United States District Court, W.D. Pennsylvania
OPINION AND ORDER
MAURICE B. COHILL, Jr., Senior District Judge.
Pending before this Court is pro se Plaintiff James Marshall's "Motion for Sanction" [ECF #128]. In footnote 4 of her June 2, 2014 Report and Recommendation (R&R), wherein Magistrate Judge Baxter recommended that this Court grant in part and deny in part the Defendants' Motions for Summary Judgment and Partial Summary Judgment, Magistrate Judge Baxter noted:
Plaintiff has also filed a Motion for Sanctions pursuant to Federal Rule 37 which remains pending. ECF No. 128. See also ECF Nos. 130, 131. The bases of this motion are Exhibits 20, 21, 22, and 23 attached to the Department of Corrections Defendants' motion for summary judgment. Plaintiff argues that Defendants should be sanctioned due to their failure to disclose or supplement their answers to Interrogatories. Resolution of this motion and attendant issues of forgery of evidence will necessarily affect evidentiary rulings for trial and, as such, will be left for the trial judge to determine."
In his motion, Plaintiff contends that the Department of Corrections ("DOC") Defendants failed to disclose four (4) documents in discovery, even though specifically asked for in his Request for Interrogatories to Defendant Sobina on November 7, 2010, and his Request for Interrogatories to Defendant McConnell on December 12, 2011. Therefore, Plaintiff submits, these defendants should be precluded from using the exhibits and he should receive monetary compensation for having to file a response to two motions for summary judgment filed by the DOC Defendants. Plaintiffs Motion, pp. 2-3. The documents, which are attached as exhibits in support of the DOC Defendants' pending motion for partial summary judgment, are: (1) Exhibit 20, which contains SCI-Albion search logs from February 2 and 14, 2010 and March 3, 2010; (2) Exhibit 21, Inmate Jack Williams' Cell History; (3) Exhibit 22, Inmate Thomas Chadwick's Cell History; and (4) Exhibit 23, SCI-Albion Duty Rosters from February 14, 2010 and March 8, 2010.
Fed.R.Civ.P. 37(c)(1) states:
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
In support of their contention that the motion for sanctions should be denied, the DOC Defendants explain the reason for the late disclosure to Plaintiff:
the reason undersigned counsel recently searched for and submitted the documents concerning Inmate Williams' and Chadwick's cell histories, search logs and duty rosters, was because of the error she had made in then-Captain White's declaration for defendants' original summary judgment motion. This particular error, which Captain White also failed to catch before signing, was a reference to the wrong date (2/2/10 not 2/14/10) in describing a search of plaintiffs cell when Chadwick was his cell mate. Plaintiffs cell (CB 1003) was searched on 2/2/10 (the date of the cheese incident), and his cell mate at the time was Inmate Williams. Cell CB 1003 was searched again on 2/14/10, at which point, Inmate Chadwick was plaintiffs cellmate. A broken razor belonging to Chadwick was found, and this led to the investigative search on 3/8/10 (the cell occupants were still plaintiff and Chadwick). Unfortunately, when counsel prepared the original Declaration for then Captain White, she mistakenly referred to "2/2/10" when describing the 2/14/10 search where contraband was found.
DOC Defendants' Response to Plaintiffs Motion for Sanction. p. 2 (footnote and citation to court docket omitted). ...