that matter. Moyer Decl. ¶ 6-7; Puma Decl. ¶ 6. Ms. Pardoll explained that she needed to obtain "records relating to . . . an inmate formerly housed at [SCI-]Graterford." Moyer Decl. ¶ 6. Moyer "advised her of the records that would support her case, and told her that she would need a subpoena for such records."*fn1 Id. ¶ 7.

On May 6, 2008, Puma sent a subpoena to Moyer ordering production of the former inmate's visitor sign-in and sign-out sheets, telephone call logs, mail logs, and recorded telephone conversations. Moyer Decl. ¶ 8. Moyer produced the records to Pardoll on May 8, 2008 at SCI-Graterford. Id. ¶ 9. Moyer provided Pardoll with a chain of custody receipt, which she signed on behalf of Puma, and explained to her that "the receipt was needed to show the chain of custody." Id. Puma issued a second subpoena to Moyer on May 12, 2008 asking him to "be available on May 23, 2008 to testify [at a hearing in the Clinton case] as the custodian of records regarding the documents being produced by the prison." Puma Decl. ¶ 7. When the hearing was rescheduled for August 2008, Puma issued another subpoena for Moyer to be available on that date. Id.

Moyer states that he had several conversations with Pardoll and Puma. Moyer Decl. ¶ 10. During a telephone conversation, Puma told Moyer that he may not need to testify as custodian of records in the Clinton case if the court would accept a declaration from Moyer authenticating the records. Puma Decl. ¶ 9. Puma prepared such a declaration for Moyer's signature after receiving the advice of a Special Master that the court would likely accept and enter a declaration into evidence absent an objection by the parties. Id. ¶ 9-10. The hearing in the Clinton case was rescheduled yet again; as such, Puma issued Moyer another subpoena in case the court required his presence. Id. ¶ 12. Moyer called Puma to inquire whether he would have to testify in the Clinton case; during that conversation, Moyer told Puma that he would be in Morgan Lewis's offices on Friday, June 26, 2009 for a deposition in a case that involved him. Id. ¶ 13. Puma asked which attorneys were handling the case, and Moyer responded that one of the attorneys names was "Lee." Id.

"Neither [] Pardoll nor [] Puma ever advised [Moyer] that attorneys at their law firm were handling [P]laintiff's lawsuit against [him]." Moyer Decl. ¶ 13. It was not until June 24, 2009 that Moyer realized that Puma worked at the same firm as counsel in this case. Id. ¶ 14. Likewise, Puma was unaware prior to June 24, 2009 that Moyer was involved in litigation that concerned Morgan Lewis. Puma Decl. ¶ 14. After being copied on defense counsel's original e-mail to this Court notifying the undersigned of a potential conflict of interest, Puma advised Turner and Lee that Moyer was simply the custodian of records in the Clinton case and reviewed the facts contained in Turner's response e-mail. Id. ¶ 15.

Puma is the Deputy Assignment Partner in Morgan Lewis's LEPG. Id. ¶ 18. In this role, Puma gives assignments to the LEPG associates. Id. Through this administrative role, Puma knew that Turner, Sloan, and Lee were working on a pro bono prisoner case. Id. Puma states that this was his only knowledge of the present case, and avers that he has not learned anything about this matter since the June 24, 2009 exchange of e-mails with this Court. Id. Prior to June 24, 2009, Puma did not share any information that he learned from Moyer with Turner, Sloan, or Lee. Id. ¶ 16-17. Puma's communications with Moyer were limited to the Clinton case, and to Puma's knowledge, Moyer is unrepresented in that matter. Id. ¶ 21-22.

Turner avers that Moyer "is not and never has been a client of Morgan Lewis." Turner Decl. ¶ 5. Turner, Sloan, and Lee were unaware that Moyer was involved in any matters concerning Morgan Lewis, including the Clinton case. Turner Decl. ¶ 6; Sloan Decl. ¶ 4; Lee Decl. ¶ 4. They were unaware of Pardoll and Puma's contacts with Moyer prior to the June 24, 2009 e-mail from defense counsel in this case. Turner Decl. ¶ 7; Sloan Decl. ¶ 5; Lee Decl. ¶ 5. The only information that they learned about the Clinton case was gleaned from Puma so they could prepare a response to defense counsel's letter. Turner Decl. ¶ 10; Sloan Decl. ¶ 7; Lee Decl. ¶ 7. They have not shared any information about this case with Puma, and the only additional knowledge of the Clinton case that they have is that which they learned in connection with defense counsel's present Motion. Turner Decl. ¶¶ 11-13; Sloan Decl. ¶¶ 8-9; Lee Decl. ¶¶ 8-11.

Turner and Sloan share a secretary, Ms. Jeanne Borschell ("Borschell"). Turner Decl. ¶ 14; Sloan Decl. ¶ 10. Borschell does not work with Puma or Lee, and she did not work with Pardoll during her tenure at Morgan Lewis. Turner Decl. ¶ 14; Sloan Decl. ¶ 10. Additionally, there have been two paralegals assigned to this case: Ms. Rachael Hirshenhorn ("Hirshenhorn") (no longer employed by Morgan Lewis), and Ms. Rebecca Guzman ("Guzman"). Turner Decl. ¶ 15; Sloan Decl. ¶ 11; Lee Decl. ¶ 12. Neither Hirshenhorn nor Guzman have ever worked on the Clinton case. Turner Decl. ¶ 15; Sloan Decl. ¶ 11; Lee Decl. ¶ 12. Turner, Sloan, and Lee have no involvement with the Clinton matter, Puma and Pardoll have had no involvement in this matter, and the attorneys have not shared ...


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