Pullen v. Brown

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALLEN PULLEN,

Plaintiff,

v. Case No. 3:18-cv-1274-J-39MCR

T.A. BROWN, et al.,

Defendants.

_______________________________

ORDER

I. Status

Plaintiff, Allen Pullen, is proceeding on a pro se civil

rights complaint (Doc. 1; Compl.) against seven officers for an

incident that occurred in September 2018 at Florida State Prison.1

Plaintiff claims the officers “ambushed [him] from behind, beat

him extensively, and sexually battered [him],” all while he was

fully shackled. See Compl. at 9.

Plaintiff was released from prison in February 2020. See

Notice of Change of Address (Doc. 94). Shortly thereafter, the

Court set deadlines for the parties to conduct discovery and for

other pretrial matters. See Order (Doc. 96). The discovery period

was to close on June 5, 2020. Id. On May 27, 2020, Defendants filed

1 The two medical Defendants have been dismissed. See Order

(Doc. 95).

a motion to dismiss the action with prejudice for Plaintiff’s

“abuse of process” related to the parties’ exchange of discovery

(Doc. 107; Motion).

In support of their motion, Defendants provide an email chain

between defense counsel and Plaintiff (Doc. 107-3; Def. Ex. C) in

which Plaintiff threatened to stab people (possibly including

defense counsel’s mother) if defense counsel did not agree to waive

the cost for copies of documents counsel arranged to make available

for Plaintiff’s inspection. See Def. Ex. C at 1.

The email exchange took place between May 19, 2020, and May

26, 2020. On May 19, 2020, counsel emailed Plaintiff a notice of

deposition and advised Plaintiff he could review documents

responsive to his request for production the same day, June 3,

2020. Id. at 2. Plaintiff confirmed his receipt of the information.

Id. When counsel sent Plaintiff the notice of production of

documents on May 21, 2020, by email (Doc. 107-1), Plaintiff

responded, “I guess you can cancel everything because I’m not

paying .15 per page for anything. and [sic] since your [sic] not

cooperating with my request, I’m not going to cooperate with yours.

You’ll learn after a while, trust me, [the Department of

Corrections] did[.]” Id.

Counsel responded to Plaintiff’s email, reiterating that

Plaintiff would incur a charge for any copies he wanted after

reviewing the disclosed documents. Id. at 1. Counsel clarified

that Plaintiff would not be charged for the document review itself,

however. Id. Plaintiff replied in two separate emails, which he

sent within minutes of each other. In the first one, Plaintiff

told counsel to consider the “appointment” canceled until counsel

“learn[s] to listen.” Id. Plaintiff told counsel, “[P]roceed with

orders I give, because you really have no other choice, but to run

to the judge . . . .” Id. The second email, which came six minutes

later, reads as follows:

[I’m] the guy who stabbed 5 officers in my

last 12 months of incarceration. [I’m] the guy

who got emergency transferred 3 [times] in my

last 90 days. [W]anna play with someone, I

suggest you find someone else to play with,

because as of right now, Osceola medical

center, [D]r. Snyder refuse to rx [sic] me

with the psyc [sic] meds I demand. and [sic]

if I don’t get them, [I’m] going to stab

someone else. have [sic] a wonderful day. I

hope its [sic] not your mother.

Id.

Plaintiff sent one more email to counsel four days later, on

Tuesday, May 26, 2020. Plaintiff wrote that he had “just stabbed

[his] first victim, and it felt so good.” Id. Plaintiff said, “I

told you that your [sic] going to waive the $.15 per page cost you

charge people for production either voluntarily or by force.” Id.

He concluded by threatening, “[I]f the cost for production is not

waived by this Friday, I’m going to stab 2 more.” Id. Plaintiff

also demanded that counsel contact his doctor to arrange for him

to receive mental health medications.2 Id.

II. Motion & Response

While the above email communications occurred in connection

with discovery, Defendants do not rely upon Rule 37 as the source

of the relief they seek. Rather, they ask the Court to dismiss the

case with prejudice under its inherent power to impose sanctions

against a party. They cite two cases: Redmon v. Lake Cty. Sheriff’s

Office, 414 F. App’x 221 (11th Cir. 2011); Soto v. Miami-Dade Cty.,

281 F. Supp. 3d 1320 (S.D. Fla. 2017), aff’d, 760 F. App’x 855

(11th Cir. 2019). See Motion at 3-4.

In Redmon, the Eleventh Circuit affirmed the district court’s

dismissal of a case under the Prison Litigation Reform Act because,

in his civil rights complaint form, the pro se prisoner-plaintiff

lied about his litigation history. 414 F. App’x at 223, 224, 225-

26. The court held the district court did not abuse its discretion

in dismissing the case without prejudice after finding the

plaintiff’s omission was intentional and, thus, an abuse of the

judicial process. Id. at 225-26.

2 After receiving this last email, defense counsel contacted

Plaintiff’s probation officer, who in turn arrested Plaintiff and

contacted the State Attorney’s Office in Osceola County (Doc. 107-

4). Plaintiff is currently detained at the Orange County Jail. See

Orange County Incarcerations, Inmate Search, available at

http://apps.ocfl.net/bailbond/default.asp (last visited October

15, 2020).

In Soto, the district court dismissed with prejudice the pro

se plaintiff’s case for her “flagrant noncompliance with nearly

every Court order.” 281 F. Supp. 3d at 1321, 1323. The court held

numerous hearings and issued multiple orders admonishing the

plaintiff that she must comply with orders and diligently prosecute

her case. Id. at 1323. Additionally, the court found its attempts

to impose lesser sanctions proved unsuccessful. Id. at 1323-24.

Plaintiff’s conduct does not constitute a fraud upon the

Court, as did the plaintiff’s conduct in Redmon. Nor has Plaintiff

repeatedly and flagrantly disobeyed Court orders, as did the

plaintiff in Soto. However, Plaintiff’s reaction to defense

counsel’s routine notice of production of documents is

reprehensible and disturbing. Thus, the Court directed Plaintiff

to respond to the motion to dismiss and to show cause why sanctions

other than dismissal should not be imposed against him. See Order

(Doc. 108).

Plaintiff responded in a four-page document in which he

primarily complains that he has been without insulin since his

release from prison (Doc. 113; Pl. Resp.).3 First, Plaintiff

attempts to justify his criminal conduct by blaming others. See

Pl. Resp. at 1. Plaintiff explains that since the incident that

sparked this lawsuit, his requests for mental health treatment

3 The filing contains no certificate of service showing

Plaintiff sent a copy to Defendants. See Pl. Resp. at 4.

have been ignored, resulting in him stabbing officers. Id. at 1-

2. He claims no criminal charges were pursued after he stabbed

officers in prison because prison officials “did nothing to

intervene” when he claimed he was a threat to himself and others.

Id.

Plaintiff also explains that he was released from prison with

no insulin for his diabetic condition, and, in May 2020, he sent

“numerous” emails to the state attorney’s office warning that he

was a threat to himself and others. Id. at 2. He says the “state

official did nothing to intervene,” and Plaintiff then sent an

email to defense counsel saying he stabbed a civilian.4 Id. When

Plaintiff was arrested, his blood sugar exceeded 700. Id.

Plaintiff asserts Defendants’ motion should be denied because

they violated his constitutional rights “and continue to do so.”

Id. at 3. It is unclear how Defendants continue to violate

Plaintiff’s constitutional rights given Plaintiff is no longer in

their custody; however, it appears he blames Defendants for having

released him from prison without medication and for his declining

physical condition since his release. He says his “abuse of

process” was caused by Defendants because he was “released . . .

with no insulin.” Id.

4 It is unclear whether Plaintiff actually stabbed someone or

said that to intimidate defense counsel into meeting his demands.

Whether Plaintiff carried out his expressed threat, his comments

to defense counsel are uncivil and unacceptable.

In his response, Plaintiff also takes the opportunity to

complain about the conditions of his confinement at Orange County

Jail. Id. at 3-4. He says he is not allowed access to common areas,

including the law library because of the pandemic, and the lack of

access is “inhibiting [him] from effectively litigating his case.”5

Id. at 4. Plaintiff also requests the Court appoint him counsel.

Id.

III. Analysis

As Defendants correctly assert, “Courts have the inherent

power to police those appearing before them.” Purchasing Power,

LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223, 1225 (11th Cir.

2017) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)).

However, such power should be exercised with “restraint and

discretion.” Id. A court’s “inherent power extends to a full range

of litigation abuses,” not just those that occur in court.

Chambers, 501 U.S. at 44, 46. Thus, a court may sanction a party

who has “acted in bad faith, vexatiously, wantonly, or for

oppressive reasons.” Id. at 45-46.

Before imposing sanctions against a party, a court must afford

the offending party an opportunity to respond either orally or in

writing, and to “justify his actions.” Thomas v. Tenneco Packaging

5 Any complaints about Plaintiff’s current conditions of

confinement should be directed to jail administrators through the

jail grievance process or addressed in a separate civil rights

action.

Co., 293 F.3d 1306 (11th Cir. 2002) (quoting Glatter v. Mroz (In

re Mroz), 65 F.3d 1567 (11th Cir. 1995)). After affording the

offending party an opportunity to justify his actions, a district

court should, before imposing sanctions, consider the offending

party’s subjective intent and make a finding that the offending

party acted in “bad faith.” Purchasing Power, 851 F.3d at 1223,

1224. A court may find a party acted with bad faith, for example,

if the party’s conduct delayed or disrupted the litigation. Byrne

v. Nezhat, 261 F.3d 1075, 1121 (11th Cir. 2001) abrogated in part

on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.

639 (2008).

Under its inherent power, a district court may “fashion an

appropriate sanction for conduct [that] abuses the judicial

process,” including assessing attorney’s fees or dismissing the

action. Chambers, 501 U.S. at 44. While outright dismissal of an

action is a severe sanction, a court may do so when alternative

sanctions will not appropriately address the conduct. Id. at 45.

District court have exercised their inherent powers to

sanction parties who have employed bad faith litigation tactics,

including harassment and intimidation of opposing parties, their

counsel, or witnesses. See, e.g., Carroll v. Jaques, 926 F. Supp.

1282, 1289, 1292 (E.D. Tex. 1996) (imposing a fine against the

defendant for his abusive behavior toward opposing counsel at his

deposition, including making verbal attacks, using profanities,

and threatening physical violence); Jaroch v. Fla. Fruit Juices,

Inc., No. 17 C 8518, 2020 WL 1288933, at *8 (N.D. Ill. Mar. 18,

2020) (assessing attorney’s fees against a party who intimidated

the opposing party’s witness); Porton v. SP One, Ltd., No. 8:14-

CV-2847-T-17EAJ, 2015 U.S. Dist. LEXIS 48256, at *8, 11, 15-16

(M.D. Fla. Mar. 19, 2015), report and recommendation adopted, 2015

U.S. Dist. LEXIS 48259 (recommending dismissal with prejudice

because over two years, the plaintiff threatened and intimidated

the defendants and their employees, demonstrating the plaintiff

filed the lawsuit only to harass, not to vindicate his rights);

Fodor v. E. Shipbuilding Grp., No. 5:12cv28/RS/CJK, 2013 U.S. Dist.

LEXIS 196076, at *5, 7-8 (N.D. Fla. Dec. 19, 2013) (admonishing

the plaintiff for threatening defense counsel with criminal

charges “to gain leverage in [the] litigation,” and imposing a

minimum fine of $250 for each subsequent threat).

District courts generally should not dismiss an action with

prejudice unless lesser sanctions will not suffice and absent

evidence that the offending party committed a fraud on the court

or engaged in a pattern of abusive behavior. See Betty K Agencies,

Ltd. v. M/V MONADA, 432 F.3d 1333, 1337–38 (11th Cir. 2005) (“[A]

dismissal with prejudice, whether on motion or sua sponte, is an

extreme sanction that may be properly imposed only when: “(1) a

party engages in a clear pattern of delay or willful contempt

(contumacious conduct); and (2) the district court specifically

finds that lesser sanctions would not suffice.” (emphasis in

original)). See also Soto, 281 F. Supp. 3d at 1321, 1323; Parcher

v. Gee, No. 8:09-CV-857-T-23TGW, 2016 WL 7446630, at *8-11 (M.D.

Fla. Oct. 19, 2016), report and recommendation adopted, No. 8:09-

CV-857-T-23TGW, 2016 WL 7440922 (M.D. Fla. Dec. 27, 2016) (finding

dismissal with prejudice was warranted where the plaintiff

fabricated an incident report to bolster his claim in a civil

rights case, and he engaged in other acts of “deceit” in an attempt

to influence the outcome of the case).

The Court has carefully and thoroughly considered Plaintiff’s

emails, his response to Defendants’ motion, and relevant law.

Plaintiff appears to blame his conduct on his medical condition,

saying his blood sugar exceeded 700 when he was arrested. See Pl.

Resp. at 2. Under the circumstances, however, the Court concludes

Plaintiff’s medical condition does not excuse his conduct.

Plaintiff attempted to extort from defense counsel medications and

free copies of documents by threatening physical harm to others,

including defense counsel’s own mother. It is difficult to fathom

a circumstance under which such conduct would not constitute bad

faith.

Plaintiff’s last two emails to defense counsel suggest he is

pursuing this litigation as a means to coerce those associated

with the Florida Department of Corrections to ensure he receives

continued medical care even though he is no longer in State

custody: he demanded that defense counsel contact his doctor and

obtain medications for him or he would stab someone, specifically

mentioning counsel’s mother. Not only is Plaintiff’s conduct

inappropriate as a litigation tactic, but it is criminal.

Additionally, Plaintiff expresses no regret or remorse for

his conduct. He does not apologize to the Court or defense counsel,

nor does he concede his behavior was unacceptable, even now that,

according to him, he has received “numerous emergency medications

to restore him to sanity.” See id. Indeed, Plaintiff seems to

believe his conduct was justified because, at the time, he was

insulin-deprived, and Defendants would not assist him in getting

the medications he needed. Finally, Plaintiff’s conduct certainly

has delayed and disrupted the litigation. Such behavior cannot be

condoned or ignored.

After careful consideration, the Court finds Plaintiff “acted

in bad faith, vexatiously, wantonly, or for oppressive reasons.”

See Campbell, 501 U.S. at 45-46. As such, sanctions must be imposed

against him. Dismissal of the action with prejudice is not

warranted. While Plaintiff’s conduct certainly was uncivil and

disrespectful both to defense counsel and the judicial process,

Plaintiff has not engaged in such conduct previously, and he has

not perpetrated a fraud upon the Court. Cf., e.g., Parcher, 2016

WL 7446630, at *8-11.

However, given Plaintiff is proceeding in this case as a

pauper, see Order (Doc. 11), and is currently detained in county

jail, assessing attorney’s fees or imposing a fine likely will

have little to no impact. Thus, the Court finds the appropriate

sanction to address Plaintiff’s serious conduct is dismissal of

the action without prejudice. As an additional sanction, if

Plaintiff chooses to re-file his claims against Defendants, he is

precluded from proceeding in forma pauperis but rather must pay

the full filing fee up front. Imposing any lesser sanction would

not serve to deter Plaintiff and other litigants from engaging in

such behavior in the future.

Accordingly, it is now

ORDERED:

1. Defendants’ motion to dismiss with prejudice (Doc. 107)

is GRANTED in part to the extent the case is dismissed without

prejudice for Plaintiff’s abuse of the judicial process.

2. The Clerk is directed to enter judgment, terminate any

pending motions, and close the case.

3. If Plaintiff chooses to initiate another case based upon

the same or similar facts/issues, he is precluded from proceeding

in forma pauperis. If Plaintiff initiates another case based upon

the same or similar facts/issues, he must provide a copy of this

Order with his complaint, and he must pay the full $400 filing

fee.

DONE AND ORDERED at Jacksonville, Florida, this 22nd day of

October 2020.

4 4 De

af J. DAVIS

United States District Judge

Jax-6

Cc? Allen Pullen

Counsel of Record

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